Cole v. Lumpkin

• Decision Date: 07 September 2021
• Docket Number: Civil Action 4:17-cv-940
• Parties: JAIME PIERO COLE, Petitioner, v. BOBBY LUMPKIN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
• Court: U.S. District Court — Southern District of Texas

JAIME PIERO COLE, Petitioner, v. BOBBY LUMPKIN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

Civil Action No. 4:17-cv-940

United States District Court, S.D. Texas, Houston Division

September 7, 2021

MEMORANDUM AND ORDER

Lee H Rosenthal Chief United States District Judge

In 2011, a Texas jury convicted Jaime Piero Cole of capital murder for killing his estranged wife and 15-year-old stepdaughter. The jury's answers to the Texas special issue questions required a death sentence. After unsuccessfully seeking Texas appellate and habeas remedies Cole petitioned for federal habeas corpus relief and moved for discovery (Docket Entry No. 71) and a stay to wait for more favorable Supreme Court case law. (Docket Entry No. 77). Respondent Bobby Lumpkin moved for summary judgment, and Cole replied. (Docket Entries Nos. 67, 82). After considering the record, the parties' arguments, and the applicable law including the Anti-Terrorism and Effective Death Penalty Act standards, the court denies Cole's requests to stay and for discovery and grants the motion for summary judgment. Because Cole has not made the necessary showing, no certificate of appealability is issued.

The reasons for these rulings are set out below.

BACKGROUND

The facts of this case are simple. In January 2010, Cole's wife moved out of their house, taking their two young sons and her daughter from a prior relationship. On February 3 2010, Cole purchased a new firearm. The next day, Cole took his sons out for dinner. When he returned them to his wife's apartment, Cole and his wife began arguing. After moving their argument outside, Cole suddenly drew his new gun and shot his wife several times. Cole reentered the apartment, chased his stepdaughter into her bedroom, and shot her. Cole turned his gun on a visiting niece and fired, but had apparently run out of bullets.

Cole fled with his two-year-old son. Police officers arrested Cole at a Wal-Mart in Wharton County, where he had just purchased 100 rounds of ammunition and diapers. Cole would later make inculpatory statements to the police in both Wharton and Harris Counties.

The State of Texas charged Cole with capital murder for the shooting deaths of his wife and stepdaughter during the same criminal transaction. See Tex. Penal Code § 19.03(a)(7)(A). Cole stood trial in the 230th District Court of Harris County under Cause No. 1250754, the Honorable Judge Belinda Hill presiding. The trial court appointed Robert Loper and Jerald Graber to represent Cole at trial.

Defense trial counsel faced a difficult challenge. Cole had confessed to police officers, making statements suggesting that he intended to commit the murders. Both Cole's older son and his niece would testify about his actions. Trial counsel made vigorous efforts to defend Cole, retaining a fact and a mitigation investigator. Counsel also consulted with expert witnesses on topics such as confessions, mental health, addiction, and future dangerousness. State Habeas Record at 519-21. In the end, counsel based Cole's defense on arguing that he was guilty of a lesser offense than first-degree capital murder because “it was a crime of passion. The emotions were high. It was a highly-charged instance.” 20 RR 95.^[1] The jury found Cole guilty of capital murder.

Texas law determines a capital defendant's punishment in a separate sentencing hearing. The jury was asked two special issue questions: (1) would Cole pose a future threat to society; and (2) did mitigating circumstances warrant a life sentence? Tex. Code Crim. Pro. art. 37.071(b)(1)-(2), (e)(1). The State based its case for a death sentence both on the viciousness of Cole's crime and on his past violent behavior. The State told jurors about Cole's past arrests for public intoxication and disorderly conduct. The State called various witnesses to testify about Cole's history of violence, particularly toward women. The testimony showed that Cole had choked one former girlfriend and had been repeatedly violent toward another former girlfriend, including by punching her in the stomach when she was pregnant with his child and putting a shotgun to her head. That incident resulted in aggravated assault charges. Cole and that girlfriend had a daughter, who testified about the physical and sexual abuse she suffered at his hands. Family members testified about Cole's earlier aggression and violence. The State argued that Cole's lawlessness would extend into prison, noting that prison officials had found controlled substances hidden in his cell during pretrial detention.

