Smith v. Cockrell, 01-21209.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtKing
Citation311 F.3d 661
PartiesRobert SMITH, Petitioner-Appellee-Cross-Appellant, v. Janie COCKRELL, Director, Texas Department Of Criminal Justice, Institutional Division, Respondent-Appellant-Cross-Appellee.
Docket NumberNo. 01-21209.,01-21209.
Decision Date04 November 2002
311 F.3d 661
Robert SMITH, Petitioner-Appellee-Cross-Appellant,
Janie COCKRELL, Director, Texas Department Of Criminal Justice, Institutional Division, Respondent-Appellant-Cross-Appellee.
No. 01-21209.
United States Court of Appeals, Fifth Circuit.
November 4, 2002.

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Winston Earle Cochran, Jr. (argued), Houston, TX, Danny Karl Easterling, Easterling & Easterling, Houston, TX, for Smith.

Deni S. Garcia (argued), Austin, TX, for Cockrell.

Appeals from the United States District Court for the Southern District of Texas.

Before KING, Chief Judge, and HIGGINBOTHAM and BENAVIDES, Circuit Judges.

KING, Chief Judge.

Respondent-Appellant-Cross-Appellee Janie Cockrell appeals the decision by the District Court for the Southern District of Texas to grant habeas corpus relief to Petitioner-Appellee-Cross-Appellant Robert Smith. Upon careful review of the decisions of the district court and state habeas court, as well as the record, the briefs of the parties, and the applicable

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law, we are of the opinion that the district court erred in granting Smith's motion for habeas corpus relief on the grounds of ineffective assistance of counsel and an unconstitutional jury instruction. We therefore reverse the district court's judgment holding that Smith is entitled to habeas relief. Treating Smith's cross-appeal of the district court's denial of four additional grounds for habeas relief as an application for a certificate of appealability (COA) on those issues, we deny a COA on all grounds. Finally, for the first time in this appeal, Smith raises a claim based on the Supreme Court's recent decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). We decline to consider it.

I. Factual Background

In the evening of May 15, 1990, Smith and his accomplice1 entered a Houston clothing store about fifteen minutes before closing. The two men wandered through the store; the clerk on duty, Ms. Kim, became suspicious. She attempted to signal a friend at another store that she was in trouble; she also picked up the phone to call the operator for help. Before she could speak, though, Smith stuck a gun to her head, ordering her to hang up the phone and lay on the ground. At that point Ms. Kim's friend entered the store; Smith's accomplice sprayed the friend with mace.

Smith was unable to open the cash register, so he ordered Kim to stand and retrieve the money from the register. Kim did this; she also surreptitiously moved Smith's car keys from the place where he had set them on the sales counter. Smith and his accomplice fled the store with the money but without his keys. After the two men left, Kim called the police and informed local security guards of the robbery.

Smith and his accomplice ran in the direction of their car, parked at a nearby K-Mart. As they approached the car, they crossed paths with Mr. Griffith, the K-Mart security supervisor; Smith told Griffith to call for an ambulance because the clothing store was on fire. Griffith saw no fire and did not call an ambulance; however, as Griffith was getting into his car, he heard Smith say, "I can't find the fucking keys. I can't find the fucking keys." At that point, Smith and his accomplice left the car and fled.

Soon after, another security guard informed Griffith of the robbery. Griffith and the guard got into his car and pursued the two robbers. Griffith saw the two men jump a fence into an abandoned trailer park; he drove the car to an entrance where the gate had been knocked down. About fifteen seconds elapsed between the time Smith and his accomplice jumped the fence and the time that Griffith and the security guard arrived at the entrance to the trailer park.

As he was exiting the car, Griffith heard a gunshot from within the trailer park; he and the guard took cover in a nearby copse of trees. They heard voices from inside the park. Then, a truck engine started, headlights came on, and the truck headed in Griffith's direction. Griffith fired four warning shots into the air, causing the robbers to stop the truck and flee on foot.

At that point, the police arrived. Griffith and the security guard returned to the K-Mart parking lot to keep an eye on the suspects' car. The police entered the park with a K-9 unit; the dog tracked Smith

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into a wooded area. The dog located Smith hiding in some underbrush; the police arrested him.

