Cotton v. Cockrell
| Decision Date | 21 August 2003 |
| Docket Number | No. 02-21263.,02-21263. |
| Citation | 343 F.3d 746 |
| Parties | Marcus Bridger COTTON, Petitioner-Appellant, v. Janie COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Kevin Scott Dunn, The Dunn Law Firm, The Woodlands, TX, for Petitioner-Appellant.
John Andrew Hutton, Austin, TX, for Respondent-Appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before JONES, STEWART and DENNIS, Circuit Judges.
Marcus Bridger Cotton was convicted of capital murder and sentenced to death for murdering Assistant District Attorney Gil Epstein during a robbery in November 1997. After he exhausted state remedies, Cotton filed a § 2254 petition for a writ of habeas corpus in federal district court raising twelve issues. The district court granted the state's motion for summary judgment on all twelve issues. The district court granted summary judgment and denied Cotton's petition. The district court also refused to grant a certificate of appealability ("COA") on any of the issues raised by Cotton.
Cotton now seeks a COA from this court on four issues: (1) whether the prosecutor improperly commented on the defendant's failure to testify, (2) whether his trial counsel provided constitutionally ineffective assistance by failing to call two witnesses to testify at trial, (3) whether he was denied due process by comments made by the trial judge during jury selection about the history of the Texas capital sentencing scheme, and (4) whether his trial counsel provided constitutionally ineffective assistance by failing to object to the trial judge's comments regarding the Texas capital sentencing scheme. We grant a COA on the first issue but deny the application for COA on the other issues. With respect to the issue regarding the prosecutor's closing argument, however, we affirm the district court's denial of habeas relief.
At Cotton's second trial for capital murder, Lawrence Watson testified that on September 18, 1996, he and Cotton decided to commit a robbery because they were broke. Sometime later that day, Cotton and Watson observed Gil Epstein and Sean Caruthers walking toward their cars in the Houston Jewish Community Center parking lot and decided to rob them. Watson approached Caruthers, pointed a.38 caliber revolver at him, and demanded money. Caruthers gave his wallet to Watson and Watson ordered him to leave. At the same time, Cotton accosted Epstein. Cotton forced Epstein to the ground with a.380 caliber semi-automatic pistol and demanded his money. Epstein told Cotton he did not have any money. Cotton walked Epstein to his car, forced Epstein into the back seat, and began to search Epstein's wallet and glove compartment.
Caruthers testified that after being ordered to leave by Watson, he drove to the front of the community center and went into the center seeking help. Caruthers came back outside and drove to the side of the building where he saw Cotton in Epstein's car. Watson was on a bicycle outside of Epstein's car. Caruthers began to flash the car's lights and honked the horn in an attempt to alert the police. Watson testified that when Caruthers created this disturbance Cotton yelled to Watson to "kill that bitch." Watson aimed his gun at Caruthers, but without having fired his weapon, he heard a gunshot behind him. Watson turned around and saw Cotton fire his gun while still in Epstein's car. Several witnesses testified that Cotton said he decided to kill Epstein when he found in Epstein's wallet a badge identifying Epstein as an assistant district attorney for Fort Bend County, Texas. After shooting Epstein, Cotton left the car, jumped on his bicycle and rode toward Caruthers' car. Caruthers drove into Cotton, knocking Cotton off his bike. Cotton and Watson then escaped.
Cotton was first tried for the murder of Epstein on March 17, 1997. Jury deadlock caused a mistrial. At a second trial in November 1997, a jury convicted Cotton of capital murder. Cotton was sentenced to death. On direct appeal, the Texas Court of Criminal Appeals upheld Cotton's conviction and sentence. Cotton v. State, No. 72,964 (Tex.Crim.App. June 30, 1999) (unpublished). The Supreme Court denied Cotton's petition for writ of certiorari. Cotton v. Texas, 530 U.S. 1277, 120 S.Ct. 2747, 147 L.Ed.2d 1010 (2000).
