Cotton v. Cockrell

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS August 21, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_______________________ Clerk

No. 02-21263
_______________________

MARCUS BRIDGER COTTON,

Petitioner-Appellant,

versus

JANIE COCKRELL, Director, Texas Department
of Criminal Justice, Institutional Division,

Respondent-Appellee.

________________________________________________________________

Appeal from the United States District Court
for the Southern District of Texas, Houston Division
Civil Docket H-01-CV-2201
_________________________________________________________________

Before JONES, STEWART, and DENNIS, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Marcus Bridger Cotton was convicted of capital murder and

sentenced to death for murdering Assistant District Attorney Gil

Epstein during a robbery in November 1997. After he exhausted

state remedies, Cotton filed a § 2254 petition for a writ of habeas

corpus in federal district court raising twelve issues. The

district court granted the state’s motion for summary judgment on

all twelve issues. The district court granted summary judgment and

1
denied Cotton’s petition. The district court also refused to grant

a certificate of appealability (“COA”) on any of the issues raised

by Cotton.

Cotton now seeks a COA from this court on four issues:

(1) whether the prosecutor improperly commented on the defendant’s

failure to testify, (2) whether his trial counsel provided

constitutionally ineffective assistance by failing to call two

witnesses to testify at trial, (3) whether he was denied due

process by comments made by the trial judge during jury selection

about the history of the Texas capital sentencing scheme, and (4)

whether his trial counsel provided constitutionally ineffective

assistance by failing to object to the trial judge’s comments

regarding the Texas capital sentencing scheme. We grant a COA on

the first issue but deny the application for COA on the other

issues. With respect to the issue regarding the prosecutor’s

closing argument, however, we affirm the district court’s denial of

habeas relief.

BACKGROUND

At Cotton’s second trial for capital murder, Lawrence

Watson testified that on September 18, 1996, he and Cotton decided

to commit a robbery because they were broke. Sometime later that

day, Cotton and Watson observed Gil Epstein and Sean Caruthers

walking toward their cars in the Houston Jewish Community Center

parking lot and decided to rob them. Watson approached Caruthers,

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pointed a .38 caliber revolver at him, and demanded money.

Caruthers gave his wallet to Watson and Watson ordered him to

leave. At the same time, Cotton accosted Epstein. Cotton forced

Epstein to the ground with a .380 caliber semi-automatic pistol and

demanded his money. Epstein told Cotton he did not have any money.

Cotton walked Epstein to his car, forced Epstein into the back

seat, and began to search Epstein’s wallet and glove compartment.

Caruthers testified that after being ordered to leave by

Watson, he drove to the front of the community center and went into

the center seeking help. Caruthers came back outside and drove to

the side of the building where he saw Cotton in Epstein’s car.

Watson was on a bicycle outside of Epstein’s car. Caruthers began

to flash the car’s lights and honked the horn in an attempt to

alert the police. Watson testified that when Caruthers created

this disturbance Cotton yelled to Watson to “kill that bitch.”

Watson aimed his gun at Caruthers, but without having fired his

weapon, he heard a gunshot behind him. Watson turned around and

saw Cotton fire his gun while still in Epstein’s car. Several

witnesses testified that Cotton said he decided to kill Epstein

when he found in Epstein’s wallet a badge identifying Epstein as an

assistant district attorney for Fort Bend County, Texas. After

shooting Epstein, Cotton left the car, jumped on his bicycle and

rode toward Caruthers’ car. Caruthers drove into Cotton, knocking

Cotton off his bike. Cotton and Watson then escaped.

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 Cotton was first tried for the murder of Epstein on March

17, 1997. Jury deadlock caused a mistrial. At a second trial in

November 1997, a jury convicted Cotton of capital murder. Cotton

was sentenced to death. On direct appeal, the Texas Court of

Criminal Appeals upheld Cotton’s conviction and sentence. Cotton

v. State, No. 72,964 (Tex. Crim. App. June 30, 1999) (unpublished).

The Supreme Court denied Cotton’s petition for writ of certiorari.

Cotton v. Texas, 530 U.S. 1277 (2000).

