Texas Executes Inmate for Abduction, Slaying
Graczyk - Associated Press
November 13, 2013
A Texas man convicted of
abducting a young Houston couple, raping the woman and fatally
stabbing the man in 1991 was put to death Tuesday evening.
Jamie McCoskey, 49, already was on a form of
probation when he was arrested for the slaying of 21-year-old
Michael Dwyer, who had been stabbed nearly two dozen times, and
the rape of Dwyer's pregnant fiance. The couple had been abducted
from their apartment.
Asked if he had any final statement, McCoskey
replied: "The best time in my life is during this period. ... I
have been touched by an angel's wings."
He said that if he could, he would "change
Dwyer's parents' suffering, because I know they are."
During his brief comments, and as a tear ran
down the side of his face just above a tattoo teardrop and below
his right eye, McCoskey said he wanted "to say some things so
He said he appreciated people who had helped
him, then turned his gaze toward Dwyer's mother and stepfather,
saying, "And if this takes the pain away, so be it."
After telling the warden he was "ready to go,"
McCoskey turned his head back toward the warden in the seconds
before the lethal dose of pentobarbital began taking effect and
said loudly: "Better not be no mix-up here. I don't want no stay."
McCoskey let out a loud laugh, then began
taking deep breaths that became several snores.
He was pronounced dead at 6:44 p.m. CST, 19
minutes after the lethal drug began to be administered.
Dwyer's mother and stepfather declined to speak
with reporters afterward.
McCoskey became the 15th convicted killer
executed this year in Texas, which carries out the death penalty
more than any other state.
The U.S. Supreme Court earlier this year
refused to review McCoskey's case, and his attorneys filed no
last-day appeals in the courts.
Evidence showed the couple had left the door of
their apartment open while they were bringing home groceries and
were confronted by the knife-wielding McCoskey exactly 22 years
He ordered them to their car, handcuffed Dwyer,
drove around Houston and stopped at an abandoned ramshackle house
where he raped the woman. She fled to a nearby home to seek help
when she realized sounds she was hearing were of Dwyer being
Their car was found at an apartment complex
where McCoskey once lived. Based on a description of the attacker,
residents there identified McCoskey, whose 6-foot-7-inch height
and square facial features had earned him the nickname "Lurch,"
after the hulking Frankenstein-like servant to the fictional
"Addams Family" television comedy of the 1960s.
His mother testified at his trial that McCoskey
had an abusive childhood that led to behavioral problems. After
stints in juvenile facilities, his offenses escalated as he
Before reaching death row, he had a kidnapping
conviction in Austin, assaults while in prison, marijuana
possession busts and a jail term where records show he used a
chisel to crack the skull of a fellow Harris County inmate.
He also was remembered for walking into the
Houston courtroom the day after his capital murder conviction in
1992, grabbing a heavy oak chair and heaving it about 10 feet. It
hit one prosecutor in the arm and grazed another before crashing
into the jury box rail.
"That's for lying in court!" McCoskey shouted
at the prosecutors.
Jurors weren't present yet and didn't see the
incident. Days later, they rejected defense arguments McCoskey was
insane and mentally ill and decided he should be put to death.
Prosecutors presented testimony McCoskey had an anti-social
personality disorder but did know right from wrong.
"My only wish for Jamie is godspeed," Jim
Peacock, his lead defense lawyer, said. "And I hope whatever there
is for him after this point is kinder to him than his past has
At least seven other Texas prisoners are set to
die in the coming months, including one next month.
Texas Attorney General
Media Advisory: Jamie Bruce McCoskey scheduled
Wednesday, November 6, 2013
AUSTIN – Pursuant to a court
order by the 185th Judicial District Court of Harris County,
Texas, Jamie Bruce McCoskey is scheduled for execution after 6
p.m. on Nov. 12, 2013.
In November 1992, a Harris County jury found
McCoskey guilty of capital murder for the killing of Michael Keith
FACTS OF THE CRIME
The Texas Court of Criminal Appeals accurately
set forth the facts of the crime as follows:
The evidence in this case reveals that between
approximately 6:00 and 6:30 p.m. on November 13, 1991, an engaged
couple returned to their apartment complex from a brief shopping
trip. They went upstairs to their apartment and the decedent
unlocked the door, leaving the keys in the lock until they could
get the groceries inside. As he turned to remove the keys from the
door, the decedent encountered [McCoskey] standing in the doorway.
[McCoskey] unzipped his jacket to reveal a hunting knife in a
scabbard in the waist of his pants. When asked what he wanted, [McCoskey]
responded that he wanted a ride and they were going to take him
where he needed to go. The decedent stated that he did not have
any gas in the car or any money with which to put some in, but [McCoskey]
told him that did not matter. The decedent eventually agreed to
take [McCoskey] where he wanted to go on the condition that his
fiancée be allowed to stay behind, but [McCoskey] insisted that
she come along.
