ABDUL-KABIR, fka COLE v. QUARTERMAN, DIREC- TOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

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ABDUL-KABIR, fka COLE v. QUARTERMAN, DIREC-
TOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION
certiorari to the united states court of appeals for
the fifth circuit
No. 05–11284. Argued January 17, 2007—Decided April 25, 2007
Petitioner Abdul-Kabir (fka Cole) was convicted of capital murder. At
sentencing, the trial judge asked the jury to answer two special issues,
affirmative answers to which would require the judge to impose a death
sentence: whether Cole’s conduct was committed deliberately and with
the reasonable expectation it would result in his victim’s death and
whether it was probable he would commit future violent acts constitut
ing a continuing threat to society. Cole’s mitigating evidence included
family members’ testimony describing his unhappy childhood as well as
expert testimony which, to some extent, contradicted the State’s claim
he was dangerous, but primarily sought to reduce his moral culpability
by explaining his violent propensities as attributable to neurological
damage and childhood neglect and abandonment. However, the prose
cutor discouraged jurors from taking these latter considerations into
account, advising them instead to answer the special issues based only
on the facts and to disregard any other views as to what might consti
tute an appropriate punishment for this particular defendant. After
the trial judge’s refusal to give Cole’s requested instructions, which
would have authorized a negative answer to either of the special issues
on the basis of any evidence the jury perceived as mitigating, the jury
answered both issues in the affirmative, and Cole was sentenced to
death. The Texas Court of Criminal Appeals (CCA) affirmed on direct
appeal, and Cole applied for habeas relief in the trial court, which ulti
mately recommended denial of the application. Adopting the trial
court’s findings of fact and conclusions of law with respect to all of Cole’s
claims, including his argument that the special issues precluded the jury
from properly considering and giving effect to his mitigating evidence,
the CCA denied Cole collateral relief.
Cole then filed a federal habeas petition, asserting principally that the
sentencing jury was unable to consider and give effect to his mitigating
evidence in violation of the Constitution. Recognizing that Penry v.
Lynaugh, 492 U. S. 302 (Penry I), required that juries be given instruc
tions allowing them to give effect to a defendant’s mitigating evidence
and to express their reasoned moral response to that evidence in deter

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mining whether to recommend death, the District Court nevertheless
relied on the Fifth Circuit’s analysis for evaluating Penry claims, requir
ing a defendant to show a nexus between his uniquely severe permanent
condition and the criminal act attributed to that condition. Ultimately,
Cole’s inability to do so doomed his Penry claim. After the Fifth Cir
cuit denied Cole’s application for a certificate of appealability (COA),
this Court held that the Circuit’s test for determining the constitutional
relevance of mitigating evidence had “no foundation in the decisions of
this Court,” Tennard v. Dretke, 542 U. S. 274, 284, and therefore vacated
the COA denial. On remand, the Fifth Circuit focused primarily on
Cole’s expert testimony rather than that of his family, concluding that
the special issues allowed the jury to give full consideration and full
effect to his mitigating evidence, and affirming the denial of federal ha
beas relief.
Held: Because there is a reasonable likelihood that the state trial court’s
instructions prevented jurors from giving meaningful consideration to
constitutionally relevant mitigating evidence, the CCA’s merits adjudi
cation “resulted in a decision that was contrary to, or involved an un
reasonable application of, clearly established Federal law, as determined
by [this] Court,” 28 U. S. C. § 2254(d)(1), and thereby warranted federal
habeas relief. Pp. 246–265.
(a) This Court has long recognized that sentencing juries must be
able to give meaningful consideration and effect to all mitigating evi
dence that might provide a basis for refusing to impose the death pen
alty on a particular individual, notwithstanding the severity of his crime
or his potential to commit similar offenses in the future. See, e. g., the
plurality opinion in Lockett v. Ohio, 438 U. S. 586, 604. Among other
things, however, the Lockett plurality distinguished the Ohio statute
there invalidated from the Texas statute upheld in Jurek v. Texas, 428
U. S. 262, on the ground that the latter Act did not “clearly operat[e] at
that time to prevent the sentencer from considering any aspect of the
defendant’s character and record or any circumstances of his offense as
an independently mitigating factor,” 438 U. S., at 607. Nevertheless,
the Court later made clear that sentencing under the Texas statute must
accord with the Lockett rule. In Franklin v. Lynaugh, 487 U. S. 164,
185, Justice O’Connor’s opinion concurring in the judgment expressed
the view of five Justices when she emphasized that “the right to have
the sentencer consider and weigh relevant mitigating evidence would be
meaningless unless the sentencer was also permitted to give effect to
its consideration” in imposing sentence. Justice O’Connor’s opinion for
the Court in Penry I, which unquestionably governs the facts of this
case, endorsed the same views she had expressed in Franklin. In
Penry I, the Court first held that in contending that his mental

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retardation and abusive-childhood mitigating evidence provided a basis
for a life sentence rather than death and that the sentencing jury should
have been instructed to consider that evidence, Penry was not asking
the Court to make new law because he was relying on a rule “dictated”
by earlier cases, 492 U. S., at 321, as defined by Justice O’Connor’s con
currence in Franklin v. Lynaugh. Applying that standard, Penry I
held that neither of Texas’ special issues allowed the jury to give mean
ingful effect to Penry’s mitigating evidence. The Penry I Court empha
sized with respect to Texas’ “future dangerousness” special issue (as
composed at the time of both Penry’s and Cole’s sentencing proceedings)
that Penry’s mitigating evidence functioned as a “two-edged sword” be
cause it might “diminish his blameworthiness . . . even as it indicate[d]
a probability that he [would] be dangerous.” 492 U. S., at 324. The
Court therefore required an appropriate instruction directing a jury to
consider fully the mitigating evidence as it bears on the extent to which
a defendant is undeserving of death. Id., at 323. Thus, where the evi
dence is double edged or as likely to be viewed as aggravating as it is
as mitigating, the statute does not allow it to be given adequate consid
eration. Pp. 246–256.
(b) The Texas trial judge’s recommendation to the CCA to deny col
lateral relief in this case was unsupported by either the text or the
reasoning in Penry I. Under Penry I, Cole’s family members’ testi
mony, as well as the portions of his expert testimony suggesting that
his dangerousness resulted from a rough childhood and neurological
damage, were not relevant to either of the special verdict questions,
except, possibly, as evidence of future dangerousness. Because this
would not satisfy Penry I ’s requirement that the evidence be permitted
its mitigating force beyond the special issues’ scope, it would have fol
lowed that those issues failed to provide the jury with a vehicle for
expressing its “reasoned moral response” to Cole’s mitigating evidence.
In denying Cole relief, however, the Texas trial judge relied not on
Penry I, but on three later Texas cases and Graham v. Collins, 506 U. S.
461, defining the legal issue whether the mitigating evidence could be
sufficiently considered as one to be determined on a case-by-case basis,
depending on the evidence’s nature and on whether its consideration
was enabled by other evidence in the record. The state court’s primary
reliance on Graham was misguided. In concluding that granting collat
eral relief to a defendant sentenced to death in 1984 would require the
announcement of a new constitutional rule, the Graham Court, id., at
468–472, relied heavily on the fact that in 1984 it was reasonable for
judges to rely on the Franklin plurality’s categorical reading of Jurek,
which, in its view, expressly and unconditionally upheld the manner in
which mitigating evidence is considered under the special issues. But

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in both Franklin and Penry I, a majority ultimately rejected that inter
pretation. While neither Franklin nor Penry I was inconsistent with
Graham’s narrow holding, they suggest that later decisions—including
Johnson v. Texas, 509 U. S. 350, which refused to adopt the rule Graham
sought—are more relevant to Cole’s case. The relevance of those cases
lies not in their results, but in their failure to disturb the basic legal
principle that continues to govern such cases: The jury must have a
“meaningful basis to consider the relevant mitigating qualities” of the
defendant’s proffered evidence. Id., at 369. Several other reasons
demonstrate that the CCA’s ruling was not a reasonable application of
Penry I. First, the ruling ignored the fact that Cole’s mitigating evi
dence of childhood deprivation and lack of self-control was relevant to
his moral culpability for precisely the same reason as Penry’s: It did not
rebut either deliberateness or future dangerousness but was intended
to provide the jury with an entirely different reason for not imposing
death. Second, the trial judge’s assumption that it would be appro
priate to look at other testimony to determine whether the jury could
give mitigating effect to Cole’s family testimony is neither reasonable
nor supported by Penry I. Third, simply because the jury could give
mitigating effect to the experts’ predictions that Cole should become
less dangerous as he aged does not mean that the jury understood it
could give such effect to other portions of the experts’ testimony or that
of other witnesses. Pp. 256–260.
(c) Four of the Court’s more recent cases support the conclusion that
the CCA’s decision was unsupported by Penry I ’s text or reasoning.
Although holding in Johnson, 509 U. S., at 368, that the Texas special
issues allowed adequate consideration of petitioner’s youth as a mitigat
ing circumstance, the Court also declared that “Penry remains the law
and must be given a fair reading,” id., at 369. Arguments like those of
Cole’s prosecutor that the special issues require jurors to disregard the
force of evidence offered in mitigation and rely only on the facts are at
odds with the Johnson Court’s understanding that juries could and
would reach mitigating evidence proffered by a defendant. Further,
evidence such as that presented by Cole is not like the evidence of youth
offered in Johnson and Graham, which easily could have supported a
negative answer to the question of future dangerousness, and is instead
more like the evidence offered in Penry I, which compelled an affirma
tive answer to the same question, despite its mitigating significance.
That fact provides further support for the conclusion that in a case like
Cole’s, there is a reasonable likelihood that the special issues would pre
clude the jury from giving meaningful consideration to such mitigating
evidence, as required by Penry I. In three later cases, the Court gave
Penry I the “fair reading” Johnson contemplated, repudiating several
Fifth Circuit precedents providing the basis for its narrow reading of

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Penry I. Penry v. Johnson, 532 U. S. 782, 797 (Penry II); Tennard, 542
U. S., at 284; Smith v. Texas, 543 U. S. 37, 46. Pp. 260–263.
418 F. 3d 494, reversed and remanded.
Stevens, J., delivered the opinion of the Court, in which Kennedy,
Souter, Ginsburg, and Breyer, JJ., joined. Roberts, C. J., filed a dis
senting opinion, in which Scalia, Thomas, and Alito, JJ., joined, post,
p. 265. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined,
and in which Alito, J., joined as to Part I, post, p. 280.
Robert C. Owen, by appointment of the Court, 549 U. S.
1029, argued the cause for petitioner. With him on the
briefs were Jordan M. Steiker and Raoul D. Schonemann.
Edward L. Marshall, Assistant Attorney General of
Texas, argued the cause for respondent. With him on the
briefs were Greg Abbott, Attorney General, Kent C. Sulli
van, First Assistant Attorney General, Eric J. R. Nichols,
Deputy Attorney General, and Gena Bunn and Carla E.
Eldred, Assistant Attorneys General.*
Justice Stevens delivered the opinion of the Court.
Petitioner Jalil Abdul-Kabir, formerly known as Ted Cal
vin Cole,1 contends that there is a reasonable likelihood that
the trial judge’s instructions to the Texas jury that sen
tenced him to death prevented jurors from giving meaning
ful consideration to constitutionally relevant mitigating evi
dence. He further contends that the judgment of the Texas
Court of Criminal Appeals (CCA) denying his application for
postconviction relief on November 24, 1999, misapplied the
law as clearly established by earlier decisions of this Court,
thereby warranting relief under the Antiterrorism and Ef
fective Death Penalty Act of 1996 (AEDPA), 28 U. S. C.
*Briefs of amici curiae urging reversal were filed for the American
Academy of Child and Adolescent Psychiatry et al. by James W. Ellis,
April Land, and Stephen K. Harper; and for the Child Welfare League of
America et al. by Jeffrey J. Pokorak, Marsha Levick, and Pamela Harris.
1 For purposes of consistency with testimony given by witnesses at trial
and sentencing, we refer to petitioner throughout the opinion by his given
name, Ted Cole.

