Zimmerman v. Cockrell

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 01-40591
__________________

KEVIN LEE ZIMMERMAN,
Petitioner-Appellant,

v.

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
(95-CV-002)
______________________________________________
August 1, 2002

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Petitioner Kevin Lee Zimmerman (Zimmerman), convicted of capital murder in Texas and

sentenced to death, requests from this Court a Certificate of Appealability (COA) pursuant to 28

U.S.C. § 2253(c)(2). Zimmerman raises the following arguments: defense counsel’s alleged conflict

*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
of interest; the attorney’s failure to investigate Zimmerman’s mental health and the victim’s

background; the State’s failure t o disclose exculpatory evidence; admission of unadjudicated

extraneous evidence (and lack of notice thereof); and inadequate jury instructions with respect to the

special issues. Finding that Zimmerman has made a substantial showing of the denial of a

constitutional right with respect to his claim of ineffective assistance based on counsel’s failure to

investigate whether he was competent to stand trial, we GRANT a COA. With respect to the

remaining claims, we DENY a COA.

I. BACKGROUND

Zimmerman, George Weber, and Kay Gonzales, arrived at a Motel 6 in Beaumont on

October 23, 1987.1 While at the motel, they met the victim, Leslie Gilbert Hooks, who also was

staying at the motel. After having some drinks, Hooks suggested that they go to the fair. After

returning from the fair, all four people returned to Zimmerman’s room. After a short time, Hooks

and Kay Gonzales went to Hooks’s motel room, where Hooks paid Gonzales to have sexual

intercourse. Hooks and Gonzales returned to Zimmerman’s room.

After some time, Gonzales went to the bathroom and heard a struggle ensuing in the nearby

bedroom. In that room, Zimmerman and Weber, armed with knives, attacked Hooks. After the two

men stabbed him 31 t imes, Zimmerman took Hooks’s wallet and gave it to Weber. Zimmerman,

Weber, and Gonzales left in their car to bring Zimmerman to a hospital. While the car broke down

after only a short time, Zimmerman did finally reach the hospital, where he received treatment for a

knife wound.

1
The facts surrounding the offense are taken nearly verbatim from the opinion of the Texas
Court of Criminal Appeals. Zimmerman v. State, 860 S.W.2d 89, 92-93 (Tex.Crim.App. 1993).

2
 Zimmerman was subsequently arrested and placed in jail. While in jail, he wrote numerous

letters to Weber and t o the district attorney. At trial, the State introduced many pieces of

correspondence Zimmerman had written and signed. In one of these letters to the district attorney,

he wrote that:

[Hooks] never stabbed me and we never got into a fight. [Hooks]
had 4 or 5 hundred do l[l]ars on him and we were drinking so I
decided to kill him and take his f[—]ing money. When we got back
to the room [Hooks] did not leave because I took out my knife and
opened it and started stabbing him an in the course of me stabbing him
I accidentally got stab[b]ed in my arm. After he was dead and I
robbed--I rolled him over took the money out of his front pocket and
took his wallet. I told George Weber that if he ever said any thing I
would kill him, too an[d] we left. The car broke down on the side of
the road I made George flag somebody down to take me to the
hospital and he did. I through [sic] the knife in the ditch, kicked off
my shoes and threw my wallet out. I don't know how much money
there was but it was not much because [Hooks] bought some
jew[e]lry for Kay at the fair but however much it was I gave it to
George and told him to be cool and split, I would handle the rest.

The contents of this letter were corroborated by the testimony of Gonzales. According to her,

Zimmerman and Hooks were arguing about an incident that had occurred at the fair. Suddenly,

Zimmerman "picked up a knife and ... stabbed him [the decedent] in his shoulder." Gonzales then

went into the bathroom and came back out, only to see bo th Zimmerman and Weber stabbing the

decedent, who was yelling “Don't kill me. Please don't let me die. Don't kill me. Please don't let

me die." After Hooks stopped moving, Zimmerman "went to get . . .[the] wallet out of his pockets."

A Jefferson County, Texas jury found Zimmerman guilty of capital murder. After the

punishment phase of the trial, the jury affirmatively answered the special issues set forth in Article

37.071(b) of the Texas Code of Criminal Procedure and the trial court sentenced Zimmerman to

death. The Texas Court of Criminal Appeals affirmed the conviction and sentence. Zimmerman v.

