     Case: 11-70003   Document: 00511868573   Page: 1   Date Filed: 05/25/2012




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                  FILED
                                                                 May 25, 2012

                                 No. 11-70003                    Lyle W. Cayce
                                                                      Clerk

RICHARD AARON COBB,

                                           Petitioner - Appellant,
v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                           Respondent - Appellee.



                  Appeal from the United States District Court
                       for the Eastern District of Texas



Before KING, DAVIS, and ELROD, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
        Richard Cobb was convicted of capital murder and sentenced to death in
Texas state court. He filed a habeas petition in federal district court pursuant
to 28 U.S.C. § 2254. The district court denied that petition, but granted a
certificate of appealability (COA) on one issue: whether the state withheld
impeachment evidence from Cobb in violation of Brady v. Maryland, 373 U.S. 83
(1963). We AFFIRM the district court’s denial of habeas relief. We DENY
Cobb’s request for a COA on three additional issues.
   Case: 11-70003    Document: 00511868573      Page: 2   Date Filed: 05/25/2012



                                  No. 11-70003

                                        I.
      Cobb and Beunka Adams committed two armed robberies in August 2002.
On the night of September 2, 2002, they committed a third. Armed with a
shotgun, and wearing masks and gloves, they entered a convenience store known
as BDJ’s. Nikki Ansley (Dement)1 and Candace Driver were working as clerks
that night.   Also present in the store was a frequent customer, Kenneth
Vandever. Ansley and Driver were made to stand together behind the cash
register. Cobb and Adams demanded money. Driver opened the cash register
drawer. While Cobb held the shotgun, Adams grabbed the drawer and took all
of the money. Vandever, the customer, began to walk out the front door, but was
ordered to join Ansley and Driver behind the register.
      Cobb and Adams then decided to take Ansley, Driver, and Vandever as
hostages. Driver was ordered to surrender the keys to her Cadillac, which was
parked outside, and the three hostages were forced into the vehicle. Adams
drove to a remote, open pasture known as the “pea patch.” Everyone got out of
the car, and Adams forced Driver and Vandever into the trunk while Cobb held
the gun. Adams took Ansley into a wooded area and raped her. Cobb and
Adams then told the three hostages that they could wait for a little while, and
then leave, but soon Cobb and Adams changed their minds. After debating what
to do, Cobb and Adams tied up the women hostages with their shirts and forced
them to kneel by the vehicle.      They began to walk away with Vandever,
intending to allow him to come back later to untie Ansley and Driver. Soon they
returned, however, and forced Vandever to sit by the other two victims.
      After Vandever began to protest, Cobb shot him. Vandever fell forward,
screaming that he had been shot. Either Cobb or Adams then shot Ansley and



      1
          When Cobb committed his capital offense, Ansley was not married. When she
testified at Cobb’s trial, she was married and her last name had changed to Dement.

                                        2
   Case: 11-70003        Document: 00511868573        Page: 3   Date Filed: 05/25/2012



                                       No. 11-70003

Driver.2 Ansley and Driver both fell forward as well, and pretended to be dead.
Adams started kicking Ansley, and Cobb joined in. Cobb lifted Ansley up by her
ponytail, and he and Adams put their lighters up to her face. After satisfying
themselves that the three victims were dead, Adams and Cobb left the scene and
went to the residence of Adams’s cousin.
      Vandever died, but Ansley and Driver survived.                   After regaining
consciousness, they managed to get to safety. Ansley sustained a shotgun wound
to her left shoulder, numerous broken ribs, and a collapsed lung, which required
her to spend almost two weeks in the hospital. After undergoing emergency
surgery, she identified Cobb and Adams from a photo lineup. Driver, who
suffered a gunshot wound to her lower lip, was able to identify Adams, but not
Cobb, from a photo lineup while in the hospital. Adams’s cousin contacted the
police and disclosed Cobb’s and Adams’s whereabouts. They were arrested at
Adams’s cousin’s home on September 3, the day after Vandever’s murder.
Adams surrendered, but Cobb resisted arrest and had to be subdued. Under
questioning, Cobb confessed to shooting Vandever and to participating in the
robbery and kidnaping.
      On September 23, 2002, Cobb was indicted for capital murder under Tex.
Penal Code § 19.03(a)(2) (murder in the course of committing, inter alia,
kidnaping and robbery). His trial began on January 5, 2004. On January 23,
2004, he was sentenced to death.
      During the guilt-determination phase of the trial, Cobb admitted to
participating in the robbery and kidnaping and to shooting Vandever. He
testified, however, that Adams pressured him into committing the murder,
threatening to kill Cobb if he refused to take part in killing the three hostages.
The state cast doubt on this portion of Cobb’s testimony by getting him to admit


      2
          It is unclear which perpetrator shot which victim.

                                              3
   Case: 11-70003      Document: 00511868573         Page: 4     Date Filed: 05/25/2012



                                      No. 11-70003

on cross-examination that he did not mention any coercion by Adams when he
first confessed to the authorities. Moreover, the other surviving witnesses did
not corroborate Cobb’s testimony that Adams threatened him.
       The state also rebutted Cobb’s duress defense by calling William Elmer
Thomsen to testify. Thomsen was incarcerated with Cobb at the Cherokee
County Jail. Thomsen testified that, during several jailhouse conversations he
had with Cobb at this time, Cobb extensively discussed Vandever’s murder as
well as the robberies that he and Adams committed. Thomsen testified that
Cobb “thought armed robberies were the way to go. It’s fast, quick, easy money.”
According to Thomsen’s testimony, Cobb also told him that he and Adams had
plans to rob a Whataburger in the near future, had they not been caught and
arrested. Thomsen also testified that Cobb confided in him that he planned at
his trial to blame the murder on Adams by testifying that Adams had threatened
to kill him if he did not take part in shooting the hostages.
       On cross-examination, the defense asked Thomsen whether he had
received a deal from the state in exchange for his testimony. Thomsen avowed
that he had not. He testified that when he contacted the district attorney to
offer his testimony against Cobb, the charge he was facing for being a felon in
possession of a firearm had already been dismissed.3 Thomsen was still in jail,
however, for violating the terms of his probation for a prior offense. Although
Thomsen insisted that he did not receive any benefit from the state for his
testimony, he did concede that the district attorney’s office contacted his parole
officer on his behalf.