The three originally got into the car with the
couple in the front seat and [McCoskey] in the back. [McCoskey]
instructed the man to go to a gas station and put gas in the car,
which he did. Two or three blocks away from the station, [McCoskey]
decided that he wanted to ride up front in the passenger seat so
he could get out quickly in case a police officer pulled them
over. After [McCoskey] and the woman changed positions, [McCoskey]
instructed the driver to get onto the highway I-10 eastbound.
While they were on the highway, [McCoskey] apparently made several
contradictory statements, including: (1) he was going to kill the
couple; (2) he just needed a ride and he knew no one would
volunteer; (3) he knew how to kill people using martial arts
techniques; and (4) he was doing this for someone else who wanted
him to steal the car.
Eventually [McCoskey] instructed the driver to
exit I-10 and directed him (somewhat indirectly) to an embankment
in the middle of an empty field. Apparently [McCoskey] was looking
for an isolated place. After the car was stopped, [McCoskey] took
the keys and proceeded to a Suburban parked nearby to tell its
occupants that the land was private property and they needed to
leave. After a brief conversation with [McCoskey], the occupants
of the Suburban left. [McCoskey] returned “kind of . . . jumpy,”
grabbed the decedent around the neck, pulled him down, and put the
knife to his throat. [McCoskey] then ordered the woman to handcuff
the decedent’s hands behind him. [McCoskey] then moved the coats
that were in the trunk to the back seat and placed the man in the
trunk. [McCoskey] then got into the driver’s seat and figured out
how to drive the car. He ordered the woman to take off her shorts
because he did not want her to “jump out of the car and run.”
[McCoskey] left the embankment, but could not
find his way out of the surrounding neighborhood. After asking
some construction workers for directions, [McCoskey] got back onto
the highway. During the ensuing period, [McCoskey] started
fondling the woman. When she started crying, he turned up the
radio so “she would not get embarrassed and so her boyfriend could
not hear.” [McCoskey] then unzipped his pants and tried to force
the woman to engage in oral sex with him by pushing her head down,
but when she started gagging, he discontinued the assault. As [McCoskey]
drove in the direction of the couple’s apartment, the decedent
attempted to tell him that the woman was pregnant and asked him
not to hurt her. [McCoskey’s] response was that he better shut up
and not make him mad.
[McCoskey] then told them that he was going to
leave the decedent with some friends and then drop the woman off
at the apartment, and after leaving the apartment he would call
his friends to release the man; this way he could ensure that the
two would be too scared to call the police. However, as they
neared the apartments, [McCoskey] turned away and eventually came
to an empty house close to the freeway. [McCoskey] took the woman
into the house at knifepoint and proceeded to sexually assault
her. He then returned her to the car and took the man into the
house. The next sound the woman heard was something like “if
somebody hit you in the stomach and you get the breath knocked out
of you” and recognized the sound was coming from her fiancé.
The woman then jumped from the car and fled
across a gravel road and through a field to a nearby home. The
occupant of the house would not allow her to enter, but then [McCoskey]
appeared with a knife in hand, shaking his head. The occupant let
the woman in and locked the door, whereupon she then called 911. [McCoskey]
fled in the couple’s vehicle. When the police arrived on the
scene, they found the man’s body inside the empty house; he had
been stabbed approximately two dozen times.
The police eventually located [McCoskey]. Upon
his arrest, they noticed knife scabbards strapped to both his belt
and his right leg. The knife used in the stabbing was located a
few feet away from him on the floor.
PRIOR CRIMINAL HISTORY
Under Texas law, the rules of evidence prevent
certain prior criminal acts from being presented to a jury during
the guilt-innocence phase of the trial. However, once a defendant
is found guilty, jurors are presented information about the
defendant’s prior criminal conduct during the second phase of the
trial – which is when they determine the defendant’s punishment.
During the punishment phase of trial, the State
offered evidence of McCoskey’s prior bad acts and convictions,
which were accurately summarized by the Court of Criminal Appeals
a 1981 juvenile commitment to the custody of
the Texas Youth Council for an unnamed, but apparently serious,
a 1983 conviction for kidnapping for which [McCoskey]
received shock probation. The probation was revoked later that
year after [McCoskey] committed an assault;
while in the penitentiary, [McCoskey] committed
several rules violations, including five fights and four incidents
of striking or threatening an officer;
1987 convictions for misdemeanor assault and
possession of marijuana; [and]
a 1992 incident of striking another inmate in
the Harris County jail with a chisel, cracking his skull.
Evidence was also presented that after [McCoskey]
had been found guilty, but prior to the punishment stage, when the
jury was out of the courtroom, [McCoskey] picked up a chair and
threw it at the prosecutors, accusing them of lying at trial.
On Jan. 24, 1992, a Harris County grand jury
indicted McCoskey for the offense of capital murder for the
killing of Dwyer.
On Nov. 12, 1992, a jury convicted McCoskey of
capital murder. After the jury recommended capital punishment, the
trial court sentenced McCoskey on Nov. 16, 1992, to death by
On May 22, 1996, the Texas Court of Criminal
Appeals affirmed McCoskey’s sentence.