3
State, 860 S.W.2d 89 (Tex.Crim.App. 1993), and the Supreme Court remanded the case in light of

Johnson v. Texas, 509 U.S. 350, 113 S.Ct. 2658 (1993). Zimmerman v. Texas, 510 U.S. 938, 114

S.Ct. 374 (1993). Upon remand, the Court of Criminal Appeals again affirmed the judgment of the

trial court. Zimmerman v. State, 881 S.W.2d 360 (Tex.Crim.App. 1994). The Supreme Court denied

Zimmerman’s petition for writ of certiorari. Zimmerman v. Texas, 513 U.S. 1021, 115 S.Ct. 586

(1994).

Zimmerman subsequently filed a petition for writ of federal habeas corpus in district court that

was dismissed without prejudice for failure to exhaust state remedies. Zimmerman filed a state habeas

petition, and the state court held an evidentiary hearing with respect to the claim of ineffective

assistance of counsel. The state court adopted the proposed findings of fact and conclusions of law

submitted by the State and recommended denying relief. The Court of Criminal Appeals denied relief

“[b]ased upon the trial court’s findings and [its] own review.”

Zimmerman then filed the instant petition, which the district court denied. The district court

grant ed Zimmerman a COA with respect to three issues: cumulative error based on ineffective

assistance of counsel; excusing a juror for cause; and improper prosecutorial argument. Zimmerman

filed a brief before this Court on the merits of those issues. He also filed the instant motion for a

COA. We have suspended briefing pending a ruling on the instant motion for COA.

II. STANDARD OF REVIEW

Zimmerman filed the instant section 2254 application for habeas relief after the April 24, 1996

effective dat e of the Antiterrorism and Effective Death Penalty Act (AEDPA). His application is

therefore subject to the AEDPA. Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 2068 (1997).

Under the AEDPA, a pet itioner must obtain a COA. 28 U.S.C. § 2253(c)(2). A COA will be

4
granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). To make such a showing, a petitioner “must demonstrate that the issues are

debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that

the questions are adequate to deserve encouragement to proceed further.” Barefoot v. Estelle, 463

U.S. 880, 893 n.4, 103 S.Ct. 3383, 3394 n.4 (1983) (citation and internal quotation marks omitted).

Any doubt regarding whether to grant a COA is resolved in favor of the petitioner, and the severity

of the penalty may be considered in making this determination. Fuller v. Johnson, 114 F.3d 491, 495

(5th Cir. 1997).

To determine whether a COA should be granted, we must be mindful of the deferential

scheme set forth in the AEDPA. Hill v. Johnson, 210 F.3d 481, 484-85 (5th Cir. 2000). Pursuant

to 28 U.S.C. § 2254(d), we defer to a state court’s adjudication of petitioner’s claims on the merits

unless the state court’s decision was: (1) “contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the United States;” or (2)

“resulted in a decision that was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” A state court’s decision is deemed contrary to

clearly established federal law if it reaches a legal conclusion in direct conflict with a prior decision

of the Supreme Court or if it reaches a different conclusion than the Supreme Court based on

materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1519-20

(2000). A state court’s decision constitutes an unreasonable application of clearly established federal

law if it is objectively unreasonable. Id. at 1521. Additionally, pursuant to section 2254(e)(1), state

court findings of fact are presumed to be correct, and the petitioner has the burden of rebutting the

presumption of correctness by clear and convincing evidence.

5
 III. ANALYSIS

A. CONFLICT OF INTEREST

Zimmerman argues that his counsel had a conflict of interest in violation of the Sixth

Amendment. As a general rule, to prevail on a claim of ineffective assistance of counsel, a petitioner

must show: (1) that his counsel’s performance was deficient in that it fell below an objective standard

of reasonableness; and (2) that the deficient performance prejudiced his defense. Strickland v.

Washington, 466 U.S. 668, 689-94, 104 S.Ct. 2052, 2065-67 (1984). “In some cases, however,

prejudice is presumed if the defendant shows that an actual conflict of interest adversely affected his

lawyer's performance.” Beets v. Scott, 65 F.3d 1258, 1265 (5th Cir. 1995) (en banc).

In the instant case, the parties agree that on April 5, 1988, Barlow was appointed to represent

Zimmerman and, six days later, to represent his codefendant George Weber. Barlow subsequently

informed the court of the appearance of conflict and, on June 29, 1988, withdrew as counsel of

record. The court appointed other trial counsel for Zimmerman, whose trial did not begin until some

two years later. Barlow remained as the attorney of record for codefendant Weber until at least

November 22, 1988.2 Represented at their separate trials by attorneys other than Barlow,

Zimmerman and Weber were convicted of capital murder and murder, respectively. Barlow was

appointed to represent Zimmerman and Weber with respect to their direct appeals.