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§ 2254. We agree with both contentions. Although the rel
evant state-court judgment for purposes of our review under
AEDPA is that adjudicating the merits of Cole’s state habeas
application, in which these claims were properly raised, we
are persuaded that the same result would be dictated by
those cases decided before the state trial court entered its
judgment affirming Cole’s death sentence on September 26,
1990. Accordingly, we reverse the judgment of the Court of
Appeals and remand for further proceedings consistent with
this opinion.
I
In December 1987, Cole, his stepbrother Michael Hickey,
and Michael’s wife, Kelly, decided to rob and kill Kelly’s
grandfather, Raymond Richardson, to obtain some cash.
Two days later they did so. Cole strangled Richardson with
a dog leash; the group then searched the house and found
$20 that they used to purchase beer and food. The next day,
Michael and Kelly surrendered to the police and confessed.
The police then arrested Cole who also confessed.
Cole was tried by a jury and convicted of capital murder.
After a sentencing hearing, the jury was asked to answer
two special issues:
“Was the conduct of the defendant, TED CALVIN
COLE, that caused the death of the deceased, RAY-
MOND C. RICHARDSON, committed deliberately and
with the reasonable expectation that the death of the
deceased or another would result?
. . . . .
“Is there a probability that the defendant, TED CAL-
VIN COLE, would commit criminal acts of violence that
would constitute a continuing threat to society?” App.
127, 128.2
2 These were the two standard Texas special issues in place at the time
of Cole’s sentencing. In 1991, the Texas Legislature amended the special
issues in response to this Court’s decision in Penry v. Lynaugh, 492 U. S.
302 (1989) (Penry I), to include language instructing the jury to decide

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The trial judge instructed the jury to take into consider
ation evidence presented at the guilt phase as well as the
sentencing phase of the trial but made no reference to miti
gating evidence. Under the provisions of the Texas criminal
code, the jury’s affirmative answers to these two special is
sues required the judge to impose a death sentence. See
Tex. Code Crim. Proc. Ann., Art. 37.071 (Vernon 2006).
At the sentencing hearing, the State introduced evidence
that Cole pleaded guilty to an earlier murder when he was
only 16. Shortly after being released on parole, Cole
pleaded guilty to charges of aggravated sexual assault on
two boys and was sentenced to 15 more years in prison. As
evidence of Cole’s propensity for future dangerousness, the
State introduced Cole’s diary which, according to the State’s
expert psychiatrist, Dr. Richard Coons, revealed a compul
sive attraction to young boys and an obsession with crim
inal activity. Dr. Coons described Cole as a sociopath
who lacked remorse and would not profit or learn from his
experiences.
In response, Cole presented two categories of mitigating
evidence. The first consisted of testimony from his mother
and his aunt, who described his unhappy childhood. Cole’s
parents lived together “off and on” for 10 years, over the
course of which they had two children, Cole, and his younger
sister, Carla. App. 35. Shortly after Cole was born, his fa
ther was arrested for robbing a liquor store. Cole’s father
deserted the family several times, abandoning the family
completely before Cole was five years old. On the last occa
sion that Cole saw his father, he dropped Cole off a block
from where he thought Cole’s mother lived, told Cole to “go
“[w]hether, taking into consideration all of the evidence, including the cir
cumstances of the offense, the defendant’s character and background, and
the personal moral culpability of the defendant, there is a sufficient miti
gating circumstance or circumstances to warrant that a sentence of life
imprisonment without parole rather than a death sentence be imposed.”
Tex. Code Crim. Proc. Ann., Art. 37.071, § 2(e)(1) (Vernon 2006).

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find her,” and drove off. Id., at 42. Cole had no contact
with his father during the next 10 years. Ibid. After
Cole’s father left, his mother found herself unable to care for
Cole and his sister and took the children to live with her
parents in Oklahoma. Cole’s grandparents were both alco
holics—Cole’s mother was herself a self-described “drunk”—
and lived miles away from other children. Eventually, be
cause Cole’s grandparents did not want their daughter or
her children living with them, Cole’s mother placed him in a
church-run children’s home, although she kept her daughter
with her. Over the next five years Cole’s mother visited
him only twice. Cole’s aunt, who visited him on holidays,
testified that Cole seemed incapable of expressing any emo
tion and that his father never visited him at all.
The second category of mitigating evidence came from two
expert witnesses—a psychologist and the former chief men
tal health officer for the Texas Department of Corrections—
who discussed the consequences of Cole’s childhood neglect
and abandonment. Dr. Jarvis Wright, the psychologist,
spent 8 to 10 hours interviewing Cole and administering an
“extensive battery of psychological tests.” Id., at 63. He
testified that Cole had “real problems with impulse control”
apparently resulting from “central nervous damage” com
bined with “all the other factors of [his] background.” Id.,
at 69. He also testified that Cole had likely been depressed
for much of his life, that he had a “painful” background, and
that he had “never felt loved and worthwhile in his life.”
Id., at 73, 86. Providing an analogy for Cole’s early develop
ment, Dr. Wright stated that “the manufacturing process
[had] botched the raw material horribly.” Id., at 73.
When specifically asked about future dangerousness,
Dr. Wright acknowledged that “if Ted were released today
on the street, there’s a much greater probability of danger
ous behavior than with the rest of us.” Id., at 74. Al
though he acknowledged the possibility of change or “burn
out,” he admitted that Cole would likely pose a threat of

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future dangerousness until “years from now.” Ibid. Ex
cept for his prediction that Cole would change as he grew
older, Dr. Wright’s testimony did not contradict the State’s
claim that Cole was a dangerous person, but instead sought
to provide an explanation for his behavior that might reduce
his moral culpability.
Dr. Wendell Dickerson, a psychologist who had not previ
ously examined Cole, observed that it was difficult to predict
future dangerousness, but that “violent conduct is predomi
nantly, overwhelmingly the province of the young” with the
risk of violence becoming rare as people grow older. Id.,
at 95. On cross-examination, in response to a hypothetical
question about a person with Cole’s character and history,
Dr. Dickerson acknowledged that he would be “alarmed”
about the future conduct of such a person because “yes, there
absolutely is a probability that they would commit . . . future
acts of violence.” Id., at 113. In sum, the strength of Cole’s
mitigating evidence was not its potential to contest his im
mediate dangerousness, to which end the experts’ testimony
was at least as harmful as it was helpful. Instead, its
strength was its tendency to prove that his violent propensi
ties were caused by factors beyond his control—namely, neu
rological damage and childhood neglect and abandonment.
It was these latter considerations, however, that the prose
cutor discouraged jurors from taking into account when
formulating their answers to the special issues. During the
voir dire, the prosecutor advised the jurors that they had a
duty to answer the special issues based on the facts, and the
extent to which such facts objectively supported findings of
deliberateness and future dangerousness, rather than their
views about what might be an appropriate punishment for
this particular defendant. For example, juror Beeson was
asked:
“[I]f a person had a bad upbringing, but looking at those
special issues, you felt that they [sic] met the standards
regarding deliberateness and being a continuing threat

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to society, could you still vote ‘yes,’ even though you felt
like maybe they’d [sic] had a rough time as a kid? If
you felt that the facts brought to you by the prosecution
warranted a ‘yes’ answer, could you put that out of your
mind and just go by the facts?
. . . . .
“[T]hat would not keep you from answering ‘yes,’ just
because a person had a poor upbringing, would it?” XI
Voir Dire Statement of Facts filed in No. CR88–0043–A
(Dist. Ct. Tom Green Cty., Tex., 51st Jud. Dist.), p. 1588.
The prosecutor began his final closing argument with a
reminder to the jury that during the voir dire they had
“promised the State that, if it met its burden of proof,” they
would answer “yes” to both special issues. App. 145. The
trial judge refused to give any of several instructions re
quested by Cole that would have authorized a negative an
swer to either of the special issues on the basis of “any evi
dence which, in [the jury’s] opinion, mitigate[d] against the
imposition of the Death Penalty, including any aspect of the
Defendant’s character or record.” Id., at 115; see also id.,
at 117–124. Ultimately, the jurors answered both issues in
the affirmative, and Cole was sentenced to death.
On direct appeal, the sole issue raised by Cole was that
the evidence was insufficient to support the jury’s verdict.
The CCA rejected Cole’s claim and affirmed the judgment of
the trial court on September 26, 1990.
II
On March 2, 1992, the lawyer who then represented Cole
filed an application for a writ of habeas corpus in the Texas
trial court, alleging 21 claims of error.3 Counsel later with
3 Although Cole had not raised any of the 21 claims presented in his
state habeas application on direct appeal—including his claim that the jury
heard significant mitigating evidence which it could neither consider nor
give effect to under the Texas sentencing statute, in violation of Penry
I—under state law, his Penry claim remained cognizable on state habeas
review. See Ex parte Kunkle, 852 S. W. 2d 499, 502, n. 3 (Tex. Crim. App.

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drew, and after delays caused in part by a letter from Cole
to the trial judge stating that he wished to withdraw his
“appeal,” the judge ultimately “had petitioner bench war
ranted” to a hearing on September 4, 1998. Id., at 152–153.
During that hearing, Cole advised the court that he wished
to proceed with his habeas proceedings and to have the CCA
appoint counsel to represent him. Without counsel having
been appointed to represent Cole, and without conducting an
evidentiary hearing, the trial court entered its findings and
conclusions recommending denial of the application.
Three of Cole’s 21 claims related to the jury’s inability to
consider mitigating evidence. The trial judge rejected the
first—“that his mitigating evidence was not able to be prop
erly considered and given effect by the jury under the special
issues,” id., at 157—because he concluded that the record,
and “especially” the testimony of the two expert witnesses,
“provide[d] a basis for the jury to sufficiently consider the
mitigating evidence offered by petitioner,” 4 id., at 161.
With respect to Cole’s second claim, the judge agreed that
appellate counsel had been ineffective for failing to assign
error based on “the trial court’s failure to instruct the jury
on mitigating evidence as contemplated by the Pendry [sic]
decision.” Id., at 166. He nevertheless found that the re
sult on appeal would have been the same had the point been
raised. Ibid. On the third claim relating to mitigating evi
dence, the judge rejected Cole’s argument that the trial
court’s failure to specifically instruct the jury to consider
1993) (en banc) (holding that “we have held that [allegations of Penry error
occurring in cases tried before Penry] are cognizable via habeas corpus
despite an applicant’s failure to raise them on direct appeal”). Nor did
Cole’s failure to raise this claim on direct appeal affect its later review
under AEDPA by the United States Court of Appeals for the Fifth Cir
cuit. See Jackson v. Johnson, 150 F. 3d 520, 523 (CA5 1998) (holding that
Texas’ postconviction procedures provide petitioners “adjudication on the
merits” sufficient to satisfy 28 U. S. C. § 2254(d)).
4 The trial judge also noted that there were “no controverted, previously
unresolved factual issues regarding petitioner’s Pendry [sic] claim.”
App. 161.

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mitigating evidence and offer a definition of “mitigating” was
error. Id., at 173.
Over the dissent of two members of the court, and after
adopting the trial court’s findings of fact and conclusions of
law with only minor changes, the CCA denied Cole’s applica
tion for state collateral relief. Ex parte Cole, No. 41,673–01
(Nov. 24, 1999) (per curiam), App. 178–179.
III
After the Federal District Court granted Cole’s motion for
the appointment of counsel, he filed a timely petition for a
federal writ of habeas corpus pursuant to 28 U. S. C. § 2254.
His principal claim then, as it is now, was that the sentencing
jury “was unable to consider and give effect to the mitigating
evidence in his case,” in violation of the Constitution. Cole
v. Johnson, Civ. Action No. 6:00–CV–014–C (ND Tex., Mar.
6, 2001), p. 5, App. 184.
In its opinion denying relief, the District Court began by
summarizing Cole’s mitigating evidence, highlighting his
“destructive family background.” Ibid. The court then
correctly described our decision in Penry I, 492 U. S. 302
(1989), in these words:
“In [Penry] the Supreme Court found that when the
defendant places mitigating evidence before the jury,
Texas juries must be given instructions which allow the
jury to give effect to that mitigating evidence and to
express its reasoned moral response to that evidence in
determining whether to impose the death penalty.” 5
Civ. Action No. 6:00–CV–014–C, at 8–9, App. 188.
The court next noted that the Fifth Circuit had formulated
its own analysis for evaluating Penry claims. Under that
5 The contrast between the District Court’s succinct statement of Penry
I ’s holding and the prosecutor’s explanation at voir dire of the jurors’ duty
to answer the special issues on the basis of the facts presented and not
their views about Cole’s moral culpability, see Part I, supra, could not be
more stark.