       3
        This charge against Thomsen was dismissed when the district attorney chose not to
attend the examining trial. When testifying at Cobb’s state habeas hearing, the district
attorney suggested that his reason for dismissing the weapons charge against Thomsen was
his prediction that had he taken the case to trial, Thomsen would have had a 75 to 80 percent
chance of acquittal.

                                             4
  Case: 11-70003   Document: 00511868573      Page: 5   Date Filed: 05/25/2012



                                  No. 11-70003

     After the jury convicted Cobb of capital murder, the sentencing phase of
Cobb’s trial began. Salient here are two special issues that the jury was
required to answer. First, the jury had to determine whether it was probable
that Cobb would commit future criminal acts of violence that would constitute
a continuing threat to society.    If the jury answered this question in the
affirmative, it had to determine whether mitigating circumstances made a
sentence of life imprisonment without parole more appropriate than a death
sentence. Tex. Code Crim. Pro. art. 37.071.
     The district court summarized the evidence presented to the jury at the
sentencing phase as follows:
            The prosecution put on evidence of Cobb’s other criminal
     conduct prior to the capital murder, including the testimony of the
     victims of the two previous armed robberies. They also presented
     testimony from several law enforcement officials who testified that
     Cobb had a bad reputation as far as obeying the law. They
     presented additional testimony from Ansley about the severity of
     her physical and emotional injuries. They presented testimony
     about the possibility of escape from prison, and they presented the
     testimony of Dr. Tynus McNeel, a psychologist who opined that
     Cobb fit the profile of a sociopath, a person who did not care about
     the welfare of other people and whose condition would be incurable.
     They also offered the testimony of Cobb’s juvenile probation officer,
     who testified that Cobb assaulted one of his boot camp supervisors,
     that he was not afraid of people in authority, that his mother had
     difficulty controlling him, and that his reputation as a law abiding
     citizen was bad.
            The prosecution also recalled Thomsen. This time, he testified
     that Cobb told him that when he learned that the two girls survived
     he was mad, because if they had died he probably wouldn’t be in jail.
     He further testified that Cobb never expressed any remorse, which
     is why Thomsen was in court testifying. Thomsen stated that Cobb
     said that he got almost like a rush when he shot Vandever. This
     testimony caused Cobb to stand up and say “You lying son of a bitch,
     I never said no such thing,” whereupon the trial judge excused the
     jury and warned Cobb, “If you expect to remain in this courtroom for
     the remainder of this trial you will stay in your seat and keep your


                                       5
   Case: 11-70003    Document: 00511868573      Page: 6    Date Filed: 05/25/2012



                                  No. 11-70003

      mouth shut.” After the jury returned, Thomsen testified that Cobb
      told him that if he were put in the same situation, he would do it
              again. Asked if Cobb ever said whose shotgun he used,
      Thompsen [sic] answered that Cobb said it was his, then added that
      Cobb “traded some gram of powder cocaine to some guy here in Rusk
      for it.” Thomsen also testified that Cobb discussed escaping from
      jail “Numerous times. He said if he ever had the chance and could
      figure out how to do it he would.” The defense did not cross-examine
      Thomsen.
              The defense offered first the testimony of Cobb’s adoptive
      mother, Edna Bell, who explained that Cobb and two of his brothers
      had been placed in foster care because their mother was unable to
      care for them, and that she decided to adopt all three of them. Bell
      described all three boys as having serious emotional problems from
      the beginning of her caring for them. She testified that she once
      visited the boys’ mother’s house and found it in horrific condition,
      with roach infestation. Several witnesses testified that Cobb’s
      biological mother had alcohol and drug addiction issues and that as
      a result, her children suffered from abuse and extreme neglect. Bell
      testified that she loved and cared for the boys, and obtained
      psychological treatment for them, but they all had acute problems
      growing up. Bell testified that on one occasion Cobb protected her
      from a physical assault by one of his brothers.
              Cobb testified that he started using drugs at age twelve. He
      also testified that the reason he changed from doing burglaries to
      doing armed robberies was because he was in debt to a drug dealer
      and needed money quickly, and Adams suggested that armed
      robberies were an easier and better way to make money.
              The defense also offered expert testimony that Cobb suffered
      some brain damage from his mother’s alcohol and drug use while
      she was pregnant with him.
Cobb v. Thaler, No. 2:08-CV-123, 2011 WL 672333, at *5–6 (E.D. Tex. Feb 15,
2011) (citations omitted).
      On the morning before closing arguments, the state discovered that it had
not provided the defense with a letter written by the district attorney to
Thomsen’s parole officer. The district attorney’s staff found the letter in the file
of Cobb’s co-defendant, Adams. The state then provided a copy of the letter to
the defense. Dated January 10, 2003, the letter states:

                                         6
  Case: 11-70003    Document: 00511868573       Page: 7   Date Filed: 05/25/2012



                                 No. 11-70003

            TO WHOM IT MAY CONCERN:

            Re: Wiliam Thomsen

            Please be advised that this office will not seek prosecution of
      the above individual for the offense of Unlawful Possession of
      Firearm by Felon.

            If anything further is needed please contact this office.

