                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                     UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT                     February 17, 2004

                         _______________________                 Charles R. Fulbruge III
                                                                         Clerk
                               NO. 03-50483
                         _______________________

                            TIMOTHY COCKRELL,

                                                    Petitioner-Appellant,

                                   versus

      DOUGLAS DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
           JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                     Respondent-Appellee.




              Appeal from the United States District Court
                    for the Western District of Texas
                             SA-99-CA-1119-FB



Before JONES, STEWART and DENNIS, Circuit Judges.

PER CURIAM:*

              In July 1993, Timothy Cockrell was convicted of the

murder   of    Sandra   Deptawa   and   was   sentenced   to   death.        His

conviction and death sentence were upheld by the Texas Court of

Criminal Appeals and the Supreme Court denied Cockrell’s petition

for a writ of certiorari on direct appeal.         Cockrell then filed an

application for a writ of habeas corpus in state court.             The state

court filed findings of fact and conclusions of law recommending

     *
            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opinion should not be published and is not precedent except under the limited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.
that Cockrell’s application be denied.           In September 1999, the

Texas    Court   of   Criminal    Appeals   adopted    the   state   court’s

recommendation and denied Cockrell’s state habeas application.

Cockrell then filed a federal petition for a writ of habeas corpus

arguing that his trial counsel rendered ineffective assistance of

counsel in violation of the Sixth Amendment.           The district court

denied federal habeas relief and also denied Cockrell’s application

for a certificate of appealability (“COA”).           Cockrell now applies

to this court for a COA.

            After reviewing the district court’s detailed opinion

denying habeas relief, we deny Cockrell’s application for a cer-

tificate of appealability.

                             I.    BACKGROUND

            On August 9, 1992, Sandra Deptawa’s half-naked body was

discovered submerged in the bathtub of her new home.            An autopsy

revealed that she had been strangled to death.          Her mouth had been

bound with a curtain tie and a belt had been tied around her left

wrist.    Scattered around the house were various items of female

clothing including women’s underwear.        Several items were missing

from Deptawa’s house, including jewelry, a vacuum cleaner, a

television, and a .25 caliber handgun.           Deptawa’s car, a Mazda

RX-7, was also missing.     The next day, the police located Sandra’s

car at a public housing project and apprehended a man who attempted

to drive the car away.     The driver, Kelly Wright, denied stealing



                                      2
the car and claimed that Timothy Cockrell had brought the car to

the housing project.        Shannon Haynes, a resident of the housing

project, approached police and informed them that Cockrell had in

fact brought the car to the housing project and had lent him the

car the night before.        Haynes then led the police to Cockrell’s

apartment.

              Cockrell was arrested on an outstanding parole warrant

and was informed that he was a suspect in a capital murder

investigation. After being advised of his Miranda rights, Cockrell

spoke with San Antonio Police Detective George Saidler. During the

course   of    his    conversation   with   Detective   Saidler,   Cockrell

confessed to robbing and killing Deptawa.           Cockrell explained he

had helped move Deptawa into her home on August 7, 1992, as a

member of a three-person moving crew, and that he returned to her

house two days later intending to steal some of the property he had

helped move.         Cockrell said he needed the property in order to

support his $600-a-day cocaine habit and that he entered Deptawa’s

house under the pretense of fixing a table that had been broken

during the move.        Cockrell admitted that he had bound and gagged

Deptawa, but he could not remember much of what had happened

because he had been high on cocaine at the time and had not slept

for   three    days.      After   listening   to   Cockrell’s   confession,

Detective Saidler typed up a three-page statement, read it to

Cockrell, and had Cockrell sign each page in the presence of two

civilian witnesses.

                                      3
            At trial, the defense argued that Cockrell did not murder

Sandra Deptawa and attempted to draw the jury’s interest to other

possible suspects.       Highlighting an absence of any evidence at

Deptawa’s    residence   that   incriminated   Cockrell,   the   defense

suggested that the witnesses against Cockrell were lying.           The

defense also contended that Cockrell’s confession was improperly

obtained, based on his apparent inability to read, low I.Q. scores,

and poor educational record.       The defense essentially suggested

that Cockrell could not understand the facts contained in his

signed confession.

            During the course of the trial, Cockrell introduced

expert testimony from Dr. Ronnie Alexander that two I.Q. tests

given Cockrell in 1973 and 1978 appeared to show him as ranking in

the lowest three percent of the population, with scores ranging

from 25 to 35 on the verbal components of the tests and 37 to 42 on

the performance components.     In addition, Dr. Alexander testified

that he gave Cockrell a battery of reading tests which reflected

that his reading comprehension was in the lowest one percent of the

adult population.     These factors, combined with Cockrell’s poor

educational background, led Dr. Alexander to opine that Cockrell

could neither understand the confession prepared by Detective

Saidler nor communicate effectively enough to have given the

statement recorded by Saidler.          In Dr. Alexander’s view, the

confession was not voluntary.



