Case Summary - Ex parte Charles Dean Hood (again)

The hardest thing for me about reading this case is that I come at it with so many preconceptions that it's hard to actually read and get what the Court is saying. I'll try not to do that. However, I do think it's kind of ironic that Judge Cochran starts off with quotes from the dissenting opinion from Abdul-Kabir v. Quarterman. This is ironic because I think Judge Keasler correctly points out in his dissent that had the Court followed the majority opinion in Abdul-Kabir, Hood would probably been procedurally barred from raising his jury instruction claims in his subsequent writ. But I'm getting ahead of myself.

Hood murdered his boss and his boss's girlfriend in 1990. He carefully planned the murders and afterward stole his boss's credit cards, his boss's ring, and forged his name on checks to cash them. The evidence supporting the jury's verdict that Hood would be a future danger was more than sufficient. But the Court doesn't spend a lot of time on this (seems to spend a little more time on mitigation, cough, cough) because that's not really at issue here.

The case was tried after the Supreme Court determined that the special issue instructions used by Texas in death penalty cases didn't give full effect to mitigation evidence (in Penry I). However, the case came before the legislature had a chance to draft a mitigation special issue to comply with Penry I, so the trial court, as was the fashion, also included a jury nullification special instruction. Defense counsel didn't object to them, but urged a more complete explanation of mitigation to give the mitigation evidence full effect.

On direct appeal, Hood challenged the instructions for failing to give full effect to mitigation instructions, but the CCA denied the ground on appeal. Hood challenged the instruction initially on his first writ, but then deleted it from his amended application. Hood was denied state and federal habeas.

In 2001, the United States Supreme Court struck down the nullification instruction in Penry II because it did not give the jury a method to give full effect to Hood's mitigation evidence. In 2004, Hood filed a pro se subsequent writ, but it did not contain a Penry claim that the jury special issue instructions did not give the jury a way to give effect to Hood's mitigation evidence. That writ was dismissed as an abuse of writ.

In 2005, Hood filed an additional writ claiming that the nullification instruction was inadequate to allow the jury to consider and give effect to mitigating evidence presented at trial. The CCA granted a stay and sent the case back to the trial court entered a conclusion of law that the Penry II claim was unavailable and that the jury instruction was inadequate to let the jury give effect to the mitigation evidence. The CCA dismissed the writ in 2007 because it concluded that the Penry II claim was available by the time Hood filed his first subsequent writ in 2004. However, Hood filed a motion for the CCA to reconsider this in 2008 light of three Supreme Court cases that had made clear that the CCA's prior interpretations of Penry I and Penry II were incorrect.

So what's the problem?

The problem is that for the United States Supreme Court to hold, in two of those cases (Abdul-Kabir, Smith II, and Brewer), that the nullification special issue was wrong, it had to come to the remarkable conclusion that it was clearly established federal law that the jury instructions were bad from Penry I forward. Or put another way, The Supreme Court had to hold that the CCA decisions denying relief in Abdul-Kabir and Brewer were not contrary to clearly established federal law. And held so they did.

So, for the CCA to grant relief on jury instructions that the Supreme Court had held were bad, the CCA had to hold that the Supreme Court decisions from 2004 onward had announced new law that Hood had been unable to take advantage of in previous writs. This was an exception to the statutory bar against subsequent writs. Judge Cochran's plurality detailed the history of confusing decisions regarding mitigation instructions in the wake of Penry I. Finally, the plurality explained that either Hood would be entitled to relief in federal court for the violation of clearly established federal law or he would be entitled to relief in state court if the more recent cases announced new law.

Ultimately, Judge Womack joined Judges Cochran, Price, Johnson, and Holcomb to create a majority that held the recent pronouncements from the United States Supreme Court starting in 2004 with Tennard and Smith I (and continuing on with Smith II, Brewer, and Abdul-Kabir) created new law so Hood's subsequent writ wasn't procedurally barred. The majority adopted the habeas judge's findings that Hood was entitled to a new punishment hearing and granted relief.

Judge Keasler dissented, along with Presiding Judge Keller and Judge Hervey, to rail against the majority for failing to explain how the legal basis for Hood's claim was unavailable to him when he filed his previous applications. According to the dissent, Hood could've raised his claim before and didn't. Consequently, his subsequent claim should be procedurally barred.

Judge Meyers dissented without an opinion. There was no underlying opinion because it was a death penalty case. Here's a link to the CCA case information.

Commentary: This is a classic example of how hard it is on state courts when the United States Supreme Court renders a bad opinion. Judge Keasler's opinion is absolutely correct. Hood's claim was procedurally barred. Saying that the United States had enacted new law when it pretty much said the law was well established seems pretty incredible, and perhaps explains Judge Keasler's tone.

But, the instructions were unconstitutional, or at least, they'd been held to be unconstitutional. [I only note that because the parsing of the instructions in those cases seemed a little like a reach, but the holding is the holding.] So, from Judge Cochran's practical-to-a-fault viewpoint the decision makes sense. If the majority's assessment that Hood would ultimately get relief in federal court anyway is correct, why make him jump through the hoops? Oh the law. Right, I forgot. Well, it's certainly better optics for the Court than defending a procedural default rule in a death penalty case. Two wrongs don't make a right, but three lefts apparently do. And would you look at that, judicial activism in favor of the defendant from the CCA. Who'd've thunk it?