            Sincerely,
            Elmer C. Beckworth, Jr.
      Although it received this letter the day before closing arguments, the
defense chose not to move to reopen the case to introduce the letter into
evidence. In its closing, the defense argued:
             The other person who testified was Mr. Thomsen. He had a
      lists [sic] of felonies. You remember all the stuff that he
      testified—that he testified to. He got a deal. Some reason of [sic]
      another, you know, miraculously, convicted felon with several actual
      convictions, person having been in TDCJ. Who knows what kind of
      enhancements could have been derived from that? Miraculously
      decide not to show up at the examining trial or not to prosecute him
      any further. He had an awful lot to gain. As far as people who said,
      Why would he say these things? When Richard was—why would
      Richard say these things to people? He knew, Richard knew before
      he ever got to the jail that there were survivors. He talked to
      Ranger Flores, you know. The jail house snitches and so forth aren’t
      always reliable and sometimes information is just not received
      properly or misunderstood. There is no reason for him to say that,
      he already knew that.
      ....
             Mr. Thomsen. William Elmer Thomsen. Richard told you
      that he was always looking for a way to show a bruise or something
      so that he could claim that he was hurt in jail and sue the county.
      They didn’t bring him back up here to deny that. I suspect that
      there were obviously claims or letters that he wrote somewhere
      along the line saying he had been hurt, this or that. He likes to
      fabricate evidence, information for his own benefit. I submit to you
      that’s what he did when he talked about what he claimed Richard


                                       7
   Case: 11-70003   Document: 00511868573     Page: 8    Date Filed: 05/25/2012



                                 No. 11-70003

      told him. Fabricated it for his own benefit. Number one, he gets a
      letter to his parole officer asking for leniency, We are not going to
      prosecute him. He has an examining trial to determine is there
      probable cause to hold him on his felon in possession of a firearm
      and the state doesn’t even show up for the hearing; it’s dropped,
      never to be brought up again.
             Would you allow William Elmer Thomsen to pick up your kids
      or grandkids from kindergarten? Would you invite William Elmer
      Thomsen to your home for dinner? I think not. Then how in the
      world can you rely on his testimony in making a life or death
      decision? That’s what the State is asking you to do. They’re asking
      you to rely on Tynus McKnight—Tynus McNeel and William Elmer
      Thomsen to vote for a sentence of death.
The state then argued in its closing:
            But he is asking, “How would you trust William Earl [sic]
      Thomsen? Would you have him pick up your kids, do anything?”
      He is probably right, I wouldn’t. But somebody is, he is now a
      supervisor where he works. And on whatever deal he got contacting
      the parole board or the parole officer, he was revoked and got
      several months in the other facility. But what is important about
      Thomsen besides the fact he was the only person to be in the
      position to hear what Cobb said in the jail, is how did he know about
      these other robberies in Jacksonville? How did he know the girls
      were on their knees praying? And how did he know this location
      was called the pea patch? That could have only come from one
      person, Richard Cobb.
      After hearing closing arguments, the jury returned a verdict on January
16, 2004. In response to Special Issue No. 1—whether there was a probability
that Cobb would commit criminal acts of violence that would constitute a
continuing threat to society—the jury answered “yes.” In response to Special
Issue No. 2—whether there were mitigating circumstances that warranted a
sentence of life imprisonment instead of death—the jury answered “no.” On
January 23, 2004, the state court sentenced Cobb to death.
      Two months later, while reviewing the file of Cobb’s co-defendant, Adams,
the prosecutor discovered another letter. Dated December 26, 2002, this letter


                                        8
   Case: 11-70003       Document: 00511868573   Page: 9   Date Filed: 05/25/2012



                                   No. 11-70003

was written by Thomsen and sent to the district attorney. The full text of the
letter is as follows:
             Mr. Beckworth–

             Greetings, Sir. I hope your holidays were enjoyable–

              I’m sorry to bother you. Last check—Mon., 12-21-02 that
      Felony Possession of a firearm by a Felon and the parole hold were
      still on the computer holding me in jail. I have written my attorney
      Mr. Phifer 3 times this month reminding him that he needs to
      process the paperwork for the dismissal that occurred in Nov. on
      this gun charge. It was supposedly dismissed in Nov., however, I
      never received the paperwork stating it—
              At our meeting in Mr. Hatch’s office on 12-19-02 you agreed
      to completely clear this charge as well as to try to have the parole
      hold lifted so I could get released. Mr. Hatch tried to phone my
      parole officer—Roy Shamblin— directly after our meeting but was
      unable to locate him. As you know the parole hold cannot be lifted
      until the gun charge is paperwork clear—
              The only reason I bother you with this is because all efforts
      by myself and my girlfriend to contact Mr. Phifer by letter and
      phone have gone astray—Could you please take steps to get Mr.
      Phifer in gear and have Mr. Hatch (remind him) to try contacting
      Roy Shamblin again—I realize the holidays have caused a slow
      process. I’m only asking for reminders for I’m sure everyone’s mind
      is still in holiday mode—I would dearly love to at least spend New
      Years with my family.
              Also—you asked a question at our meeting if Richard Cobb
      told me why they decided to take the girls and Kenneth after
      robbing that store? I now recall his answer was: They wanted the
      keys to a car—I believe [Adams] had removed his mask at this time
      and spoke Rich’s name so they told the girls to come with them”!
      The girls said: “Please just take my car, here the keys, leave us
      here—we won’t tell anything”! It’s on my notes I gave Mr. Phifer.
      I just forgot it—you’re welcome to those notes if you would like to
      bring them in as evidence—Thank you for your time Sir—

                                       Sincerely,
                                       William Thomsen


                                         9
  Case: 11-70003    Document: 00511868573      Page: 10    Date Filed: 05/25/2012



                                  No. 11-70003

      After receiving this letter, Cobb filed a motion for a new trial in which he
claimed, inter alia, that the state committed a Brady violation by withholding
the letter. The state trial court denied the motion. On direct appeal, the Texas
Court of Criminal Appeals affirmed Cobb’s conviction and sentence. Cobb v.
State, No. AP-74875, 2007 WL 274206 (Tex. Crim. App. Jan 31, 2007)
(unpublished). His subsequent state application for writ of habeas corpus was
denied. Ex parte Cobb, No. WR-68192-01, 2007 WL 4306840 (Tex. Crim. App.
Dec. 5, 2007) (unpublished). Cobb then filed a petition for a writ of habeas
corpus in federal district court, in which he raised eleven claims. The district
court denied relief on each claim. Cobb v. Thaler, 2011 WL 672333. The district
court subsequently granted a COA for Cobb’s Brady claim and this appeal
followed.
                                        II.
      The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
defines “[t]he statutory authority of federal courts to issue habeas corpus relief
for persons in state custody.” Premo v. Moore, 131 S. Ct. 733, 739 (2011).
“AEDPA prohibits federal habeas relief for any claim adjudicated on the merits
in state court, unless one of the exceptions listed in § 2254(d) obtains.” Id.
Under § 2254(d), a federal court may not grant habeas relief on such claims
unless the state court’s decision (1) “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) “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.”
      A state court decision involves an unreasonable application of federal law
if it “correctly identifies the governing legal rule but applies it unreasonably to
the facts of a particular prisoner’s case.” Williams v. Taylor, 529 U.S. 362,
407–08 (2000). The state court’s application of the law must be “objectively

