ON REMAND FROM THE UNITED STATES SUPREME COURT

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.

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.