Before the Supreme Court’s denial of his petition, Cotton

filed a state application for habeas corpus. The trial judge

entered findings of fact and conclusions of law, which were adopted

by the Court of Criminal Appeals in denying habeas relief. Ex

parte Cotton, No. 49,499-01 (Tex. Crim. App. June 7,

2000)(unpublished). On June 29, 2001, Cotton filed a petition for

a writ of habeas corpus in federal district court.

DISCUSSION

Cotton’s § 2254 habeas petition is subject to the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See

Penry v. Johnson, 532 U.S. 782, 792 (2001). Under AEDPA, Cotton

must obtain a COA before he can appeal the district court’s denial

of habeas relief. 28 U.S.C. § 2253(c)(1) (2000); Slack v.

McDaniel, 529 U.S. 473, 478 (2000). “[U]ntil a COA has been issued

federal courts of appeals lack jurisdiction to rule on the merits

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of appeals from habeas petitioners.” Miller-El v. Cockrell, 123 S.

Ct. 1029, 1039 (2003).

To obtain a COA, Cotton must make “a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2)

(2000); Miller-El, 123 S. Ct. at 1039; Slack, 529 U.S. at 483. To

make such a showing, he must demonstrate that “reasonable jurists

could debate whether (or, for that matter, agree that) the petition

should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed

further.” Miller-El, 123 S. Ct. at 1039 (quoting Slack, 529 U.S.

at 484).

In Miller-El, the Supreme Court instructed, as it had

previously held in Slack, that we should “limit [our] examination

to a threshold inquiry into the underlying merit of [the

petitioner’s] claims.” Miller-El, 123 S. Ct. at 1034. The Court

observed that “a COA ruling is not the occasion for a ruling on the

merit of petitioner’s claim . . .” Id. at 1036. Instead, our

determination must be based on “an overview of the claims in the

habeas petition and a general assessment of their merits.” Id. at

1039. “This threshold inquiry does not require full consideration

of the factual or legal bases adduced in support of the claims.”

Id. We do not have jurisdiction to justify our denial of a COA

based on an adjudication of the actual merits of the claims. Id.

Accordingly, we cannot deny an “application for a COA merely

because [we believe] the applicant will not demonstrate an

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entitlement to relief.” Id. “[A] claim can be debatable even

though every jurist of reason might agree, after the COA has been

granted and the case has received full consideration, that

petitioner will not prevail.” Id.

Even if we grant Cotton’s application for COA, Cotton is

not necessarily entitled to habeas relief. “To prevail on a

petition for writ of habeas corpus, a petitioner must demonstrate

that the state court proceeding ‘resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the

United States.’” Robertson v. Cockrell, 325 F.3d 243, 247-48 (5th

Cir. 2003) (en banc) (quoting 28 U.S.C. § 2254(d)(1) (2000)). A

state court’s decision is "contrary to . . . clearly established

Federal law, as determined by the Supreme Court of the United

States . . . if the state court arrives at a conclusion opposite to

that reached by the Court on a question of law or if the state

court decides a case differently than the Court has on a set of

materially indistinguishable facts." Williams v. Taylor, 529 U.S.

362, 412-13 (2000). A state court’s decision “involves an

unreasonable application of [] clearly established Federal law, as

determined by the Supreme Court of the United States . . . if the

state court identifies the correct governing legal principle from

the Court’s decisions but unreasonably applies that principle to

the facts of the prisoner's case." Id. at 413.

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 In making the “unreasonable application” inquiry, this

court must determine whether the state court’s application of

clearly established federal law was objectively unreasonable. Neal

v. Puckett, 286 F.3d 230, 236 (5th Cir. 2002) (en banc), cert.

denied, 123 S. Ct. 963 (2003). “We have no authority to grant

habeas corpus relief simply because we conclude, in our independent

judgment, that a state supreme court's application of [federal law]

is erroneous or incorrect." Catalan v. Cockrell, 315 F.3d 491, 493

(5th Cir. 2002)(quoting Neal, 286 F.3d at 236). “The federal

habeas scheme leaves primary responsibility with the state courts

for these judgments, and authorizes federal-court intervention only

when a state court decision is objectively unreasonable.” Woodford

v. Visciotti, -- U.S. --, 123 S. Ct. 357, 361 (2002).

