Cobb v. Thaler

• Decision Date: 25 May 2012
• Docket Number: No. 11–70003.,11–70003.
• Citation: 682 F.3d 364
• Parties: Richard Aaron COBB, Petitioner–Appellant, v. Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

682 F.3d 364

Richard Aaron COBB, Petitioner–Appellant,

v.Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.

No. 11–70003.

United States Court of Appeals, Fifth Circuit.

May 25, 2012.

F. Clinton Broden (Court–Appointed), Broden & Mickelsen, Phillip Carl Umphres (Court–Appointed), Dallas, TX, for Petitioner–Appellant.

Tomee Morgan Heining, Asst. Atty. Gen., Office of the Atty. Gen., Postconviction Lit. Div., Austin, TX, for Respondent–Appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before KING, DAVIS and ELROD, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

Richard Cobb was convicted of capital murder and sentenced to death in Texas state court. He filed a habeas petition in federal district court pursuant to 28 U.S.C. § 2254. The district court denied that petition, but granted a certificate of appealability (COA) on one issue: whether the state withheld impeachment evidence from Cobb in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We AFFIRM the district court's denial of habeas relief. We DENY Cobb's request for a COA on three additional issues.

I.

Cobb and Beunka Adams committed two armed robberies in August 2002. On the night of September 2, 2002, they committed a third. Armed with a shotgun, and wearing masks and gloves, they entered a convenience store known as BDJ's. Nikki Ansley (Dement)¹ and Candace Driver were working as clerks that night. Also present in the store was a frequent customer, Kenneth Vandever. Ansley and Driver were made to stand together behind the cash register. Cobb and Adams demanded money. Driver opened the cash register drawer. While Cobb held the shotgun, Adams grabbed the drawer and took all of the money. Vandever, the customer, began to walk out the front door, but was ordered to join Ansley and Driver behind the register.

Cobb and Adams then decided to take Ansley, Driver, and Vandever as hostages. Driver was ordered to surrender the keys to her Cadillac, which was parked outside, and the three hostages were forced into the vehicle. Adams drove to a remote, open pasture known as the “pea patch.” Everyone got out of the car, and Adams forced Driver and Vandever into the trunk while Cobb held the gun. Adams took Ansley into a wooded area and raped her. Cobb and Adams then told the three hostages that they could wait for a little while, and then leave, but soon Cobb and Adams changed their minds. After debating what to do, Cobb and Adams tied up the women hostages with their shirts and forced them to kneel by the vehicle. They began to walk away with Vandever, intending to allow him to come back later to untie Ansley and Driver. Soon they returned, however, and forced Vandever to sit by the other two victims.

After Vandever began to protest, Cobb shot him. Vandever fell forward, screaming that he had been shot. Either Cobb or Adams then shot Ansley and Driver.² Ansley and Driver both fell forward as well, and pretended to be dead. Adams started kicking Ansley, and Cobb joined in. Cobb lifted Ansley up by her ponytail, and he and Adams put their lighters up to her face. After satisfying themselves that the three victims were dead, Adams and Cobb left the scene and went to the residence of Adams's cousin.

Vandever died, but Ansley and Driver survived. After regaining consciousness, they managed to get to safety. Ansley sustained a shotgun wound to her left shoulder, numerous broken ribs, and a collapsed lung, which required her to spend almost two weeks in the hospital. After undergoing emergency surgery, she identified Cobb and Adams from a photo lineup. Driver, who suffered a gunshot wound to her lower lip, was able to identify Adams, but not Cobb, from a photo lineup while in the hospital. Adams's cousin contacted the police and disclosed Cobb's and Adams's whereabouts. They were arrested at Adams's cousin's home on September 3, the day after Vandever's murder. Adams surrendered, but Cobb resisted arrest and had to be subdued. Under questioning, Cobb confessed to shooting Vandever and to participating in the robbery and kidnaping.

On September 23, 2002, Cobb was indicted for capital murder under Tex. Penal Code § 19.03(a)(2) (murder in the course of committing, inter alia, kidnaping and robbery). His trial began on January 5, 2004. On January 23, 2004, he was sentenced to death.

