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542 U.S. ____ (2004)

SUPREME COURT OF THE UNITED STATES

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No. 02—10038

ROBERT JAMES TENNARD, PETITIONER v. DOUG
DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

[June 24, 2004]

Justice Thomas, dissenting.

Petitioner must rely on Penry v. Lynaugh, 492 U.S. 302 (1989), to argue that Texas’ special issues framework unconstitutionally limited the discretion of his sentencing jury. I have long maintained, however, that Penry did “so much violence to so many of this Court’s settled precedents in an area of fundamental constitutional law, [that] it cannot command the force of stare decisis.” Graham v. Collins, 506 U.S. 461, 497 (1993) (concurring opinion). I therefore agree with Justice Scalia that a certificate of appealability cannot be issued based upon an “insubstantial right … derive[d] from case law in which this Court has long left the Constitution behind and embraced contradiction.” Ante, at 2 (dissenting opinion). I respectfully dissent.