Finally, for Cotton to be entitled to habeas relief based

on a constitutional “trial” error, he must demonstrate not only

that the state court’s decision was contrary to or an unreasonable

application of clearly established federal law, but also that it

was harmful under the standard set forth in Brecht v. Abrahamson,

507 U.S. 619 (1993). Robertson v. Cain, 324 F.3d 297, 304 (5th

Cir. 2003). “Under Brecht, a federal court may grant habeas relief

on account of constitutional error only if it determines that the

constitutional error had a ‘substantial and injurious effect or

influence in determining the jury’s verdict.’” Id. (quoting Brecht,

507 U.S. at 623 (quoting Kotteakos v. United States, 328 U.S. 750,

776 (1946)).

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1. Comment on Cotton’s Failure to Testify

Cotton first seeks a COA with respect to the district

court’s failure to grant habeas relief based on the prosecutor’s

allegedly improperly comment on Cotton’s failure to testify in his

own defense. During the State’s closing argument at the

guilt/innocence phase of trial, the prosecutor stated:

One of the things – you know, they talked about what a
liar [Watson] was and how you can’t believe him and all
that, but you know, he told you some things that really
smack of the truth, and one of the things that is so
indicative of the fact that he told you the truth was
they never shook him about one event, and he makes
admissions about some things, but they never shook him
about one event in this case. They can’t contradict him
about one event in this case. And they’ve got an expert
witness that could tell them if he lied. Marcus Cotton
was with him.

Cotton’s counsel timely objected to this statement as a comment on

Cotton’s failure to testify. The trial court overruled the

objection.

The Fifth Amendment prohibits a prosecutor from

commenting on a defendant’s failure to testify, Griffin v.

California, 380 U.S. 609, 615 (1968), if “the prosecutor’s manifest

intent in making the remark must have been to comment on the

defendant's silence, or the character of the remark must have been

such that the jury would naturally and necessarily construe it as

a comment on the defendant’s silence.” Jackson v. Johnson, 194

F.3d 641, 652 (5th Cir. 1999) (citing United States v. Grosz, 76

F.3d 1318, 1326 (5th Cir. 1996)). “The prosecutor’s intent is not

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manifest if there is some other, equally plausible explanation for

the remark.” Grosz, 76 F.3d at 1326. As for whether a jury would

naturally and necessarily construe a remark as a comment on the

defendant’s failure to testify, “the question is not whether the

jury possibly or even probably would view the challenged remark in

this manner, but whether the jury necessarily would have done so.”

Id. (quoting United States v. Collins, 972 F.2d 1385, 1406 (5th

Cir. 1992) (quoting United States v. Carrodeguas, 747 F.2d 1390,

1395 (11th Cir. 1984)). Additionally, challenged comments are

evaluated in the context of the trial within which they are made.

United States v. Robinson, 485 U.S. 25, 33 (1988).

As a threshold matter, we grant Cotton a COA on this

issue. Reasonable jurists could debate whether a constitutional

violation occurred due to the prosecutor’s reference to the

defendant as an “expert witness” while arguing that the defense

could not impeach the prosecution’s principal witness.

The district court held that the state courts did not

unreasonably apply clearly established federal law in denying

relief on Cotton’s claim. The district court concluded that the

prosecutor’s statement referred to the inability of the defense

counsel to impeach Watson’s credibility even though Cotton was

available to assist them. The district court found that this

statement was intended to be a “comment on the failure of the

defense, as opposed to the defendant, to counter or explain the

testimony presented or evidence introduced” and as such did not

9
violate the defendant’s Fifth Amendment right against self-

incrimination. Cotton v. Cockrell, Case No. H-01-CV-2201, at 41

(S.D. Tex. Oct. 30, 2002) (quoting Montoya v. Collins, 955 F.2d

279, 287 (5th Cir. 1992) (quoting United States v. Becker, 569 F.2d

951, 965 (5th Cir. 1978)).

We need not decide whether the state courts’ conclusion

was or was not in that respect an unreasonable application of

clearly established federal law, however,1 because habeas relief is

unwarranted as the error was harmless. The comment Cotton

complains of was “an isolated comment in a sea of evidence”

incriminating him for Epstein’s murder. Montoya, 955 F.2d at 287.

