Syllabus | Opinion [ OConnor ] | Dissent [ Rehnquist ] | Dissent [ Scalia ] | Dissent [ Thomas ] |
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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 Courts 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.