Zimmerman acknowledges, as he must, that counsel recognized the appearance (at least) of

conflict and successfully moved to withdraw as trial counsel. Nonetheless, he argues that this action

was not sufficient. Zimmerman contends that the trial court’s failure to independently inquire into

2
The state court record indicates that Barlow “will ask to be released due to conflict” on that
date.

6
the potential conflict constitutes a Sixth Amendment violation. Zimmerman complains that the

district court “did not even make this analysis of the appointing court’s duty to inquire . . . .”

However, a review of his pleadings filed in federal district court demonstrates that Zimmerman failed

to adequately apprise the court of this specific argument.3 "We have repeatedly held that a contention

not raised by a habeas petitioner in the district court cannot be considered for the first time on appeal

from that court's denial of habeas relief." Johnson v. Puckett, 930 F.2d 445, 448 (5th Cir.1991).

Even if we were to reach this argument, we conclude that Zimmerman has not made a

substantial showing of the denial of a constitutional right with respect to this particular claim. He

argues that the trial court knew or reasonably should have known of counsel’s potential conflict of

interest. He states that both he and codefendant Weber were charged with the same crime and had

antagonistic defenses. In his motion for COA, Zimmerman provides no indication that the trial court

would have been aware of any conflict regarding the defenses two years prior to trial. Very recently,

the Supreme Court made clear that multiple representation does not, in and of itself, trigger a trial

court’s duty to make inquiry with respect to potential conflict of interest. Mickens v. Taylor, __U.S.

__, 122 S.Ct. 1237 (2002). The Supreme Court instructed that inquiry is required only when “the

3
In his federal habeas petition, Zimmerman makes no reference to the state trial court’s
failure to make any inquiry regarding potential conflict. The only possible reference we discern is
in his reply to the State’s motion for summary judgment. In that pleading, in the context of arguing
that he had shown an adverse effect on counsel’s performance, Zimmerman quoted the following
language from a Fifth Circuit case: “trial courts can play an important role in situations inherently rife
with conflict by ascertaining whether the defendant understands the consequences of the potential
conflict and nonetheless wants to continue with the present lawyer.” Perillo v. Johnson, 205 F.3d
775, 806 n. 13 (5th Cir. 2000). However, Zimmerman quoted that language in support of his
argument that there are institutional reasons for requiring a lesser showing of prejudice in conflict of
interest cases. Under these circumstances, we do not believe the district court was adequately
apprised of the argument that the trial court failed to make an inquiry regarding counsel’s potential
conflict of interest.

7
trial court knows or reasonably should know that a particular conflict exists. . .--which is not to be

confused with when the trial court is aware of a vague, unspecified possibility of conflict, such as that

which inheres in almost every instance of multiple representation[.]" Id. at 1242 (internal quotation

marks and citation omitted).

Zimmerman also argues that the district court erred in holding that both an actual conflict of

interest and an adverse effect on counsel’s performance must be shown.4 We have stated that if no

objection is made, a petitioner must show that “an actual conflict of interest adversely affected his

lawyer’s performance.” Beathard v. Johnson, 177 F.3d 340, 346 (5th Cir. 1999) (citing Cuyler v.

Sullivan,446 U.S. 335, 348, 100 S.Ct. 1708 (1980)). More specifically, Zimmerman contends that

because he has shown an “actual” conflict of interest, he need not show that the attorney’s

performance was adversely affected by it. The Supreme Court recently rejected this argument. In

4
The district court denied the claim of conflict of interest, opining in part as follows:
If an attorney simultaneously represents conflicting interests, and
because of the conflict some plausible defense strategy or tactic which
might have been pursued was not, then the conflict “adversely affected
the lawyer’s performance” and relief must be granted, even in the
absence of evidence that petitioner was prejudiced by the adverse
performance. Beathard v. Johnson, 177 F.3d 340, 346 (5th Cir.
1999). Here, however, Barlow withdrew as counsel nearly two years
before Zimmerman went to trial, and Barlow’s inactivity was not
responsible for Zimmerman’s later counsel’s failure to pursue any
plausible defenses. For example, assuming arguendo that a diminished
mental capacity defense was plausible, Barlow’s inactivity during the
time he represented both Zimmerman and Weber did not prevent
Zimmerman’s subsequently appointed attorneys from pursuing a
diminished capacity defense. Zimmerman’s allegations do not meet
the requirements of Beathard. Beathard binds this court to find that
the Texas Court of Criminal Appeals’ decision denying this subclaim
was not clearly contrary to, or an unreasonable application of, clearly
established federal law, as declared by the United States Supreme
Court in Strickland.