                                        10
  Case: 11-70003        Document: 00511868573          Page: 11     Date Filed: 05/25/2012



                                        No. 11-70003

unreasonable,” not merely “erroneous” or “incorrect.” Id. 409–11. The Supreme
Court has recently emphasized that this standard is met only “in cases where
there is no possibility fairminded jurists could disagree that the state court’s
decision conflicts with [Supreme Court] precedents.” Harrington v. Richter, 131
S. Ct. 770, 786 (2011). This exception to AEDPA’s relitigation bar “is difficult
to meet . . . because it was meant to be.” Id. “[H]abeas corpus is a ‘guard
against extreme malfunctions in the state criminal justice systems,’ not a
substitute for ordinary error correction through appeal.” Id. (quoting Jackson
v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in the
judgment)).       In addition, in elaborating the “unreasonable application”
exception, the Supreme Court has explained that
       the range of reasonable judgment can depend in part on the nature
       of the relevant rule. If a legal rule is specific, the range may be
       narrow. Applications of the rule may be plainly correct or incorrect.
       Other rules are more general, and their meaning must emerge in
       application over the course of time. Applying a general standard to
       a specific case can demand a substantial element of judgment. As
       a result, evaluating whether a rule application was unreasonable
       requires considering the rule’s specificity. The more general the
       rule, the more leeway courts have in reaching outcomes in
       case-by-case determinations.
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
                                              III.
       Before turning to Cobb’s Brady claim, we address his contention that
AEDPA’s standard of review is unconstitutional under Article III of the U.S.
Constitution. Cobb argues that § 2254(d)(1) interferes with the decisional
independence of the federal courts, and thereby violates Article III, in two
ways.4 First, § 2254(d)(1) limits federal habeas relief to detentions pursuant to

       4
         Although Cobb frames his constitutional challenge as based on the “doctrine of
separation of powers,” given his reliance on Article III precedents it is better characterized as
a claim that AEDPA is at odds with Article III’s vesting of the “judicial Power” in the courts.

                                               11
  Case: 11-70003       Document: 00511868573         Page: 12     Date Filed: 05/25/2012



                                       No. 11-70003

state court violations of “clearly established Federal law, as determined by the
Supreme Court.” Cobb contends that this limitation dictates how federal courts
adjudicate habeas cases by restricting them to considering only certain legal
authorities. In particular, Cobb argues, this restriction prevents circuit courts
from giving stare decisis effect to their own precedents. Second, and relatedly,
Cobb argues that § 2254(d)(1)’s “unreasonable application” standard instructs
federal courts to defer to state court interpretations of federal law.
       In Cobb’s view, these two features of § 2254(d)(1) violate Article III by
restricting the independent interpretive authority of the federal courts.
Specifically, Cobb contends that these perceived restrictions violate the
conception of Article III’s “judicial Power” that Marbury v. Madison famously
enunciated: “It is emphatically the province and duty of the judicial department
to say what the law is. Those who apply the rule to particular cases, must of
necessity expound and interpret that rule.” 5 U.S. (1 Cranch) 137, 177 (1803).
In addition, Cobb argues that § 2254(d)(1)’s asserted restrictions on independent
federal adjudication offend the principle that Congress may not “prescribe rules
of decision to the Judicial Department of the government in cases pending before
it.” United States v. Klein, 80 U.S. (13 Wall.) 128, 146 (1872); see also Plaut v.
Spendthrift Farm, Inc., 514 U.S. 211, 218 (1995) (identifying the quoted
language from Klein as describing a type of legislation that impermissibly
“require[s] federal courts to exercise the judicial power in a manner that Article
III forbids”).
       In addressing Cobb’s constitutional challenge to AEDPA, we are aided by
the considered views of several of our sister circuits.               Four circuits have


See Boumediene v. Bush, 553 U.S. 723, 833 (2008) (Scalia, J., dissenting) (“The ‘fundamental
separation-of-powers principles’ that the Constitution embodies are to be derived not from
some judicially imagined matrix, but from the sum total of the individual separation-of-powers
provisions that the Constitution sets forth. Only by considering them one-by-one does the full
shape of the Constitution’s separation-of-powers principles emerge.”).

                                             12
  Case: 11-70003    Document: 00511868573       Page: 13   Date Filed: 05/25/2012



                                  No. 11-70003

addressed constitutional challenges to AEDPA similar to Cobb’s, and each has
rejected that challenge. See Evans v. Thompson, 518 F.3d 1, 6–11 (1st Cir.
2008); Crater v. Galaza, 491 F.3d 1119, 1126–30 (9th Cir. 2007); Green v. French,
143 F.3d 865, 874–75 (4th Cir. 1998), abrogated on other grounds by Williams,
529 U.S. 362; Lindh v. Murphy, 96 F.3d 856, 871–74 (7th Cir. 1996) (en banc),
rev’d on other grounds, 521 U.S. 320 (1997). We are mindful, of course, that not
all of our colleagues from other circuits share this view. See Evans v. Thompson,
524 F.3d 1 (1st Cir. 2008) (Lipez, J., dissenting from denial of rehearing en banc)
(joined by Torruella, J.); Crater v. Galaza, 508 F.3d 1261 (9th Cir. 2007)
(Reinhardt, J., dissenting from denial of rehearing en banc) (joined by Pregerson,
Gould, Paez, and Berzon, JJ.); Lindh, 96 F.3d at 885–90 (Ripple, J., dissenting)
(joined by Rovner, J.). Indeed, Cobb relies on the dissenting opinions from the
First and Ninth Circuits as support for his position.
      In our judgment, Cobb’s argument and the dissenting opinions on which
it relies are not persuasive. As each circuit to address the question has
recognized, § 2254(d)(1) does not intrude on the independent adjudicative
authority of the federal courts. Rather, it limits the grounds on which federal
courts may grant the habeas remedy to upset a state conviction. See Evans, 518
F.3d at 11 (“There is a world of difference between telling a court how to decide
a case given a certain set of facts and limiting the availability of relief . . .”);
Crater, 491 F.3d at 1128 (“Section 2254(d)(1) does not restrict the federal courts’
power to interpret the law, but only sets standards for what state court errors
of law require federal habeas relief.”); Green, 143 F.3d at 874–75 (“[S]ection
2254(d)(1) does not limit any inferior federal court’s independent interpretive
authority to determine the meaning of federal law in any Article III case or
controversy. Under the AEDPA, we are free, if we choose, to decide whether a
habeas petitioner’s conviction and sentence violate any constitutional rights.
Section 2254(d) only places an additional restriction upon the scope of the

