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United States Court of Appeals
Fifth Circuit
F I L E D
May 1, 2003
UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
Clerk
For the Fifth Circuit
No. 02-41112
IVAN RAY MURPHY, JR.,
Petitioner-Appellant,
VERSUS
JANIE COCKRELL, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE
INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
For the Eastern District of Texas, Beaumont Division
Before WIENER, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:
Texas Death Row inmate, Ivan Ray Murphy, Jr., (hereinafter
"Murphy") seeks habeas corpus relief from his capital murder
conviction and death sentence relying upon the Supreme Court's
decisions in Penry v. Lynaugh, 492 U.S. 302 (1989)(hereinafter
"Penry I") and Penry v. Johnson, 532 U.S. 782 (2001)(hereinafter
"Penry II"). Murphy was tried and convicted by a jury in state

district court in October of 1990, right in the middle of that
troublesome period of time between the issuance by the U.S. Supreme
Court of its decision in Penry I and the effective date of the
amendment passed by the Texas Legislature in 1991 which requires
the submission of a special issue inquiring as to whether, in light
of all mitigating evidence offered by the defendant, life in prison
is a more appropriate sentence than the sentence of death. The
retrial of Penry occurred in this same period of uncertainty and
the form and the content of the two statutory special issues
(deliberateness and future dangerousness) and a separate
instruction
on
mitigation,
including
the
"nullification
instruction" which were used in Murphy's original trial and in
Penry's retrial were virtually identical. In Penry II, the Supreme
Court subsequently held that the "nullification instruction" failed
to satisfy the requirements of Penry I for providing a "vehicle" by
which the jury could express its views on mitigation evidence in a
death penalty case; and, therefore the Court vacated Penry's death
penalty sentence and remanded Penry's case for a new hearing on
punishment. Murphy now claims that he is entitled to the same
relief for the same reasons as Penry. The District Court denied
Murphy any habeas relief but granted Murphy a COA on his Penry
claims. Murphy also applied to this Court for grant of COA on
other issues besides the Penry issue, but we now deny Murphy's
request for additional COA's.
For better or for worse, however, we conclude that Murphy's
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appeal in this case is now controlled, not by the Supreme Court's
decisions in Penry I and Penry II, but by the en banc decision of
this Court in Robertson v. Cockrell, 2003 WL 1204119 (5th Cir.
2003) (en banc). Like Murphy and Penry, Robertson was tried in
that same troublesome period of time between 1989 and 1991 and the
two special statutory issues (deliberateness and future
dangerousness) and a separate instruction on mitigating evidence
including "the nullification instruction," which were given in
Robertson's state trial, were virtually identical to those given in
Penry's retrial and Murphy's original trial. After Robertson's
conviction and death penalty were affirmed by the state courts on
both direct and state habeas reviews and by this Court on federal
habeas, the U.S. Supreme Court granted a writ of certiorari,
vacated the judgment of this Court and remanded the case for
reconsideration "in light of" Penry II. On remand from the Supreme
Court, a panel of this Court granted habeas relief to Robertson on
the basis of the Supreme Court decision in Penry II; but that panel
decision was voted to be reconsidered en banc and a majority of
this Court sitting en banc concluded that (i) Robertson's
mitigating evidence failed to satisfy the requirements of
"constitutionally relevant mitigating evidence" as defined by
numerous decisions of this Circuit; (ii) that all of Robertson's
mitigating evidence therefore could be legitimately considered by
the jury within the framework of the two statutory special issues
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which were submitted; (iii) that the "nullification instruction"
which was actually submitted to Robertson's jury was surplusage and
error, if any, in regard to its submission, was harmless; and,
(iv) that the holding of the Supreme Court in Penry II did not
apply to or control Robertson's appeal.
The quantity and quality of mitigating evidence offered by
Murphy in the punishment phase of his state trial is certainly not
any stronger than the mitigating evidence offered by Robertson and
we conclude that this panel is bound by the holding of our en banc
court in Robertson and we therefore reluctantly affirm the decision
of the District Court below which denied Murphy all relief which he
requested.
We use the adverb "reluctantly" in the preceding holding
because two members of this panel filed comprehensive dissents to
the holding of the en banc court in Robertson; and for the reasons
stated in those dissents, we rule as we do here in Murphy's appeal
only because we are bound by the en banc decision in Robertson.
Judge Wiener concurs in the judgment only.
4