Cole v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 19, 2004
Charles R. Fulbruge III
Clerk
No. 01-10646
TED CALVIN COLE,
now known as Jalil Abdul-Kabir,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
(6:00-CV-014)
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Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant Ted Calvin Cole, a Texas death-row inmate
who is now known as Jalil Abdul-Kabir, appeals the district court’s
denial of his 28 U.S.C. § 2254 habeas corpus petition. We granted
Cole a Certificate of Appealability (COA) on his claim that his
Sixth Amendment rights, as outlined in Estelle v. Smith, 451 U.S.
454 (1981), were violated by the penalty-phase testimony of Dr.
Richard Coons, a psychiatrist, and on his claim that trial counsel
rendered ineffective assistance for failing to procure and present
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
particular mitigating evidence at penalty phase of his trial.
Acting on our own motion, we also issued a COA so that we could, at
the same time, examine whether the district court erred in
concluding that Cole had shown cause and prejudice to excuse his
state procedural default of his ineffective-assistance claim.
We denied Cole’s motion for COA as to several other claims,
including a claim that the trial court’s penalty-phase jury
instructions were unconstitutional under Penry v. Lynaugh, 492 U.S.
302 (1989) (Penry I), abrogated on other grounds, Atkins v.
Virginia, 536 U.S. 304 (2002). Cole now asks us to reconsider our
denial of his COA motion as to this claim. For the reasons set
forth below, we deny Cole’s motion for reconsideration and affirm
the district court’s denial of Cole’s 28 U.S.C. § 2254 habeas
corpus petition.
I. Facts and Proceedings
In December 1987 Cole was staying at an abandoned motel with
his stepbrother, Michael Hickey (Michael), and Michael’s wife,
Kelly Hickey (Kelly). Cole mentioned to the Hickeys that he was
willing to kill someone to obtain cash. Cole and Michael decided
to rob Kelly’s grandfather, Raymond Richardson, and then strangle
him to death.
Two days after this conversation, the three individuals went
to Richardson’s home and visited with him in his living room for
several hours. The group then moved to the kitchen. When
Richardson started to leave the kitchen, Cole pushed him to the
2
floor, where he landed face down. Cole then sat on Richardson’s
back and strangled him with a dog leash that the men had brought to
the house for this purpose. Cole exhorted Richardson to “hurry up
and die.” After Richardson died, the group put his body under his
bed. They then searched his house for cash, after which Cole went
to a grocery store to buy beer and bacon. Cole brought the
groceries back to Richardson’s house and shared them with Michael.
The morning after the murder, Kelly and Michael turned themselves
in to the police and gave statements. Kelly testified at Cole’s
trial.
Cole was arrested at the victim’s home the morning after the
murder. Cole gave police two statements in which he admitted
murdering Richardson, and these statements were entered into
evidence at trial. In one of these statements, Cole explained that
the group decided to strangle Richardson because “it was quieter
than shooting him and not as messy as cutting his throat, and it
just seemed the easiest way to do it.” The jury found Cole guilty
of capital murder.
In response to special issues in the penalty phase, the jury
answered that Cole had deliberately killed Richardson and that
there was a probability that Cole posed a threat of future
dangerousness. The trial court then sentenced Cole to death. The
Texas Court of Criminal Appeals (TCCA) affirmed Cole’s conviction
and sentence, and the United States Supreme Court denied his
petition for a writ of certiorari.
3
Cole filed an application for postconviction relief in state
court with the assistance of attorney Carlton McLarty. He raised,
inter alia, a Penry I claim and a Smith Sixth Amendment claim. The
TCCA denied Cole’s application.
Assisted by different counsel, Cole then filed the instant 28
U.S.C. § 2254 habeas corpus petition in the district court. The
Respondent argued, inter alia, that Cole’s ineffective-assistance
claim was procedurally defaulted. The district court conducted a
hearing and concluded that Cole had shown cause and prejudice
sufficient to excuse any procedural default. The district court
ultimately denied all of Cole’s claims on the merits and also
denied Cole’s motions to alter or amend the judgment under FED. R.