Before the Supreme Court's denial of his petition, Cotton filed a state application for habeas corpus. The trial judge entered findings of fact and conclusions of law, which were adopted by the Court of Criminal Appeals in denying habeas relief. Ex parte Cotton, No. 49,499-01 (Tex.Crim.App. June 7, 2000)(unpublished). On June 29, 2001, Cotton filed a petition for a writ of habeas corpus in federal district court.
Cotton's § 2254 habeas petition is subject to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001). Under AEDPA, Cotton must obtain a COA before he can appeal the district court's denial of habeas relief. 28 U.S.C. § 2253(c)(1) (2000); Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). "[U]ntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners." Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003).
To obtain a COA, Cotton must make "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2) (2000); Miller-El, 123 S.Ct. at 1039; Slack, 529 U.S. at 483, 120 S.Ct. 1595. To make such a showing, he must demonstrate that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Miller-El, 123 S.Ct. at 1039 (quoting Slack, 529 U.S. at 484, 120 S.Ct. 1595).
In Miller-El, the Supreme Court instructed, as it had previously held in Slack, that we should "limit [our] examination to a threshold inquiry into the underlying merit of [the petitioner's] claims." Miller-El, 123 S.Ct. at 1034. The Court observed that "a COA ruling is not the occasion for a ruling on the merit of petitioner's claim ..." Id. at 1036. Instead, our determination must be based on "an overview of the claims in the habeas petition and a general assessment of their merits." Id. at 1039. "This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims." Id. We do not have jurisdiction to justify our denial of a COA based on an adjudication of the actual merits of the claims. Id. Accordingly, we cannot deny an "application for a COA merely because [we believe] the applicant will not demonstrate an entitlement to relief." Id. "[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail." Id.
Even if we grant Cotton's application for COA, Cotton is not necessarily entitled to habeas relief. "To prevail on a petition for writ of habeas corpus, a petitioner must demonstrate that the state court proceeding `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.'" Robertson v. Cockrell, 325 F.3d 243, 247-48 (5th Cir.2003) (en banc) (quoting 28 U.S.C. § 2254(d)(1) (2000)). A state court's decision is "contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States ... if the state court arrives at a conclusion opposite to that reached by the Court on a question of law or if the state court decides a case differently than the Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court's decision "involves an unreasonable application of [] clearly established Federal law, as determined by the Supreme Court of the United States ... if the state court identifies the correct governing legal principle from the Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413, 120 S.Ct. 1495.
In making the "unreasonable application" inquiry, this court must determine whether the state court's application of clearly established federal law was objectively unreasonable. Neal v. Puckett, 286 F.3d 230, 236 (5th Cir.2002) (en banc), cert. denied, 537 U.S. 1104, 123 S.Ct. 963, 154 L.Ed.2d 772 (2003). "We have no authority to grant habeas corpus relief simply because we conclude, in our independent judgment, that a state supreme court's application of [federal law] is erroneous or incorrect." Catalan v. Cockrell, 315 F.3d 491, 493 (5th Cir.2002)(quoting Neal, 286 F.3d at 236). "The federal habeas scheme leaves primary responsibility with the state courts for these judgments, and authorizes federal-court intervention only when a state court decision is objectively unreasonable." Woodford v. Visciotti, 537 U.S. 19, 123 S.Ct. 357, 361, 154 L.Ed.2d 279 (2002).
Finally, for Cotton to be entitled to habeas relief based on a constitutional "trial" error, he must demonstrate not only that the state court's decision was contrary to or an unreasonable application of clearly established federal law, but also that it was harmful under the standard set forth in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Robertson v. Cain, 324 F.3d 297, 304 (5th Cir.2003). "Under Brecht, a federal court may grant habeas relief on account of constitutional error only if it determines that the constitutional error had a `substantial and injurious effect or influence in determining the jury's...
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