On Jan. 6, 1997, the U.S. Supreme Court denied
review of McCoskey’s petition for certiorari.
On May 17, 1997, McCoskey filed an application
for a state writ of habeas corpus. While that application was
still pending, McCoskey filed a subsequent application on June 17,
2003. The Court of Criminal Appeals denied McCoskey’s second
application on June 6, 2007, and denied the first application on
March 11, 2009.
McCoskey then appealed his conviction and
sentence in federal district court. The Southern District of
Texas, Houston Division, denied his petition for a federal writ of
habeas corpus on May 31, 2011.
On May 29, 2012, the U.S. Court of Appeals for
the Fifth Circuit affirmed the federal district court’s denial of
On Jan. 7, 2013, the U.S. Supreme Court denied
review of McCoskey’s petition for certiorari.
On June 27, 2013, the 185th Judicial District
Court of Harris County scheduled McCoskey’s execution to take
place on Nov. 12, 2013. The order was amended on July 18, 2013.
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
May 31, 2011
JAMIE BRUCE MCCOSKEY, PETITIONER,
RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE-CORRECTIONAL INSTITUTIONS DIVISION, RESPONDENT.
The opinion of the court was delivered by: Sim
Lake United States District Judge
MEMORANDUM OPINION AND ORDER
Petitioner Jamie Bruce McCoskey has filed an
amended petition for a writ of habeas corpus under 28 U.S.C. §
2254 challenging his state court conviction and death sentence for
capital murder. Respondent Rick Thaler has filed an answer with
brief in support. Having carefully considered the petition, the
answer, the state court record, the parties' submissions, and the
applicable law, the court will deny McCoskey's amended petition.
Between approximately 6:00 and 6:30 pm on
November 13, 1991, an engaged couple, Michael Keith Dwyer and
Laurie Collins, returned to their apartment complex from a
shopping trip. They went to their apartment, leaving the keys in
the door while they brought groceries inside. As Dwyer went to
remove the keys, he encountered McCoskey standing in the doorway.
McCoskey unzipped his jacket to reveal a hunting knife. When asked
what he wanted, McCoskey replied that he wanted a ride and that
the couple were going to take him where he wanted to go. Dwyer
agreed to take McCoskey on the condition that Collins stay behind,
but McCoskey insisted that she come along.
They started out with the couple in the front
seat and McCoskey in back, but McCoskey eventually switched places
with Collins so that he could exit quickly if a police officer
pulled them over. McCoskey directed Dwyer to get onto a freeway.
During the drive, McCoskey made several contradictory statements,
including threatening to kill the couple, and telling them that he
just needed a ride, that he knew how to kill people using martial
arts techniques, and that he was doing this for someone else who
wanted him to steal the car.
Eventually, McCoskey told Dwyer to exit the
freeway and directed him to an embankment in the middle of an
empty field. After the car was parked, McCoskey took the keys and
walked over to an SUV parked nearby to tell its occupants that
they were on private property and had to leave. McCoskey returned
to the car, grabbed Dwyer around the neck, and put the knife to
his throat. He then ordered Collins to handcuff Dwyer's hands
McCoskey then put Dwyer in the trunk. He
returned to the car, got in the driver's seat, and tried to figure
out how to drive the manual transmission. He ordered Collins to
remove her shorts because he did not want her to jump out of the
car and run.
McCoskey left the embankment, but could not
find his way out of the surrounding neighborhood. He eventually
got back onto the freeway. At some point while driving, he began
fondling Collins's genitals. When she started crying, he turned up
the radio so "she would not get embarrassed and so her boyfriend
could not hear." McCoskey then unzipped his pants and tried to
force her to engage in oral sex, but stopped when she started
gagging. As McCoskey drove in the direction of the couple's
apartment, Dwyer tried to tell him that Collins was pregnant and
asked him not to hurt her. McCoskey responded that Dwyer better
shut up and not make him mad.
McCoskey then told the couple that he was going
to leave Dwyer with some friends, drop Collins at the apartment,
and then call his friends to release Dwyer. He thought this would
ensure that they would be too scared to call the police. As they
neared the apartment, however, McCoskey turned away and drove to
an empty house near the freeway. He took Collins into the house at
knife point and raped her. He then returned to the car and took
Dwyer into the house. The next sound Collins heard was like "if
somebody hit you in the stomach and you get the breath knocked out
of you." She recognized the sound as coming from Dwyer.
Collins then jumped from the car and fled to a
nearby house. The occupant of the house would not let her in until
McCoskey showed up brandishing his knife. The occupant then let
her in and locked the door. She then called 911. McCoskey fled in
the couple's car. When the police arrived, they found Dwyer's body
in the empty house. He had been stabbed approximately two dozen
When the police arrested McCoskey, they noticed
knife scabbards strapped to his belt and his right leg. The knife
used to stab Dwyer was on the floor a few feet away. Based on this
evidence, the jury found McCoskey guilty of capital murder for
murdering Dwyer during the course of kidnaping.