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analysis, for mitigating evidence to be constitutionally rele
vant, it “must show (1) a uniquely severe permanent handi
cap with which the defendant is burdened through no fault
of his own, . . . and (2) that the criminal act was attributable
to this severe permanent condition.” Civ. Action No. 6:00–
CV–014–C, at 9, App. 189 (quoting Davis v. Scott, 51 F. 3d
457, 460–461 (CA5 1995); internal quotation marks omitted;
emphasis added). Ultimately, Cole’s inability to show a
“nexus” between his troubled family background and his
commission of capital murder doomed his Penry claim. Civ.
Action No. 6:00–CV–014–C, at 13, App. 193.
The Court of Appeals denied Cole’s application for a cer
tificate of appealability (COA), Cole v. Dretke, 99 Fed. Appx.
523 (CA5 2004), holding that “reasonable jurists would not
debate the district court’s conclusion that Cole’s evidence
was not constitutionally relevant mitigating evidence,” Cole
v. Dretke, 418 F. 3d 494, 498 (CA5 2005). Shortly thereafter,
however, we held that the Fifth Circuit’s “screening test” for
determining the “ ‘constitutional relevance’ ” of mitigating
evidence had “no foundation in the decisions of this Court.”
Tennard v. Dretke, 542 U. S. 274, 284 (2004). Accordingly,
we vacated its order denying a COA in this case and re
manded for further proceedings. Abdul-Kabir v. Dretke,
543 U. S. 985 (2004). On remand, the Court of Appeals re
viewed Cole’s Penry claim on the merits and affirmed the
District Court’s judgment denying the writ.
Focusing primarily on the testimony of petitioner’s two
experts rather than that of his mother and his aunt, the
Court of Appeals reviewed our recent decisions and con
cluded “that the Texas special issues allowed the jury to give
‘full consideration and full effect’ to the mitigating evidence
that Cole presented at the punishment phase of his trial.” 6
6 The Court of Appeals distinguished Penry I on the ground that Penry’s
evidence of mental retardation could only have been considered as aggra
vating, whereas this “record does not suggest that the jury viewed Cole’s
mitigating evidence as an aggravating factor only . . . . [T]his evidence

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418 F. 3d, at 511. With two judges dissenting, the court de
nied the petition for rehearing en banc.7 We consolidated
this case with Brewer v. Quarterman, post, p. 286, and
granted certiorari, 549 U. S. 974 (2006).
IV
Because Cole filed his federal habeas petition after the ef
fective date of AEDPA, the provisions of that Act govern
the scope of our review. We must therefore ask whether the
CCA’s adjudication of Cole’s claim on the merits “resulted in
a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States.” 28 U. S. C.
§ 2254(d)(1). We conclude that it did.
A careful review of our jurisprudence in this area makes
clear that well before our decision in Penry I, our cases had
firmly established that sentencing juries must be able to give
meaningful consideration and effect to all mitigating evi
dence that might provide a basis for refusing to impose the
death penalty on a particular individual, notwithstanding the
severity of his crime or his potential to commit similar of
fenses in the future. Three of the five cases decided on the
same day in 1976—Woodson v. North Carolina, 428 U. S. 280,
Proffitt v. Florida, 428 U. S. 242, and Jurek v. Texas, 428
U. S. 262—identified the background principles we would
apply in later cases to evaluate specific rules inhibiting the
jury’s ability to give meaningful effect to such mitigating
evidence.
fits well within the broad scope of the future dangerousness special
issue . . . .” 418 F. 3d, at 506–507, and n. 54.
7 In his dissent, Judge Dennis argued that the panel had improperly
“used another Fifth Circuit gloss upon a Supreme Court decision, i. e., the
double edged evidence limitation of Penry I, that has no basis in the Su
preme Court decisions, to avoid confronting the real issue.” Cole v.
Dretke, 443 F. 3d 441, 442 (CA5 2006).

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In Woodson v. North Carolina, we invalidated a statute
that made death the mandatory sentence for all persons con
victed of first-degree murder. One of the statute’s constitu
tional shortcomings was its “failure to allow the particular
ized consideration of relevant aspects of the character and
record of each convicted defendant before the imposition
upon him of a sentence of death.” 428 U. S., at 303 (plurality
opinion).8 In Proffitt v. Florida and Jurek v. Texas, the
joint opinions rejected facial challenges to the sentencing
statutes enacted in Florida and Texas, assuming in both
cases that provisions allowing for the unrestricted admissi
bility of mitigating evidence would ensure that a sentencing
jury had adequate guidance in performing its sentencing
function.9 As a majority of the Court later acknowledged,
our holding in Jurek did not preclude the possibility that the
Texas sentencing statute might be found unconstitutional as
applied in a particular case. See n. 15, infra.
Two years later, in Lockett v. Ohio, 438 U. S. 586 (1978), a
plurality concluded “that the Eighth and Fourteenth Amend
ments require that the sentencer, in all but the rarest kind
of capital case, not be precluded from considering, as a miti
gating factor, any aspect of a defendant’s character or record
and any of the circumstances of the offense that the defend
8 The opinion also referred to a proposition that “cannot fairly be de
nied—that death is a punishment different from all other sanctions in kind
rather than degree,” and continued on to conclude that “[a] process that
accords no significance to relevant facets of the character and record of
the individual offender or the circumstances of the particular offense ex
cludes from consideration in fixing the ultimate punishment of death the
possibility of compassionate or mitigating factors stemming from the di
verse frailties of humankind.” Woodson, 428 U. S., at 303–304.
9 “By authorizing the defense to bring before the jury at the separate
sentencing hearing whatever mitigating circumstances relating to the indi
vidual defendant can be adduced, Texas has ensured that the sentencing
jury will have adequate guidance to enable it to perform its sentencing
function.” Jurek, 428 U. S., at 276 ( joint opinion of Stewart, Powell, and
Stevens, JJ.); see also Proffitt, 428 U. S., at 257–258 (same).

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ant proffers as a basis for a sentence less than death.” Id.,
at 604 (footnote omitted). Because Ohio’s death penalty
statute was inconsistent with this principle, it was declared
unconstitutional. The plurality noted the possible tension
between a holding that the Ohio statute was invalid and our
decisions in Proffitt and Jurek upholding the Florida and
Texas statutes, but distinguished those cases because nei
ther statute “clearly operated at that time to prevent the
sentencer from considering any aspect of the defendant’s
character and record or any circumstances of his offense as
an independently mitigating factor.” 438 U. S., at 607.
While Chief Justice Burger’s opinion in Lockett was joined
by only three other Justices, the rule it announced was en
dorsed and broadened in our subsequent decisions in Ed
dings v. Oklahoma, 455 U. S. 104 (1982), and Skipper v.
South Carolina, 476 U. S. 1 (1986). In those cases, we em
phasized the severity of imposing a death sentence and that
“the sentencer in capital cases must be permitted to consider
any relevant mitigating factor.” 10 Eddings, 455 U. S., at 112
(emphasis added).
In the wake of our decision in Lockett, Ohio amended its
capital sentencing statute to give effect to Lockett’s hold
ing.11 Neither Florida nor Texas did so, however, until after
our unanimous decision in Hitchcock v. Dugger, 481 U. S. 393
(1987), unequivocally confirmed the settled quality of the
Lockett rule. As Justice Scalia’s opinion for the Court
10 In Penry I itself, the Court noted that the rule sought by Penry—
“that when such mitigating evidence is presented, Texas juries must, upon
request, be given jury instructions that make it possible for them to give
effect to that mitigating evidence in determining whether the death pen
alty should be imposed—is not a ‘new rule’ under Teague [v. Lane, 489
U. S. 288 (1989),] because it is dictated by Eddings and Lockett.” 492
U. S., at 318–319.
11 See Ohio Rev. Code Ann. § 2929.04(B)(7) (Anderson 1982) (amended
1981) (adding, as a mitigating circumstance, “[a]ny other factors that are
relevant to the issue of whether the offender should be sentenced to
death”).

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explained, the defendant had introduced some rather atypi
cal mitigating evidence that was not expressly authorized by
the Florida statute:
“In the sentencing phase of this case, petitioner’s coun
sel introduced before the advisory jury evidence that as
a child petitioner had the habit of inhaling gasoline
fumes from automobile gas tanks; that he had once
passed out after doing so; that thereafter his mind
tended to wander; that petitioner had been one of seven
children in a poor family that earned its living by pick
ing cotton; that his father had died of cancer; and that
petitioner had been a fond and affectionate uncle to the
children of one of his brothers.” 481 U. S., at 397.
As the opinion further explained, the Florida courts had con
strued the state statute to preclude consideration of mitigat
ing factors unmentioned in the statute. Accordingly, de
spite our earlier decision in Proffitt upholding the statute
against a facial challenge, it was necessary to set aside Hitch
cock’s death sentence. We explained:
“We think it could not be clearer that the advisory jury
was instructed not to consider, and the sentencing judge
refused to consider, evidence of nonstatutory mitigating
circumstances, and that the proceedings therefore did
not comport with the requirements of Skipper v. South
Carolina, 476 U. S. 1 (1986), Eddings v. Oklahoma, 455
U. S. 104 (1982), and Lockett v. Ohio, 438 U. S. 586 (1978)
(plurality opinion). Respondent has made no attempt
to argue that this error was harmless, or that it had no
effect on the jury or the sentencing judge. In the ab
sence of such a showing our cases hold that the exclusion
of mitigating evidence of the sort at issue here renders
the death sentence invalid. See Skipper, supra (evi
dence that defendant had adapted well to prison life);
Eddings, supra (evidence of 16-year-old defendant’s

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troubled family history and emotional disturbance).”
481 U. S., at 398–399.
Of course, our reference to “exclusion” of the evidence did
not refer to its admissibility, but rather to its exclusion from
meaningful consideration by the jury. Had Jurek and Prof
fitt truly stood for the proposition that the mere availability
of relevant mitigating evidence was sufficient to satisfy the
Constitution’s requirements, Hitchcock could never have
been decided as it was.12
In the year following our decision in Hitchcock, we made
clear that sentencing under the Texas statute, like that
under the Florida statute, must accord with the Lockett rule.
In Franklin v. Lynaugh, 487 U. S. 164, 172, 177, 183 (1988),
the plurality rejected the claim that the judge’s instructions
did not allow the jury to give adequate weight to whatever
“ ‘residual doubts’ ” it may have had concerning the defend
ant’s guilt, or to evidence of the petitioner’s good behavior
while in prison. That particular holding is unremarkable
because we have never held that capital defendants have an
12 To the extent that Jurek implied at the time it was decided that all
that was required by the Constitution was that the defense be authorized
to introduce all relevant mitigating circumstances, and that such informa
tion merely be before the jury, it has become clear from our later cases
that the mere ability to present evidence is not sufficient. The only miti
gating evidence presented in Jurek—offered to rebut the State’s wit
nesses’ testimony about Jurek’s bad reputation in the community—ap
pears to have consisted of Jurek’s father’s testimony that Jurek had
“always been steadily employed since he had left school and that he con
tributed to his family’s support.” 428 U. S., at 267. Therefore, the ques
tion presented in our later cases—namely, whether the jury was precluded
from giving meaningful effect to mitigating evidence, particularly that
which may go to a defendant’s lack of moral culpability—was not at issue
in that case. When we deemed the Texas sentencing scheme constitution
ally adequate in Jurek, we clearly failed to anticipate that when faced with
various other types of mitigating evidence, the Texas special issues would
not provide the sentencing jury with the requisite “adequate guidance.”

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Eighth Amendment right to present “residual doubt” evi
dence at sentencing, see Oregon v. Guzek, 546 U. S. 517, 523–
527 (2006), and in most cases evidence of good behavior in
prison is primarily, if not exclusively, relevant to the issue
of future dangerousness. What makes Franklin significant,
however, is the separate opinion of Justice O’Connor, and
particularly those portions of her opinion expressing the
views of five Justices, see infra, at 253, and n. 15. After sum
marizing the cases that clarified Jurek’s holding,13 she wrote:
“In my view, the principle underlying Lockett, Ed
dings, and Hitchcock is that punishment should be di
rectly related to the personal culpability of the criminal
defendant.
“ ‘[E]vidence about the defendant’s background and
character is relevant because of the belief, long held by
this society, that defendants who commit criminal acts
that are attributable to a disadvantaged background, or
13 “In Jurek v. Texas, 428 U. S. 262 (1976), this Court held that the Texas
capital sentencing procedures satisfied the Eighth Amendment require
ment that the sentencer be allowed to consider circumstances mitigating
against capital punishment. It was observed that even though the statute
did not explicitly mention mitigating circumstances, the Texas Court of
Criminal Appeals had construed the special verdict question regarding
the defendant’s future dangerousness to permit jury consideration of the
defendant’s prior criminal record, age, mental state, and the circumstances
of the crime in mitigation. Id., at 271–273. Since the decision in Jurek,
we have emphasized that the Constitution guarantees a defendant facing a
possible death sentence not only the right to introduce evidence mitigating
against the death penalty but also the right to consideration of that evi
dence by the sentencing authority. Lockett v. Ohio, 438 U. S. 586 (1978),
established that a State may not prevent the capital sentencing authority
‘from giving independent mitigating weight to aspects of the defendant’s
character and record and to circumstances of the offense proffered in miti
gation.’ Id., at 605 (plurality opinion). We reaffirmed this conclusion in
Eddings v. Oklahoma, 455 U. S. 104 (1982), and in Hitchcock v. Dugger,
481 U. S. 393 (1987).” Franklin, 487 U. S., at 183–184 (emphasis added).

