United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 17, 2004
_______________________ Charles R. Fulbruge III
Clerk
NO. 03-50483
_______________________
TIMOTHY COCKRELL,
Petitioner-Appellant,
versus
DOUGLAS DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Texas
SA-99-CA-1119-FB
Before JONES, STEWART and DENNIS, Circuit Judges.
PER CURIAM:*
In July 1993, Timothy Cockrell was convicted of the
murder of Sandra Deptawa and was sentenced to death. His
conviction and death sentence were upheld by the Texas Court of
Criminal Appeals and the Supreme Court denied Cockrell’s petition
for a writ of certiorari on direct appeal. Cockrell then filed an
application for a writ of habeas corpus in state court. The state
court filed findings of fact and conclusions of law recommending
*
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opinion should not be published and is not precedent except under the limited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.
that Cockrell’s application be denied. In September 1999, the
Texas Court of Criminal Appeals adopted the state court’s
recommendation and denied Cockrell’s state habeas application.
Cockrell then filed a federal petition for a writ of habeas corpus
arguing that his trial counsel rendered ineffective assistance of
counsel in violation of the Sixth Amendment. The district court
denied federal habeas relief and also denied Cockrell’s application
for a certificate of appealability (“COA”). Cockrell now applies
to this court for a COA.
After reviewing the district court’s detailed opinion
denying habeas relief, we deny Cockrell’s application for a cer-
tificate of appealability.
I. BACKGROUND
On August 9, 1992, Sandra Deptawa’s half-naked body was
discovered submerged in the bathtub of her new home. An autopsy
revealed that she had been strangled to death. Her mouth had been
bound with a curtain tie and a belt had been tied around her left
wrist. Scattered around the house were various items of female
clothing including women’s underwear. Several items were missing
from Deptawa’s house, including jewelry, a vacuum cleaner, a
television, and a .25 caliber handgun. Deptawa’s car, a Mazda
RX-7, was also missing. The next day, the police located Sandra’s
car at a public housing project and apprehended a man who attempted
to drive the car away. The driver, Kelly Wright, denied stealing
2
the car and claimed that Timothy Cockrell had brought the car to
the housing project. Shannon Haynes, a resident of the housing
project, approached police and informed them that Cockrell had in
fact brought the car to the housing project and had lent him the
car the night before. Haynes then led the police to Cockrell’s
apartment.
Cockrell was arrested on an outstanding parole warrant
and was informed that he was a suspect in a capital murder
investigation. After being advised of his Miranda rights, Cockrell
spoke with San Antonio Police Detective George Saidler. During the
course of his conversation with Detective Saidler, Cockrell
confessed to robbing and killing Deptawa. Cockrell explained he
had helped move Deptawa into her home on August 7, 1992, as a
member of a three-person moving crew, and that he returned to her
house two days later intending to steal some of the property he had
helped move. Cockrell said he needed the property in order to
support his $600-a-day cocaine habit and that he entered Deptawa’s
house under the pretense of fixing a table that had been broken
during the move. Cockrell admitted that he had bound and gagged
Deptawa, but he could not remember much of what had happened
because he had been high on cocaine at the time and had not slept
for three days. After listening to Cockrell’s confession,
Detective Saidler typed up a three-page statement, read it to
Cockrell, and had Cockrell sign each page in the presence of two
civilian witnesses.
3
At trial, the defense argued that Cockrell did not murder
Sandra Deptawa and attempted to draw the jury’s interest to other
possible suspects. Highlighting an absence of any evidence at
Deptawa’s residence that incriminated Cockrell, the defense
suggested that the witnesses against Cockrell were lying. The
defense also contended that Cockrell’s confession was improperly
obtained, based on his apparent inability to read, low I.Q. scores,
and poor educational record. The defense essentially suggested
that Cockrell could not understand the facts contained in his
signed confession.
During the course of the trial, Cockrell introduced
expert testimony from Dr. Ronnie Alexander that two I.Q. tests
given Cockrell in 1973 and 1978 appeared to show him as ranking in
the lowest three percent of the population, with scores ranging
from 25 to 35 on the verbal components of the tests and 37 to 42 on
the performance components. In addition, Dr. Alexander testified
that he gave Cockrell a battery of reading tests which reflected
that his reading comprehension was in the lowest one percent of the
adult population. These factors, combined with Cockrell’s poor
educational background, led Dr. Alexander to opine that Cockrell
could neither understand the confession prepared by Detective
Saidler nor communicate effectively enough to have given the
statement recorded by Saidler. In Dr. Alexander’s view, the
confession was not voluntary.