The State presented testimony by mental health
professionals diagnosing McCoskey with antisocial personality
disorder. The State also presented evidence of McCoskey's prior
criminal record, prison disciplinary record, and that McCoskey,
after the guilty verdict but out of the jury's presence, picked up
a chair and threw it at the prosecutors. The jury answered in the
affirmative the statutory special issue asking whether McCoskey
posed a future danger to society, and answered in the negative the
special issue asking whether the mitigating evidence was
sufficient to warrant a life sentence. Accordingly, the trial
court sentenced McCoskey to death.
II. The Applicable Legal Standards
A. The Antiterrorism and Effective Death
This federal petition for habeas relief is
governed by the applicable provisions of the Antiterrorism and
Effective Death Penalty Act ("AEDPA"). See Lindh v. Murphy, 521
U.S. 320, 335-36 (1997). Under the AEDPA federal habeas relief
based upon claims that were adjudicated on the merits by the state
courts cannot be granted 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." 28 U.S.C. § 2254(d); Kitchens v.
Johnson, 190 F.3d 698, 700 (5th Cir. 1999). For questions of law
or mixed questions of law and fact adjudicated on the merits in
state court, this court may grant relief under 28 U.S.C. §
2254(d)(1) only if the state court decision "was contrary to, or
involved an unreasonable application of, clearly established
[Supreme Court precedent]." See Martin v. Cain, 246 F.3d 471, 475
(5th Cir.), cert. denied, 534 U.S. 885 (2001). Under the "contrary
to" clause, this court may afford habeas relief only if "'the
state court arrives at a conclusion opposite to that reached by .
. . [the Supreme Court] on a question of law or if the state court
decides a case differently than . . . [the Supreme Court] has on a
set of materially indistinguishable facts.'" Dowthitt v. Johnson,
230 F.3d 733, 740- 41 (5th Cir. 2000), cert. denied, 532 U.S. 915
(2001) (quoting Williams v. Taylor, 529 U.S. 362, 406 (2000)).
The "unreasonable application" standard permits
federal habeas relief only if a state court decision "identifies
the correct governing legal rule from [the Supreme Court] cases
but unreasonably applies it to the facts of the particular state
prisoner's case" or "if the state court either unreasonably
extends a legal principle from [Supreme Court] precedent to a new
context where it should not apply or unreasonably refuses to
extend that principle to a new context where it should apply."
Williams, 529 U.S. at 406. "In applying this standard, we must
decide (1) what was the decision of the state courts with regard
to the questions before us and (2) whether there is any
established federal law, as explicated by the Supreme Court, with
which the state court decision conflicts." Hoover v. Johnson, 193
F.3d 366, 368 (5th Cir. 1999). A federal court's "focus on the
'unreasonable application' test under Section 2254(d) should be on
the ultimate legal conclusion that the state court reached and not
on whether the state court considered and discussed every angle of
the evidence." Neal v. Puckett, 239 F.3d 683, 696 (5th Cir. 2001),
aff'd, 286 F.3d 230 (5th Cir. 2002) (en banc), cert. denied sub
nom. Neal v. Epps, 537 U.S. 1104 (2003). The sole inquiry for a
federal court under the 'unreasonable application' prong becomes
"whether the state court's determination is 'at least minimally
consistent with the facts and circumstances of the case.'" Id.
(quoting Hennon v. Cooper, 109 F.3d 330, 335
(7th Cir. 1997)); see also Gardner v. Johnson, 247 F.3d 551, 560
(5th Cir. 2001) ("Even though we cannot reverse a decision merely
because we would reach a different outcome, we must reverse when
we conclude that the state court decision applies the correct
legal rule to a given set of facts in a manner that is so patently
incorrect as to be 'unreasonable.'").
The AEDPA precludes federal habeas relief on
factual issues unless the state court's adjudication of the merits
was based on an unreasonable determination of the facts in light
of the evidence presented in the state court proceeding. See 28
U.S.C. § 2254(d)(2); Hill v. Johnson, 210 F.3d 481, 485 (5th Cir.
2000), cert. denied, 532 U.S. 1039 (2001). The state court's
factual determinations are presumed correct unless rebutted by
"clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also
Jackson v. Anderson, 112 F.3d 823, 824-25 (5th Cir. 1997), cert.
denied, 522 U.S. 1119 (1998).
B. The Standard for Summary Judgment in
Habeas Corpus Cases
"As a general principle, Rule 56 of the Federal
Rules of Civil Procedure, relating to summary judgment, applies
with equal force in the context of habeas corpus cases." Clark v.
Johnson, 202 F.3d 760, 764 (5th Cir.), cert. denied, 531 U.S. 831
(2000). In ordinary civil cases a district court considering a
motion for summary judgment is required to construe the facts in
the case in the light most favorable to the nonmoving party. See
Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). Where,
however, a state prisoner's factual allegations have been resolved
against him by express or implicit findings of the state courts,
and the prisoner fails to demonstrate by clear and convincing
evidence that the presumption of correctness established by 28
U.S.C. § 2254(e)(1) should not apply, it is inappropriate for the
facts of a case to be resolved in the petitioner's favor. See
Marshall v. Lonberger, 459 U.S. 422, 432 (1983); Sumner v. Mata,
449 U.S. 539, 547 (1981). In reviewing factual determinations of
the Texas state courts, this court is bound by such findings
unless an exception to 28 U.S.C. § 2254 is shown.