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to emotional and mental problems, may be less culpable
than defendants who have no such excuse. . . . Thus, the
sentence imposed at the penalty stage should reflect a
reasoned moral response to the defendant’s background,
character, and crime.’ California v. Brown, 479 U. S.
538, 545 (1987) (O’Connor, J., concurring) (emphasis in
original).
“In light of this principle it is clear that a State may not
constitutionally prevent the sentencing body from giv
ing effect to evidence relevant to the defendant’s back
ground or character or the circumstances of the offense
that mitigates against the death penalty. Indeed, the
right to have the sentencer consider and weigh rele
vant mitigating evidence would be meaningless unless
the sentencer was also permitted to give effect to its
consideration.
“Under the sentencing procedure followed in this case
the jury could express its views about the appropriate
punishment only by answering the special verdict ques
tions regarding the deliberateness of the murder and the
defendant’s future dangerousness. To the extent that
the mitigating evidence introduced by petitioner was
relevant to one of the special verdict questions, the jury
was free to give effect to that evidence by returning a
negative answer to that question. If, however, peti
tioner had introduced mitigating evidence about his
background or character or the circumstances of the
crime that was not relevant to the special verdict ques
tions, or that had relevance to the defendant’s moral cul
pability beyond the scope of the special verdict ques
tions, the jury instructions would have provided the
jury with no vehicle for expressing its ‘reasoned moral
response’ to that evidence.” 487 U. S., at 184–185 (opin
ion concurring in judgment) (emphasis added).
Justice O’Connor’s opinion for the Court in Penry I en
dorsed the views she had expressed in Franklin and unques

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tionably governs the facts of this case.14 Penry contended
that his mitigating evidence of mental retardation and an
abusive childhood provided a basis for a sentence of life im
prisonment rather than death and that the jury should have
been instructed that it could consider that evidence when
making its sentencing decision. In response to that conten
tion, our opinion first held that Penry was not asking us to
make new law because he was relying on a rule that was
“dictated” by earlier cases, see n. 10, supra, and explained
why Justice O’Connor’s separate opinion in Franklin cor
rectly defined the relevant rule of law.15 In Franklin, we
14 The Chief Justice’s dissent incorrectly assumes that our holding
today adopts the rule advocated by the petitioner in Graham v. Collins,
506 U. S. 461 (1993), namely, that “ ‘a defendant is entitled to special in
structions whenever he can offer mitigating evidence that has some argu
able relevance beyond the special issues.’ ” Post, at 271 (quoting Graham,
506 U. S., at 476; emphasis in Graham). The rule that we reaffirm
today—a rule that has been clearly established since our decision in Penry
I—is this: Special instructions are necessary when the jury could not oth
erwise give meaningful effect to a defendant’s mitigating evidence. The
rule is narrower than the standard urged by Graham because special in
struction is not required when mitigating evidence has only a tenuous
connection—“some arguable relevance”—to the defendant’s moral culpa
bility. But special instruction is necessary when the defendant’s evidence
may have meaningful relevance to the defendant’s moral culpability “be
yond the scope of the special issues.” Penry I, 492 U. S., at 322–323. De
spite the dissent’s colorful rhetoric, it cites no post-Penry I cases inconsist
ent with this reading of its holding.
15 “In Franklin, however, the five concurring and dissenting Justices did
not share the plurality’s categorical reading of Jurek. In the plurality’s
view, Jurek had expressly and unconditionally upheld the manner in which
mitigating evidence is considered under the special issues. [487 U. S.,] at
179–180, and n. 10. In contrast, five Members of the Court read Jurek as
not precluding a claim that, in a particular case, the jury was unable to fully
consider the mitigating evidence introduced by a defendant in answering
the special issues. 487 U. S., at 183 (O’Connor, J., concurring in judg
ment); id., at 199–200 (Stevens, J., dissenting). Indeed, both the concur
rence and the dissent understood Jurek as resting fundamentally on the
express assurance that the special issues would permit the jury to fully
consider all the mitigating evidence a defendant introduced that was rele

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noted, “both the concurrence and the dissent stressed that
‘the right to have the sentencer consider and weigh relevant
mitigating evidence would be meaningless unless the sen
tencer was also permitted to give effect to its consideration’
in imposing sentence.” 492 U. S., at 321 (citing Franklin,
487 U. S., at 185 (O’Connor, J., concurring in judgment); id.,
at 199 (Stevens, J., dissenting)).
Applying that standard, we held that neither the “deliber
ateness” nor the “future dangerousness” special issue pro
vided the jury with a meaningful opportunity to give effect
to Penry’s mitigating evidence. With respect to the former,
we explained:
“In the absence of jury instructions defining ‘deliber
ately’ in a way that would clearly direct the jury to con
sider fully Penry’s mitigating evidence as it bears on his
personal culpability, we cannot be sure that the jury was
able to give effect to the mitigating evidence of Penry’s
mental retardation and history of abuse in answering
the first special issue. Without such a special instruc
tion, a juror who believed that Penry’s retardation and
background diminished his moral culpability and made
imposition of the death penalty unwarranted would be
unable to give effect to that conclusion if the juror also
believed that Penry committed the crime ‘deliberately.’
Thus, we cannot be sure that the jury’s answer to the
first special issue reflected a ‘reasoned moral response’
to Penry’s mitigating evidence.” 492 U. S., at 323.
With respect to the future dangerousness issue, we empha
sized the fact that Penry’s evidence of mental retardation
was relevant only as an aggravating factor. Id., at 323–324.
vant to the defendant’s background and character and to the circumstances
of the offense.” Id., at 320–321; see also id., at 318 (“[T]he facial validity
of the Texas death penalty statute had been upheld in Jurek on the basis
of assurances that the special issues would be interpreted broadly enough
to enable sentencing juries to consider all of the relevant mitigating evi
dence a defendant might present”).

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More broadly, we noted that the evidence of Penry’s mental
retardation and childhood abuse functioned as a “two-edged
sword,” because it “may diminish his blameworthiness for
his crime even as it indicates that there is a probability that
he will be dangerous in the future.” Id., at 324. We there
fore held that, in the absence of an appropriate instruction
directing the “jury to consider fully” mitigating evidence as
it bears on the extent to which a defendant is undeserving
of a death sentence, “we cannot be sure” that it did so. Id.,
at 323. As our discussion of the deliberateness issue demon
strates, we did not limit our holding in Penry I to mitigating
evidence that can only be viewed as aggravating. When the
evidence proffered is double edged, or is as likely to be
viewed as aggravating as it is as mitigating, the statute most
obviously fails to provide for adequate consideration of such
evidence.16
16 It is also clear that Penry I applies in cases involving evidence that is
neither double edged nor purely aggravating, because in some cases a
defendant’s evidence may have mitigating effect beyond its ability to ne
gate the special issues. See, e. g., Tennard v. Dretke, 542 U. S. 274, 288–
289 (2004) (holding that petitioner was entitled to a COA on his Penry
claim where his evidence of low IQ and impaired intellectual functioning
had “mitigating dimension beyond the impact it has on the individual’s
ability to act deliberately”). In Tennard, the majority declined to accept
the dissent’s argument that the petitioner’s evidence of low intelligence
did “not necessarily create the Penry I ‘two-edged sword,’ ” and therefore
could be given adequate mitigating effect within the context of the future
dangerousness special issue. 542 U. S., at 293 (Rehnquist, C. J., dissent
ing). Cf. Johnson v. Texas, 509 U. S. 350, 386 (1993) (O’Connor, J., dissent
ing) (“The Court today holds that ‘the constitutionality turns on whether
the [special] questions allow mitigating factors not only to be con
sidered . . . , but also to be given effect in all possible ways, including
ways that the questions do not permit’ ” (quoting Penry I, 492 U. S., at
355 (Scalia, J., concurring in part and dissenting in part); emphasis in
original)); cf. also Smith v. Texas, 543 U. S. 37, 41, 46–48 (2004) (per cu
riam) (reversing the CCA’s denial of postconviction relief because the spe
cial issues did not provide an adequate vehicle for expressing a “ ‘reasoned
moral response’ ” to petitioner’s evidence of low IQ and a troubled
upbringing).

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The former special issues (as composed at the time of both
Penry’s and Cole’s sentencing proceedings) provided an ade
quate vehicle for the evaluation of mitigating evidence of
fered to disprove deliberateness or future dangerousness.
As Judge Reavley noted in his opinion for the Court of Ap
peals in Penry I, however, they did not tell the jury as to
what “to do if it decided that Penry, because of retardation,
arrested emotional development and a troubled youth, should
not be executed.” Id., at 324 (internal quotation marks
omitted).
V
In recommending denial of Cole’s application for collateral
relief, the Texas trial judge did not analyze Penry I itself.
Under the framework set forth in Penry I,17 the testimony of
Cole’s mother and aunt, as well as the portions of the expert
testimony suggesting that his dangerous character may have
been the result of his rough childhood and possible neurologi
cal damage, were not relevant to either of the special ver
17 The linchpin of The Chief Justice’s dissent is his assumption that
Justice O’Connor’s opinions in Franklin and Penry I merely described two
ad hoc judgments—see post, at 269–270—rather than her understanding of
the governing rule of law announced in Lockett, Eddings, and Hitchcock
v. Dugger, 481 U. S. 393 (1987). In his view, our line of cases in this area
has flip-flopped, depending on the composition of the majority, rather than
slowly defining core principles by eliminating those interpretations of the
rule that are unsupportable. The fact that Justice O’Connor’s under
standing of the law was confirmed by the Court in Penry I in 1989—well
before AEDPA was enacted—is a sufficient response to most of the rheto
ric in the dissent. Neither Justice O’Connor’s opinion for the Court in
Penry I, nor any other opinion she joined, ever endorsed the “ ‘some argu
able relevance’ ” position described by The Chief Justice, see post, at
271, 279, which mistakenly interprets our opinion as adopting the rule that
the dissenters in Franklin and Saffle v. Parks, 494 U. S. 484 (1990), would
have chosen, see post, at 271, 279. The fact that the Court never endorsed
that broader standard is fully consistent with our conclusion that the nar
rower rule applied in Penry I itself is “clearly established.” Arguments
advanced in later dissenting opinions do not affect that conclusion.

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dict questions, except, possibly, as evidence supporting the
State’s argument that Cole would be dangerous in the future.
This would not satisfy the requirement of Penry I, however,
that the evidence be permitted its mitigating force beyond
the scope of the special issues. Therefore, it would have
followed that those questions failed to provide the jury with
a vehicle for expressing its “reasoned moral response” to
that evidence.
Instead of relying on Penry I, the trial judge relied on
three later Texas cases and on our opinion in Graham v. Col
lins, 506 U. S. 461 (1993), as having held that nine different
categories of mitigating evidence—including a troubled fam
ily background, bipolar disorder, low IQ, substance abuse,
paranoid personality disorder, and child abuse—were suffi
ciently considered under the Texas special issues.18 App.
159–160. Applying those cases, the judge defined the legal
issue “whether the mitigating evidence can be sufficiently
considered” as one that “must be determined on a case by
case basis, depending on the nature of the mitigating evi
dence offered and whether there exists other testimony in
the record that would allow consideration to be given.” Id.,
at 160. As we have noted, in endorsing this formulation of
18 The Texas cases relied upon by the court were Garcia v. State, 919
S. W. 2d 370, 398–399 (Crim. App. 1996) (holding that, in light of the fact
that Garcia received a “Penry” instruction (included in the amended Texas
special issues), which instructed the jury to consider the defendant’s char
acter and background in determining whether to impose life rather than
death, he was not entitled to any special instructions requiring the jury
to consider his drug use, alcoholism, and family background as mitigating
evidence); Mines v. State, 888 S. W. 2d 816, 818 (Crim. App. 1994) (holding,
on remand after Johnson, that Mines’ mitigating evidence of bipolar disor
der was “well within the effective reach of the jury”); and Zimmerman v.
State, 881 S. W. 2d 360, 362 (Crim. App. 1994) (holding, also on remand
after Johnson, that Zimmerman’s “mitigating” evidence of low IQ, past
substance abuse, a diagnosis of paranoid personality disorder, and a dis
ruptive family environment did not warrant an additional instruction
under Johnson or Penry I).

