US Supreme Court: 05-11304

1

(Slip Opinion)

OCTOBER TERM, 2006Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as isbeing done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has beenprepared by the Reporter of Decisions for the convenience of the reader.See

United States

v.

Detroit Timber & Lumber Co.,

200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

SMITH

v

. TEXAS

CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXASNo. 05–11304. Argued January 17, 2007—Decided April 25, 2007Smith’s trial took place in the interim between

Penry

v.

Lynaugh

, 492U. S. 302

(Penry I)

, and

Penry

v.

Johnson

, 532 U. S. 782

(Penry II)

. At that time, Texas capital juries were still given the special-issuequestions found constitutionally inadequate in

Penry I.

Texas courtsattempted to cure that inadequacy by instructing the jury that if itfelt death should not be imposed but also felt the special issues satis-fied, it should falsely answer “no” to one of the special-issue ques-tions, thus nullifying the special issues. This nullification charge waslater found inadequate to cure the special issues in

Penry II

. Beforehis trial, Smith objected to the constitutionality of the special issues,but his challenges were denied. At sentencing, Smith’s jury receivedthe special issues and the nullification charge. The jury sentencedSmith to death. In his appeal and postconviction state proceedings,Smith continued to argue his sentencing was unconstitutional be-cause of the defects in the special issues. At each stage, the argu-ment was either rejected on the merits, or else held procedurallybarred because it had already been addressed on direct appeal. TheTexas Court of Criminal Appeals (hereinafter appeals court) affirmedthe denial of relief, distinguishing Smith’s case from the

Penry

prece-dents. This Court reversed,

Smith

v.

Texas

, 543 U. S. 37

(per curiam)(Smith I),

finding there was

Penry

error and that the nullificationcharge was inadequate under

Penry II.

On remand, the appealscourt denied relief once more. Relying on its

Almanza

decision, itheld that Smith had not preserved a

Penry II

challenge to the nullifi-cation charge

,

since he only made a

Penry I

challenge at trial; andthat this procedural defect required him to show not merely someharm, but egregious harm, a burden he could not meet.

Held:

1. The appeals court made errors of federal law that cannot be the

2 SMITH

v.

TEXASSyllabuspredicate for requiring Smith to show egregious harm.

Smith I

con-firmed that the special issues did not meet constitutional standardsand that the nullification charge did not cure that error. The basisfor relief was error caused by the special issues, not some separateerror caused by the nullification charge. On remand from

Smith I

,the appeals court mistook this Court’s holding as granting relief inlight of an error caused by the nullification charge and concluded thatSmith had not preserved that claim because he never objected to thenullification charge. Although Smith’s second state habeas petitionincluded an argument that the nullification charge itself preventedthe jury from considering his mitigating evidence, that was not theonly, or even the primary, argument he presented to the appealscourt and this Court. The parties’ post-trial filings, the state courts’ judgments, and

Smith I

make clear that Smith challenged the specialissues before trial and did not abandon or transform that claim dur-ing lengthy post-trial proceedings. Regardless of how the State nowcharacterizes it, Smith’s pretrial claim was treated by the appealscourt as a

Penry

challenge to the adequacy of the special issues in hiscase, that is how this Court treated it in

Smith I

, and that was theerror on which this Court granted relief. The appeals court’s misin-terpretation of federal law on remand from

Smith I

cannot form thebasis for the imposition of an adequate and independent state proce-dural bar.

Ake

v.

Oklahoma

, 470 U. S. 68, 75. Pp. 15–17.2. The state courts that reviewed Smith’s case did not indicate thathe failed to preserve his claim that the special issues were inade-quate in his case. Under the appeals court’s application of

Almanza

,preserved error is subject only to normal harmless-error review. Theappeals court has indicated elsewhere that so long there is a reason-able likelihood the jury believed it was not permitted to considerrelevant mitigating evidence, the lower

Almanza

standard is met.Because the state court must defer to this Court’s finding of

Penry

er-ror, which is a finding that there is a reasonable likelihood the jurybelieved it was not permitted to consider Smith’s relevant mitigatingevidence,

Johnson

v.

Texas

, 509 U. S. 350, 367, it appears Smith isentitled to relief under the state harmless-error framework. Pp. 18– 19.185 S. W. 3d 455, reversed and remanded.K

ENNEDY

, J., delivered the opinion of the Court, in which S

TEVENS

,S

OUTER

, G

INSBURG

, and B

REYER

, JJ., joined. S

OUTER

, J., filed a concur-ring opinion. A

LITO

, J., filed a dissenting opinion, in which R

OBERTS

,C. J., and S

CALIA

and T

HOMAS

, JJ., joined.

_________________ _________________

1Cite as: 550 U. S. ____ (2007)Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports. Readers are requested tonotify the Reporter of Decisions, Supreme Court of the United States, Wash-ington, D. C. 20543, of any typographical or other formal errors, in orderthat corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 05–11304

L

A

ROYCE LATHAIR SMITH, PETITIONER

v.

TEXAS

ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL



APPEALS OF TEXAS



[April 25, 2007]



J

USTICE

K

ENNEDY

delivered the opinion of the Court.The jury in a Texas state court convicted petitionerLaRoyce Lathair Smith of first-degree murder and deter-mined he should receive a death sentence. This Court nowreviews a challenge to the sentencing proceeding for asecond time.The sentencing took place in the interim between ourdecisions in

Penry

v.

Lynaugh

, 492 U. S. 302 (1989)

(PenryI)

, and

Penry

v.

Johnson

, 532 U. S. 782 (2001)

(Penry II)

.In

Penry I

the Court addressed the special-issue questionsthen submitted to Texas juries to guide their sentencingdeterminations in capital cases. The decision held thatthe Texas special issues were insufficient to allow properconsideration of some forms of mitigating evidence. Fol-lowing a pretrial challenge to the special issues by Smith,the trial court issued a charge instructing the jury tonullify the special issues if the mitigating evidence, takenas a whole, convinced the jury Smith did not deserve thedeath penalty. After Smith’s trial,

Penry II

held a similarnullification charge insufficient to cure the flawed specialissues. Smith, on state collateral review, continued toseek relief based on the inadequacy of the special issues,

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