A. Penalty Phase Jury Instructions
During the penalty phase of McCoskey's trial
the court instructed the jury to determine whether McCoskey was a
future danger to society and whether the mitigating evidence was
sufficient to warrant a life sentence. The trial court instructed
You are instructed that when you deliberate on
the questions posed in the special issues, you are to consider all
relevant mitigating circumstances, if any, supported by the
evidence presented in both phases of the trial, whether presented
by the State or the defendant. A mitigating circumstance may
include, but is not limited to, any aspect of the defendant's
character, background, record, emotional instability, intelligence
or circumstances of the crime which you believe could make a death
sentence inappropriate in this case. If you find that there are
any mitigating circumstances in this case, you must decide how
much weight they deserve, if any, and thereafter, give effect and
consideration to them in assessing the defendant's personal moral
culpability at the time you answer the special issue. If you
determine, when giving effect to the mitigating evidence, if any,
that a life sentence, as reflected by a [sic] affirmative finding
to the issue under consideration, rather than a death sentence, is
an appropriate response to the personal moral culpability of the
defendant, a [sic] affirmative finding should be given to that
special issue under consideration.
McCoskey v. State, No. 71,629 (Tex. Crim. App.
June 25, 1993) at 29. The jury answered the future dangerousness
special issue in the affirmative and the mitigation special issue
in the negative. McCoskey argues that this instruction violated
his constitutional rights in several ways.
1. Due Process
First, he contends that his sentence violates
the Eighth and Fourteenth Amendments because, based on the
instructions, the jury answered the special issues in a way that
required imposition of a life sentence. He argues that a proper
instruction would have told the jury to answer the future
dangerousness special issue, and then determine if the mitigating
evidence was sufficient to justify a life sentence. Instead, the
erroneous instruction*fn3 did not distinguish between the two
special issues, and told the jury to answer both special issues in
the affirmative if it found that the mitigating evidence justified
a life sentence.
If you determine, when giving effect to the
mitigating evidence, if any, that a life sentence, as reflected by
a [sic] affirmative finding to the issue under consideration,
rather than a death sentence, is an appropriate response to the
personal moral culpability of the defendant, a [sic] affirmative
finding should be given to that special issue under consideration.
The TCCA found that the error in the jury
instruction was harmless. The court reasoned that if the jury
followed the instruction, it would have answered both special
issues "yes" if it believed the mitigating evidence warranted a
life sentence or both "no" if it believed the evidence did not
warrant a life sentence. Either way, McCoskey would have received
a life sentence. McCoskey v. State, slip op. at 30-32. Because the
jury answered the future dangerousness issue "yes" and the
mitigation issue "no," the TCCA reasoned that the jury meant to
impose a death sentence.
McCoskey notes that juries are generally
presumed to follow their instructions. See, e.g., Richardson v.
Marsh, 481 U.S. 200, 211 (1987). As even Richardson indicates,
however, this presumption is not applicable when there is good
reason to believe that the jury did not do so. Id. In this case it
is obvious that the jury did not follow the instruction. If it
had, then the answers to the two special issues would have been
the same -- "yes" if the jury wished to impose a life sentence, or
"no" if it did not. The fact that the jury answered one special
issue "yes" and the other "no" makes it clear that the jury did
not follow the instruction, and that it answered the special
issues in a direct and straightforward manner, i.e., it found that
McCoskey posed a future danger to society and that the mitigating
evidence did not warrant a life sentence. The TCCA's conclusion
that the error is harmless was therefore a reasonable conclusion,
and it is entitled to deference.
2. Jury's Ability to Give Effect to
McCoskey next argues that the flawed
instruction prevented the jury from giving effect to mitigating
evidence. The jury had to determine: (1) whether there was a
probability that McCoskey would commit future acts of criminal
violence posing a continuing threat to society; and (2) whether
the mitigating evidence was sufficient to warrant a life sentence
rather than a death sentence.
In Lockett v. Ohio, 438 U.S. 586, 608 (1978), a
plurality of the Supreme Court held "that the Eighth and
Fourteenth Amendments require that the sentencer . . . not be
precluded from considering, as a mitigating factor, any aspect of
a defendant's character or record . . . as a basis for a sentence
less than death." 438 U.S. at 604 (emphasis in original). This
holding is based on the plurality's conclusion that death "is so
profoundly different from all other penalties" as to render "an
individualized decision . . . essential in capital cases." Id. at
605. In Penry v. Johnson, 532 U.S. 782 (2001), the Supreme Court
clarified that a capital sentencing jury must "be able to consider
and give effect to a defendant's mitigating evidence in imposing
sentence." Id. at 797 (internal quotation marks, citation, and
The jury was instructed to consider mitigating
evidence "in assessing [McCoskey]'s personal moral culpability."
