Richard Aaron Cobb ("Cobb"), an inmate confined in the Texas Department of Criminal Justice, Correctional Institutions Division, filed a petition for a writ of habeas corpus on December 4, 2008. He challenged the death sentence imposed in the 2nd Judicial District Court of Cherokee County, Texas in cause No. 15054, styled The State of Texas v. Richard Aaron Cobb. For the reasons set forth below, the Court finds that the petition is not well-taken and it will be denied.
Factual and Procedural Background
Cobb and Beunka Adams teamed up to commit two armed robberies in August of 2002. On September 2, 2002, they decided to rob a convenience store in Jacksonville, Texas. After taking the money from the cash register, they took Nikki Ansley and Candace Driver, the two clerks working at the store, and Kenneth Vandever, a customer, hostage. Using Driver's car, Cobb and Adams drove to a rural area northeast of Alto, Texas. Cobb held the shotgun on the hostages most of the time. When the car arrived at an area known as the "pea patch," Adams ordered Driver and Vandever into the trunk of the car, then took Ansley into a wooded area and raped her. Adams and Cobb then tried putting all three hostages into the trunk of the vehicle but then tied up the two female hostages, intending to leave with Vandever and then allow him to return and untie them. When Vandever began to protest, Cobb shot him. Cobb and/or Adams then shot the other two hostages as well (it is unclear which perpetrator shot which victim). After satisfying themselves that the three were dead, Cobb and Adams left the area and ditched the vehicle. They then went to the residence of Adams's cousin, Michael Hackett, and asked him to take them to a house in Jacksonville, Texas.
Vandever died from his wounds, but Ansley and Driver both survived and, after regaining consciousness, managed to get to safety. Ansley told law enforcement that she believed she had gone to school with one of her attackers. Based upon her description, investigators obtained the names of Cobb and Adams from school authorities. Ansley identified both Cobb and Adams as her kidnappers. Driver identified Adams but was unable to identify Cobb. Hackett contacted police and provided Cobb's and Adams's whereabouts. They were arrested the next day. Under questioning, Cobb confessed to participating in the robbery and kidnaping and to shooting Vandever.
On September 23, 2002, Cobb was indicted for capital murder in Cherokee County under Tex. Crim. Code § 19.03(a)(2), killing in the course of committing another felony (in this case, kidnaping and robbery). His trial began on January 5, 2004, and on January 23, 2004, he was sentenced to death. Cobb's conviction and sentence were affirmed on direct appeal. See Cobb v. State, No. AP-74875, 2007 WL 274206 (Tex. Crim. App. Jan. 31, 2007) (not designated for publication). Cobb then filed an application for post-conviction relief in the state court, which was also denied. Ex parte Cobb, No. WR 68,192-01, 2007 WL 4306840 (Tex. Crim. App. Dec. 5, 2007) (not designated for publication). He filed an "Addendum to Application for Writ of Habeas Corpus," but the state court treated it as a subsequent application and dismissed it as an abuse of the writ. Ex Parte Cobb, No. 68,192-02, 2007 WL 4306840 (Tex. Crim. App. Dec. 5, 2007) (not designated for publication). On December 4, 2008, Cobb filed an application for a writ of habeas corpus in this Court.
Claims Presented for Review
Cobb raised eleven claims in his application:
1. The State of Texas violated the rule in Brady v. Maryland when it withheld evidence which could have been used to impeach the credibility of a witness.
2. The special sentencing issue number two (the mitigation question) conflicts with the Supreme Court of the United States' decision in Mills v. Maryland.
3. The trial court erred when it relieved the state of its constitutional burden to prove insufficient mitigating factors beyond a reasonable doubt.
4. The Supreme Court's holding in Maynard v. Cartwright requires that the term "probability of committing future criminal acts of violence" be defined.
5. The Texas death penalty scheme is unconstitutional because it limits the factors that jurors are to consider when answering special issue number 2 (the mitigation question), which conflicts with the Supreme Court's decisions in Tennard v. Dretke, Boyde v. California, and Payne v. Tennessee.