Defense trial counsel responded with vigorous attempts to show mitigation. Through 14 witnesses, counsel presented evidence of positive aspects of Cole's life and the negative effects of his substance abuse. Defense counsel told jurors about Cole's birth and early years in rural Ecuador. An American couple adopted him and raised him in a loving home. But even with that nurturing environment, Cole missed his mother and felt a sense of loss from not being with her. His early adult years were spent well, working and raising children. His separation from his wife, however, resurrected his feelings of abandonment. He became an alcoholic, which caused him to handle his feelings “inappropriately, absolutely inappropriately.” 24 RR 30, 48. Defense counsel pleaded with the jurors to find that Cole had acted with passion because of his emotional state, not from cold calculation. Defense counsel took that background and argued that, while Cole deserved punishment for the murders, the “appropriate” penalty would be to “die in prison.” 24 RR 42. Defense counsel emphasized that a life sentence would prevent Cole from committing future violence against members of the public. The jury's answers to the special issues resulted in a death sentence.

Cole sought automatic direct review in the Texas Court of Criminal Appeals, raising 17 grounds for relief. The Court of Criminal Appeals found no reversible error in Cole's conviction or sentence. See Cole v. State, 2014 WL 2807710 (Tex. Crim. App. 2014).

Under Texas law, a state habeas action proceeds concurrent with the direct appeal. See Tex. Code Crim. Pro. art. 11.071 § 4. Attorneys from the Texas Office of Capital and Forensic Writs represented Cole on state habeas review. Cole's state habeas application raised eight grounds for relief. The state habeas court held hearings and considered the affidavits provided by defense trial counsel in deciding his claims. The state habeas court ordered the parties to submit proposed findings of fact and conclusions of law. The lower state habeas court signed the State's findings and conclusions without alteration. “Based upon the trial court's findings and conclusions and [its] own review, ” the Court of Criminal Appeals denied relief. Ex parte Cole, 2017 WL 562725, at *2 (Tex. Crim. App. 2017).

This court appointed counsel to represent Cole throughout the federal habeas corpus process. Cole filed a timely federal petition for a writ of habeas corpus in 2018. (Docket Entry No. 10). Cole's petition included some issues that he had litigated in state court, but he also raised some issues for the first time on federal review. On Cole's motion, the court stayed this case to allow the exhaustion of state court remedies. (Docket Entry No. 49).

Cole filed a successive state habeas application. The Court of Criminal Appeals reviewed Cole's submission and, finding that he did not satisfy the requirements for successive state proceedings under Tex. Code Crim. Pro. art. 11.071 § 5, dismissed the habeas action as an abuse of the writ, without considering the merits. Ex parte Cole, 2020 WL 1542118, at *1 (Tex. Crim. App. 2020).

This court reopened the habeas case and Cole filed an amended habeas petition. (Docket Entries Nos. 54, 57, 58). Cole's amended petition raises the following grounds for relief:

1. Trial counsel was deficient in investigating and presenting mitigating evidence, particularly concerning childhood trauma, alcoholism, unstable interpersonal relationships, and feelings of abandonment.

2. Trial counsel was deficient in investigating and presenting expert testimony concerning substance abuse.

3. Trial counsel failed to investigate and present evidence of Cole's exposure to neurotoxins.

4. Trial counsel was deficient in presenting evidence relating to Cole's future threat to society.

5. Trial counsel was deficient in failing to object to the State's use of peremptory strikes on minority prospective jurors.

6. Trial counsel was deficient in failing to object to statements made by the prosecutor.

7. The jury's consideration of extraneous information violated Cole's Sixth Amendment rights.

8. The trial court violated Cole's rights by not instructing the jury that a vote for life by one juror would result in a life sentence.

9. The trial court violated Cole's rights by allowing his custodial statements to come before the jury.

10. The trial court's instructions and the prosecutor's statements limited the jury's ability to consider mitigating evidence.

11. The special issue questions were vague and undefined.

12. The first special issue unconstitutionally lowers the State's burden of proof.

13. Cole's rights were violated when the jury considered evidence regarding crimes committed by other inmates.

14. Texas arbitrarily administers capital punishment.

15. The Texas death penalty statute unconstitutionally coerces jurors into unanimity.

16. The cumulative prejudicial effect of Cole's claims amount to a constitutional violation.

This memorandum and opinion addresses Cole's motion for discovery and motion to stay, and the respondent's motion for summary judgment. The court finds that no evidentiary hearing or other...