                                        13
  Case: 11-70003    Document: 00511868573     Page: 14    Date Filed: 05/25/2012



                                  No. 11-70003

habeas remedy in certain circumstances.”); Lindh, 96 F.3d at 872 (majority
opinion) (“Regulating relief is a far cry from limiting the interpretive power of
the courts . . . and Congress has ample power to adjust the circumstances under
which the remedy of the writ of habeas corpus is deployed.”).
      AEDPA is hardly unique, of course, in limiting the availability of a
remedy even for aggrieved individuals who may have legitimate federal
constitutional claims. Plain error doctrine authorizes courts to correct forfeited
errors only in rare circumstances. See United States v. Olano, 507 U.S. 725,
733–37 (2003). The harmless error rule plays a similar, albeit less severe,
function.   See Chapman v. California, 386 U.S. 18, 22 (1967).          Qualified
immunity can prevent meritorious constitutional plaintiffs from recovering. See
Pearson v. Callahan, 555 U.S. 223, 236 (2009). In the habeas context, the
Supreme Court’s retroactivity doctrine creates a chasm between valid claims
and the right to relief. See Teague v. Lane, 489 U.S. 288, 310 (1989). Supreme
Court precedent similarly forecloses federal habeas relief for state prisoners
convicted on the basis of evidence obtained in an unconstitutional search and
seizure. Stone v. Powell, 428 U.S. 465, 481–82 (1976). In short, federal courts
routinely deny relief even for known constitutional violations. The “distinction
between rights and remedies is fundamental.” Lindh, 96 F.3d at 872.
      Most fundamentally, Cobb’s Article III challenge is untenable because it
depends on an assumption that contradicts nearly two centuries of Supreme
Court precedent. Cobb assumes that if Congress gives federal courts habeas
jurisdiction to consider collateral attacks on state convictions it must give them
plenary authority to consider afresh any and every error of federal law made by
the state court. The Supreme Court, however, has long permitted Congress to
extend habeas jurisdiction to federal courts without authorizing them to
reconsider the legal determinations of criminal courts. Indeed, the common law


                                       14
   Case: 11-70003       Document: 00511868573            Page: 15      Date Filed: 05/25/2012



                                         No. 11-70003

understanding of the writ forbade reexamination of the judgments of criminal
courts of competent jurisdiction. See Lindh, 96 F.3d at 867 (“The writ known
in 1789 was the pre-trial contest to the executive’s power to hold a person
captive, the device that prevents arbitrary detention without trial. [It] did not
include the ability to reexamine judgments rendered by courts possessing
jurisdiction.” (citing cases)).          Accordingly, in 1830 the Supreme Court
interpreted its habeas jurisdiction under the Judiciary Act of 1789 as
prohibiting it from reevaluating a federal prisoner’s conviction because “[t]he
judgment of the circuit court in a criminal case is of itself evidence of its own
legality.” Ex parte Watkins, 28 U.S (3 Pet.) 193, 207 (1830); see also Felker v.
Turpin, 518 U.S. 651, 663 (1996) (discussing Watkins); Paul M. Bator, Finality
in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L.
Rev. 441, 465–66 (1963) (discussing Watkins’s acceptance of “the black-letter
principle of the common law that the writ was simply not available at all to one
convicted of crime by a court of competent jurisdiction”). “[A]t common law a
judgment of conviction rendered by a court of general criminal jurisdiction was
conclusive proof that confinement was legal.” United States v. Hayman, 342
U.S. 205, 211 (1952).
       Even after Congress made the writ available to state prisoners in the
latter half of the nineteenth century,5 the Supreme Court continued to adhere
to the common law understanding that habeas was unavailable to test

       5
         The Judiciary Act of 1789 did not extend the writ to prisoners detained under state
authority. Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 82; Ex parte Dorr, 44 U.S. (3 How.) 103,
105 (1845). Congress granted this authority in the Habeas Corpus Act of 1867, which
authorized federal courts “to grant writs of habeas corpus in all cases where any person may
be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the
United States.” Act of Feb. 5, 1867, ch. 28, § 1, 14 Stat. 385. The next year, Congress repealed
the Supreme Court’s appellate jurisdiction over habeas decisions by the circuit courts. Act of
Mar. 27, 1868, ch. 34, § 2, 15 Stat. 44; see also Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514
(1868) (upholding the 1868 repeal). Congress reinstated the Court’s jurisdiction over habeas
appeals in 1885. Act of Mar. 3, 1885, ch. 353, 23 Stat. 437.