CIV. P. 59(e) and for a COA.
II. Analysis
A. Standards of Review
In the context of a 28 U.S.C. § 2254 habeas petition, we
review the district court’s procedural rulings de novo and its
findings of fact for clear error. Glover v. Cain, 128 F.3d 900,
902 (5th Cir. 1997). The deferential standard of review found in
28 U.S.C. § 2254(d) applies to claims that have been adjudicated in
state court. DiLosa v. Cain, 279 F.3d 259, 262 (5th Cir. 2002).
Under this standard, a petitioner will not receive relief unless he
shows that the state court’s disposition of his claims “involved an
unreasonable application of clearly established Federal law, as
4
determined by the Supreme Court of the United States.”
§ 2254(d)(1).
B. Procedural Default
A petitioner procedurally defaults his claims when he fails to
exhaust state remedies and the court to which he must present his
claims to meet the exhaustion requirement would now hold these
claims procedurally barred. Magouirk v. Phillips, 144 F.3d 348,
360-61 (5th Cir. 1998); Nobles v. Johnson, 127 F.3d 409, 420 (5th
Cir. 1997). A petitioner may overcome a procedural default by
demonstrating cause for the default and actual prejudice resulting
from it. Martinez v. Johnson, 255 F.3d 229, 239 (5th Cir. 2001).
A petitioner demonstrates cause by showing that his efforts to
comply with the state’s procedural rules were hampered by “some
objective factor external to the defense.” Murray v. Carrier, 477
U.S. 478, 488 (1986).
Cole does not dispute that his ineffective-assistance claim is
procedurally defaulted. Rather, consistent with his arguments in
the district court, Cole contends that the state court misled him
into believing that he would receive a new attorney after McLarty
had to withdraw from his case. He contends that these
misrepresentations occurred at a hearing that the state court held,
and he argues that these misrepresentations provide cause and
prejudice sufficient to excuse his procedural default of his
ineffective-assistance claim.
5
Cole’s arguments on this issue miss the mark. The record
controverts his assertion that the state court affirmatively misled
him into believing that he would receive new counsel after McLarty
withdrew. Our review of the transcript that Cole relies on in
support of this argument reveals no statements by the trial court
that could be reasonably interpreted as assuring Cole that an
appointment of new counsel would be forthcoming.
The district court thus erred in concluding that Cole had
established cause and prejudice to overcome his procedural default.
To the extent that the district court’s conclusion on this issue
included an implicit finding that the state court made affirmative
misrepresentations to Cole concerning whether he would receive new
habeas counsel, this finding is clearly erroneous.
We note further that, even if the trial court had led Cole to
believe that he would receive new counsel, this still would not be
sufficient to overcome Cole’s procedural default. The legal and
factual bases of this claim were available when Cole’s habeas
application was filed in state court. There is no indication,
however, that Cole or his attorney thought of this claim or
attempted to raise it at any time prior to the filing of his 28
U.S.C. § 2254 petition. The failure to exhaust thus does not
result from an objective factor external to the defense. See
Murray, 477 U.S. at 488.
6
C. Ineffective-Assistance Claim
As Cole’s ineffective-assistance claim is thus procedurally
defaulted, we could end our analysis here. See Cotton v. Cockrell,
343 F.3d 746, 755 (5th Cir. 2003). We nevertheless address the
merits of this claim. See Busby v. Dretke, 359 F.3d 708, 724-26
(5th Cir. 2004), petition for cert. filed (U.S. Feb. 27, 2004) (No.
03-9218); Kunkle v. Dretke, 352 F.3d 980, 986-90 (5th Cir. 2003).
Cole contends that trial counsel Bob Spence rendered
ineffective assistance for failing to conduct an adequate
investigation of mitigation evidence. Cole argues that, at the
penalty phase, Spence should have procured and presented the
testimony of Cole’s uncle, Ted Dean, and Cole’s sister, Carla
Marsh, as well as records pertaining to his prior periods of
incarceration and his juvenile conviction.
