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McGOWEN v. THALER

No. 10-70014.

675 F.3d 482 (2012)

Roger Wayne McGOWEN, Petitioner-Appellee Cross-Appellant, v. Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellant Cross-Appellee.

United States Court of Appeals, Fifth Circuit.

March 19, 2012.

Attorney(s) appearing for the Case

David R. Dow , Managing Sr. Counsel (Court-Appointed), Texas Def. Serv., Anthony Seymour Haughton, Haughton & Associates, Houston, TX, Paul Edward Mansur (Court-Appointed), Denver City, TX, for Petitioner-Appellee Cross-Appellant.

Matthew Dennis Ottoway , Asst. Atty. Gen., Postconviction Lit. Div., Austin, TX, for Respondent-Appellant Cross-Appellee.

Before GARZA, CLEMENT and OWEN, Circuit Judges.

OWEN, Circuit Judge:

Petitioner Roger McGowen was convicted of capital murder in a Texas state court and sentenced to death. He seeks federal habeas corpus relief from his conviction and death sentence on several grounds. The district court held that, under Penry v. Lynaugh1 and its progeny, McGowen was entitled to habeas relief with respect to his sentence because the punishment phase jury instructions failed to provide an avenue...

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