                                    4
              On         cross-examination,         the     prosecution        extracted

concessions from Dr. Alexander that an I.Q. score in the thirties

would render Cockrell profoundly mentally retarded, that it was

possible that Cockrell could have understood at least part of the

statement,         and     that   Cockrell       could    also   have    understood      a

paraphrase of his statement.

              After deliberating for less than one full day, the jury

returned a guilty verdict.                During the punishment phase of the

trial, the prosecution introduced evidence regarding Cockrell’s

lengthy criminal record, which included 13 different first-degree

felony convictions over a ten-year period, as well as testimony

from two correctional officers who had witnessed Cockrell attacking

another inmate with a combination lock tied to a belt.                                 The

prosecution also called Dr. John C. Sparks, a licensed psychia-

trist, who disputed Dr. Alexander’s interpretation of the raw

scores   on    the        I.Q.    tests   given    Cockrell      in   1973     and   1978.

Dr. Sparks indicated that the proper method for interpreting raw

I.Q.   test    scores        is   to   cross-reference       the      scores    with   the

subject’s chronological age, and that doing so with Cockrell’s

1970's test scores resulted in a determination that Cockrell had a

composite I.Q. somewhere in the mid-70's to mid-80's during that

period. In addition, Dr. Sparks noted that the Texas Department of

Criminal Justice regularly conducts I.Q. tests on inmates and that

Cockrell, while incarcerated for other offenses during the 1980s,

had I.Q. test scores of 75, 86 and 93.                    Dr. Sparks also testified

                                             5
that an individual with an I.Q. score in the thirties would be

unable to care for himself and would have been unable to follow the

directions that Dr. Alexander had given Cockrell during the reading

tests he conducted.         In conclusion, Dr. Sparks testified that

Cockrell was not mentally retarded.

           The jury found, based on the Texas capital murder special

issues, that beyond a reasonable doubt, there was a probability

that Cockrell would commit criminal acts of violence that would

constitute a continuing threat to society, and that taking into

consideration   all    of    the    evidence,       there    were    insufficient

mitigating   circumstances          to    warrant     a     sentence    of    life

imprisonment.     Cockrell     was       sentenced    to    death.     Following

completion of his direct appeal and state habeas proceedings,

Cockrell filed a federal habeas petition that was denied in a

comprehensive 79-page opinion issued by the district court.                   When

the district court denied a COA, this application followed.

                              II.    DISCUSSION

           In applying for this COA, Cockrell argues that particular

decisions by his two attorneys at trial rendered their assistance

ineffective in violation of the Sixth Amendment.                First, Cockrell

asserts that his trial counsel should have presented evidence at

the punishment phase of his then-current I.Q. and should have

presented testimony to rebut Dr. Sparks’s testimony regarding the

proper   methodology   for    determining      an    individual’s      I.Q.    In



                                         6
addition, Cockrell argues that his trial counsel should have

presented punishment phase evidence that Cockrell’s actions were

the result of “cocaine psychosis.”

A.     Standard for the Issuance of a Certificate of Appealability

            Pursuant to the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), the Supreme Court has held that a state

prisoner has “no absolute entitlement to appeal a district court’s

denial” of a petition for a writ of habeas corpus.         See Miller-El

v. Cockrell, 537 U.S. 322, 336 (2003).        Before a habeas appeal may

be entertained, a prisoner who is denied habeas relief by the

district court must first obtain a COA from a circuit judge.           See

id.; 28 U.S.C. § 2253(c)(1) (2000 & Supp. 2003) (“Unless a circuit

justice or judge issues a certificate of appealability, an appeal

may not be taken to the court of appeals.”).      The COA determination

requires the court of appeals to undertake “an overview of the

claims in the habeas petition and [make] a general assessment of

their merits.”     Miller-El, 537 U.S. at 336.        However, in making

this   threshold   inquiry,   the   Supreme   Court   noted   that   AEDPA

specifically bars the courts of appeals from undertaking “full

consideration of the factual or legal basis adduced in support of

the claims.”   See id.   Under the Supreme Court’s reading of AEDPA,

to fully adjudicate the merits of a habeas petition in denying a

COA would be to decide an appeal without jurisdiction.         See id. at

336-37.



                                    7
           In order to obtain a COA under AEDPA, a federal habeas

petitioner must make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2) (2000 & Supp. 2003).

This standard is only satisfied when a petitioner demonstrates that

“jurists   of    reason   could    disagree     with   the   district     court’s

resolution of the constitutional claims or that jurists could

conclude   that    the    issues    presented    are   adequate     to    deserve

encouragement to proceed further.” See Miller-El, 537 U.S. at 327.

           Because our review demonstrates that no reasonable jurist

could disagree with the district court’s well-reasoned resolution

of Cockrell’s ineffective assistance claims and because no jurist

could conclude that these claims deserve encouragement to proceed,

we deny Cockrell’s petition for a COA.