To obtain relief based on ineffective assistance of counsel,
a petitioner must demonstrate both that his attorney rendered a
deficient performance (cause) and that this substandard performance
prejudiced the defense (prejudice). Strickland v. Washington, 466
U.S. 668, 687 (1984). An attorney who represents a capital
defendant during penalty phase must perform “a reasonably
substantial, independent investigation into potential mitigating
circumstances.” Neal v. Puckett, 286 F.3d 230, 236 (5th Cir. 2002)
(en banc), cert. denied, 537 U.S. 1104 (2003).
When assessing prejudice in the context of the penalty phase
of a capital trial, the reviewing court must “reweigh” the
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aggravating evidence against all available mitigating evidence.
Wiggins v. Smith, 123 S. Ct. 2527, 2537, 2542 (2003). If this
analysis shows a “reasonable probability” that a reasonable juror,
when presented with the omitted mitigating evidence, would have
declined to impose the death penalty, then the defendant is
entitled to relief. See id. at 2542-44, quote at 2543.
The State presented a strong case at the penalty phase. One
of the State’s main pieces of evidence was Cole’s own diary, which
was found in Richardson’s home shortly after the murder. In this
diary, Cole recorded his desire to “have” a 12-year-old boy named
Cody, whom Cole described as “jail bait” (the “Cody passage”).
Cole also recorded his desire to find a companion “who is young,
attractive and with a sense of adventure, with whom I can roam
around the world, sailing in the South Pacific, the Caribbean,
exploring the Mediterranean, partying somewhere in the South
American jungles, smuggling, stealing, robbing, raping, pillaging,
modern-day Vikings or pirates” (the “pirate passage”).
The State introduced evidence to show that Cole was charged
with the murder of Gary Don Dedecker approximately 15 years before
the instant crime. This charge originally resulted in a mistrial.
At one point during the trial, Cole told a bailiff that he had
killed Dedecker and “would kill him again.”
Cole, who was 16 or 17 years old at the time, eventually
pleaded guilty to this charge. Cole described Dedecker as his
“best friend,” yet he gave a statement to police in which he
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asserted that he murdered Dedecker because he wanted Dedecker’s
car. He told Kelly that he had killed Dedecker because he wanted
to know what it was like to kill a person.
The State introduced the testimony of a family friend who had
let Cole stay in her home when he was 23 years old and had nowhere
else to go. Cole molested this woman’s eight-year-old son and the
son’s 10-year-old friend, and he was subsequently convicted of
sexual assault charges based on these acts. The son, who was 15
years old at the time of trial, testified in detail as to the
sexual acts Cole had performed on him and his friend.1
Cole also presented evidence at penalty phase. Cole’s mother,
Nancy Hickey (Nancy), testified that Cole’s father, Charles Cole
(Charles) had abandoned the family when Cole was five years old.
Nancy then placed Cole in a church-run children’s home, where he
remained for the next five years. Nancy’s brother and sister-in-
law, Ted and Barbara Dean, were Cole’s sponsors while he was in
home. They bought him clothing, and he visited their home on
holidays.
Nancy eventually remarried, and she regained custody of Cole
when he was 10 years old. After Cole returned to Nancy, he made
good grades and tried to behave himself. Cole had no legal
1
The state also introduced the testimony of Dr. Coons. As
explained in the discussion of Cole’s Sixth Amendment claim, the
introduction of this testimony was arguably erroneous.
Consequently, we have not considered this evidence in analyzing
Cole’s ineffective-assistance claim.
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troubles until he was charged with Dedecker’s murder. Barbara Dean
testified that Cole seemed to enjoy himself during visits to her
home, but he expressed no emotions about returning to the
children’s home.