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the issue, neither the trial judge nor the CCA had the benefit
of any input from counsel representing petitioner. See
Part II, supra. In our view, denying relief on the basis of
that formulation of the issue, while ignoring the fundamental
principles established by our most relevant precedents, re
sulted in a decision that was both “contrary to” and “involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States.” 28 U. S. C. § 2254(d).
The state court’s primary reliance on Graham, to the ex
clusion of our other cases in this line of jurisprudence, was
misguided. In Graham, we held that granting collateral re
lief to a defendant who had been sentenced to death in 1984
would require the announcement of a new rule of constitu
tional law in contravention of Teague v. Lane, 489 U. S. 288
(1989). In reaching that conclusion we relied heavily on the
fact that in 1984 it was reasonable for judges to rely on the
interpretation of Jurek that the plurality had espoused in
Franklin. See 506 U. S., at 468–472; see also n. 15, supra.
But as we have explained, in both Franklin and Penry I,
a majority of the Court ultimately rejected the plurality’s
interpretation of Jurek. Neither Franklin nor Penry I was
inconsistent with Graham’s narrow holding, but they do sug
gest that our later decisions—including Johnson v. Texas,
509 U. S. 350 (1993), in which we refused to adopt the rule
that Graham sought19—are of more relevance to Cole’s case
than Graham. The relevance of those cases lies not in their
results—in several instances, we concluded, after apply
ing the relevant law, that the special issues provided for
adequate consideration of the defendant’s mitigating evi
19 Graham claimed that the Texas system had not “allowed for adequate
consideration of mitigating evidence concerning his youth, family back
ground, and positive character traits”; in Johnson, we declined to adopt
such a rule, even without the Teague bar that prevented us from doing so
in Graham. 509 U. S., at 365–366.

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dence 20—but in their failure to disturb the basic legal princi
ple that continues to govern such cases: The jury must have
a “meaningful basis to consider the relevant mitigating quali
ties” of the defendant’s proffered evidence.21 Johnson, 509
U. S., at 369; see also Graham, 506 U. S., at 474 (explaining
that Penry was entitled to additional instructions “[b]ecause
it was impossible [for the jury] to give meaningful mitigating
effect to Penry’s evidence by way of answering the special
issues”).
Before turning to those more recent cases, it is appro
priate to identify the reasons why the CCA’s ruling was not
a reasonable application of Penry I itself. First, the ruling
ignored the fact that even though Cole’s mitigating evidence
may not have been as persuasive as Penry’s, it was relevant
to the question of Cole’s moral culpability for precisely the
same reason as Penry’s. Like Penry’s evidence, Cole’s evi
dence of childhood deprivation and lack of self-control did not
rebut either deliberateness or future dangerousness but was
intended to provide the jury with an entirely different reason
for not imposing a death sentence. Second, the judge’s as
sumption that it would be appropriate to look at “other testi
mony in the record” to determine whether the jury could
give mitigating effect to the testimony of Cole’s mother and
aunt is neither reasonable nor supported by the Penry opin
ion. App. 160. Third, the fact that the jury could give miti
gating effect to some of the experts’ testimony, namely, their
predictions that Cole could be expected to become less dan
gerous as he aged, provides no support for the conclusion
20 This fact should be reassuring to those who fear that the rule we
endorse today—and which we have endorsed since Penry I—“would re
quire a new sentencing in every case.” Post, at 271 (Roberts, C. J.,
dissenting).
21 A jury may be precluded from doing so not only as a result of the
instructions it is given, but also as a result of prosecutorial argument
dictating that such consideration is forbidden. See Part VI, infra.

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that the jury understood it could give such effect to other
portions of the experts’ testimony or that of other witnesses.
In sum, the judge ignored our entire line of cases establish
ing the importance of allowing juries to give meaningful ef
fect to any mitigating evidence providing a basis for a sen
tence of life rather than death. His recommendation to the
CCA was therefore unsupported by either the text or the
reasoning in Penry I.
VI
The same principles originally set forth in earlier cases
such as Lockett and Eddings have been articulated explicitly
by our later cases, which explained that the jury must be
permitted to “consider fully” such mitigating evidence and
that such consideration “would be meaningless” unless the
jury not only had such evidence available to it, but also was
permitted to give that evidence meaningful, mitigating effect
in imposing the ultimate sentence. Penry I, 492 U. S., at
321, 323 (internal quotation marks omitted); Graham, 506
U. S., at 475 (acknowledging that a “constitutional defect”
has occurred not only when a jury is “precluded from even
considering certain types of mitigating evidence,” but also
when “the defendant’s evidence [i]s placed before the sen
tencer but the sentencer ha[s] no reliable means of giving
mitigating effect to that evidence”).
Four of our more recent cases lend support to the conclu
sion that the CCA’s decision was unsupported by either the
text or the reasoning of Penry I.22 In Johnson v. Texas, we
held that the Texas special issues allowed adequate consider
ation of the petitioner’s youth as a mitigating circumstance.
Indeed, we thought it “strain[ed] credulity to suppose that
22 Because The Chief Justice’s only concern is with the proper applica
tion of AEDPA, he finds it unnecessary to define the rule that he thinks
post-Penry I cases either did or should have applied. What is most rele
vant under AEDPA, however, is the holdings set forth in majority opin
ions, rather than the views of dissenters who supported a different under
standing of the law at the time those opinions were written.

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the jury would have viewed the evidence of petitioner’s
youth as outside its effective reach” because its relevance
was so obvious. 509 U. S., at 368. There is of course a vast
difference between youth—a universally applicable mitigat
ing circumstance that every juror has experienced and which
necessarily is transient—and the particularized childhood
experiences of abuse and neglect that Penry I and Cole de
scribed—which presumably most jurors have never experi
enced and which affect each individual in a distinct manner.
Evidence of youth, moreover, has special relevance to the
question of future dangerousness. A critical assumption
motivating the Court’s decision in Johnson was that juries
would in fact be able to give mitigating effect to the evi
dence, albeit within the confines of the special issues. See
509 U. S., at 370 (“If any jurors believed that the transient
qualities of petitioner’s youth made him less culpable for the
murder, there is no reasonable likelihood that those jurors
would have deemed themselves foreclosed from considering
that in evaluating petitioner ’s future dangerousness”).
Prosecutors in some subsequent cases, however, have under
mined this assumption, taking pains to convince jurors that
the law compels them to disregard the force of evidence of
fered in mitigation. Cole’s prosecution is illustrative: The
State made jurors “promise” they would look only at the
questions posed by the special issues, which, according to the
prosecutor, required a juror to “put . . . out of [his] mind”
Cole’s mitigating evidence and “just go by the facts.”
Supra, at 242. Arguments like these are at odds with the
Court’s understanding in Johnson that juries could and
would reach mitigating evidence proffered by a defendant.
Nothing in Johnson forecloses relief in these circumstances.
See 509 U. S., at 369 (“Penry remains the law and must be
given a fair reading”).
This conclusion derives further support from the fact that,
in Johnson, the Court understood that the defendant’s evi
dence of youth—including testimony from his father that

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“his son’s actions were due in large part to his youth,” id.,
at 368, and counsel’s corresponding arguments that the de
fendant could change as he grew older—was “readily com
prehended as a mitigating factor,” id., at 369, in the context
of the special issues. The evidence offered in this case, how
ever, as well as that offered by the petitioner in Brewer, post,
at 289–290, and n. 1, is closer in nature to that offered by the
defendant in Penry I than that at issue in Johnson. While
the consideration of the defendant’s mitigating evidence of
youth in Johnson could easily have directed jurors toward
a “no” answer with regard to the question of future danger
ousness, a juror considering Cole’s evidence of childhood ne
glect and abandonment and possible neurological damage or
Brewer’s evidence of mental illness, substance abuse, and a
troubled childhood could feel compelled to provide a “yes”
answer to the same question, finding himself without a
means for giving meaningful effect to the mitigating quali
ties of such evidence.23 In such a case, there is a reasonable
likelihood that the special issues would preclude that juror
from giving meaningful consideration to such mitigating evi
dence, as required by Penry I. See Johnson, 509 U. S., at
367 (explaining that in Boyde v. California, 494 U. S. 370,
23 We came to the same conclusion in Graham, after distinguishing the
defendant’s mitigating evidence in that case from that offered by the de
fendant in Penry I:
“The jury was not forbidden to accept the suggestion of Graham’s lawyers
that his brief spasm of criminal activity in May 1981 was properly
viewed, in light of his youth, his background, and his character, as an
aberration that was not likely to be repeated. Even if Graham’s evi
dence, like Penry’s, had significance beyond the scope of the first special
issue, it is apparent that Graham’s evidence—unlike Penry’s—had miti
gating relevance to the second special issue concerning his likely future
dangerousness. Whereas Penry’s evidence compelled an affirmative an
swer to that inquiry, despite its mitigating significance, Graham’s evidence
quite readily could have supported a negative answer.” 506 U. S., at
475–476.

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380 (1990), “we held that a reviewing court must determine
‘whether there is a reasonable likelihood that the jury has
applied the challenged instruction in a way that prevents the
consideration of constitutionally relevant evidence’ ”).
In three later cases, we gave Penry I the “fair reading”
required by Johnson and repudiated several Fifth Circuit
precedents providing the basis for its narrow reading of that
case. First, in our review of Penry’s resentencing, at which
the judge had supplemented the special issues with a nullifi
cation instruction, we again concluded that the jury had not
been provided with an adequate “ ‘vehicle for expressing
its “reasoned moral response” ’ ” to his mitigating evidence.
Penry v. Johnson, 532 U. S. 782, 797 (2001) (Penry II). In
deed, given that the resentencing occurred after the enact
ment of AEDPA, we concluded (contrary to the views of the
Fifth Circuit, which had denied Penry a COA) that the CCA’s
judgment affirming the death sentence was objectively un
reasonable. Id., at 803–804. Second, and as we have al
ready noted, in Tennard we held that the Fifth Circuit’s test
for identifying relevant mitigating evidence was incorrect.
542 U. S., at 284. Most recently, in Smith v. Texas, 543 U. S.
37 (2004) (per curiam), and again contrary to the views of
the Fifth Circuit, we held that a nullification instruction that
was different from the one used in Penry’s second sentencing
hearing did not foreclose the defendant’s claim that the spe
cial issues had precluded the jury from “expressing a ‘rea
soned moral response’ to all of the evidence relevant to the
defendant’s culpability.” Id., at 46.
VII
Our line of cases in this area has long recognized that be
fore a jury can undertake the grave task of imposing a death
sentence, it must be allowed to consider a defendant’s moral
culpability and decide whether death is an appropriate pun
ishment for that individual in light of his personal history

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and characteristics and the circumstances of the offense.24
As Chief Justice Burger wrote in Lockett:
“There is no perfect procedure for deciding in which
cases governmental authority should be used to impose
death. But a statute that prevents the sentencer in all
capital cases from giving independent mitigating weight
to aspects of the defendant’s character and record and
to circumstances of the offense proffered in mitigation
creates the risk that the death penalty will be imposed
in spite of factors which may call for a less severe pen
alty. When the choice is between life and death, that
risk is unacceptable and incompatible with the com
mands of the Eighth and Fourteenth Amendments.”
438 U. S., at 605.
Our cases following Lockett have made clear that when the
jury is not permitted to give meaningful effect or a “rea
soned moral response” to a defendant’s mitigating evi
dence—because it is forbidden from doing so by statute or a
judicial interpretation of a statute—the sentencing process
is fatally flawed.25 For that reason, our post-Penry cases
24 In Graham, we acknowledged that Penry I did not “effec[t] a sea
change in this Court’s view of the constitutionality of the former Texas
death penalty statute.” Graham, 506 U. S., at 474. The reason, of
course, that this was not the case is because the rule set forth in Penry I
was merely an application of the settled Lockett-Eddings-Hitchcock rule
described by Justice O’Connor in her opinions.
25 Without making any attempt to explain how the jury in either this
case or in Brewer v. Quarterman, post, p. 286, could have given “meaning
ful effect” or a “reasoned moral response” to either defendant’s mitigating
evidence, The Chief Justice concludes his dissent by lamenting the fact
that the views shared by Justice O’Connor’s concurrence and the dissent
ers in Franklin in 1988—and later endorsed in Penry I—“actually repre
sented ‘clearly established’ federal law at that time.” Post, at 280. To
his credit, his concluding sentence does not go so far as to state that he
favors a “tunc pro nunc” rejection of those views, an endorsement of the
views expressed by the four dissenters in Penry I, or even agreement
with the Fifth Circuit’s recently rejected test for identifying relevant miti