Fellow victim Caruthers and the Jewish Community Center security

guard Carla Chisholm both identified Cotton at trial as Epstein’s

attacker. Caruthers used his car to strike Cotton. When he was

arrested, Cotton bore injuries consistent with such an event.

Additionally, the state introduced testimony that, shortly after

Epstein’s murder, Cotton stated to an acquaintance that he had

“killed a DA.” Watson testified at length about his and Cotton’s

actions throughout the entire course of the robbery and murder.

Finally, before the jury retired to deliberate, the trial court

1
See Barrientes v. Johnson, 221 F.3d 741, 781 (5th Cir. 2000)
(holding that prosecutor’s comments that “He [the defendant] knows.
He knows where the witness is as he sits there right now. He
knows. He knows.” were not improper); Lucas v. Johnson, 132 F.3d
1069, 1079 (5th Cir. 1998) (holding that prosecutor's comments that
“Only one person does know [the identity of the handwriting], and
that’s [the defendant] Henry Lee Lucas.” were not improper).

10
instructed the jury that they were not to consider Cotton’s failure

to testify during their deliberations.

Given the overwhelming evidence of guilt and the court’s

cautionary instruction to the jury, we conclude that the

prosecution’s statement had no substantial and injurious effect or

influence in the determination of Cotton’s guilt. See Nethery v.

Collins, 993 F.2d 1154, 1159 (5th Cir. 1993) (holding overwhelming

evidence of guilt and presence of curative instruction rendered

harmless an impermissible comment by prosecutor).

In sum, even if the state courts’ conclusion was an

unreasonable application of law, the constitutional error was

harmless.

2. Ineffective Assistance for Failure to Present Witnesses

Cotton next seeks a COA on his claim that his trial

counsel provided ineffective assistance by failing to present at

his second trial the testimony of two men, John Fourmy and Andrew

Mansfield, who testified at the first trial. During Cotton’s first

trial, Fourmy and Mansfield testified that they were in the parking

lot of the Jewish Community Center on the night of Epstein’s murder

and observed men riding bicycles. Both Fourmy and Mansfield

testified that they did not see Cotton in the parking lot that

night. Cotton argues that there was no rational basis for his

trial counsel not to present their testimony, which supports what

11
he alleges would have been his best argument: that he was not at

the scene of the crime when it occurred.

To establish ineffective assistance of counsel, Cotton

must show that his counsel’s performance was deficient and that he

was actually prejudiced by the deficient performance. Strickland

v. Washington, 466 U.S. 668, 687 (1984). Deficient performance is

determined by examining whether the challenged representation fell

below an objective standard of reasonableness. Kitchens v.

Johnson, 190 F.3d 698, 701 (5th Cir. 1999). “So long as counsel

made an adequate investigation, any strategic decisions made as a

result of that investigation fall within the wide range of

objectively reasonable professional assistance.” Smith v.

Cockrell, 311 F.3d 661, 668 (5th Cir. 2002) (internal citations and

quotation marks omitted). “A conscious and informed decision on

trial tactics and strategy cannot be the basis for constitutionally

ineffective assistance of counsel unless it is so ill chosen that

it permeates the entire trial with obvious unfairness.” United

States v. Jones, 287 F.3d 325, 331 (5th Cir.) (quoting Garland v.

Maggio, 717 F.2d 199, 206 (5th Cir. 1983)), cert. denied, 123 S.

Ct. 549 (2002).

Even if Cotton establishes that his counsel’s performance

was deficient, he must also establish that “prejudice caused by the

deficiency is such that there is a reasonable probability that the

result of the proceedings would have been different.” Ransom v.

Johnson, 126 F.3d 716, 721 (5th Cir. 1997). Cotton must show that

12
the prejudice rendered the trial “fundamentally unfair or

unreliable.” Id. (quoting Lockhart v. Fretwell, 506 U.S. 364

(1993)).

Cotton has failed to make a substantial showing that his

trial counsel provided ineffective assistance. While Fourmy and

Mansfield did testify at Cotton’s trial that ended with a hung

jury, counsel was faced with a very different strategic landscape

at Cotton’s second trial. This is because, unlike at the first

trial, Cotton’s accomplice Watson had become available to the state

after a plea bargain. Watson both placed Cotton at the scene of

the crime and described in detail Epstein’s robbery and murder at

Cotton’s hands.