                                                15
  Case: 11-70003        Document: 00511868573          Page: 16     Date Filed: 05/25/2012



                                        No. 11-70003

convictions by courts vested with jurisdiction. See, e.g., Ex parte Spencer, 228
U.S. 652, 660 (1913); Harkrader v. Wadley, 172 U.S. 148, 163–64 (1898); In re
Wood, 140 U.S. 278, 285–87 (1891). Over time, the Court relaxed this rule,
recognizing new categories of habeas claims as challenging the convicting
court’s jurisdiction. See, e.g., Ex parte Siebold, 100 U.S. 371, 376–77 (1880)
(unconstitutional criminal statute does not confer jurisdiction and habeas is
proper to test the statute’s constitutionality); Ex parte Lange, 85 U.S. (18 Wall.)
163, 175–76 (1874) (circuit court lacked jurisdiction to impose a second sentence
where law only allowed imposition of one sentence). The Court also allowed
habeas claims to remedy violations of federal law where the state failed to
afford the prisoner “corrective process” to litigate his federal claim. See, e.g.,
Moore v. Dempsey, 261 U.S. 86, 90–92 (1923); Frank v. Mangum, 237 U.S. 309,
335–36 (1915). Despite these exceptions, however, the general rule remained.
Not until the landmark case of Brown v. Allen, 344 U.S. 443 (1953), did the
Supreme Court clearly interpret the Habeas Corpus Act of 1867 as conferring
on federal courts the authority to reexamine claims fully litigated on the merits
in state court. See Wright v. West, 505 U.S. 277, 285–87 (1992) (plurality
opinion) (recounting the history); see generally Bator, 76 Harv. L. Rev. at
463–99 (same).6 As late as 1949, Judge Learned Hand could write:
       It must be remembered that upon habeas corpus a federal court
       does not in any sense review the decision in the state courts. Here,
       for example, the District Court could not properly have issued the
       writ, no matter how erroneous the judge had thought the state


       6
           It is a matter of some debate whether Brown v. Allen was the first case to permit
wholesale relitigation of state convictions on federal habeas review. A plurality of the
Supreme Court took this view of the history in Wright. 505 U.S. at 285–87 (plurality opinion)
(Thomas, J.) (joined by Rehnquist, C.J. and Scalia, J.). Justice O’Connor disagreed. See id.
at 299–300 (O’Connor, J., concurring in the judgment) (joined by Blackmun and Stevens, JJ.).
For present purposes, it does not ultimately matter which position is correct. At the very
least, as the Seventh Circuit has explained, “[c]ollateral review of judgments entered after full
opportunity for litigation is the work of the 20th Century.” Lindh, 96 F.3d at 868.

                                               16
  Case: 11-70003    Document: 00511868573       Page: 17   Date Filed: 05/25/2012



                                  No. 11-70003

      judge’s conclusion . . . . If the state courts have honestly applied the
      pertinent doctrines to the best of their ability, they have accorded
      to an accused his constitutional rights.

Schechtman v. Foster, 172 F.2d 339, 341 (2d Cir. 1949).
      In light of these centuries-old precedents, Congress may constitutionally
grant federal courts habeas jurisdiction over collateral challenges to state
convictions and yet limit the availability of the remedy to exceptional
circumstances.     As the Seventh Circuit put it in rejecting an Article III
challenge identical to Cobb’s: “We would have to cast history to the winds to say
that [§ 2254(d)(1)], which respects fully-litigated judgments unless the state
court has gone seriously wrong, transgresses constitutional limitations.” Lindh,
96 F.3d at 873–74. Indeed, in rejecting a Suspension Clause challenge to a
different provision of AEDPA, the Supreme Court emphasized that “judgments
about the proper scope of the writ are ‘normally for Congress to make.’” Felker,
518 U.S. at 664 (quoting Lonchar v. Thomas, 517 U.S. 314, 323 (1996)). We
reject Cobb’s argument that § 2254(d)(1) is unconstitutional under Article III
and proceed to his Brady claim.
                                        IV.
      Cobb argues that the state courts unreasonably applied clearly
established federal law as determined by the Supreme Court in Brady. In
Brady, the Court held that “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence
is material either to guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution.” 373 U.S. at 87. Subsequent Supreme Court cases
have made clear that the duty to disclose arises “even if no request is made,”
United States v. Agurs, 427 U.S. 97, 107 (1976), and that “the individual
prosecutor has a duty to learn of any favorable evidence known to the others
acting on the government’s behalf in the case, including the police.” Kyles v.

                                        17
  Case: 11-70003        Document: 00511868573         Page: 18      Date Filed: 05/25/2012



                                        No. 11-70003

Whitley, 514 U.S. 419, 437 (1995). Moreover, the duty to disclose includes
impeachment evidence. United States v. Bagley, 473 U.S. 667, 676 (1985).
      To prevail on his Brady claim, Cobb “must show that (1) the prosecution
suppressed evidence, (2) the evidence was favorable to the defense, and (3) the
evidence was material to his guilt or punishment.” Mahler v. Kaylo, 537 F.3d
494, 500 (5th Cir. 2008). Materiality “is generally the most difficult [element]
to prove.” Id. “[E]vidence is material only if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceeding
would have been different.” Bagley, 473 U.S. at 682. The Brady materiality
determination is a mixed question of law and fact. LaCaze v. Warden of La.
Corr. Inst. for Women, 645 F.3d 728, 736 (5th Cir. 2011).
      The state habeas court denied Cobb’s Brady claim on the merits after
entering detailed findings of fact and conclusions of law. First, it concluded that
the prosecution did not suppress the evidence because Cobb “had access to the
files in both his and Beunka Adams [sic] case, and failed to avail himself of the
open file policy.”7 Second, it concluded that Cobb “fails to show the letter was

      7
          The habeas court found the following facts:
               17. [T]he Cherokee County District Attorney’s Office has an
               “open file policy.”
               18. [T]he“open file policy” was announced in the record several
               times with attorneys for both [Cobb] and Beunka Adams present,
               and all attorneys were therefore aware of said policy.
               ....
               21. The Court finds from the record, the testimony of District
               Attorney Elmer Beckworth and the testimony of William House
               that Counsel for the State requested trial counsel to inspect
               everything the State had in its files.
               22. The Court finds from the record, that trial counsel for [Cobb]
               did not come to the District Attorney’s Office and go through all
               of the files made available.
               23. The Court finds from the record, that trial counsel for
               Co-defendant Beunka Adams did go through all of the State’s
               files as to both cases.
               24. The Court finds from the record, and the testimony of District
               Attorney Elmer Beckworth, that had trial counsel availed himself