Psychologist Jarvis Wright testified that Cole had a high IQ
and a difficult childhood. Wright offered the opinion that Cole’s
personality was “fragmented,” that he lacked impulse control, and
that he did not know himself very well. Wright observed that
persons with backgrounds similar to Cole’s tend to “mellow” and
make positive life changes starting around age 40. Wright believed
that Cole could have central nervous system damage, but his
testimony on this issue was somewhat vague. Wright conceded that
Cole had a greater probability of future dangerousness than others.
Wendel Dickerson, another psychologist, echoed Wright’s
opinion that individuals similar to Cole tend to mellow with age.
Dickerson also noted that it was very difficult to predict future
dangerousness. Dickerson acknowledged that he was not expressing
the opinion that Cole was not dangerous and that it was “not an
unreasonable assumption” to believe that Cole was dangerous.
Dickerson also acknowledged that Cole’s test results could support
a conclusion that he was a sociopath.
In the district court, Cole presented affidavits from Ted Dean
(Ted) and Carla Marsh (Marsh), as well as copies of Cole’s prison
and juvenile records, to support his argument that Spence should
have procured and presented these witnesses’ testimony and these
10
documents. According to Ted’s affidavit, he would have testified
that Charles, Nancy, and Nancy’s second husband, Paul Hickey
(Paul), were bad parents; that Nancy would leave her children with
other people for extended periods of time; that Nancy and Paul
neglected their children and did not treat them kindly; and that
Nancy was a poor housekeeper, and she gave her children no spending
money.
Marsh too would have testified that Nancy, Paul, and Charles
were bad parents. Marsh stated that Cole was reserved after he
left the children’s home, where he was not treated well; that Paul
would beat Cole; and that on one occasion Marsh thought Paul was
going to drown Cole until she intervened on Cole’s behalf.
Cole’s prison records reflect that his only prison
disciplinary infractions involved nonviolent behavior. These
records are not, however, wholly favorable to Cole. The records
from Cole’s sexual assault conviction show that he molested his
young victims at knifepoint.
Cole’s juvenile records are likewise not entirely favorable to
Cole. His years at the children’s home are described as
unpleasant, but no details are given. A psychiatrist described him
as having a poorly socialized, schizoid personality. The family
home is described as dirty and needing a good cleaning. On the
other hand, the records also describe Nancy as a loving and
concerned parent. Another portion of the records describes the
Hickey home as clean and well-kept.
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1. Performance
The issue whether Spence rendered a deficient performance in
connection with his investigation into potential mitigating
evidence presents a close question. Our analysis of this issue is
complicated by the fact that Spence died in a car accident prior to
Cole’s filing of his § 2254 petition. Consequently, it is
impossible to ascertain the extent of Cole’s investigation in
relation to penalty-phase preparations. It is likewise impossible
to determine whether he deliberately chose to end his investigation
because he felt that he had sufficient mitigating evidence or
because he simply did not think to obtain the evidence on which
Cole now relies.
It is apparent that Spence did make some preparations for the
penalty phase, as he did present some mitigating evidence. Compare
Wiggins, 123 S. Ct. at 2532. The evidence Cole now offers,
however, is subtly different from that presented at trial, and
there is no indication that Spence tried to obtain it. Given the
“volume and easy availability” of this evidence, it is at least
arguable that Spence performed deficiently when he failed to
investigate and failed to obtain this evidence. See Neal, 286 F.3d
at 240. Further, as Spence failed to obtain this evidence, it
cannot be said that he made a strategic decision to refrain from
using it. See Neal, 286 F.3d at 242; compare Jernigan v. Collins,
980 F.2d 292, 296-97 (5th Cir. 1992).
12
For all of these reasons, Spence at least arguably rendered a
deficient performance by failing to discover the disputed evidence.
Accordingly, we shall assume arguendo that the performance was
deficient and proceed to examine whether this prejudiced Cole.
2. Prejudice
Our reweighing of the evidence convinces us that Cole suffered
no prejudice as a result of Spence’s failure to procure and present
the disputed mitigation evidence. The evidence adduced by the
State at the penalty phase was both qualitatively and
quantitatively substantial. It showed that the instant murder was
both callous and calculated. The senseless nature of this murder
is consistent with Cole’s prior crimes.