Further, as noted by the district court in its thorough

analysis, Fourmy’s and Mansfield’s testimonies contradicted each

other and the testimony of the other witnesses. Cotton’s trial

counsel stated, in an affidavit, that he observed Fourmy testify

during the first trial and felt that his demeanor was poor. Since

neither Fourmy nor Mansfield witnessed the shooting or the robbery

of either victim, and neither of them saw Epstein in the parking

lot, their testimony that they also did not see Cotton in the

parking lot was of limited value. In addition, neither witness

recalled the date of the murder or the fact that there was a

torrential rainstorm that night, and they could not agree on who

else was with them in their car. Mansfield testified at the first

13
trial as a rebuttal witness for the state, contradicting or casting

doubt on Fourmy’s testimony.

Although Fourmy and Mansfield could have supplied weak

evidence that Cotton was not present at the scene of Epstein’s

murder, the prosecution introduced the testimony of eyewitnesses

Caruthers and Chisholm and accomplice Watson, all of whom

identified Cotton. There was also testimony that Cotton had told

others that he had killed a district attorney. Cotton’s trial

counsel opted to impeach Watson’s credibility rather than try to

establish that Cotton was not at the scene. Calling Fourmy and

Mansfield did not fit into counsel’s strategy. Notably, Cotton’s

counsel defended Cotton in both his first and second trial. He was

uniquely qualified to assess the desirability of having Fourmy and

Mansfield testify at the retrial. Given these circumstances,

reasonable jurists could not debate or find wrong the conclusion

that counsel’s strategic decision is entitled to deference under

Strickland. We deny Cotton’s application for COA on this claim.

3. Trial Court Address to Jury Venire

Finally, Cotton seeks a COA for his claim based on

comments made by the trial judge to the jury venire before voir

dire regarding the history of the Texas death penalty. Cotton

argues that the court’s comments reduced the jury’s sense of

responsibility for imposing the death penalty and thus violated the

Eighth Amendment as construed in Caldwell v. Mississippi, 472 U.S.

14
320 (1985). Cotton also appears to argue that the comments

violated his rights under the Due Process Clause of the Fourteenth

Amendment.

In his initial address to prospective jurors, the judge

discussed, among other topics, the history of capital punishment in

Texas. He described the development of capital punishment since

the founding of the United States and the effect of the Eighth

Amendment’s prohibition on cruel and unusual punishment, as

construed by the Supreme Court, on the procedures used in capital

cases in Texas. He explained, among other things, that Texas at

one time provided for capital punishment for several types of

crimes, but now, only defendants convicted of certain categories of

murder are eligible for the death penalty in Texas.

This claim, however construed, is procedurally barred.

Cotton’s counsel failed to object at trial to the comments he now

argues are improper. During the state habeas proceedings, the

court found that the failure to make a contemporaneous objection at

trial resulted in a default of his Due Process claim.

Alternatively, the state court found that the comments were not

improper and even if improper they did not rise to the level of

harmful error.

“[F]ederal courts are precluded from granting habeas

relief where the last state court to consider the claims raised by

the petitioner expressly and unambiguously based its denial of

relief on an independent and adequate state-law procedural ground.”

15
Haley v. Cockrell, 306 F.3d 257, 263 (5th Cir. 2003). We have

previously recognized that the Texas contemporaneous objection

rule, upon which the state court relied in this case, is an

adequate and independent state ground that procedurally bars

federal habeas review. Id. at 262 n.8. Further, the fact that the

state court alternatively addressed the merits of Cotton’s claim

does not prevent its procedural default determination from being an

independent basis that bars review by the federal courts. Foster

v. Johnson, 293 F.3d 766, 790 (5th Cir.), cert. denied, 123 S. Ct.

625 (2002); Corwin v. Johnson, 150 F.3d 467, 473 (5th Cir. 1998)

("It is clear in this Circuit that alternative rulings do not

operate to vitiate the validity of a [state] procedural bar that

constitutes the [state court's] primary holding."). Thus, to be

entitled to relief on his Fourteenth Amendment claim, Cotton must

either show cause for the default and resulting prejudice or that

a fundamental miscarriage of justice would result. See Haley, 306

F.3d at 263.

