COCKRUM BY WELCH v. Johnson

• Decision Date: 25 July 1996
• Docket Number: No. 6:93 cv 230.,6:93 cv 230.
• Citation: 934 F. Supp. 1417
• Parties: John COCKRUM, By Next Friend Mandy WELCH, Applicant, v. Gary JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent.
• Court: U.S. District Court — Eastern District of Texas

934 F. Supp. 1417

John COCKRUM, By Next Friend Mandy WELCH, Applicant, v. Gary JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent.

No. 6:93 cv 230.

United States District Court, E.D. Texas, Tyler Division.

July 25, 1996.

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John Cockrum, Huntsville, TX, pro se.

Mandy Welch, Texas Defender Service, Houston, TX, Richard H. Burr, Houston, TX, for John Cockrum.

Stephani A. Stelmach, John Jacks, Asst. Attys. Gen., Meredith Anne Martinez, Attorney General's Office, Criminal Law Enforcement, Division LEDD, Austin, TX, for James A. Collins.

MEMORANDUM OPINION

JUSTICE, District Judge.

I. Introduction

John Cockrum, through his next friend Mandy Welch, Esq., brings the above-entitled and numbered application seeking the writ of habeas corpus. After reviewing the evidence and arguments of the parties, it is found, pursuant to the following findings of fact and conclusions of law, that the application should be granted in part and denied in part and that a writ of habeas corpus should conditionally issue.

II. Factual and Procedural Background

In May 1986, in DeKalb, Texas, John Cockrum shot and killed Eva May, during the course of a robbery of the small convenience store that she owned and operated. Cockrum was arrested along with his accomplice, Jerry Morgan, and indicted for capital murder by a Bowie County grand jury.¹ After trial in December 1986, a jury found Cockrum guilty of intentionally causing the death of another in the course of aggravated robbery, and affirmatively answered all special issues, as required by former Tex.Code Crim.P. art. 37.071. In accordance with the jury's findings, Cockrum was convicted of capital murder and sentenced to death by lethal injection. The Texas Court of Criminal Appeals affirmed his conviction and sentence on direct appeal, and the United States Supreme Court denied Cockrum's petition for the writ of certiorari. Cockrum v. State, 758 S.W.2d 577 (Tex.Crim.App.1988), cert. denied, 489 U.S. 1072, 109 S.Ct. 1358, 103 L.Ed.2d 825 (1989).

Cockrum filed an application for the writ of habeas corpus in Texas state court, before the same judge who sat at Cockrum's trial. Without an evidentiary hearing, the state district court entered findings of fact and conclusions of law, which the Texas Court of Criminal Appeals found to be supported by the record. In a per curiam opinion, the Court of Criminal Appeals denied the habeas corpus application. Ex parte Cockrum, No. 23,249-02 (Tex.Crim.App.1992).

In 1993, Cockrum applied for the writ of habeas corpus in federal court, and his execution was stayed pending review of the application. Since its filing, this action has proceeded along a tortuous path, requiring, among other things, the determination of the applicant's competency to waive further review of his conviction and sentence, In re Cockrum, 867 F.Supp. 484 (E.D.Tex.1994), the substitution of counsel for the applicant, and the resolution of discovery disputes, Cockrum v. Johnson, 917 F.Supp. 479 (E.D.Tex.1996). In February 1996, a hearing on the merits of Cockrum's application was finally held.

On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. 104-132, 110 Stat. 1217, was signed into law, and a new issue was injected into this action — whether the newly enacted law applies to Cockrum's application and if it does, what it means. The State argues that Cockrum's application must be evaluated under the newly amended provisions of 28 U.S.C. § 2254, and that under these provisions, all relief to the applicant must be denied. Cockrum, on the other hand, contends that the AEDPA does not retroactively apply to pending cases, and that, contrary to the State's interpretation, he is entitled to the writ even under the newly amended provisions. The parties have fully briefed all issues, including the impact of the new law, and all claims for relief in the application are now ripe for adjudication.