                                              18
  Case: 11-70003       Document: 00511868573          Page: 19      Date Filed: 05/25/2012



                                       No. 11-70003

material especially in light of trial counsel insinuating a deal on cross-
examination, and argument without challenge by the State.” Accordingly, the
state court found, “there is no reasonable probability that the outcome of the
trial would have been different if trial counsel had known about the letters
earlier.”
       The district court determined that the first of these conclusions was an
unreasonable application of Brady while the second was reasonable. Cobb,
2011 WL 672333, at *9–11. It therefore denied federal habeas relief on Cobb’s
Brady claim. Id. at *11. In our view, both of the state court’s conclusions were
reasonable. We address each in turn.
A. Did the Prosecution Suppress the Evidence?
       “Brady does not obligate the State to furnish a defendant with
exculpatory evidence that is fully available to the defendant through the
exercise of reasonable diligence.” Kutzner v. Cockrell, 303 F.3d 333, 336 (5th
Cir. 2002) (citing Rector v. Johnson, 120 F.3d 551, 558 (5th Cir. 1997)). Relying
on this quoted language, the Director argues that it was not unreasonable for
the state court to conclude that “reasonable diligence” for Cobb’s capital murder
trial counsel would have included inspecting the file of Cobb’s co-defendant
Adams.8 This conclusion is buttressed by the state habeas court’s factual
findings, cited supra note 7, that had Cobb’s attorney examined both of the open
files as he requested, and as did the attorney for co-defendant Adams, he would


              of access to the State’s files, he would have obtained the letter.
              25. The Court finds from the record, that trial counsel
              aggressively cross-examined William Elmer Thomsen.
       8
          The state court did not cite Kutzner or expressly apply a reasonable diligence
standard. Nevertheless, the state court’s decision may still be affirmed on this ground: “[A]
federal habeas court is authorized by Section 2254(d) to review only a state court’s ‘decision,’
and not the written opinion explaining that decision. . . . [O]ur focus . . . should be on the
ultimate legal conclusion that the state court reached.” Neal v. Puckett, 286 F.3d 230, 246 (5th
Cir. 2002) (en banc).

                                              19
  Case: 11-70003    Document: 00511868573        Page: 20   Date Filed: 05/25/2012



                                 No. 11-70003

have discovered the evidence. These factual determinations, of course, “shall
be presumed to be correct” unless Cobb carries “the burden of rebutting the
presumption of correctness by clear and convincing evidence.”            28 U.S.C.
§ 2254(e)(1). Cobb has not challenged these findings of fact.
      In arguing that the prosecution suppressed the evidence, Cobb relies
heavily on the determination of the district court that the state court’s
conclusion was unreasonable. The district court concluded that Cobb’s attorney
exercised due diligence because “[w]hile it would have been good practice for
Cobb’s counsel to review the case file of his co-defendant, unless they knew that
evidence the prosecution would rely on in Cobb’s trial would only be found in
Adams’s file, they had no duty to review Adams’s file.” Cobb, 2011 WL 672333,
at *9. Cobb also relies on the following quote from the Supreme Court to
establish that his attorney exercised reasonable diligence in not inspecting
Adams’s file:
      If it was reasonable for trial counsel to rely on, not just the
      presumption that the prosecutor would fully perform his duty to
      disclose all exculpatory materials, but also the implicit
      representation that such materials would be included in the open
      files tendered to defense counsel for their examination, we think
      such reliance by counsel appointed to represent petitioner in state
      habeas proceedings was equally reasonable.

Strickler v. Greene, 527 U.S. 263, 284 (1999).
      We are persuaded that the state habeas court reasonably applied Brady
in determining that the prosecution did not suppress Thomsen’s letter. Neither
party cites to clearly established Supreme Court case law that indicates one way
or the other whether defense counsel has a duty to inspect the open file of a co-
defendant. Cobb’s citation to Strickler does not answer the question. Strickler
merely states that defense counsel may rely on the implicit representations of
the prosecution that Brady material will be available “in the open files tendered


                                       20
  Case: 11-70003    Document: 00511868573      Page: 21   Date Filed: 05/25/2012



                                  No. 11-70003

to defense counsel for their examination.” Id. This statement is ambiguous as
to whether “open files” includes a co-defendant’s open file. Thus, the only clearly
established Supreme Court determination that Cobb cites is the basic rule that
the prosecution has a duty to disclose material exculpatory evidence. It was not
unreasonable for the state court to conclude that the prosecution satisfied that
duty by providing open access to the case files for the two co-defendants.
Moreover, given that the Supreme Court has stated the Brady disclosure
requirement at a high level of generality, the state court had substantial leeway
in deciding whether, in this particular case, the inclusion of the evidence in
Cobb’s co-defendant’s file satisfied the prosecution’s disclosure obligation. See
Yarborough, 541 U.S. at 664 (“The more general the rule, the more leeway
[state] courts have in reaching outcomes in case-by-case determinations.”).
Because “fairminded jurists could disagree that the state court’s decision
conflicts with [Supreme Court] precedents,” Harrington, 131 S. Ct. at 786, we
conclude that the state court’s determination was reasonable.
B. Was the Evidence Material?
      Cobb argues that Thomsen’s letter is material because it reveals that he
thought he had a deal to exchange testimony against Cobb for prosecutorial
leniency. Cobb maintains that the letter contains potent impeachment evidence
that was material to two jury determinations that were necessary to its imposing
a sentence of death: the probability of Cobb’s future dangerousness and the
sufficiency of his mitigation evidence. With regard to future dangerousness,
Cobb argues that each side’s expert testimony cancelled the other’s out, and that
Thomsen’s testimony that Cobb felt no remorse, wanted to escape, and would kill
again, was “the tipping point.” With regard to the mitigation evidence, Cobb
argues that he presented a “compelling case” but that Thomsen’s testimony




