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Tennard v. Cockrell

Robert James TENNARD v. Janie COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division

Tennard v. Cockrell, 317 F.3d 476 (5th Cir. 2003)
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Subsequent history: rev'd sub nom. Tennard v. Dretke, Dir., Tex. Dep't of Criminal Justice, Corr. Institutions Div., 542 U.S. 274 (2004). (read from the later opinion; check before relying)

Court
Court of Appeals for the Fifth Circuit · U.S. Courts of Appeals
Decided
January 3, 2003
Docket
No. 00-20915
Judges
Benavides, Dennis, Smith
Citations
317 F.3d 4762003 WL 299982003 U.S. App. LEXIS 79

Opinion of the Court — Benavides

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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 Tennard v. Cockrell, — U.S. -, 123 S.Ct. 70 , 154 L.Ed.2d 4 (2002), granted appellant’s petition for a writ of certiorari, vacated the judgment, 1 and remanded it to us for further consideration in light of Atkins v. Virginia, 536 U.S. 304 , 122 S.Ct. 2242 , 153 L.Ed.2d 335 (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.

. Tennard v. Cockrell, 284 F.3d 591 (5th Cir.2002).

Dissent — Dennis

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DENNIS, Circuit Judge,

dissenting:

Although I agree with the panel majority that Tennard’s claim under Atkins v. Virginia, 536 U.S. 304 , 122 S.Ct. 2242 , 153 L.Ed.2d 335 (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.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

2003: 12004: 12006: 120032026peak 2003 · 1

Relies on it most ⓘ

  1. Tennard v. Dretke, Director, Texas Department of Criminal Justice, Correctional Institutions Division542 U.S. 274 (2004)
  2. Tennard v. Dretke442 F.3d 240 (5th Cir. 2006)
  3. Tennard v. Dretke442 F.3d 240 (5th Cir. 2003)

Most recent

  1. Tennard v. Dretke442 F.3d 240 (5th Cir. 2006)
  2. Tennard v. Dretke, Director, Texas Department of Criminal Justice, Correctional Institutions Division542 U.S. 274 (2004)
  3. Tennard v. Dretke442 F.3d 240 (5th Cir. 2003)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 5

DepthCaseCited by
Atkins v. Virginia, 536 U.S. 304 (2002) 2,542
Smith v. Cockrell, 311 F.3d 661 (5th Cir. 2002) 162
Smith v. Bowersox, 311 F.3d 915 (8th Cir. 2003) 25
Tennard v. Cockrell, 284 F.3d 591 (5th Cir. 2002) 21
Tennard v. Cockrell, Dir., Tex. Dep't of Criminal Justice, Institutional Div., 537 U.S. 802 (2002) 12

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