Cotton argues that the failure of his trial counsel to

object to the remarks made by the trial judge constituted

ineffective assistance of counsel that caused the default.

Ineffective assistance of counsel may constitute "cause" for a

procedural default. Murray v. Carrier, 477 U.S. 478, 488 (1986).

We do not agree that counsel’s failure to object to the comments

constituted deficient performance under Strickland.

16
 The conduct of a judge violates due process “only if the

judge appears to predispose the jury toward a finding of guilt or

to take over the prosecutorial role.” Derden v. McNeel, 978 F.2d

1453, 1459 (5th Cir. 1992) (en banc). The judge here outlined the

history of capital punishment in Texas and described the limited

circumstances under which the state can seek the death penalty. He

expressed no opinion on the death penalty either generally or as it

related to Cotton’s crime. Nor did the trial judge encourage the

jury to impose the death penalty in this case or even remotely

suggest they should feel historically obliged to impose a death

sentence should they find Cotton guilty. The comments simply

provided a brief introduction to the Texas capital punishment

scheme before the attorneys began conducting individualized voir

dire examinations. These comments cannot be construed as

predisposing the jury to impose a death sentence and violating

Cotton’s due process right. Reasonable jurists could not debate or

find wrong that counsel did not unreasonably decline to object to

these comments.

In any event, Cotton was not prejudiced by his counsel’s

failure to object. Throughout voir dire and during closing

arguments the court and counsel repeatedly informed the jury that

whether Cotton received a death sentence would be based on the

jury’s answers to the special issues submitted to them at the end

of the punishment phase of the trial. Cotton’s counsel was not

constitutionally ineffective. In the absence of ineffective

17
assistance, Cotton cannot establish cause to excuse the procedural

default of his due process claim.

Reasonable jurists could not debate or find wrong the

district court’s conclusion that Cotton’s claim is procedurally

barred. Therefore, we deny his application for a COA on his Due

Process claim.

Additionally, Cotton is not entitled to a COA on his

Caldwell claim. Cotton did not raise this theory during his state

habeas proceedings. Federal courts cannot grant habeas relief

unless the applicant has presented the claims to the state court

and exhausted the remedies available in state court. 28 U.S.C.

2254(b) (2000); Martinez v. Johnson, 255 F.3d 229, 238 (5th Cir.

2001), cert. denied, 534 U.S. 1163 (2002). Where an applicant has

not presented a legal theory to the state court it is not

exhausted. Finley v. Johnson, 243 F.3d 215, 219 (5th Cir. 2001).

Reasonable jurists could not debate or find wrong the

conclusion that Cotton cannot return to the Texas courts to present

this claim. Texas’s abuse of writ doctrine prohibits the filing of

a successive petition to raise this claim, absent a showing of

cause, if it could have been raised in his first habeas petition.

Id.; see also Tex. Code Crim. Proc. 11.071, § 5(a) (stating Texas’s

abuse of writ doctrine). Cotton could have objected when the

allegedly inappropriate comments were made by the judge, and he

certainly could have raised the claim in his first state court

18
petition. Thus, Texas would bar a new petition that presented his

Caldwell claim.

This bar constitutes an adequate and independent state

ground that precludes federal review. Finley, 243 F.3d at 220. “If

a petitioner fails to exhaust state remedies, but the court to

which he would be required to return to meet the exhaustion

requirement would now find the claim procedurally barred, then

there has been a procedural default for purposes of federal habeas

corpus relief.” Id. Since reasonable jurists could not disagree

or find wrong the conclusion that Cotton’s Caldwell claim is

defaulted, we deny his application for a COA on this claim.

CONCLUSION

With respect to Cotton’s claim that the prosecutor

improperly commented on his failure to testify at trial, we grant

his application for COA. We conclude, however, that the district

court did not err in denying habeas relief on this claim because

the prosecutor’s comment did not rise to the level of harmful

error. We affirm the district court’s denial of relief on this

claim. We deny Cotton’s application for COA on his other claims

and as such lack jurisdiction to review the district court’s denial

of habeas relief on these claims.

AFFIRMED; COA DENIED.

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