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Roberts, C. J., dissenting
are fully consistent with our conclusion that the judgment of
the Court of Appeals in this case must be reversed. The
case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
Chief Justice Roberts, with whom Justice Scalia,
Justice Thomas, and Justice Alito join, dissenting.*
A jury imposed a sentence of death in each of these cases,
despite hearing mitigating evidence from the defendants
about their troubled backgrounds. The convictions and sen
tences were upheld on direct review. On state collateral re
view, each defendant claimed that the jury instructions did
not allow sufficient consideration of the mitigating evidence.
This Court had considered similar challenges to the same
instructions no fewer than five times in the years before the
state habeas courts considered the challenges at issue here.
See Jurek v. Texas, 428 U. S. 262 (1976); Franklin v.
Lynaugh, 487 U. S. 164 (1988); Penry v. Lynaugh, 492 U. S.
302 (1989) (Penry I ); Graham v. Collins, 506 U. S. 461 (1993);
Johnson v. Texas, 509 U. S. 350 (1993). Four of the cases
rejected the defendant’s challenge. Only one—Penry I—
upheld it. The guidance the Court gave in these five cases
on whether the jury instructions at issue allowed sufficient
consideration of mitigating evidence amounted to—it de
pends. It depends on the particular characteristics of the
evidence in a specific case. The state courts here rejected
gating evidence. See Nelson v. Quarterman, 472 F. 3d 287, 291–293
(2006) (en banc) (recognizing the “now-defunct” nature of the Fifth Cir
cuit’s “ ‘constitutional-relevance’ test” post-Tennard and that a “ ‘full
effect’ ” standard—meaning that “a juror be able to express his reasoned
moral response to evidence that has mitigating relevance beyond the scope
of the special issues”—was “clearly established” for purposes of AEDPA
in 1994, when Nelson’s conviction became final).
*[This opinion applies also to No. 05–11287, Brewer v. Quarterman, Di
rector, Texas Department of Criminal Justice, Correctional Institutions
Division, post, p. 286.]

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the claim as applied to the particular mitigating evidence
in these cases, and the defendants sought federal habeas
review.
Under the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), however, a state-court decision can be set
aside on federal habeas review only if it is “contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States.” 28 U. S. C. § 2254(d)(1). When this Court
considers similar challenges to the same jury instructions
five separate times, it usually is not because the applicable
legal rules are “clearly established.” The Court today none
theless picks from the five precedents the one that ruled in
favor of the defendant—Penry I—and anoints that case as
the one embodying “clearly established Federal law.” In
doing so the Court fails to give any meaningful weight to
the two pertinent precedents subsequent to Penry I—
Graham and Johnson—even though those cases adopted a
more “limited view” of Penry I than the Court embraces
today. Johnson, supra, at 365. Indeed, the reading of
Penry I in Graham and Johnson prompted every one of the
remaining Justices who had been in the majority in Penry I
on the pertinent question to dissent in Graham and John
son, on the ground that the Court was failing to adhere to
Penry I.
I suppose the Court today is free to ignore the import of
Graham and Johnson on the question of what Penry I
means, but in 1999 or 2001, respectively—when petitioners
were denied collateral relief—the state courts did not have
that luxury. They should not be faulted today for conclud
ing—exactly as the Graham and Johnson dissenters did—
that the Court had cut back significantly on Penry I.
We give ourselves far too much credit in claiming that our
sharply divided, ebbing and flowing decisions in this area
gave rise to “clearly established” federal law. If the law
were indeed clearly established by our decisions “as of the

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time of the relevant state-court decision,” Williams v. Tay
lor, 529 U. S. 362, 412 (2000), it should not take the Court
more than a dozen pages of close analysis of plurality, concur
ring, and even dissenting opinions to explain what that
“clearly established” law was. Ante, at 246–260. When the
state courts considered these cases, our precedents did not
provide them with “clearly established” law, but instead a
dog’s breakfast of divided, conflicting, and ever-changing
analyses. That is how the Justices on this Court viewed the
matter, as they shifted from being in the majority, plurality,
concurrence, or dissent from case to case, repeatedly lament
ing the failure of their colleagues to follow a consistent path.
Whatever the law may be today, the Court’s ruling that ’twas
always so—and that state courts were “objectively unrea
sonable” not to know it, Williams, supra, at 409—is utterly
revisionist.
I
In 1987, Jalil Abdul-Kabir—referred to by his given name,
Ted Calvin Cole, throughout this opinion, ante, at 237, n. 1—
was convicted of capital murder after he confessed to stran
gling 66-year-old Raymond Richardson with a dog leash to
steal $20 from him. Among the 21 claims Cole raised on
state collateral review was a challenge under Penry I, supra,
to the application of Texas’s special issue jury instructions.
In evaluating Cole’s challenge, the state habeas trial court
stated:
“The issue is whether the sentencing jury had been
unable to give effect to [Cole’s] mitigating evidence
within the confines of the statutory ‘special issues.’
While [Penry I ] held that evidence of a defendant’s men
tal retardation and abused childhood could not be given
mitigating effect by a jury within the framework of the
special issues, the cases that followed such as Graham
v. Collins, [506 U. S. 461] (1993), Garcia v. State, 919
S. W. 2d 370 (1996), Mines v. State, 888 S. W. 2d 816

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(1994), and Zimmerman v. State, 881 S. W. 2d 360 (1994)
held that the mitigating evidence of alcoholism, drug
abuse, bad family background, bipolar disorder, low I.Q.,
substance abuse, head injury, paranoid personality disor
der and child abuse were sufficiently considered under
the special issues. The issue of whether the mitigating
evidence can be sufficiently considered must be deter
mined on a case by case basis, depending on the nature
of the mitigating evidence offered and whether there
exists other testimony in the record that would allow
consideration to be given.” App. in No. 05–11284,
pp. 159–160.
Applying that standard, the state court concluded that
“[t]he evidence presented at the punishment stage of the
trial, especially evidence from [Cole’s] expert witnesses, pro
vide[d] a basis for the jury to sufficiently consider the miti
gating evidence.” Id., at 161. The Texas Court of Criminal
Appeals adopted the trial court’s findings without substan
tive comment, and denied Cole’s application for habeas cor
pus relief on November 24, 1999. Id., at 178–179.
In finding that the state court’s decision was objectively
unreasonable, the Court begins by stating that the principle
the state court violated was “firmly established,” based on
“[a] careful review of our jurisprudence in this area.” Ante,
at 246. The only thing clear about our jurisprudence on the
pertinent question in 1999, however, is that it was unsettled
and confused.
In Jurek, the Court upheld Texas’s use of the special issues
as facially constitutional, with the controlling opinion noting
that “the constitutionality of the Texas procedures turns on
whether the enumerated questions allow consideration of
particularized mitigating factors.” 428 U. S., at 272 ( joint
opinion of Stewart, Powell, and Stevens, JJ.). In so doing,
Jurek left open the possibility that some mitigating evidence
might not be within the reach of the jury under the special
issues; other types of mitigating evidence, of course, would

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be. Cf. id., at 272–273 (suggesting that the future danger
ousness special issue allowed the jury to consider prior crim
inal conduct, age, duress, and whether the defendant was
under extreme mental pressure).
The next occasion the Court had to consider mitigating
evidence under the Texas special issues arose in Franklin,
in which the Court concluded that the defendant’s mitigating
evidence of good behavior in prison was taken into account
under the future dangerousness special issue. 487 U. S., at
178–179 (plurality opinion); id., at 186–187 (O’Connor, J., con
curring in judgment). A plurality of the Court also rejected
the argument that a jury must be permitted to give “inde
pendent” effect to mitigating evidence—beyond the special
issues—concluding that “this submission is foreclosed by
Jurek” and rejecting the dissent’s argument to the contrary.
Id., at 179–180, and n. 10; see also id., at 199–200 (Stevens,
J., dissenting).
The Court today places great weight on the opinion by
Justice O’Connor concurring in the judgment in Franklin, an
opinion joined only by Justice Blackmun. Ante, at 251–254.
That separate opinion expressed “doubts” about the plural
ity’s view that mitigating evidence need not be given effect
beyond the special issues, noting that if the petitioner in
Franklin had introduced evidence not covered by the special
issues, “we would have to decide whether the jury’s inability
to give effect to that evidence amounted to an Eighth
Amendment violation.” 487 U. S., at 183, 185. The sepa
rate opinion concluded, however, that “this is not such a
case.” Id., at 185. According to the Court today, a discern
ing state judge should have seen that federal law was
“clearly established” on the point by the concurring and dis
senting opinions, not the plurality. Ante, at 251–254.
Penry I, decided the following Term, concluded that in
that case the Texas instructions did not allow the jury to
give mitigating effect to evidence of Penry’s mental retarda
tion and abusive childhood. 492 U. S., at 328, 315 (“Penry

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does not . . . dispute that some types of mitigating evidence
can be fully considered by the sentencer in the absence of
special jury instructions. Instead, Penry argues that, on the
facts of this case, the jury was unable to fully consider and
give effect to the mitigating evidence . . . in answering the
three special issues” (emphasis added; citations omitted)).
In granting relief, the Court, quoting the Franklin concur
rence, noted that Penry’s evidence “ ‘had relevance to [his]
moral culpability beyond the scope of the special verdict
questions,’ ” 492 U. S., at 322 (quoting 487 U. S., at 185
(O’Connor, J., concurring in judgment); some alterations de
leted), and that it was relevant to the special issues “only as
an aggravating factor,” 492 U. S., at 323 (emphasis in origi
nal). According to the Court today, the views of the Frank
lin concurrence and dissent were thus elevated to the opin
ion of the Court in Penry I, again clearly establishing federal
law. Ante, at 252–254, and n. 15. The four dissenters in
Penry I complained that the Court’s holding “flatly contra
dict[ed]” Jurek, and that in finding a constitutional violation,
the Court was “throwing away Jurek in the process.” 492
U. S., at 355, 354 (Scalia, J., concurring in part and dissent
ing in part).
A state court looking at our pertinent precedents on the
Texas special issue instructions would next have to consider
the significance of Saffle v. Parks, 494 U. S. 484 (1990). That
case—issued less than nine months after Penry I—consid
ered Oklahoma instructions, but extensively analyzed Penry
I in doing so. See 494 U. S., at 491–492. The Court con
cluded that the mitigating evidence in that case could be ade
quately considered by the jury under the instructions given.
The four dissenters in Saffle—including the author of today’s
opinion—complained that the majority’s discussion of Penry
I was “strangely reminiscent” of the position of the Penry I
dissenters. 494 U. S., at 504 (opinion of Brennan, J.). The
Saffle dissenters asserted that the majority’s failure to reject
the position of the Penry I dissenters “creates considerable

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ambiguity about which Lockett [v. Ohio, 438 U. S. 586 (1978)]
claims a federal court may hereafter consider on habeas cor
pus review.” 494 U. S., at 504–505.
In Graham, decided three years later, the Court sought to
clarify the interplay between Jurek, Franklin, and Penry I:
“It seems to us, however, that reading Penry as peti
tioner urges—and thereby holding that a defendant is
entitled to special instructions whenever he can offer
mitigating evidence that has some arguable relevance
beyond the special issues—would be to require in all
cases that a fourth ‘special issue’ be put to the jury:
‘ “Does any mitigating evidence before you, whether or
not relevant to the above [three] questions, lead you to
believe that the death penalty should not be imposed?” ’
The Franklin plurality rejected precisely this conten
tion, finding it irreconcilable with the Court’s holding in
Jurek, and we affirm that conclusion today.” 506 U. S.,
at 476–477 (citation omitted; second emphasis added).
Thus, in Graham the Court rejected the reading of Franklin
and Penry I that the Court today endorses, reasoning that
it would require a new sentencing in every case, and would
be impossible to square with Jurek.1
Although the Court today tells us it was clear that the
applicable federal law was established by the Franklin con
currence and dissent, and that Penry I had to be read in
that light, ante, at 252–254, the Court majority in Graham
specifically relied instead upon the Franklin plurality in re
1 In evaluating the state court’s analysis, the Court criticizes its reliance
on Graham because Graham primarily addressed retroactivity under
Teague v. Lane, 489 U. S. 288 (1989). Ante, at 258. But in considering
whether the rule requested was dictated by precedent, Graham of course
had to evaluate the scope of that precedent—including Penry I—and did
so extensively. See 506 U. S., at 467–477. Moreover, as explained below,
the Court in Johnson v. Texas, 509 U. S. 350, 370–372 (1993), adopted the
same reading of Penry I adopted in Graham, without considering the issue
under Teague.