                                        21
  Case: 11-70003       Document: 00511868573        Page: 22    Date Filed: 05/25/2012



                                      No. 11-70003

undermined it. He argues that Thomsen’s letter “would have clearly exposed
Thomsen for what he was—a jailhouse snitch making up tales to get out of jail
free.”
         The district court rejected Cobb’s argument, reasoning that:
                [I]t is not at all clear that the defense, even had it received the
         letters in a timely fashion, could have further impeached Thomsen’s
         credibility. The state court found that defense counsel insinuated
         the existence of “some kind of deal” during its aggressive
         cross-examination of Thomsen, and when they argued at closing
         that there was an agreement between the state and Thomsen, the
         State did not challenge, object to, or attempt to rebut the argument.
         The Court further found that the letter from Thomsen to the
         District Attorney merely “requests information and help,” and “was
         cumulative to information trial counsel already had which he used
         to cross-examine Thomsen and argue to the jury.” Finally, the
         Court found that there was “no undisclosed agreement for favorable
         treatment for William Elmer Thomsen.”
                The Court finds that the letter at issue was not material
         because it did not compellingly contradict Thomsen’s testimony. His
         letter to the District Attorney establishes that in their meeting, the
         District Attorney agreed to complete the administrative paperwork
         necessary to completely clear the charge and to alert his parole
         officer that it had been completely cleared. There is no indication
         in the record that this is not what the District Attorney should have
         done, as a matter of course, in any case. Further, while it is clear
         from his letter that Thomsen was very optimistic that he would be
         released from prison quickly as a result of the District Attorney’s
         actions, his letter establishes that the District Attorney agreed to do
         no more than to contact his parole officer and inform him of the
         dismissal. In addition, nowhere in Thomsen’s letter does he state
         that he would testify in return for what the District Attorney agreed
         to do.

Cobb, 2011 WL 672333, at *10.
         We agree with the district court that it was reasonable for the state court
to determine that Thomsen’s letter was immaterial. In elaborating Brady’s
materiality requirement, this court has held that “when the undisclosed evidence


                                            22
  Case: 11-70003       Document: 00511868573         Page: 23     Date Filed: 05/25/2012



                                      No. 11-70003

is merely cumulative of other evidence, no Brady violation occurs.” Spence v.
Johnson, 80 F.3d 989, 995 (5th Cir. 1996) (citing Allridge v. Scott, 41 F.3d 213,
218 (5th Cir. 1994)). Although Cobb characterizes the letter as demonstrating
Thomsen’s belief that he had a testimony-for-leniency “deal,” the letter shows
nothing more than that the district attorney had agreed to clear Thomsen’s
felon-in-possession charge and that he was willing to cooperate with the
prosecution by testifying against Cobb.9 Thus, while the defense surely could
have used the letter in its cross-examination of Thomsen, it would not have
significantly added to the impeachment ammunition that Cobb’s counsel already
had. As the state habeas court found, Cobb’s counsel “aggressively cross-
examined” Thomsen. Moreover, the defense emphasized during its closing
argument the only facts that the letter plainly establishes: Thomsen had a
strong incentive to lie and received leniency from the district attorney.
       Cobb’s comparison between his case and the facts in Bagley is
unconvincing.       The government-agent witnesses in Bagley, despite an
undisclosed contract suggesting they would receive pecuniary reward for a
successful outcome based on their testimony, signed affidavits attesting that
they provided their testimony freely, without any promise of reward. 473 U.S.
at 670–71. Because of this affirmative misrepresentation and the prosecutor’s
failure to disclose the inducements, the Court concluded that “there is a
significant likelihood that the prosecutor’s response to respondent’s discovery
motion misleadingly induced defense counsel to believe that [the government
witnesses] could not be impeached on the basis of bias or interest arising from
inducements offered by the Government.” Id. at 683. In Cobb’s case, by


       9
          Contrary to Cobb’s assertions, the letter is neither “astonishing” nor “irrefutable
evidence that Thomsen would say whatever he thought the state wanted him to say in
exchange for the state ‘taking care of’ his criminal troubles.” The letter indicates that
Thomsen had a motive to lie, hardly an earth-shattering revelation given his status as a
jailhouse informant.

                                             23
  Case: 11-70003    Document: 00511868573     Page: 24    Date Filed: 05/25/2012



                                 No. 11-70003

contrast, the defense was in no way misled about Thomsen’s incentive to lie.
Rather, it zealously sought to impeach Thomsen on that basis.
      At the very least, “fairminded jurists could disagree that the state court’s
decision conflicts with [Supreme Court] precedents.” Harrington, 131 S. Ct. at
786. Moreover, like Brady’s disclosure requirement, the materiality standard
is a general rule, meaning a wide range of reasonable applications exist. See
Yarborough, 541 U.S. at 664 (“The more general the rule, the more leeway
[state] courts have in reaching outcomes in case-by-case determinations.”). We
therefore conclude that the state court did not unreasonably apply Brady in
holding that the letter was immaterial.
                                       V.
      Finally, Cobb asks for a COA on three additional issues. He concedes,
however, that each argument is foreclosed by precedent. We therefore deny his
request for a COA as to each issue.
      First, Cobb requests a COA on the question of whether the Texas death
penalty scheme is unconstitutional under the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the U.S. Constitution because it requires jurors to
make future dangerousness predictions beyond their skill and expertise. Cobb
concedes that this argument is foreclosed by Jurek v. Texas, 428 U.S. 262,
274–76 (1976).
      Second, Cobb requests a COA on the question of whether the state trial
court unconstitutionally relieved the state of the burden of proving the lack of
mitigating circumstances beyond a reasonable doubt. Cobb concedes that this
argument is precluded by Scheanette v. Quarterman, 482 F.3d 815, 828 (5th Cir.
2007), and Rowell v. Dretke, 398 F.3d 370, 378–79 (5th Cir. 2005).
      Third, Cobb requests a COA on the question of whether the Texas death
penalty scheme is unconstitutional under the Eighth and Fourteenth



                                       24
  Case: 11-70003    Document: 00511868573     Page: 25   Date Filed: 05/25/2012



                                  No. 11-70003

Amendments for failure to provide for proportionality review. He concedes that
Pulley v. Harris, 465 U.S. 37, 42–44 (1984), forecloses this argument.
                                       VI.
       For the foregoing reasons, we AFFIRM the district court’s denial of Cobb’s
petition for a writ of habeas corpus. We DENY Cobb’s motion for an additional
COA.




                                       25