6. The Texas death penalty scheme conflicts with the Supreme Court's decision in Tennard v. Dretke by failing to require the jury to consider evidence of mitigation.
7. The Texas death penalty scheme is unconstitutional in violation of the Eighth Amendment as interpreted in Penry v. Johnson because the mitigation special issue sends mixed signals to the jury, thereby rendering any verdict reached in response to that special issue unreliable.
8. The Texas death penalty scheme is unconstitutional because it provides the unfettered discretion as prohibited by the Supreme Court's decision in Furman v. Georgia.
9. The Texas death penalty scheme is unconstitutional because it prevents meaningful appellate review.
10. The Texas death penalty scheme is unconstitutional because it is founded on the jurors' inability to predict future danger in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments.
11. The Texas death penalty scheme is unconstitutional for its failure to provide proportionality review.
Because Cobb's application for habeas corpus was filed after 1996, the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") applies to his claims. Under the AEDPA, a state prisoner seeking to raise claims in a federal petition for habeas corpus ordinarily must fairly present those claims to the state court and thereby exhaust his state remedies. Martinez v. Johnson, 255 F.3d 229, 238 (5th Cir. 2001), cert. denied sub nom. Martinez v. Cockrell, 534 U.S. 1163 (2002). If an applicant raises a claim in his federal habeas corpus application that was not fairly presented to the state courts, the federal court has three options. It can allow the applicant to return to state court and present the claim to the state court in a successive petition, either by dismissing the entire petition without prejudice, see Rose v. Lundy, 455 U.S. 509, 520-22 (1982), or by staying the federal proceedings, see Rhines v. Weber, 544 U.S. 269, 278 (2005). If it is entirely clear that the state court would refuse to consider the merits of the claim if the applicant were to return to state court and present it in a successive petition, the federal court will treat the unexhausted claims as if the state court had already refused to hear them on procedural grounds. See Finley v. Johnson, 243 F.3d 215, 220 (5th Cir. 2001). If it is not entirely clear that the state court would refuse to hear a successive petition containing the new claims, however, the federal court will allow the state court the first opportunity to consider them. See Wilder v. Cockrell, 274 F.3d 255, 262-63 (5th Cir. 2001). Finally, the Court can deny the claim on its merits. See 28 U.S.C. § 2254 (b)(2).
Federal courts generally do not review claims that the state courts have refused to review based on adequate and independent state grounds unless the applicant can establish either that he had good cause for failing to fairly present his claims, and he would be prejudiced by not being given an opportunity to do so in the federal court, or that the federal court's failing to address the claims on their merits would result in a fundamental miscarriage of justice because the petitioner is actually innocent of the offense. See Coleman v. Thompson, 501 U.S. 722, 749-50 (1991); Finley v. Johnson, 243 F.3d 215, 220 (5th Cir. 2001).
If the state court denied the claim on its merits, a federal court may only grant relief if the state court's adjudication of the claim 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, see 28 U.S.C. § 2254 (d)(1), or if the state court's adjudication 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, see 28 U.S.C. § 2254 (d)(2). In reviewing a state court decision, this Court reviews questions of law and mixed questions of law and fact under section 2254(d)(1), and reviews questions of fact under section 2254(d)(2). The state court's findings of fact are presumed to be correct, and the applicant has the burden of rebutting this presumption of correctness by clear and convincing evidence. Richardson v. Quarterman, 537 F.3d 466, 472-73 (5th Cir. 2008), cert. denied, 129 S.Ct. 1355 (2009). If a claim was presented to the state court but not adjudicated by that court, this Court will determine it de novo, just as factual issues not determined by the state court are determined de novo. See Miller v. Johnson, 200 F.3d 274, 281 n.4 (5th Cir.), cert. denied, 531 U.S. 849 (2000).