Cole was 31 years old when he murdered Richardson, and his own
expert acknowledged that he was highly intelligent. Thus, unlike
some other capital defendants, Cole cannot blame his heinous acts
on either youth or lack of intellectual capacity. See Robertson v.
Cockrell, 325 F.3d 243, 249 & n.5, n.6 (5th Cir.) (en banc), cert.
denied, 124 S. Ct. 28 (2003). Rather, the record can fairly be
read as showing that Cole is a mature, bright man who consistently
made conscious decisions to do what he wanted to do regardless of
the consequences to others. Conspicuously absent from the record
is any indication that Cole has ever felt any remorse for his many
crimes. Also absent from the record is evidence concerning any
positive character traits. In sum, the State presented a powerful
13
case in support of its argument that there was a probability that
Cole would continue to pose a risk of dangerousness.
In contrast, the mitigation evidence that Cole offered at
trial, even when combined with the evidence that he now offers,
simply is not sufficient to show a reasonable probability that a
reasonable juror, when presented with all this evidence, would have
declined to impose the death penalty. See Wiggins, 123 S. Ct. at
2537, 2542. As noted earlier, the records that Cole has produced
are not wholly favorable. This evidence is thus “double-edged,” as
it is both aggravating and mitigating. See Ladd v. Cockrell, 311
F.3d 349, 360 (5th Cir. 2002). Cole thus has not shown prejudice
based on Spence’s failure to procure and present these records.
Neither can Cole show prejudice from Spence’s failure to
procure and present the testimony of Ted and Marsh. This evidence
consists largely of vague and unsubstantiated allegations that Cole
was abused and neglected by his parents and at the children’s home.
Cole certainly did not have an idyllic childhood, but the evidence
that he now insists should have been presented simply does not rise
to the level of that adduced in cases in which petitioners have
received relief on similar claims. See Wiggins 123 S. Ct. at 2532-
33; Williams v. Taylor, 529 U.S. 362, 390-98 (2000); Lewis v.
Dretke, 355 F.3d 364, 367-69 (5th Cir. 2003).
There are no specific allegations of abuse at the children’s
home. There are inconsistencies between the affidavits as to the
specifics of Charles’s desertion of the family. There is a lack of
14
documentary evidence to support Cole’s assertions of physical
abuse, and even the abuse alleged does not rise to the level of
that shown in other cases. There are no concrete allegations that
Cole suffered sexual abuse. Cole was never removed from the family
home because of abuse or neglect, and there is no indication that
his parents faced criminal charges based on parental shortcomings.
In conclusion, Cole’s evidence simply is not very strong,
especially when compared with evidence produced in cases in which
petitioners have prevailed on similar claims. When we add the
omitted evidence to that adduced at trial and weigh the aggregate
against the Respondent’s overwhelming evidence of Cole’s future
dangerousness, we conclude that Cole’s mitigating evidence is not
“of sufficient quality and force to raise a reasonable probability
that, had it been presented to the jury, a life sentence would have
resulted.” See Andrews v. Collins, 21 F.3d 612, 624 (5th Cir.
1994). Accordingly, even if this issue was not procedurally
barred, Cole still would not prevail.
D. Smith Sixth Amendment Claim
Cole maintains that a harmful Sixth Amendment error resulted
from the admission of Dr. Coons’s testimony. He contends that this
witness’s opinion was particularly harmful to him both because Dr.
Coons was the only medical doctor to testify and because the
substance of his testimony strongly suggested that Cole would
continue to be dangerous.