This opinion proceeds in four parts. First, the retrospective effect of the new law is considered, and it is determined that the newly enacted amendments to the habeas corpus statute do not apply to this case, but that the uncertain state of the law justifies analyzing Cockrum's application, in the alternative, under the AEDPA. Second, the applicant's challenge to the presumption of correctness of the state habeas court's fact-findings is addressed, and it is found that the presumption should not attach. Third, the merits of Cockrum's claims are considered, and it is concluded that because Cockrum received ineffective assistance in the punishment phase of his trial, the writ of habeas corpus should conditionally issue. Finally, Cockrum's application is analyzed, in the alternative, under the AEDPA, and it is likewise determined that Cockrum is entitled to the writ of habeas corpus due to the ineffective assistance of counsel.

III. Effect of Antiterrorism and Effective Death Penalty Act

Title I of the AEDPA significantly curtails the scope of federal habeas review. The law amends chapter 153 of United States Code title 28, by creating stricter filing deadlines for habeas corpus applications, narrowing the circumstances in which an appeal may be taken, altering the standards by which a federal court reviews an applicant's claims, and restricting the ability of a prisoner to bring more than one application for relief. AEDPA §§ 101-106 (to be codified at 28 U.S.C. §§ 2244, 2253, 2254 & 2255). The AEDPA also creates a new chapter — title 28, chapter 154 — establishing procedures that apply only to prisoners in state custody under a death sentence. AEDPA § 107 (to be codified at 28 U.S.C. §§ 2261-2266).

At issue here is § 104, the amendments to 28 U.S.C. § 2254. The State does not argue that § 107, the new chapter governing death penalty cases, applies to this action, despite the fact that Cockrum is a prisoner in state custody under a death sentence. This is so because the applicability of the new death penalty chapter is predicated on the adoption of a mechanism for the appointment and payment of counsel in state post-conviction proceedings. AEDPA § 107(a) (to be codified at 28 U.S.C. § 2261). No such mechanism was in place when Cockrum's habeas corpus application was considered by the Texas state system. Thus, § 107 does not apply to this action, and is relevant here only to the extent it sheds light on the retrospective effect of § 104.

Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), provides the framework for determining the initial question of whether the AEDPA applies to pending cases on its date of enactment. First, "where the congressional intent is clear, it governs"; if the statute evinces a clear intent for prospectivity or retroactivity, there is no need to analyze the issue further. Id. at ___, 114 S.Ct. at 1496 (quoting Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 837, 110 S.Ct. 1570, 1577, 108 L.Ed.2d 842 (1990)). If congressional intent is ambiguous, however, then it must be determined whether the statute has "retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." Id. at ___, 114 S.Ct. at 1505. If the statute would operate retroactively in this manner, then it does not apply to pending cases. If the new law does not have retroactive effect — i.e., it is a rule of procedure, or a jurisdictional statute changing the tribunal to hear the case, or a law altering the standard for granting purely prospective relief — then the new statute does apply to pending cases. Reviewing the AEDPA under the first part of the Landgraf test, it is concluded that Congress did not intend § 104 of the AEDPA to apply to actions pending on the date of its enactment, and thus, it is unnecessary to consider, under the second part of the Landgraf test, whether the law would have retroactive effect.

In drafting § 107, Congress stated explicitly that the new death-penalty chapter applies retroactively: "Chapter 154 of title 28, United States Code ... shall apply to cases pending on or after the date of enactment of this Act." AEDPA, § 107(c). In contrast, the amendments to Chapter 153, including § 104, lack any provision specifying whether they are prospective or retroactive. "Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Gozlon-Peretz v. United States, 498 U.S. 395, 404, 111 S.Ct. 840, 847, 112 L.Ed.2d 919 (1991) (quoting Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 300, 78 L.Ed.2d 17 (1983)) (internal quotation marks omitted). Applying this maxim to the AEDPA, it is found that because § 107 contains an explicitly retroactive provision, and because § 104 contains no retroactive provision, Congress intended the latter to have only prospective effect. Accordingly, because Cockrum's application was pending on the date that the AEDPA was signed into law, it is found that § 104 does not apply to this action.

It is recognized that the Supreme Court in Landgraf, applying the same canon of statutory construction, found a similar, although much weaker, argument to be insufficient to establish congressional intent on the subject of a statute's retroactivity. See Landgraf, 511 U.S. at ___ - ___ & ___ n. 12, 114 S.Ct. at 1494-95 & 1495 n. 12 (holding that two minor, expressly prospective, provisions of the Civil Rights Act of 1991, 42 U.S.C. § 1981a, do not support a negative inference that the rest of the law should be applied retroactively). It is also recognized that the courts that have addressed the issue of the AEDPA's effect on pending cases...