If the state court based its decision on the alternative grounds of procedural default and rejecting the claim on its merits, the general rule in this circuit is that a federal court must, in the absence of good cause and prejudice, or a fundamental miscarriage of justice, deny relief because of the procedural default, see Hughes v. Dretke, 412 F.3d 582, 592 (5th Cir. 2005), cert. denied, 546 U.S. 1177 (2006), but the rule is not absolute; a court can look past the question of procedural default if the claims can be resolved more easily on the merits. See Busby v. Dretke, 359 F.3d 708, 720 (5th Cir. ), cert. denied, 541 U.S. 1087 (2004).
Cobb's first claim is that the State of Texas violated Brady v. Maryland*fn1 when it withheld impeaching evidence. This claim was denied on the merits by the state court, see State Habeas Record ("SHR") Vol. 2, pp.107-08, Conclusions of Law 2 - 5, so the issue for the Court is whether the state court's adjudication of the claim 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, or was the result of an unreasonable determination of the facts in light of the evidence presented to the state court.
During the guilt-determination phase of the trial, Cobb admitted participating in the robbery and kidnaping and shooting Vandever. He testified, however, that he went into the store planning only to get money and leave, but Adams, as the leader, changed the plan and directed all of the ensuing events. The testimony of the surviving victims corroborated this part of Cobb's testimony. Cobb also testified, however, that Adams threatened to kill him unless he agreed to participate in killing the three hostages. See Reporter's Record ("RR") Vol. 90, pp. 47 - 87. The witnesses did not corroborate this part of Cobb's testimony, and, on cross-examination, Cobb admitted that he did not mention any coercion by Adams when he initially confessed to the authorities. Id. at 99.
While Cobb was incarcerated at the Cherokee County Jail, he had several conversations with an inmate named William Elmer Thomsen ("Thomsen"). Thomsen was awaiting trial for illegal possession of a firearm by a felon. At the time he was arrested on that charge, Thomsen was also on probation for another offense, so he was facing both revocation of his probation and imprisonment for the weapons charge. Unbeknownst to Cobb, Thomsen contacted his personal attorney and instructed him to contact the District Attorney and see whether the District Attorney would agree to drop the charges and get him released in exchange for Thomsen's testifying to what Cobb told him. The District Attorney told Thomsen's attorney that he did not make deals for testimony; nevertheless, the District Attorney's office dropped the weapons charge and contacted Thomsen's probation officer on two occasions informing him that it was not going to pursue that charge, and Thomsen did testify for the prosecution at both the guilt-determination phase and the punishment-determination phase of Cobb's trial.
At the guilt-determination phase, Thomsen testified that in their jailhouse conversations Cobb talked extensively not only about the crime for which he was on trial, but also about two other aggravated robberies he committed. Thomsen testified that Cobb said to him that he thought armed robberies were the way to go, because it's fast, quick, easy money, go in and pull a gun on somebody, get the money in a matter of seconds. See RR Vol. 91, p. 49-50. Thomsen also testified that Cobb told him that he and Adams had planned to commit another armed robbery after the crime for which he got arrested, and at his trial he planned on testifying that Adams had threatened him with death if he did not participate in the crime, even though he knew that it was not true. Id.
The following colloquy took place during the defense's cross-examination of Thomsen:
Q.*fn2 Mr. Thomsen, when you were in jail you started contacting your lawyer about trying to work a deal, didn't you?
A. It wasn't really to make a deal, no sir. When I contacted my lawyer in regards of the information I had, my charges had already been dismissed.
Q. But you were still in jail?
A.Yes sir, I was in jail on parole violation at that time.
Q. In fact, while you were -- what happened to your felony felon in possession charge?
A. I want to say latter part of November.
Q. Was that after these conversations with Mr. Cobb?
A. It was before -- oh, it was during the conversation with Mr. Cobb but I had not had any contact with -- I hadn't even had contact with my lawyer.
Q. When did you first contact your lawyer about wanting to give information to the DA's office?
A. I want to say it was either the last week of November or the ...