15
A psychiatric examination of a capital defendant that leads
the expert to form an opinion as to the defendant’s potential
future dangerousness has constitutional implications. Smith, 451
U.S. at 461-71. Under these circumstances, the Sixth Amendment
protects the defendant’s right to have an effective consultation
with counsel, which in turn requires that counsel be informed of
the scope of the examination. Buchanan v. Kentucky, 483 U.S. 402,
424 (1987). Accordingly, if a capital defendant’s attorney is not
informed that a psychiatric examination will encompass future
dangerousness, a Sixth Amendment violation can result from the
admission of the expert’s opinion on this topic. Powell v. Texas,
492 U.S. 680, 681-82, 686 (1989).
A Smith Sixth Amendment violation is, however, subject to
harmless-error review. Satterwhite v. Texas, 486 U.S. 249, 258
(1988). The harmless-error standard of Brecht v. Abrahamson, 507
U.S. 619, 637 (1993), applies to Smith claims raised in § 2254
petitions. See Penry v. Johnson, 532 U.S. 782, 795 (2001) (Penry
II). Under this standard, a petitioner will not receive relief
unless he shows that the error complained of “had substantial and
injurious effect or influence in determining the jury’s verdict.”
Brecht, 507 U.S. at 637, quoting Kotteakos v. United States, 328
U.S. 750, 776 (1946). Finally, because the § 2254(d)(1) standard
applies to this claim, Cole will not receive relief unless he shows
that the state court’s decision on this claim “involved an
16
unreasonable application of[] clearly established Federal law, as
determined by the Supreme Court of the United States.”
“[A] federal habeas court making the ‘unreasonable
application’ inquiry should ask whether the state court’s
application of clearly established federal law was objectively
unreasonable.” Williams, 529 U.S. at 409. An unreasonable
application differs from an incorrect application. Id. at 410-11.
Accordingly, a habeas court may correct an erroneous application of
law only if this application is also unreasonable. Id. at 411.
The parties do not dispute that Cole’s trial attorney was
unaware that Dr. Coons’s examination could encompass future
dangerousness, and the Respondent concedes that Cole’s Sixth
Amendment rights were violated by the admission of Dr. Coons’s
testimony. We note, however, that this issue is not clear, as Dr.
Coons did not offer a direct opinion regarding Cole’s future
dangerousness. That is, Dr. Coons did not say whether he had
formed the opinion that there was a probability that Cole would
continue to pose a risk of danger in the future. Rather, Dr. Coons
merely offered his opinions concerning various factors that could
bear on that issue. The only direct future-dangerousness opinions
offered at penalty phase came from Cole’s own experts, and even
they would not deny that he posed a risk of future dangerousness.
The lack of a direct future-dangerousness opinion from Dr. Coons
arguably supports a conclusion that there was no Sixth Amendment
17
error. See Hernandez v. Johnson, 248 F.3d 344, 348 (5th Cir.
2001).
Even so, there is no need to resolve this issue. If we assume
arguendo that the admission of Dr. Coons’s testimony resulted in a
Sixth Amendment violation, Cole still is not entitled to relief, as
he has not shown that the state court’s decision on this claim
“involved an unreasonable application of[] clearly established
Federal law, as determined by the Supreme Court of the United
States.” § 2254(d)(1); see also Neal, 286 F.3d at 246.
Dr. Coons testified that Cole had several sociopathic
personality traits. He based this opinion on the deliberate nature
of the instant offense, the pecuniary motive behind the offense,
Cole’s criminal history, and Cole’s lack of remorse. He explained
to the jury that sociopaths commit acts that society classifies as
wrong simply because such persons want to; that they do not learn
from their experiences; and that they do not feel remorse or guilt
for their bad deeds.
The prosecutor asked Dr. Coons’s opinion of the Cody passage
and the pirate passage from Cole’s diary. Dr. Coons testified that
the Cody passage showed a desire for homosexual pedophilia,
accompanied with a knowledge that this behavior was wrong; and Dr.
Coons described the pirate passage as the fantasy life of a
sociopath, explaining that sociopath is a recognized psychological
term.
18
Cole has not shown that the state court’s decision on this
issue was unreasonable. Cole’s assertions about Dr. Coons’s
credentials, although accurate, are unavailing. He was the only
medical doctor to testify, and the State made sure that the jury
was aware of this fact. Wright and Dickerson, although not medical
doctors, had similarly impressive credentials.