8
Mickens, the Court clarified language from its previous opinions and explained that “the [Cuyler v.

Sullivan] standard is not properly read as requiring inquiry into actual conflict as something separate

and apart from adverse effect. An ‘actual conflict,’ for Sixth Amendment purposes, is a conflict of

interest that adversely affects counsel’s performance.” 122 S.Ct. at 1244 n.5.

Thus, after Mickens, it is clear that Zimmerman must demonstrate that a conflict of interest

affected the adequacy of counsel’s performance. The determination of whether a conflict of interest

exists is a mixed question of fact and law. United States v. Barrientos, 668 F.2d 838, 841 (5th Cir.

1982) (citing, inter alia, Cuyler v. Sullivan, 446 U.S. at 341-42, 100 S.Ct. at 1714-15). We review

mixed questions of law and fact under the "contrary to" and "unreasonable application" prong of 28

U.S.C. § 2254(d). See Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.2000).

The state habeas court ruled that no conflict of interest existed.5 The federal district court

found that “Barlow had a conflict of interest, because he represented Zimmerman’s co-defendant

Weber.” We will assume for purposes of analyzing this issue that Barlow’s representation of both

Zimmerman and Weber prior to trial constituted a conflict of interest.

We must now reach the question of whether this conflict adversely affected counsel’s

performance. In support of his assertion of adverse effect, Zimmerman points to counsel’s inaction

during the nearly three months of representation. We have explained that “when a petitioner’s claim

is premised solely upon what a conflicted lawyer failed to do on his or her behalf, the petitioner must

generally establish adverse effect by demonstrating that there was some plausible alternative defense

5
The state habeas trial court found that Zimmerman had not “shown or pleaded facts
showing an actual conflict. A review of the record shows that no actual conflict existed.” The Texas
Court of Criminal Appeals denied relief “[b]ased upon the trial court’s findings and [its] own review.”

9
strategy that could have been pursued, but was not, because of the . . . conflict.” Perillo, 205 F.3d

at 807. As t he district court recognized, counsel withdrew almost two years prior to trial and

Zimmerman has not shown that the inactivity was responsible for any failure on the part of trial

counsel to pursue any plausible defenses. Zimmerman nevertheless argues that counsel’s conflict and

inaction during the period in quest ion “were likely directly responsible for the frustrating delays

experienced by Zimmerman, which led to the statements and letters which elevated the charges to

capital murder.” Zimmerman is referring to the letters he wrote to the district attorney admitting that

he killed the victim for his money. At the time he wrote the letter, he had been indicted on the charge

of murder. Subsequent to the letter, Zimmerman was indicted on the charge of capital murder.

According to Zimmerman, this was the most important consequence of the conflict. We do not

believe Zimmerman’s own actions constitute prejudice because “the focus is upon whether the . . .

conflict burdening counsel’s performance had an actual and adverse effect on counsel’s

performance.” Perillo, 205 F.3d at 806 (emphasis added). Thus, Zimmerman’s actions are not the

proper focus when determining whether there has been an adverse effect on counsel’s performance.

We conclude that Zimmerman has failed to demonstrate the requisite adverse effect and deny a COA

as to Zimmerman’s conflict of interest claim regarding counsel’s representation prior to trial.

Finally, Zimmerman argues that the “more egregious instance of an actual conflict” occurred

when Barlow was appointed as appellate counsel for both Zimmerman and Weber.6 With respect to

codefendant Weber’s direct appeal in state court, counsel argued that Zimmerman coerced Weber’s

testimony at Zimmerman’s trial. Weber v. State, 829 S.W.2d 394 (Tex.App.–Beaumont 1992). This

6
We note that because Weber was convicted of the lesser offense of murder, his direct appeal
was before the Court of Appeals in Beaumont, Texas, and Zimmerman’s direct appeal was before the
Court of Criminal Appeals.

10
prior testimony was admitted against Weber at his trial. We will assume that a conflict of interest

existed on direct appeal and now turn to adverse effect.

Zimmerman contends that because counsel argued that Zimmerman coerced Weber’s

testimony, “[t]his prevented [co unsel] from emphasizing the truth of Weber’s testimony in

Zimmerman’s appeal for a claim of insufficiency of the evidence for a capital murder conviction.”

Zimmerman did not raise this argument in the conflict of interest section of his 222-page federal

habeas petition. He did make this assertion (though not as fully) in a footnote in the factual

background section. We have doubts whether this adequately apprised the district court of

Zimmerman’s argument. In any event, we will assume that the argument was sufficiently raised.