4
On cross-examination, the prosecution extracted
concessions from Dr. Alexander that an I.Q. score in the thirties
would render Cockrell profoundly mentally retarded, that it was
possible that Cockrell could have understood at least part of the
statement, and that Cockrell could also have understood a
paraphrase of his statement.
After deliberating for less than one full day, the jury
returned a guilty verdict. During the punishment phase of the
trial, the prosecution introduced evidence regarding Cockrell’s
lengthy criminal record, which included 13 different first-degree
felony convictions over a ten-year period, as well as testimony
from two correctional officers who had witnessed Cockrell attacking
another inmate with a combination lock tied to a belt. The
prosecution also called Dr. John C. Sparks, a licensed psychia-
trist, who disputed Dr. Alexander’s interpretation of the raw
scores on the I.Q. tests given Cockrell in 1973 and 1978.
Dr. Sparks indicated that the proper method for interpreting raw
I.Q. test scores is to cross-reference the scores with the
subject’s chronological age, and that doing so with Cockrell’s
1970's test scores resulted in a determination that Cockrell had a
composite I.Q. somewhere in the mid-70's to mid-80's during that
period. In addition, Dr. Sparks noted that the Texas Department of
Criminal Justice regularly conducts I.Q. tests on inmates and that
Cockrell, while incarcerated for other offenses during the 1980s,
had I.Q. test scores of 75, 86 and 93. Dr. Sparks also testified
5
that an individual with an I.Q. score in the thirties would be
unable to care for himself and would have been unable to follow the
directions that Dr. Alexander had given Cockrell during the reading
tests he conducted. In conclusion, Dr. Sparks testified that
Cockrell was not mentally retarded.
The jury found, based on the Texas capital murder special
issues, that beyond a reasonable doubt, there was a probability
that Cockrell would commit criminal acts of violence that would
constitute a continuing threat to society, and that taking into
consideration all of the evidence, there were insufficient
mitigating circumstances to warrant a sentence of life
imprisonment. Cockrell was sentenced to death. Following
completion of his direct appeal and state habeas proceedings,
Cockrell filed a federal habeas petition that was denied in a
comprehensive 79-page opinion issued by the district court. When
the district court denied a COA, this application followed.
II. DISCUSSION
In applying for this COA, Cockrell argues that particular
decisions by his two attorneys at trial rendered their assistance
ineffective in violation of the Sixth Amendment. First, Cockrell
asserts that his trial counsel should have presented evidence at
the punishment phase of his then-current I.Q. and should have
presented testimony to rebut Dr. Sparks’s testimony regarding the
proper methodology for determining an individual’s I.Q. In
6
addition, Cockrell argues that his trial counsel should have
presented punishment phase evidence that Cockrell’s actions were
the result of “cocaine psychosis.”
A. Standard for the Issuance of a Certificate of Appealability
Pursuant to the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), the Supreme Court has held that a state
prisoner has “no absolute entitlement to appeal a district court’s
denial” of a petition for a writ of habeas corpus. See Miller-El
v. Cockrell, 537 U.S. 322, 336 (2003). Before a habeas appeal may
be entertained, a prisoner who is denied habeas relief by the
district court must first obtain a COA from a circuit judge. See
id.; 28 U.S.C. § 2253(c)(1) (2000 & Supp. 2003) (“Unless a circuit
justice or judge issues a certificate of appealability, an appeal
may not be taken to the court of appeals.”). The COA determination
requires the court of appeals to undertake “an overview of the
claims in the habeas petition and [make] a general assessment of
their merits.” Miller-El, 537 U.S. at 336. However, in making
this threshold inquiry, the Supreme Court noted that AEDPA
specifically bars the courts of appeals from undertaking “full
consideration of the factual or legal basis adduced in support of
the claims.” See id. Under the Supreme Court’s reading of AEDPA,
to fully adjudicate the merits of a habeas petition in denying a
COA would be to decide an appeal without jurisdiction. See id. at
336-37.
7
In order to obtain a COA under AEDPA, a federal habeas
petitioner must make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2000 & Supp. 2003).
This standard is only satisfied when a petitioner demonstrates that
“jurists of reason could disagree with the district court’s
resolution of the constitutional claims or that jurists could
conclude that the issues presented are adequate to deserve
encouragement to proceed further.” See Miller-El, 537 U.S. at 327.
Because our review demonstrates that no reasonable jurist
could disagree with the district court’s well-reasoned resolution
of Cockrell’s ineffective assistance claims and because no jurist
could conclude that these claims deserve encouragement to proceed,
we deny Cockrell’s petition for a COA.
