Tennard v. Dretke

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 00-20915
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ROBERT JAMES TENNARD,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court for the
Southern District of Texas
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January 3, 2003
ON REMAND FROM THE UNITED STATES SUPREME COURT
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
BENAVIDES, Circuit Judge:
The Supreme Court of the United States, by order in No. 02-5164, Tennard v. Cockrell,
123 S.Ct. 70, 71 USLW 3233 (U.S. Oct 07, 2002), granted appellant’s petition for a writ of

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1 Tennard v. Cockrell, 284 F.3d 591 (5th Cir. 2002).
2
certiorari, vacated the judgment,1 and remanded it to us for further consideration in light of
Atkins v. Virginia, 122 S.Ct. 2242 (2002), which was decided after the issuance of our opinion in
this case. In Atkins, the Supreme Court held that the Eighth Amendment prohibits the application
of the death penalty to mentally retarded persons. Tennard has never argued that the Eighth
Amendment prohibits his execution. Instead, Tennard argued that the jury instructions did not
provide a vehicle for giving mitigating effect to his evidence of mental retardation in violation of
the Eighth Amendment. Accordingly, because Tennard has not raised the Eighth Amendment
claim addressed in Atkins, such a claim is not properly before us. Cf. Smith v. Cockrell, 311 F.3d
661, 684 (5th Cir. 2002) (declining to address Atkins claim raised for the first time on appeal);
Smith v. Bowersox, 311 F.3d 915, 923 (8th Cir. 2002) (declining to address Atkins claim because
petitioner did not raise an Eighth Amendment claim in his federal habeas petition).
Accordingly, we reinstate our panel opinion and AFFIRM the district court’s judgment.
ENDRECORD

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3
Dennis, Circuit Judge, dissenting:
Although I agree with the panel majority that Tennard’s claim under Atkins v. Virginia,
536 U.S. 304 (2002), is not properly before this court because petitioner did not raise this claim in
his district court habeas petition, I continue to dissent from the now restored panel opinion,
Tennard v. Cockrell, 284 F.3d 591 (5th Cir. 2002), for the reasons given in my dissent there.

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