Contrary to Zimmerman’s assertions, counsel did rely upon Weber’s testimony as Zimmerman’s

appellate counsel. On direct appeal, the Court of Criminal Appeals’ opinion provides that

Zimmerman “argues t hat Weber’s testimony that the decedent started the altercation, that

[Zimmerman] and Weber were acting in self defense and that there was no robbery, proves the

evidence was insufficient to support the conviction.” Zimmerman v. State, 860 S.W.2d 89, 93

(Tex.Crim.App. 1993) (footnote omitted). Under these circumstances, we do not believe that

Zimmerman has shown an adverse effect on counsel’s performance. We therefore deny Zimmerman’s

request for a COA.

B. INEFFECTIVE ASSISTANCE

1. Failure to investigate background of victim.

Zimmerman argues that trial counsel, Linda C. Cansler, rendered ineffective assistance by

failing to investigate the background of the victim in order to support his claim of self defense. As

set forth above, Zimmerman must show: (1) that his counsel’s performance was deficient in that it

11
fell below an objective standard of reasonableness; and (2) a reasonable probability that, but for

counsel's deficient performance, the result of the trial would have been different. Strickland, 466 U.S.

at 689-94, 104 S.Ct. at 2065-67.

Zimmerman asserts counsel should have discovered that the victim had a history of criminal

violence, including battering at least two of his wives, and a pattern of violent aggression against

strangers when drinking alcohol. Such evidence he argues would have served to support his theory

of self defense. Even if we assume that counsel’s failure to investigate the victim’s tendency toward

violence constituted deficient performance, Zimmerman has not shown Strickland prejudice. As the

state court found, the victim received over thirty stab wounds (some inflicted upon the victim’s back)

compared to the one wound Zimmerman received. We agree with the district court’s conclusion that

evidence of the victim’s past violence would have been “outweighed by the July 26, 1988 letter from

Zimmerman to the district attorney,” which provided as follows:

I was gonna try to buck this Capit[a]l Murder charge on a self-defense
issue, but because of the fact that I know I am a dangerous threat to
myself and the free world, I’m going to tell the truth because I have
to be stop[p]ed. Mr. Hooks never stabbed me and we never got into
a fight. Mr. Hooks had 4 or 5 hundred dol[l]ars on him and we were
drinking so I decided to kill him and take his f—ing money. I took
out my knife and opened it and started stabbing him an[d] in the
course of me stabbing [him] I accidentally got stab[b]ed in my arm.
After he was dead and I robbed – I rolled him over took the money
out of his front pocket and took his wallet . . .

We likewise agree with the district court’s conclusion that because “Zimmerman’s admissions

in his letter were significantly more probative on this issue than the evidence of Hooks’s propensity

for violence . . . there is not a reasonable probability that, had the jury been presented with evidence

of the victim’s propensity for violence, the result in either the guilt-innocence phase or the punishment

12
phase of the trial.” We therefore deny a COA with respect to this issue.

2. Failure to investigate Zimmerman’s mental health.

Zimmerman argues that counsel rendered ineffective assistance by failing to investigate his

mental health. He asserts evidence of his mental health problems should have been presented as

mitigating evidence during the punishment phase of his trial.7

While riding his bicycle as a child, Zimmerman had an accident during which he hit his head

on a culvert and lost consciousness. As a result of this accident, a metallic plate was inserted in his

skull. Zimmerman argues that if counsel had interviewed his family, she would have learned that after

the head injury he began to suffer “mental problems.” Zimmerman admits that counsel interviewed

his mother regarding his injury and that his mother testified at trial regarding the accident and the

subsequent surgery. However, he argues that testimony should have been presented regarding the

effect of the injury on his behavior. According to Zimmerman, “[p]rior to his bicycle injury, his

behavior was normal and appropriate. It was only after the frontal lobe injury that he became

violent.”

Zimmerman faults counsel for failing to interview his father, Bobby Zimmerman. During the

state habeas proceedings, counsel explained that she did leave messages for Zimmerman’s father, but

7
Zimmerman’s motion for COA contains a section entitled: “Failure To Present the
Mental Health Evidence In Conjunction with the Self-Defense Evidence.” In that section he
asserts that “as shown above, trial counsel failed to develop information that would have been directly
relevant to Zimmerman’s mental state and to both phases of the trial.” However, Zimmerman does
not specifically indicate how the evidence would have supported a theory of self defense at the guilt-
innocence phase. Indeed, the principal argument contained within this section refers to Zimmerman
obtaining a life sentence instead of a death sentence. Even assuming that he properly briefed the issue
regarding the guilt-innocence phase in his COA, we do not believe he can show prejudice. As
previously set forth, the victim received over thirty stab wounds compared to the one wound
Zimmerman received. Moreover, Zimmerman admitted that he killed the victim for the money and
that the victim did not start the fight.