B. Analysis of the District Court’s Decision
To prevail on the type of ineffective assistance claims
Cockrell has made, Cockrell must show that his attorneys “failed to
investigate or introduce [the] evidence; that this failure amounted
to deficient performance by his attorneys; and that he was
prejudiced by this failure.” See Johnson v. Cockrell, 306 F.3d
249, 251-52 (5th Cir. 2002) (citing Strickland v. Washington, 466
U.S. 668, 687 (1984)). Moreover, under the restrictions of AEDPA,
federal courts must defer to a decision of state courts unless the
decision was either “contrary to, or involved an unreasonable
application of, clearly established Federal law,” as determined by
8
the Supreme Court, 28 U.S.C. § 2254(d)(1), or involved “an
unreasonable determination of the facts in light of the evidence
presented in the state court proceedings.” 28 U.S.C. § 2254(d)(2).
The district court noted that Cockrell offered no
evidence during the state habeas proceeding suggesting what an I.Q.
test performed near the time of Cockrell’s trial would have
revealed. Nor did Cockrell present any evidence regarding what a
rebuttal expert called to discuss Dr. Sparks’s testimony might have
offered. As a result, the district court concluded that Cockrell
failed to show that the state courts unreasonably applied the
deficient performance and prejudice prongs of the Strickland test.
We agree.
Even assuming, arguendo, that Cockrell could show that
his trial counsels’ failure to contact experts concerning (a) his
I.Q. at the time of trial and (b) potential errors in Dr. Sparks’s
testimony amounted to inadequate investigation and deficient
performance, Cockrell did not present even a scintilla of evidence
as to how these failures prejudiced his defense. See, e.g., Moawad
v. Anderson, 143 F.3d 942, 948 (5th Cir. 1998) ("A defendant who
alleges a failure to investigate on the part of his counsel must
allege with specificity what the investigation would have revealed
and how it would have altered the outcome of the trial.") (internal
quotation marks and citations omitted); Andrews v. Collins, 21 F.3d
612, 624 (5th Cir. 1994) (to satisfy the prejudice prong of
Strickland, the defendant must “show evidence of sufficient quality
9
and force to raise a reasonable probability that, had it been
presented to the jury,” a different outcome would have resulted).
Cockrell admits as much in his reply brief before this
court. Noting that his state habeas counsel had never done capital
work before this case, Cockrell acknowledges that his state habeas
petition contained no evidence outside the trial record and that
“no experts were called by the state habeas counsel to substantiate
the claims raised in the state writ especially regarding the
failure by trial counsel to produce mitigation evidence on mental
retardation, IQ and cocaine-induced behavior.” As petitioner,
Cockrell bore the burden to prove that the state court’s decision,
based on the evidence before it, was an unreasonable application of
governing constitutional law or of the law to the facts. He did
not carry his burden.
Cockrell’s argument regarding the potential effect of
expert testimony regarding the “cocaine psychosis” theory suffers
from similar problems. While Cockrell’s state habeas attorney
submitted a series of articles regarding “cocaine psychosis” and
argued that expert testimony might have assisted the jury, he
offered no evidence that Cockrell suffered from such a disease.
Evidence of the existence of such a disease, unaccompanied by
evidence of the relevance of the disease to the case at hand,
cannot support a contention that Cockrell’s trial counsel rendered
ineffective assistance. Finally, Cockrell did not suggest how the
outcome of his case was prejudiced by the failure to contend that
10
he murdered Deptawa while allegedly suffering from cocaine
psychosis.
Apart from the merits of the argument, as both the state
habeas court and the federal district court noted, Cockrell’s trial
attorneys testified at the state habeas proceeding that they had
legitimate, objectively reasonable, strategic reasons for not
presenting potentially double-edged evidence regarding Cockrell’s
alleged history of cocaine abuse. See Kitchens v. Johnson, 190
F.3d 698, 701-03 (5th Cir. 1999) (trial counsels’ decision not to
offer evidence related to the defendant’s forced consumption of
alcohol during an abusive childhood did not constitute ineffective
assistance because the evidence raised the issue of prior drug use
by the defendant); Johnson, 306 F.3d at 253 (noting that “so long
as the decision not to introduce double-edged mitigation evidence
was based on trial strategy rather than lack of investigation,
those questions are even less susceptible to judicial second-
guessing”) (internal quotation marks and citations omitted). Given
Cockrell’s lengthy criminal history and his contention throughout
the trial that he did not commit the crime, we agree with the
district court’s determination that the state courts did not
unreasonably conclude that Cockrell’s trial counsels’ decision not
to highlight his past drug use was the product of reasonable
strategy rather than the lack of adequate investigation.
III. CONCLUSION
11
For the reasons discussed above, Cockrell’s application
for a certificate of appealability raises no issues that are
reasonably debatable among jurists after Miller-El and must be
DENIED.
12