Cole’s arguments concerning the substance of Dr. Coons’s
testimony are likewise unavailing, as a careful examination of the
record shows that it is unlikely that this testimony “had
substantial and injurious effect or influence in determining the
jury’s verdict.” Brecht, 507 U.S. at 637. When this testimony is
viewed in the context of the record as a whole, it becomes apparent
that much of Dr. Coons’s testimony was redundant and that he did
little more than label Cole’s obviously abnormal behavior with the
term “sociopath.” Further, Dr. Coons’s testimony spans
approximately one-tenth of the State’s penalty-phase case, and he
cannot accurately be classed as the State’s “star witness.”
Rather, he was only one of many whose testimony supports the jury’s
finding that Cole poses a risk of future dangerousness.
Accordingly, if the admission of Dr. Coons’s testimony was
error, it was harmless. The State’s case for future dangerousness
was amply supported by the facts of both the instant crime and
Cole’s past crimes, as well as by the testimony of Cole’s own
experts. Dr. Coons’s testimony “was by no means the key to the
19
State’s case on the question whether [Cole] was likely to commit
future acts of violence.” See Penry II, 532 U.S. at 795.
It thus is highly unlikely that the admission of this evidence
“had a substantial and injurious effect on the verdict.” White v.
Johnson, 153 F.3d 197, 205 (5th Cir. 1998), citing Brecht, 507 U.S.
at 537. The state courts’ decision on this issue was not erroneous
or objectively unreasonable. See Neal, 286 F.3d at 244-47. Cole
has not shown that he should receive relief on this issue.
E. Motion for Reconsideration
Cole also asks us to reconsider our denial of COA on his Penry
I claim based on the recent grants of certiorari in Smith v.
Dretke, 124 S. Ct. 46 (2003), and Tennard v. Dretke, 124 S. Ct. 383
(2003), two cases from this circuit containing Penry I claims. He
argues that these grants of certiorari call into question our
analysis of his Penry I claim and that we should thus grant him a
COA on this claim.
To the extent that Cole’s motion may be construed as seeking
panel reconsideration, it is untimely. We need not, however,
resolve this issue because even assuming without granting that the
motion should be entertained, it is unavailing.
Cole does not argue that our denial of COA on his Penry I
claim was improper under our jurisprudence. Rather, he contends
that the certiorari grants in Tennard and Smith render our
jurisprudence questionable. “The Court’s grant of certiorari in a
capital case does not cause us to deviate from circuit law.” Cantu
20
v. Collins, 967 F.2d 1006, 1012 n.10 (5th Cir. 1992). Accordingly,
the Court’s recent actions in Tennard and Smith do not invalidate
our original disposition of Cole’s COA motion. See Wicker v.
McCotter, 798 F.2d 155, 157-58 (5th Cir. 1986). We deny Cole’s
motion for reconsideration.
III. Conclusion
Cole has not shown that he is entitled to habeas relief. He
has not shown cause and prejudice sufficient to overcome his state
procedural default of his ineffective-assistance claim.
Furthermore, even if this claim were not defaulted, he still would
not be entitled to relief on it, as he has failed to show that he
suffered any prejudice as a result of the alleged deficiency in
trial counsel’s performance.
Neither has Cole shown that he is entitled to relief on his
Sixth Amendment claim, as he has not shown harm in connection with
the admission of Dr. Coons’s testimony. Consequently, Cole has
failed to demonstrate that the state court’s decision on this claim
was objectively unreasonable. As Cole has not shown that he should
prevail on these issues, we affirm the district court’s denial of
Cole’s § 2254 habeas corpus petition.
Finally, Cole’s motion for reconsideration of the denial of a
COA on his Penry I claim lacks merit: Cole simply has not shown
error in our previous denial of COA. Cole’s motion is denied.
DENIAL OF 28 U.S.C. § 2254 HABEAS CORPUS PETITION AFFIRMED;
MOTION FOR RECONSIDERATION DENIED.
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