13
he never returned her call. He also faults counsel for failing to interview his aunt, Jonell Smith,

regarding his mental health after the accident. His aunt noticed “subtle changes from when the plate

was placed in his head.” His aunt also knew that Zimmerman had an abnormal EEG as a child but

counsel failed to obtain his records.

Once again, we will assume arguendo that counsel rendered deficient performance by failing

to investigate evidence regarding Zimmerman’s mental health problems subsequent to his head injury.

Zimmerman argues that the quality of this mitigating evidence is such that had it been presented to

the jury, there is a reasonable probability of a different outcome. As previously indicated, counsel

did introduce to the jury evidence of Zimmerman’s head injury and the subsequent surgery in which

a metallic plate was positioned in his skull. The jury did not learn of his violent tendencies that

appeared after the injury. As the district court recognized, this evidence constitutes the classic

double-edged sword.8 More specifically, this evidence “mitigated his culpability and at the same time

it indicated that he would be dangerous in the future.” Lackey v. Scott, 28 F.3d 486, 488 (5th Cir.

1994). Furt her, in light of Zimmerman’s admission in the letter to the district attorney that he

decided to kill the victim to take the cash, the mitigating value of this evidence would have been

diminished. Under these circumstances, we conclude that Zimmerman has not shown that, had this

evidence been before the jury, there is a reasonable probability of a different outcome. See Callins

v. Collins, 998 F.2d 269, 278 (5th Cir. 1993) (rejecting ineffective assistance of counsel claim based

on failure to investigate mitigating evidence because the evidence “cuts both ways” did not establish

8
Before the district court, Zimmerman also contended that counsel should have offered the
following testimony of Dr. Alan Childs: “Zimmerman is not and was not a violent predator who
planned any act of violence, but rather he was given to brief explosive rages during which both
behavioral control and memory function were grossly disturbed.” He does not reurge this contention
in his motion for a COA.

14
prejudice). We deny a COA as to this issue.

3. Failure to evaluate Zimmerman’s competency.

Zimmerman also contends that counsel rendered ineffective assistance by failing to have him

evaluated for competency to stand trial. It is well established that “[d]ue process prohibits the

conviction of a person who is mentally incompetent.” Bouchillon v. Collins, 907 F.2d 589, 592 (5th

Cir. 1990) (footnote and citation omitted). The test for determining competency is whether, at the

time of trial, the defendant has “sufficient present ability to consult with his lawyer with a reasonable

degree of rational understanding--and whether he has a rational as well as factual understanding of

the proceedings against him.” Id. (citations and internal quotation marks omitted). To prevail on an

ineffective assistance claim based on counsel’s failure to obtain a competency evaluation, the

petitioner must demonstrate a reasonable probability that he was incompetent to stand trial. Id. at

595.

Zimmerman argues that counsel was aware that “something was not quite right about

Zimmerman.” In support of his assertion that counsel should have obtained a competency evaluation,

Zimmerman relies on the results of an Minnesota Multiphasic Personality Inventory-2 (MMPI)

evaluation completed three weeks prior to trial and letters he wrote to the trial court and the

prosecutor containing threats and a demand to be charged with capital murder.9 As set forth by the

district court, the MMPI-2 profile provided as follows:

Although the profile is probably valid, it may reflect some

9
In a footnote, Zimmerman asserts that he had written letters to his first lawyer indicating
that he wanted a competency examination. He does not provide a record cite. The State responds
that Zimmerman “has never once provided copies of any of these alleged letters for any court to
review to determine the actual nature of his ‘competency request.’” The district court provides that
the record contains three such letters.

15
 exaggeration of symptoms. The client appears to be quite confused
and disorganized, and is experiencing severe personality deterioration.
His MMPI-2 profile also reflects an active florid psychotic process,
which includes a loss of contact with reality, inappropriate effect, and
erratic, possibly assaultive behavior . . . . In an interview, he is likely
to be circumstantial, tangential, and disorganized. It is unlikely that
he could contribute to his own defense at a legal hearing, since his
behavior is inappropriate and his thoughts are illogical.10

(emphasis added).

The results indicating that it was unlikely Zimmerman could contribute to his defense render

the question of deficient performance, under the standard for granting a COA, adequate to deserve

encouragement further. Cf. Bouchillon, 907 F.2d at 597 (explaining that counsel’s lack of

investigation after notice of past institutionalization constituted deficient performance).