McCoskey presented evidence to show that he would not pose a
future danger to society, but argues that this evidence was not
particularly relevant to the issue of his moral culpability. For
example, he presented evidence about his history of
institutionalization and the benefits he derived from
psychological treatment in an effort to show that he would not be
violent while imprisoned. McCoskey raised this argument in his
state habeas application, but the TCCA rejected it. Ex parte
McCoskey, No. 56-820-02 (Tex. Crim. App. March 11, 2009), pp.
The flaw in the jury instruction was in telling
the jury that it should answer both issues "yes" if it found that
the mitigating evidence justified a life sentence. The instruction
did not tell the jury that it could not consider such evidence.
McCoskey argues that the jury could have found that his evidence
supported a conclusion that he would not pose a future danger
because, for example, he showed good prospects for being
nonviolent in the structured setting of prison where he would
receive mental health treatment, but that this evidence was not
relevant to his moral culpability. Because the jury was told that
it must weigh mitigating evidence "in assessing the defendant's
personal moral culpability," McCoskey argues that the jury might
have disregarded evidence countering the State's future
dangerousness evidence if that evidence did not also reduce his
The instruction defined mitigating evidence: "A
mitigating circumstance may include, but is not limited to, any
aspect of the defendant's character, background, record, emotional
instability, intelligence or circumstances of the crime which you
believe could make a death sentence inappropriate in this case."
Because the instruction included a broad definition of mitigating
evidence and specifically told the jury to consider all such
evidence, the TCCA's conclusion that the instruction did not
prevent the jury from considering and giving effect to all
relevant mitigating evidence is not an unreasonable application of
Supreme Court precedent. It is therefore entitled to deference
under the AEDPA.
Reasonable jurists could disagree, however,
about whether the instruction was confusing in a way that might
have led the jury to believe it could only consider mitigating
evidence that reduced McCoskey's moral culpability, regardless of
whether it tended to show that he would not pose a future danger.
McCoskey is therefore entitled to a certificate of appealability
on this issue.
In his final claim regarding the jury
instruction, McCoskey contends that the instruction made the
sentencing proceeding unconstitutionally arbitrary and capricious.
McCoskey never presented this claim to the Texas state courts.
The AEDPA requires that a prisoner exhaust his
available State remedies before raising a claim in a federal
An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment of a state
court shall not be granted unless it appears that (A) the
applicant has exhausted the remedies available in the courts of
the State; or (B)(i) there is an absence of available State
corrective process; or (ii) circumstances exist that render such
process ineffective to protect the rights of the applicant.
28 U.S.C. § 2254(b)(1). As the Fifth Circuit
explained in a preAEDPA case, "federal courts must respect the
autonomy of state courts by requiring that petitioners advance in
state court all grounds for relief, as well as factual allegations
supporting those grounds. "[A]bsent special circumstances, a
federal habeas petitioner must exhaust his state remedies by
pressing his claims in state court before he may seek federal
habeas relief." Orman v. Cain, 228 F.3d 616, 619-20 (5th Cir.
2000); see 28 U.S.C. § 2254(b)(1) ("An application for a writ of
habeas corpus on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted unless it appears
that . . . the applicant has exhausted the remedies available in
the courts of the State. . . .").
Ordinarily, a federal habeas petition that
contains unexhausted claims is dismissed without prejudice,
allowing the petitioner to return to the state forum to present
his unexhausted claims. Rose v. Lundy, 455 U.S. 509 (1982). Such a
result in this case, however, would be futile because petitioner's
unexhausted claims would be procedurally barred as an abuse of the
writ under Texas law. On habeas review, a federal court may not
consider a state inmate's claim if the state court based its
rejection of that claim on an independent and adequate state
ground. Martin v. Maxey, 98 F.3d 844, 847 (5th Cir. 1996). A
procedural bar for federal habeas review also occurs if the court
to which a petitioner must present his claims to satisfy the
exhaustion requirement would now find the unexhausted claims
procedurally barred. Coleman v. Thompson, 501 U.S. 722, 735 n.1
Texas prohibits successive writs challenging
the same conviction except in narrow circumstances. Tex. Code Crim.
Proc. Ann. art. 11.071 § 5(a) (Vernon Supp. 2002). The Texas Court
of Criminal Appeals will not consider the merits of or grant
relief on a subsequent habeas application unless the application
contains sufficient specific facts establishing the following:
(1) the current claims have not been and could
not have been presented previously in an original application or
in a previously considered application because the factual or
legal basis for the claim was unavailable on the date the
applicant filed the previous application; or
(2) by a preponderance of the evidence, but for
a violation of the United States Constitution no rational juror
could have found the applicant guilty beyond a reasonable doubt.
Id. The Texas Court of Criminal Appeals applies
its abuse of the writ doctrine regularly and strictly. Fearance v.