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jecting the same broad reading of Penry I the Court resusci
tates today, nunc pro tunc. Graham, supra, at 476–477.
The dissenters in Graham—including every remaining Mem
ber of the Penry I majority—were adamant that Penry I
should have been controlling in Graham. See, e. g., 506
U. S., at 507 (opinion of Souter, J., joined by Blackmun, Ste
vens, and O’Connor, JJ.) (“Our description of Penry’s claim
applies . . . almost precisely to Graham’s claim”); id., at 508
(“[Graham’s] position is identical to that of Penry”); id., at
512 (“Penry controls in this respect, and we should adhere
to it”); id., at 520 (“[T]he case is controlled by Penry”). The
issue is not whether the majority or the dissenters in Gra
ham were right about how to read Penry I, but whether it
was reasonable for a state court in 1999 to read it the way
the majority in Graham plainly did.
Later the same Term, in Johnson, the Court reaffirmed
the “limited view of Penry” it had adopted in Graham. 509
U. S., at 365. Once again the Court majority specifically re
lied on the Franklin plurality—not the concurrence and dis
sent. See 509 U. S., at 370–371. And once again the dis
senters—including every remaining Member of the Penry I
majority—lamented the Court’s asserted failure to adhere to
Penry I. 509 U. S., at 385–386 (opinion of O’Connor, J.,
joined by Blackmun, Stevens, and Souter, JJ.). The dis
sent—by the Penry I author—made precisely the same point
made by the Court today about how to read the Franklin
concurrence and dissent. 509 U. S., at 385–386. The differ
ence, of course, was that in Johnson the point was made in
dissent. It cannot have been “objectively unreasonable” for
a state court, in 1999, to have been guided by the Johnson
majority on this question, rather than by the dissent.
In short, a state court reading our opinions would see an
ongoing debate over the meaning and significance of Penry
I. That state court would see four dissenters in Graham
and Johnson—including every remaining Member of the
Penry I majority—arguing that the Court was failing to fol

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low or sharply limiting Penry I in those cases. On the flip
side, the state court would see four dissenters in Penry I—
every one later joining the majorities in Graham and John
son—suggesting that the Penry I majority departed from
Jurek. It is in that context that the Court today tells us
that the state courts should have regarded Penry I as
“clearly established Federal law, as determined by the Su
preme Court of the United States.” § 2254(d)(1).
The Court asserts that Graham and Johnson did not “dis
turb the basic legal principle” at issue, ante, at 259, and that
we cite no post-Penry I cases inconsistent with its reading
of that case, ante, at 253, n. 14. I do not understand how
the author of today’s opinion can say that Graham did not
disturb the principle of Penry I, however, when he joined a
dissent in Graham stating that “[Graham’s] position is iden
tical to that of Penry” and that Graham’s case “is controlled
by Penry.” 506 U. S., at 508, 520 (opinion of Souter, J.)
(emphasis added). That would seem to suggest that Gra
ham was inconsistent with Penry I. I do not understand
how the author of today’s opinion can say that Johnson had
no effect on Penry I, when he joined a dissent in Johnson
stating that the majority opinion “upset our settled Eighth
Amendment jurisprudence.” 509 U. S., at 382 (opinion of
O’Connor, J.). Now Johnson is dismissed as just an applica
tion of “basic legal principle[s],” over which Justices can dis
agree, ante, at 259; back then it “upset our settled Eighth
Amendment jurisprudence.” And what of Saffle? There
the author of today’s opinion joined a dissent claiming that
the majority was adopting the rule rejected in Penry I. 494
U. S., at 504 (opinion of Brennan, J.). Again, that would
seem to suggest inconsistency with Penry I.2
2 The Court is correct that “[w]hat is most relevant under AEDPA . . .
is the holdings set forth in majority opinions, rather than the views of
dissenters . . . at the time those opinions were written.” Ante, at 260,
n. 22. But that must include the majority opinions in all the pertinent
cases, not just the lone one of the bunch that ruled in favor of the defend

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In fact, Penry I is not even consistent with the reading
the Court ascribes to it—in that case the Court concluded
that a jury could only view Penry’s mitigating evidence as
aggravating, and thus could not give the evidence any miti
gating effect. 492 U. S., at 323 (Penry’s evidence was “rele
vant only as an aggravating factor” (emphasis in original));
see also Graham, supra, at 473 (“Although Penry’s evidence
of mental impairment and childhood abuse indeed had rele
vance to the ‘future dangerousness’ inquiry, its relevance was
aggravating only” (emphasis in original)). The Court con
cedes that Cole’s evidence in the present case was not purely
aggravating, see ante, at 259 (“[T]he jury could give mitigat
ing effect to some of the experts’ testimony”), thus drawing
into even starker contrast the rule that was established by
a fair reading of Penry I in 1999 versus the rule the Court
today reads Penry I to have “clearly established.”
As might be expected in light of the foregoing, judges
called upon to apply these precedents were confused by the
ambiguity of this Court’s pronouncements. See, e. g., Mines
v. Texas, 888 S. W. 2d 816, 820 (Tex. Crim. App. 1994) (Baird,
J., concurring) (“The Supreme Court’s holdings in Penry,
Graham and Johnson do not provide an analytical frame
work to determine when our capital sentencing scheme fails
to allow the jury to consider and give effect to mitigating
evidence . . . ”); see also Brewer v. Dretke, 442 F. 3d 273,
279, n. 16 (CA5 2006) (per curiam) (remarking, in applying
Graham and Penry I, that “[t]here is no easy way to locate
[the defendant] at either pole”). Commentators at the time
likewise concluded that Graham and Johnson “put a cap on
Penry’s principles.” Denno, Testing Penry and Its Progeny,
ant. Here it must include the subsequent majority opinions in Saffle,
Graham, and Johnson, as well as in Penry I, and it was not objectively
unreasonable for a state court to view Saffle, Graham, and Johnson the
same way today’s author did at the time—or at least to conclude that the
Court’s current view of Penry I was not as clearly established as the Court
would have it today.

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22 Am. J. Crim. L. 1, 10 (1994) (“In Graham, the Court made
clear that it did not interpret Penry ‘as effecting a sea
change’ in its evaluation of the constitutionality of the former
Texas death penalty statute . . . ”). See also Twenty-Eighth
Annual Review of Criminal Procedure, 87 Geo. L. J. 1756,
1770 (1999) (“The possible reach of Penry has been circum
scribed by [Graham] and [Johnson]”).
It is a familiar adage that history is written by the victors,
but it goes too far to claim that the meaning and scope of
Penry I was “clearly established” in 1999, especially in the
wake of Graham and Johnson. In applying AEDPA, we
have recognized that “[a] federal court may not overrule a
state court for simply holding a view different from its own,
when the precedent from this Court is, at best, ambiguous.”
Mitchell v. Esparza, 540 U. S. 12, 17 (2003) (per curiam); see
also Lockyer v. Andrade, 538 U. S. 63, 72–73 (2003) (declining
to find federal law “clearly established” when “our prece
dents in [the] area have not been a model of clarity”).
When the state court rejected Cole’s claim, it knew that
mitigating evidence of mental retardation and severe child
hood abuse could not be given effect under the special issues,
Penry I, 492 U. S., at 328, but that evidence of youth and a
transient upbringing could be, Graham, supra, at 476; John
son, supra, at 368. The court concluded that Cole’s mitigat
ing evidence—a troubled childhood and “impulse control”
disorder—was more like that considered in Johnson and
Graham than in Penry I. And because Cole’s mitigating ev
idence was not as troubling as that at issue in Penry I, the
state court did not act unreasonably in concluding that the
collateral damage of his upbringing and impulse control dis
order would, like youth in Johnson, dissipate over time, so
that Cole would be less of a danger in the future. It is irrel
evant that the ill effects of Cole’s upbringing and impulse
control disorder might not wear off for some time—there was
no suggestion in Johnson that the petitioner in that case
would become less dangerous any time soon.

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In other words, our precedents—which confirmed that the
permanence of a mitigating feature was highly relevant, and
that the correct answer was a case-specific matter turning
on the particular facts—did not provide a clear answer, be
cause the particular evidence before the court fell some
where between the guideposts established by those prece
dents. As we have recognized, “the range of reasonable
judgment can depend in part on the nature of the relevant
rule. . . . [Some] rules are more general, and their meaning
must emerge in application over the course of time.” Yar
borough v. Alvarado, 541 U. S. 652, 664 (2004). See also
Brown v. Payton, 544 U. S. 133, 143 (2005) (reviewing state
court application of Supreme Court precedent “to similar but
not identical facts” and concluding that “[e]ven on the as
sumption that its conclusion was incorrect, it was not unrea
sonable, and is therefore just the type of decision that
AEDPA shields on habeas review”).
The state court’s approach to the question was plainly cor
rect; indeed, we engaged in a similar comparison in Graham
itself in determining that the evidence presented in that case
was cognizable under the special issues:
“Jurek is reasonably read as holding that the circum
stance of youth is given constitutionally adequate con
sideration in deciding the special issues. We see no rea
son to regard the circumstances of Graham’s family
background and positive character traits in a different
light. Graham’s evidence of transient upbringing and
otherwise nonviolent character more closely resembles
Jurek’s evidence of age, employment history, and famil
ial ties than it does Penry’s evidence of mental retarda
tion and harsh physical abuse.” 506 U. S., at 476.
The state court thought that Cole’s evidence “more closely
resemble[d]” Johnson and Graham than Penry I. That can
not be said to be “contrary to, or . . . an unreasonable applica

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tion of, clearly established Federal law.” § 2254(d)(1). See
Brown, supra, at 143, 147; Williams, 529 U. S., at 411.
The Court further holds that the jury instructions did not
permit Cole’s evidence to have “mitigating force beyond the
scope of the special issues,” ante, at 257, as it now reads
Penry I to require. At the time the state court ruled, how
ever, Graham and Johnson, decided after Penry I, had ex
pressly rejected the notion that a jury must “be able to give
effect to mitigating evidence in every conceivable manner in
which the evidence might be relevant,” so long as the jury
could consider “in some manner all of a defendant’s relevant
mitigating evidence.” Johnson, 509 U. S., at 372–373. The
state court found that Cole’s mitigating evidence could be
“sufficiently consider[ed]” by the jury “within the confines of
the statutory ‘special issues,’ ” App. in No. 05–11284, at 161,
159, a holding consistent with this Court’s precedents as
of 1999—and certainly not contrary to clearly established
federal law.
In reaching today’s result, the Court also takes advantage
of eight years of hindsight and relies on three cases that
postdate the state court’s ruling. Ante, at 263 (citing Penry
v. Johnson, 532 U. S. 782 (2001) (Penry II ), Tennard v.
Dretke, 542 U. S. 274 (2004), and Smith v. Texas, 543 U. S.
37 (2004) (per curiam)). What is pertinent under AEDPA,
however, is whether federal law was clearly established by
our decisions when the state court acted. Williams, supra,
at 412.3 AEDPA requires state courts to reasonably apply
3 The Court criticizes this dissent for failing “to define the rule” that our
post-Penry I cases either did or should have applied. Ante, at 260, n. 22.
But the whole point is that “the rule,” far from being “clearly established”
by our decisions, was—at the very least—unsettled and confused. Under
AEDPA, those defending the finality of a state-court judgment challenged
on federal habeas review do not have to show that the state-court judg
ment was consistent with some version of “clearly established Federal
law” other than that offered by the challenger; AEDPA obviously contem
plates that there may not be “clearly established Federal law.” The

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clearly established federal law. It does not require them to
have a crystal ball.
II
In 1991, petitioner Brent Ray Brewer was convicted of
murder committed during the course of a robbery. Like
Cole, Brewer claims that the Texas special issues prevented
the jury from giving effect to mitigating evidence that he
suffered from depression and had been abused as a teenager.
The Texas courts rejected these claims on both direct and
collateral review.
In evaluating Brewer’s claim, the Court focuses on the so
called “two-edged sword” nature of the evidence found to be
beyond the jury’s reach in Penry I, and concludes that Brew
er’s mitigating evidence is similarly double edged. The
state court distinguished Penry I, however, stating that
“a stay in a mental hospital does not evidence a long term
mental illness which would affect appellant’s ability to con
form to the requirements of society,” App. in No. 05–11287,
p. 141 (internal quotation marks omitted), in contrast to Pen
ry’s “organic brain disorder . . . which made it impossible for
him to appreciate the wrongfulness of his conduct or to con
form his conduct to the law,” Penry I, 492 U. S., at 309. The
state court determined that the nature of Brewer’s evidence
allowed the jury to find that he would not be a future danger,
whereas Penry’s did not.
The Court rejects this distinction, noting that while Brew
er’s mitigating evidence may have been less compelling than
Penry’s, “that difference does not provide an acceptable jus
tification for refusing to apply the reasoning in Penry I to
this case.” Brewer v. Quarterman, post, at 293, and n. 5.
This misses the point. The state court’s distinction goes not
to the relative strength of the mitigating evidence, but
rather its character—an episodic rather than permanent
Court’s criticism only underscores how far the reasoning employed today
strays from AEDPA’s mandate.