As previously indicated, to meet the prejudice prong of Strickland and prevail on the merits,

Zimmerman must show that had counsel investigated his competence to stand trial, “there was a

reasonable probability that he was in fact incompetent.” Theriot v. Whitley, 18 F.3d 311, 314 (5th

Cir. 1994). A reasonable probability is a lesser burden of proof than the preponderance standard.

Bouchillon, 907 F.2d at 595. Although the MMPI results, “suicidal” letters, and head injury may not

ultimately demonstrate a reasonable probability that he was incompetent to stand trial, we believe

Zimmerman has demonstrated that this question is “adequate to deserve encouragement further.”

Barefoot, 463 U.S. at 893 n.4, 103 S.Ct. at 3394 n.4 (citation and internal quotation marks omitted).

We therefore grant a COA with respect to this claim.

C. BRADY CLAIM

Zimmerman next argues that the State failed to disclose exculpatory evidence in violation of

10
The State asserts that the MMPI results are not included in the record on appeal but does
not dispute the contents. The district court quoted the results in part.

16
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963). The State has a duty to disclose evidence

favorable to the accused that is material to guilt or punishment. See Brady v. Maryland, 373 U.S.

at 86-87, 83 S.Ct. at 1195-96. To establish this due process violation, an accused must show that

the State withheld evidence, that the evidence was favorable, and that the evidence was material to

the defense. Little v. Johnson, 162 F.3d 855, 861 (5th Cir. 1998). In assessing Brady materiality

“[t]he question is not whether the defendant would more likely than not have received a different

verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial

resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 1566

(1995). “A ‘reasonable probability’ of a different result is accordingly shown when the [State’s]

evidentiary suppression ‘undermines confidence in the outcome of the trial.’” Id.

Zimmerman first complains of evidence with respect to the victim’s background. Specifically,

he asserts that the State failed to disclose the victim’s prior conviction for simple battery, evidence

of the victim’s wife-beating, and his tendency toward violence when drinking alcohol.

In support of this claim, he relies on an affidavit executed by the victim’s wife, Janet Hooks,

which provides that she “believe[s]” she informed the detective handling the instant murder case

“about Gilbert beating me in Louisiana . . . .”11 Zimmerman also asserts that the victim’s wife had

a restraining order against him.

The standard for mat eriality under Brady is "identical to" the standard for prejudice under

Strickland. Johnson v. Scott, 68 F.3d 106, 109-10 (5th Cir.1995). Because failure to investigate

and present evidence of the victim’s violent past was not prejudicial under Strickland as discussed

11
We note that the victim’s wife “believe[s]” she told the detective that the victim beat her.
It appears she was not certain. In any event, we will assume for purposes of this appeal that she did
so inform the detective.

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above, it is not material under Brady.

Zimmerman also complains that the State withheld from the defense the cab driver’s

statements with respect to whether the victim, Hooks, had cash the night of the murder. He relies

upon the cab driver’s affidavit obtained by the police prior to trial. In the affidavit, the driver stated

that Hooks was very intoxicated. The affidavit further provided that after the cab driver informed

the group the charge was four dollars, Hooks and the woman both “acted like they were going to

pay” but instead Zimmerman paid him.

Zimmerman contends that this evidence indicates that the victim had no money, thus negating

the robbery element of the capital crime. Init ially, we note that although Hooks did not pay the

driver, the driver did not state that Hooks had no money but rather that Zimmerman actually paid.

Further, in his motion, Zimmerman acknowledges that, after the cab ride, Hooks paid Gonzales

twenty dollars he retrieved from his front pocket. Most telling, in Zimmerman’s letter he admitted

that he knew that “Hooks had four or five hundred dollars on him.” Under these circumstances, we

do not believe that Zimmerman has shown that the cab driver’s statement was material to the defense.

We conclude that Zimmerman has not made a substantial showing of the denial of a

constitutional right. Thus, he is not entitled to a COA with respect to his Brady claim.

F. ADMISSION OF UNADJUDICATED OR EXTRANEOUS CONDUCT

Zimmerman contends that his due process rights were violated by the admission of (and lack

of notice of) unadjudicated extraneous evidence. He challenges the admission of allegations of prior

criminal misconduct and testimony from a police officer that amounted to “propensity for violence”

evidence. The state habeas court held that the claim was procedurally barred because there was no

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objection at the time the evidence was offered. In denying federal habeas relief, the district court

likewise found that the claim was procedurally barred.

Zimmerman challenged the procedural bar in the district court but fails to do so in his motion

for COA, thereby abandoning this challenge. Hobbs v. Blackburn, 752 F.2d 1079, 1082 (5th Cir.

1985). Even if we reached this issue, it would afford Zimmerman no relief. Our review of a district

court’s determination of a procedural bar is de novo. Johnson v. Cain, 215 F.3d 489, 494 (5th Cir.