Scott, 56 F.3d 633, 642 (5th Cir. 1995) (per curiam).
Mccoskey does not claim that he could not have
presented the claim in his direct appeal or his state habeas
petition because the factual basis for the claim did not exist, or
that he is actually innocent. Therefore, his unexhausted claim
does not fit within the exceptions to the successive writ statute
and would be procedurally defaulted in the Texas courts. Coleman,
501 U.S. at 735 n.1. That bar precludes this court from reviewing
McCoskey's claim absent a showing of cause for the default and
actual prejudice attributable to the default, or that this court's
refusal to review the claim will result in a fundamental
miscarriage of justice. Id. at 750.
McCoskey makes no showing of cause for his
default. A "miscarriage of justice" means actual innocence, either
of the crime for which he was convicted or of the death penalty.
Sawyer v. Whitley, 505 U.S. 333, 335 (1992). "Actual innocence of
the death penalty" means that, but for a constitutional error, he
would not have been legally eligible for a sentence of death. Id.
To show actual innocence, the prisoner must
"show a fair probability that, in light of all the evidence,
including that alleged to have been illegally admitted (but with
due regard to any unreliability of it) and evidence tenably
claimed to have been wrongly excluded or to have become available
only after trial, the trier of the facts would have entertained a
reasonable doubt of his guilt."
Kuhlmann v. Wilson, 477 U.S. 436, 455 n.17
(1986). More succinctly, the petitioner must show that "it is more
likely than not that no reasonable juror would have found
petitioner guilty beyond a reasonable doubt" in light of the
evidence now presented. Schlup v. Delo, 513 U.S. 298, 327 (1995).
McCoskey has not established that he is
actually innocent of either capital murder or the death penalty.
Therefore, this court cannot review his defaulted claim.
B. Trial Court's Denial of Juror Strikes for
In his second claim for relief, McCoskey argues
that the trial court improperly denied his requests to strike two
jurors for cause. McCoskey contends that these jurors stated that
they would not consider a life sentence in his case. The TCCA
rejected this claim on direct appeal based on Morgan v. Illinois,
504 U.S. 719 (1992). In Morgan the Supreme Court held that
[a] juror who will automatically vote for the
death penalty in every case will fail in good faith to consider
the evidence of aggravating and mitigating circumstances as the
instructions require him to do. Indeed, because such a juror has
already formed an opinion on the merits, the presence or absence
of either aggravating or mitigating circumstances is entirely
irrelevant to such a juror. Therefore, based on the requirement of
impartiality embodied in the Due Process Clause of the Fourteenth
Amendment, a capital defendant may challenge for cause any
prospective juror who maintains such views. Id. at 729.
Among the juror statements cited by McCoskey,
prospective juror Housel stated: "as far as the death penalty, . .
. I'd have to hear the circumstances and everything"; and "I don't
think [the death penalty] is used as much as it should be. . . .
But, I don't think all cases warrant it, that there's certain
cases where the death sentence shouldn't be used . . . ." See
Amended Petition at 28-29. As the portion of the transcript quoted
in McCoskey's brief demonstrates, juror Housel did not state that
he would always vote for the death penalty in every case. While he
expressed a strong belief in the death penalty, he stated that his
decision would depend on the facts and circumstances. McCoskey
acknowledges that the other juror made similar statements.
"[A] juror may not be challenged for cause
based on his views about capital punishment unless those views
would prevent or substantially impair the performance of his
duties as a juror . . . ." Adams v. Texas, 448 U.S. 38, 45 (1980).
McCoskey does not demonstrate that these jurors' views
substantially impaired the performance of their duties as jurors.
Accordingly, McCoskey has not shown that the TCCA's decision was
C. Competency to Stand Trial
McCoskey contends that he was incompetent to
stand trial, and raises two claims in connection with his alleged
incompetence. First, he contends that the trial court denied his
right to procedural due process by failing to conduct a competency
hearing. Next, he argues that he was denied substantive due
process because he was actually incompetent to stand trial.
1. Competency Hearing
In his third claim for relief, McCoskey argues
that he was denied procedural due process when the trial court
failed to conduct a competency hearing. The TCCA noted the
[McCoskey] was arrested November 15, 1991. On
confinement, he was placed on prescribed medication, including
psychotropic drugs and lithium, for his mental illness. In
September of 1992, administration of the medication allegedly
ceased. In October of 1992, [McCoskey]'s counsel filed a motion to
require the Harris County Sheriff's Department to resume its
dispensing of medication to [McCoskey], which motion was granted
by the trial court. Despite this motion, [McCoskey] contends that
he was continually denied his medication for a two month period.
