512
Souter, J., dissenting
spondent did not see fit to raise again. Penry controls in
this respect, and we should adhere to it.
II
I therefore turn to the merits of the claim,5 which are properly before us.6 Penry again controls, for reasons already anticipated in the Teague analysis, but bearing some expansion here.
A
Following the first grant of certiorari in this case, after we vacated the judgment and remanded for reconsideration in light of Penry, see Graham v. Lynaugh, 492 U. S. 915 (1989), a panel of the Court of Appeals for the Fifth Circuit decided to vacate Graham's death sentence and remand. Graham v. Collins, 896 F. 2d 893 (1990). The Court of Appeals then took the case en banc, however, and, by a vote of 7 to 6, construed Penry to require no additional instruction "in instances where no major mitigating thrust of the evidence is
5 The full Court may do the same in responding to several pending petitions for certiorari presenting the same question involved in this case, but on direct review. See, e. g., Johnson v. Texas, cert. pending, No. 92-5653; Jackson v. Texas, cert. pending, No. 91-7399; Boggess v. Texas, cert. pending, No. 91-5862.
6 At trial petitioner did not seek the additional Penry instruction that he now says is required. Whether the failure to request such an instruction is a bar to a subsequent challenge is a question of state procedure; if the conviction were affirmed by the state appellate courts on the ground that petitioner failed to raise his claim before the trial court, that affirmance could rest on an independent and adequate state-law ground. Here, the Texas Court of Criminal Appeals appears to have addressed petitioner's challenge on the merits in a state postconviction proceeding. See App. 37. In any event, under Texas law, a Penry claim is not procedurally barred even if no additional mitigating-evidence instruction is requested or there is no objection made at trial to the jury instructions. See Selvage v. Collins, 816 S. W. 2d 390, 392 (Tex. Crim. App. 1991); Black v. State, 816 S. W. 2d 350, 362-369 (Tex. Crim. App. 1991); id., at 367-374 (Campbell, J., concurring). The adequacy of the Texas special issues in this case is therefore properly before us.
Page: Index Previous 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 NextLast modified: October 4, 2007