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mental disorder. As discussed in the context of Cole, see
supra, at 276, the distinction was not a “refus[al] to apply
the reasoning in Penry I,” Brewer, post, at 293, but rather
an application of Penry I that can hardly be said to be “objec
tively unreasonable” based on this Court’s decisions as of
2001. Indeed, in considering future dangerousness, it is dif
ficult to imagine a more pertinent distinction than whether
a mental condition is or is not permanent.
The Court concedes that “[t]he transient quality of [Brew
er’s] mitigating evidence may make it more likely to fall in
part within the ambit of the special issues,” and yet still finds
the state court’s decision unreasonable because the evidence
may have had relevance beyond the special issues. Brewer,
post, at 294. As in Cole’s case, this conclusion squarely con
flicts with the Court’s rejection in Graham of the proposition
that “a defendant is entitled to special instructions whenever
he can offer mitigating evidence that has some arguable rele
vance beyond the special issues.” 506 U. S., at 476 (empha
sis in original). That rejection was confirmed in Johnson,
see 509 U. S., at 372–373 (rejecting a rule that “would re
quire that a jury be able to give effect to mitigating evidence
in every conceivable manner in which the evidence might be
relevant” in favor of the rule “that a jury be able to consider
in some manner all of a defendant’s relevant mitigating evi
dence”). Once again, the Court rejects the state court’s rea
sonable reading of existing cases in favor of its own revision
ist reading of this Court’s doctrine, heavily informed by
subsequent decisions that the state court had no means to
predict.
III
In AEDPA, Congress “work[ed] substantial changes” to
the power of federal courts to grant habeas corpus relief.
Felker v. Turpin, 518 U. S. 651, 654 (1996). In today’s deci
sions, the Court trivializes AEDPA’s requirements and over
turns decades-old sentences on the ground that they were
contrary to clearly established federal law at the time—even

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though the same Justices who form the majority today were
complaining at that time that this Court was changing that
“clearly established” law.
Still, perhaps there is no reason to be unduly glum. After
all, today the author of a dissent issued in 1988 writes two
majority opinions concluding that the views expressed in
that dissent actually represented “clearly established” fed
eral law at that time. So there is hope yet for the views
expressed in this dissent, not simply down the road, but tunc
pro nunc. Encouraged by the majority’s determination that
the future can change the past, I respectfully dissent.
Justice Scalia, with whom Justice Thomas joins, and
with whom Justice Alito joins as to Part I, dissenting.*
I remain of the view “that limiting a jury’s discretion to
consider all mitigating evidence does not violate the Eighth
Amendment.” Ayers v. Belmontes, 549 U. S. 7, 24 (2006)
(Scalia, J., concurring) (citing Walton v. Arizona, 497 U. S.
639, 673 (1990) (Scalia, J., concurring in part and concurring
in judgment)).
I
But even under this Court’s precedents to the contrary,
the state-court decisions in these two cases were hardly ob
jectively unreasonable under the Antiterrorism and Effec
tive Death Penalty Act of 1996, as The Chief Justice’s dis
senting opinion demonstrates. That is all which is needful
to demonstrate the error of today’s judgments. The full
truth is worse than that, however. There was in fact clearly
established law that governed these cases, and it favored the
State. When the state courts rendered their decisions,
Johnson v. Texas, 509 U. S. 350 (1993), was this Court’s most
recent pronouncement on the Texas special issues. And in
that case, the Court unambiguously drew back from the
*[This opinion applies also to No. 05–11287, Brewer v. Quarterman, Di
rector, Texas Department of Criminal Justice, Correctional Institutions
Division, post, p. 286.]

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Scalia, J., dissenting
broader implications of its prior decision in Penry v. Ly
naugh, 492 U. S. 302 (1989) (Penry I). Reiterating what it
had recently said in Graham v. Collins, 506 U. S. 461, 475
(1993), the Court made clear that “ ‘[i]n Penry, the defend
ant’s evidence was placed before the sentencer but the sen
tencer had no reliable means of giving mitigating effect to
that evidence.’ ” Johnson, supra, at 366 (emphasis added).
Penry I, said Johnson, stood for the proposition that habeas
relief was appropriate where jurors had been unable to give
any mitigating effect to the evidence at issue. 509 U. S., at
369; see also Graham, supra, at 475. Penry I in no way
meant to imply, Johnson warned, “that a jury [must] be able
to give effect to mitigating evidence in every conceivable
manner in which the evidence might be relevant.” 509
U. S., at 372 (emphasis added). Johnson thus established, in
no uncertain terms, that jurors need only “be able to con
sider in some manner all of a defendant’s relevant mitigating
evidence.” Ibid. (emphasis added); see generally id., at
372–373.
The dissenters in Johnson very much disagreed with that
analysis. They read Penry I for the more expansive propo
sition that “the Texas special issues violated the Eighth
Amendment to the extent they prevented the jury from giv
ing full consideration and effect to a defendant’s relevant
mitigating evidence.” 509 U. S., at 385 (opinion of O’Connor,
J.) (citing Penry I, supra; emphasis added and deleted).
“[H]aving some relevance to [a special] issue,” the dissent
said, “was not sufficient.” 509 U. S., at 385. And because
youth (the mitigating feature in Johnson) had obvious rele
vance beyond the special issues, an additional instruction
was needed. Id., at 375. The differences between the
Johnson majority and dissenters could not have been more
pronounced.
Today the Court overrules Johnson sub silentio, and rein
states the “full effect” interpretation of Penry I. For as
The Chief Justice explains, ante, at 275–276, 279 (dissent

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ing opinion), it was not objectively unreasonable for the state
courts to conclude that the ill effects of petitioners’ mental
illnesses and difficult childhoods would wear off in due time,
allowing the jury to give that mitigating evidence some ef
fect through the future dangerousness instruction—just as
could be done for the mitigating factor of youth in Johnson.
The Court nonetheless reverses these sentences because the
juries were unable to give effect to “any independent con
cern” (independent, that is, of the Texas special issues) that
the defendants “may not be deserving of a death sentence,”
Brewer v. Quarterman, post, at 294, or to consider the
evidence’s “relevance to the defendant’s moral culpability
beyond the scope of the special verdict questions,” ibid.
(internal quotation marks omitted). The Court does not ac
knowledge that it is overruling Johnson, but makes the
Court of Appeals the scapegoat for its change of heart.
The Fifth Circuit in both of these cases relied heavily on
Johnson when denying relief. See Cole v. Dretke, 418 F. 3d
494, 505 (2005); Brewer v. Dretke, 442 F. 3d 273, 278, 281
(2006) (per curiam) (relying on Cole). How does the Court
manage to distinguish it? The Court tries two main lines of
argument. First, the Court explains:
“A critical assumption motivating the Court’s decision in
Johnson was that juries would in fact be able to give
mitigating effect to the evidence, albeit within the con
fines of the special issues. . . . Prosecutors in some subse
quent cases, however, have undermined this assumption,
taking pains to convince jurors that the law compels
them to disregard the force of evidence offered in miti
gation.” Ante, at 261.
Because Johnson’s “critical assumption” has now been “un
dermined,” the Court says, Johnson cannot be said to “fore
clos[e] relief in these circumstances.” Ante, at 261.
This attempt to “distinguish” Johnson wilts under even
the mildest scrutiny. Since when does this Court craft con

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stitutional rules that depend on the beneficence of the prose
cutor? (Never mind that this “critical assumption” of John
son was not so critical as to be mentioned in the case.) And
more importantly, how can prosecutorial style have any
bearing on whether the Eighth Amendment requires a jury
to be able to give “some effect,” as opposed to “full effect,”
to a defendant’s mitigating evidence? It is of course true
that a prosecutor’s arguments may be relevant evidence in
the final analysis of whether a capital trial has met the “some
effect” test. But it has absolutely no relevance to which test
is selected in the first place.*
Second, the Court explains that “the consideration of the
defendant’s mitigating evidence of youth in Johnson could
easily have directed jurors toward a ‘no’ answer with regard
to the question of future dangerousness,” whereas a juror
considering petitioners’ mitigating evidence “could feel com
pelled to provide a ‘yes’ answer to the same question.”
Ante, at 262. But it is quite apparent that jurors consider
ing youth in Johnson could also have “fe[lt] compelled to
provide a ‘yes’ answer” to the future dangerousness ques
tion. While one can believe that “the impetuousness and
recklessness that may dominate in younger years can sub
side,” Johnson, 509 U. S., at 368, one can also believe that a
person who kills even in his younger years is fundamentally
depraved, and more prone to a life of violent crime. John
son itself explicitly recognized this point, denying relief de
spite “the fact that a juror might view the evidence of youth
as aggravating, as opposed to mitigating.” Ibid.
As the Court’s opinion effectively admits, nothing of a
legal nature has changed since Johnson. What has changed
*Relatedly, the Court thinks Johnson distinguishable because jurors
have “experienced” youth but “have never experienced” the “particular
ized childhood experiences of abuse and neglect” at issue here. Ante, at
261. It is again quite impossible to understand, however, how that can
have any bearing upon whether “some effect” or “full effect” is the re
quired test.

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are the moral sensibilities of the majority of the Court. For
those in Texas who have already received the ultimate pun
ishment, this judicial moral awakening comes too late.
Johnson was the law, until today. And in the almost 15
years in between, the Court today tells us, state and lower
federal courts in countless appeals, and this Court in numer
ous denials of petitions for writ of certiorari, have errone
ously relied on Johnson to allow the condemned to be taken
to the death chamber. See, e. g., Robison v. Johnson, 151
F. 3d 256, 269 (CA5 1998) (denying petition for rehearing),
cert. denied, 526 U. S. 1100 (1999) (petitioner executed Jan.
21, 2000); Motley v. Collins, 18 F. 3d 1223, 1233–1235 (CA5),
cert. denied sub nom. Motley v. Scott, 513 U. S. 960 (1994)
(petitioner executed Feb. 7, 1995).
II
The individuals duly tried and executed between Johnson
and today’s decisions were not, in my view (my view at the
time of Johnson, and my view now), entitled to federal judi
cial invalidation of their state-imposed sentences. That is
because in my view the meaning of the Eighth Amendment
is to be determined not by the moral perceptions of the Jus
tices du jour, but by the understanding of the American peo
ple who adopted it—which understanding did not remotely
include any requirement that a capital jury be permitted to
consider all mitigating factors. If, however, a majority of
the Justices are going to govern us by their moral percep
tions, in this area at least they ought to get their moral per
ceptions right the first time. Whether one regards impro
vised death-is-different jurisprudence with disdain or with
approval, no one can be at ease with the stark reality that
this Court’s vacillating pronouncements have produced
grossly inequitable treatment of those on death row. Relief
from sentence of death because of the jury’s inability to give

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“full effect” to all mitigating factors has been made available
only to those who have managed to drag out their habeas
proceedings until today. This is not justice. It is caprice.