B.    Analysis of the District Court’s Decision

           To prevail on the type of ineffective assistance claims

Cockrell has made, Cockrell must show that his attorneys “failed to

investigate or introduce [the] evidence; that this failure amounted

to   deficient    performance      by   his   attorneys;     and   that   he   was

prejudiced by this failure.”            See Johnson v. Cockrell, 306 F.3d

249, 251-52 (5th Cir. 2002) (citing Strickland v. Washington, 466

U.S. 668, 687 (1984)).      Moreover, under the restrictions of AEDPA,

federal courts must defer to a decision of state courts unless the

decision was either “contrary to, or involved an unreasonable

application of, clearly established Federal law,” as determined by



                                        8
the   Supreme     Court,   28     U.S.C.    §   2254(d)(1),   or    involved     “an

unreasonable determination of the facts in light of the evidence

presented in the state court proceedings.” 28 U.S.C. § 2254(d)(2).

            The    district     court      noted   that   Cockrell    offered     no

evidence during the state habeas proceeding suggesting what an I.Q.

test performed      near    the    time    of   Cockrell’s    trial      would   have

revealed.    Nor did Cockrell present any evidence regarding what a

rebuttal expert called to discuss Dr. Sparks’s testimony might have

offered.    As a result, the district court concluded that Cockrell

failed to show that the state courts unreasonably applied the

deficient performance and prejudice prongs of the Strickland test.

We agree.

            Even assuming, arguendo, that Cockrell could show that

his trial counsels’ failure to contact experts concerning (a) his

I.Q. at the time of trial and (b) potential errors in Dr. Sparks’s

testimony   amounted       to   inadequate      investigation      and    deficient

performance, Cockrell did not present even a scintilla of evidence

as to how these failures prejudiced his defense.              See, e.g., Moawad

v. Anderson, 143 F.3d 942, 948 (5th Cir. 1998) ("A defendant who

alleges a failure to investigate on the part of his counsel must

allege with specificity what the investigation would have revealed

and how it would have altered the outcome of the trial.") (internal

quotation marks and citations omitted); Andrews v. Collins, 21 F.3d

612, 624 (5th Cir. 1994) (to satisfy the prejudice prong of

Strickland, the defendant must “show evidence of sufficient quality

                                           9
and force to raise a reasonable probability that, had it been

presented to the jury,” a different outcome would have resulted).

          Cockrell admits as much in his reply brief before this

court. Noting that his state habeas counsel had never done capital

work before this case, Cockrell acknowledges that his state habeas

petition contained no evidence outside the trial record and that

“no experts were called by the state habeas counsel to substantiate

the claims raised in the state writ especially regarding the

failure by trial counsel to produce mitigation evidence on mental

retardation, IQ and cocaine-induced behavior.”      As petitioner,

Cockrell bore the burden to prove that the state court’s decision,

based on the evidence before it, was an unreasonable application of

governing constitutional law or of the law to the facts.    He did

not carry his burden.

          Cockrell’s argument regarding the potential effect of

expert testimony regarding the “cocaine psychosis” theory suffers

from similar problems.    While Cockrell’s state habeas attorney

submitted a series of articles regarding “cocaine psychosis” and

argued that expert testimony might have assisted the jury, he

offered no evidence that Cockrell suffered from such a disease.

Evidence of the existence of such a disease, unaccompanied by

evidence of the relevance of the disease to the case at hand,

cannot support a contention that Cockrell’s trial counsel rendered

ineffective assistance.   Finally, Cockrell did not suggest how the

outcome of his case was prejudiced by the failure to contend that

                                10
he   murdered    Deptawa   while     allegedly    suffering   from   cocaine

psychosis.

           Apart from the merits of the argument, as both the state

habeas court and the federal district court noted, Cockrell’s trial

attorneys testified at the state habeas proceeding that they had

legitimate,     objectively   reasonable,    strategic   reasons     for   not

presenting potentially double-edged evidence regarding Cockrell’s

alleged history of cocaine abuse.          See Kitchens v. Johnson, 190

F.3d 698, 701-03 (5th Cir. 1999) (trial counsels’ decision not to

offer evidence related to the defendant’s forced consumption of

alcohol during an abusive childhood did not constitute ineffective

assistance because the evidence raised the issue of prior drug use

by the defendant); Johnson, 306 F.3d at 253 (noting that “so long

as the decision not to introduce double-edged mitigation evidence

was based on trial strategy rather than lack of investigation,

those questions are even less susceptible to judicial second-

guessing”) (internal quotation marks and citations omitted). Given

Cockrell’s lengthy criminal history and his contention throughout

the trial that he did not commit the crime, we agree with the

district court’s determination that the state courts did not

unreasonably conclude that Cockrell’s trial counsels’ decision not

to highlight his past drug use was the product of reasonable

strategy rather than the lack of adequate investigation.

                              III.   CONCLUSION



                                      11
          For the reasons discussed above, Cockrell’s application

for a certificate of appealability raises no issues that are

reasonably debatable among jurists after Miller-El and must be

DENIED.




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