2000). The state habeas court expressly found the claim procedurally barred for failure to object to

the evidence, and this Court has “held that the Texas contemporaneous objection rule is strictly or

regularly applied evenhandedly to the vast majority of similar claims, and is therefore an adequate

procedural bar.” Corwin v. Johnson, 150 F.3d 467, 473 (5th Cir. 1998). The district court therefore

properly found the claim procedurally barred.

Moreover, we have held that challenges to the admission of unadjudicated extraneous offenses

during the punishment phase based on the Eighth Amendment, due process, and equal protection are

barred by Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060 (1989). See also Gray v. Netherland,

518 U.S. 152, 116 S.Ct. 2074, 2083-84 (1996) (holding that petitioner’s due process claim based on

lack of notice of evidence of unadjudicated offenses at the punishment phase would require the

adoption of a new rule). Zimmerman is not entitled to a COA with respect to this issue.

G. INADEQUATE JURY INSTRUCTIONS AT SENTENCING

Zimmerman argues that the jury was given inadequate instructions at the penalty phase of his

trial. More specifically, Zimmerman argues that the trial court’s refusal to define the term

“deliberately” in the first special issue, along with the “Texas Court of Criminal Appeals’ long-

standing refusal to impose any limiting construction[,] created an arbitrary sentencing procedure” that

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failed to rationally channel the sentencer’s discretion. However, we have repeatedly rejected the

argument that the failure to define the terms in the first two special issues (including “deliberately”)

renders the instructions impermissibly vague. Woods v. Johnson, 75 F.3d 1017, 1034 (5th Cir. 1996)

(citing Milton v. Procunier, 744 F.2d 1091, 1095-96 (5th Cir.1984); Thompson v. Lynaugh, 821 F.2d

1054, 1060 (5th Cir. 1987); James v. Collins, 987 F.2d 1116, 1120 (5th Cir. 1993); Nethery v.

Collins, 993 F.2d 1154, 1162 (5th Cir. 1993)).

Nonetheless, Zimmerman asserts that the Supreme Court’s recent analysis in Penry v.

Johnson, 121 S.Ct. 1910 (2001) (“Penry II”) “has significance for this claim.” We find Penry II

inapposite to the case at bar.

The claim in Penry II was that the punishment phase instructions “did not provide the jury

with a vehicle for expressing its reasoned moral response to the mitigating evidence of Penry’s mental

retardation and childhood abuse.” 121 S.Ct. at 1920. The Supreme Court observed that its prior

opinion in Penry I12 provided guidance with respect to rectifying the error in the jury instructions.

121 S.Ct. at 1923. Specifically, the Court explained that “our concerns would have been alleviated

by a jury instruction defining the term ‘deliberately’ in the first special issue ‘in a way that would

clearly direct the jury to consider fully Penry’s mitigating evidence as it bears on his personal

culpability.’” Id. (quoting Penry I, 492 U.S. at 323, 109 S.Ct. 2934). As such, Penry’s claim was

based upon the Supreme Court’s command that the sentencer must be permitted to consider and give

effect to any constitutionally relevant mitigating evidence.13

12
Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934 (1989).
13
E.g., Eddings v. Oklahoma, 455 U.S. 104, 113-114, 102 S.Ct. 869, 876-877 (1982);
Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-2965 (1978).

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 In contrast, Zimmerman’s argument involves another command found in the Supreme Court’s

eighth amendment jurisprudence, i.e., a sentencer’s discretion to impose death must be properly

directed and limited so as to minimize the risk of arbitrary and capricious action. See, e.g., Gregg

v. Georgia, 428 U.S. 153, 187-89, 96 S.Ct. 2909, 2931-32 (1976) (opinion of Justices Stewart,

POWELL, and STEVENS, JJ.); Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726 (1972) (per

curiam).

Accordingly, Penry II does not apply to Zimmerman’s claim, and we are bound by our

previous decisions rejecting the claim that the failure to define terms in the special issues renders the

instructions impermissibly vague. Zimmerman is not entitled to a COA with respect to this claim.

We GRANT Zimmerman’s request for a COA only with respect to his claim of ineffective

assistance based on counsel’s failure to investigate whether he was competent to stand trial. We

DENY a COA with respect to the remaining claims.

The suspension of briefing is lifted and the Clerk is directed to issue a new briefing schedule

to allow Zimmerman to file a brief with respect to the claim of ineffective assistance based on

counsel’s failure to investigate whether he was competent to stand trial and to allow the Director to

respond to that claim and to respond to the claims that the district court granted a COA.

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