As another officer approached the abandoned truck, he noticed a partially collapsed tent nearby. A deceased male, later identified as James Wilcox, lay on top of the tent. He had been shot in the arm; the bullet passed through his arm into his chest cavity, where it passed through his lungs and severed several major arteries. Smith confessed to robbing the clothing store and to shooting Wilcox; he claimed that, as he told Wilcox that the police were after him and asked for a ride in his truck, Wilcox grabbed his hand and leg. Smith shot Wilcox in the arm in order to get Wilcox to let go of him.

Two days later, on May 17, George Parnham, a board-certified criminal defense lawyer, was appointed to represent Smith in the case. At that same time, Carlos Correa, another attorney with whom Parnham was not previously acquainted, was appointed co-counsel.

II. Procedural History

On August 30, 1990, Robert Smith2 was indicted for capital murder for the shooting of James Wilcox during the course of flight from an armed robbery. Parnham several times attempted to convince Smith to accept a plea bargain; Smith refused, stating that he wanted his day in court before a jury. At the January, 1992 trial, a jury convicted Smith of capital murder. At a separate punishment hearing, the jury returned findings to the special issues that mandated the imposition of a death sentence.

The Court of Criminal Appeals upheld Smith's conviction and sentence on direct appeal. Smith v. State, 898 S.W.2d 838 (Tex.Crim.App.1995). The United States Supreme Court denied Smith's petition for certiorari. Smith v. Texas, 516 U.S. 843, 116 S.Ct. 131, 133 L.Ed.2d 80 (1995).

On April 24, 1997, Smith filed an application for writ of habeas corpus with a Texas state court pursuant to article 11.071 of the Texas Code of Criminal Procedure. In addition to considering the merits of the arguments put forth in the application, the state habeas court also held a short evidentiary hearing regarding Smith's claim that he received ineffective assistance of counsel during the punishment phase of his trial. The state habeas court, on March 11, 1998, issued its findings of fact and conclusions of law; the court recommended that the Court of Criminal Appeals deny all of Smith's alleged grounds for relief. The Court of Criminal Appeals held that the state habeas court's findings of fact and conclusions of law had support in the record; the court denied relief. Ex parte Smith, No. 40,871-01 (Tex.Crim.App. Apr. 21, 1999) (unpublished op.).

Smith filed a skeletal petition for habeas corpus with the District Court for the Southern District of Texas on November 10, 1999 and filed a supplemental petition on July 14, 2000. The State moved for summary judgment; while Smith responded to that motion, he did not also request summary judgment. Though Smith requested an evidentiary hearing to aid the district court in reaching its decision, the district court declined to hold one.

On October 31, 2001, the district court granted Smith's request for habeas relief on two grounds: (1) ineffective assistance

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of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); and (2) the jury's inability, given the special issues in the punishment phase, to consider Smith's mitigating evidence as required by Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). The district court granted the State's motion for summary judgment on all of Smith's remaining issues raised in his petition and denied Smith a COA on those issues. The court ordered Smith released unless the state of Texas granted him a new sentencing hearing within 180 days.3 The State filed a notice of appeal on November 29, 2001; Smith cross-appealed on December 31, 2001.

III. Applicable Law

As the petitioner filed his original habeas petition on November 10, 1999, the Antiterrorism and Effective Death Penalty Act ("AEDPA") governs review of this case. See Lindh v. Murphy, 521 U.S. 320, 326-27, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997) (stating that the AEDPA applies to all cases pending as of April 24, 1996). Under the AEDPA, a writ of habeas corpus will not be granted with respect to any claim previously adjudicated on the merits in state court unless the adjudication of the claim:

(1) 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

(2) 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.

28 U.S.C. § 2254(d)(1)-(2) (2000).

For pure questions of law and mixed questions of law and fact adjudicated on the merits in state court, the standard articulated in § 2254(d)(1) applies: the state court decision must have been either "contrary to" or "an unreasonable application of" clearly established precedent. Martin v. Cain, 246 F.3d 471, 475 (5th Cir.), cert. denied, 534 U.S. 885, 122 S.Ct. 194, 151 L.Ed.2d 136 (2001) (mem.op.). For a state decision to have been "contrary to" established precedent, the state court must have either "arrive[d] at a conclusion opposite to that reached by [the Supreme Court] on a question of law" or "confront[ed] facts that are materially indistinguishable from a relevant Supreme Court precedent and arrive[d] at a decision opposite to" the one reached by the Court. Williams v. Taylor, 529 U.S. 362,...

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