During the guilt-determination phase of the trial, Cobb admitted to participating in the robbery and kidnaping and to shooting Vandever. He testified, however, that Adams pressured him into committing the murder, threatening to kill Cobb if he refused to take part in killing the three hostages. The state cast doubt on this portion of Cobb's testimony by getting him to admit on cross-examination that he did not mention any coercion by Adams when he first confessed to the authorities. Moreover, the other surviving witnesses did not corroborate Cobb's testimony that Adams threatened him.

The state also rebutted Cobb's duress defense by calling William Elmer Thomsen to testify. Thomsen was incarcerated with Cobb at the Cherokee County Jail. Thomsen testified that, during several jailhouse conversations he had with Cobb at this time, Cobb extensively discussed Vandever's murder as well as the robberies that he and Adams committed. Thomsen testified that Cobb “thought armed robberies were the way to go. It's fast, quick, easy money.” According to Thomsen's testimony, Cobb also told him that he and Adams had plans to rob a Whataburger in the near future, had they not been caught and arrested. Thomsen also testified that Cobb confided in him that he planned at his trial to blame the murder on Adams by testifying that Adams had threatened to kill him if he did not take part in shooting the hostages.

On cross-examination, the defense asked Thomsen whether he had received a deal from the state in exchange for his testimony. Thomsen avowed that he had not. He testified that when he contacted the district attorney to offer his testimony against Cobb, the charge he was facing for being a felon in possession of a firearm had already been dismissed.³ Thomsen was still in jail, however, for violating the terms of his probation for a prior offense. Although Thomsen insisted that he did not receive any benefit from the state for his testimony, he did concede that the district attorney's office contacted his parole officer on his behalf.

After the jury convicted Cobb of capital murder, the sentencing phase of Cobb's trial began. Salient here are two special issues that the jury was required to answer. First, the jury had to determine whether it was probable that Cobb would commit future criminal acts of violence that would constitute a continuing threat to society. If the jury answered this question in the affirmative, it had to determine whether mitigating circumstances made a sentence of life imprisonment without parole more appropriate than a death sentence. Tex.Code Crim. Pro. art. 37.071.

The district court summarized the evidence presented to the jury at the sentencing phase as follows:

The prosecution put on evidence of Cobb's other criminal conduct prior to the capital murder, including the testimony of the victims of the two previous armed robberies. They also presented testimony from several law enforcement officials who testified that Cobb had a bad reputation as far as obeying the law. They presented additional testimony from Ansley about the severity of her physical and emotional injuries. They presented testimony about the possibility of escape from prison, and they presented the testimony of Dr. Tynus McNeel, a psychologist who opined that Cobb fit the profile of a sociopath, a person who did not care about the welfare of other people and whose condition would be incurable. They also offered the testimony of Cobb's juvenile probation officer, who testified that Cobb assaulted one of his boot camp supervisors, that he was not afraid of people in authority, that his mother had difficulty controlling him, and that his reputation as a law abiding citizen was bad.

The prosecution also recalled Thomsen. This time, he testified that Cobb told him that when he learned that the two girls survived he was mad, because if they had died he probably wouldn't be in jail. He further testified that Cobb never expressed any remorse, which is why Thomsen was in court testifying. Thomsen stated that Cobb said that he got almost like a rush when he shot Vandever. This testimony caused Cobb to stand up and say “You lying son of a bitch, I never said no such thing,” whereupon the trial judge excused the jury and warned Cobb, “If you expect to remain in this courtroom for the remainder of this trial you will stay in your seat and keep your mouth shut.” After the jury returned, Thomsen testified that Cobb told him that if he were put in the same situation, he would do it again. Asked if Cobb ever said whose shotgun he used, Thompsen [ sic ] answered that Cobb said it was his, then added that Cobb “traded some gram of powder cocaine to some guy here in Rusk for it.” Thomsen also testified that Cobb discussed escaping from jail “Numerous times. He said if he ever had the chance and could figure out how to do it he would.” The defense did not cross-examine Thomsen.

The defense offered first the testimony of Cobb's adoptive mother, Edna Bell, who explained that Cobb and two of his brothers had been placed in foster care because their mother was unable to care for them, and that she decided to adopt all three of them. Bell described all three boys as having serious emotional problems from the beginning of her caring for them. She testified that she once visited the boys' mother's house and found it in horrific condition, with roach infestation. Several witnesses testified that Cobb's biological mother had alcohol and drug addiction issues and that as a result, her...