On November 12, 1992, after [McCoskey] had been adjudicated guilty
of capital murder, but prior to sentencing, [McCoskey] entered the
courtroom, picked up a chair and threw it at the prosecutors
screaming, "That's for lying in court." Following this incident, [McCoskey]'s
counsel claimed that [McCoskey] was not competent as a result of
the denial of his medication. Counsel stated that [McCoskey] did
not have a rational understanding of the events and was no longer
able to assist in his defense or consult with counsel. Both of [McCoskey]'s
counsel subsequently testified under oath that [McCoskey] was not
competent to proceed with the punishment phase of trial. The trial
court ordered the trial to continue and the chair-throwing
incident was introduced into evidence over objection at the
McCoskey v. State, slip op. at 19. Counsel also
brought other information to the trial court's attention, stating
that right now in the holdover cell, he is continuing to exhibit
signs of a heightened agitated state, rapid pacing, he is crying,
he is extremely distraught, acting in an irrational manner, all of
which is consistent with the mental illness that he suffers from.
30 Tr. at 19. Counsel also specifically told
the court that McCoskey was unable to consult with them with a
reasonable degree of rational understanding. Id. at 20-21.
The Supreme Court has held that due process is
violated when an incompetent defendant is forced to stand trial.
See Cooper v. Oklahoma, 517 U.S. 348 (1996). To determine if a
defendant is incompetent, the trial court must hold a competency
hearing when there is evidence that the defendant may be
incompetent. See Pate v. Robinson, 383 U.S. 375, 385 (1966). A
defendant is competent if "he has sufficient present ability to
consult with his lawyer with a reasonable degree of rational
understanding," and "he has a rational as well as factual
understanding of the proceedings against him." Dusky v. United
States, 362 U.S. 402 (1960).
In denying McCoskey's claim, the TCCA noted
that Texas employs a three-part process for determining
incompetency. First, counsel raises the issue. Next, the court
determines if there is sufficient evidence of incompetency to
merit a hearing. Third, if the court decides that the evidence
justifies a hearing, then a jury is convened and the hearing takes
place. The TCCA concluded that the trial court moved to stage two
when it took sworn testimony from McCoskey's counsel, and was
justified in not proceeding to a full hearing. The TCCA also noted
that McCoskey was found competent before trial and acted
rationally throughout the four weeks of trial up to that time. It
was only after he was found guilty of capital murder that McCoskey
began to act out.
McCoskey argues that the court considered only
some of the evidence from counsel, and ignored other evidence. The
TCCA, however, found that nothing prevented McCoskey from
presenting other evidence, and McCoskey did not complain at the
time that he was prevented from presenting evidence. McCoskey v.
State, slip op. at 22.
The TCCA found that the evidence presented was
nothing more than the "bare assertions" of counsel regarding
McCoskey's state of mind. These consisted primarily of statements
about his courtroom behavior, unsubstantiated claims that he was
not receiving his medication, and occasional failure to
communicate with counsel or focus on the proceedings. Id. The TCCA
concluded that this evidence was as consistent with poor
behavioral skills as it was with incompetency, and that the trial
court therefore did not err in declining to empanel a jury. The
TCCA also noted that McCoskey was found competent in a pre-trial
examination approximately 11 months earlier.
In light of the conclusory evidence of
incompetency, which could just as easily have been attributed to
behavioral issues or an emotional reaction to his conviction for
capital murder, the TCCA's conclusion that the evidence did not
require a full competency hearing was not an unreasonable
application of Supreme Court precedent. Therefore, McCoskey is not
entitled to relief on this claim.
2. Actual Competency
In his fourth claim for relief, McCoskey argues
that he was denied due process because he was tried while he was
actually incompetent. He relies on the evidence presented during
trial and on an affidavit by Dr. Patrick Lawrence submitted in
support of his state habeas application.
To prevail, McCoskey must establish facts that
"positively, unequivocally and clearly generate a real,
substantial and legitimate doubt as to his mental competency at
the time of trial." Carter v. Johnson, 131 F.3d 452, 460 (5th Cir.
1997). The state habeas court found Dr. Lawrence's opinion
unpersuasive in light of the pretrial finding of competency and
McCoskey's behavior during and after the offense and during trial.
The court also noted that Dr. Lawrence examined McCoskey five
years after trial. McCoskey criticized the TCCA for relying on a
competency evaluation 11 months before trial, but here argues that
an examination conducted five years after trial proves that he was
incompetent. The habeas court also found that the chair-throwing
incident was consistent with a finding that McCoskey has
antisocial personality disorder. The state court's findings are
reasonable based on the evidence presented.
D. Impeachment Evidence
In his fifth claim for relief, McCoskey argues
that the State failed to disclose material impeachment evidence. A
prosecutor must disclose evidence favorable to an accused if it
"is of sufficient significance to result in the denial of the
defendant's right to a fair trial." United States v. Agurs, 427
U.S. 97, 108 (1976). Evidence is material "if there is a
reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been
different." United States v. Bagley, 473 U.S. 667, 682 (1985). In
defining the scope of the duty of disclosure, it is no answer that
a prosecutor did not have possession of the evidence or that he
was unaware of it. Rather, the 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.
Whitley, 514 U.S. 419, 437 (1995). In Strickler v. Greene the
Supreme Court framed the three components or essential elements of
a Brady prosecutorial misconduct claim: "The evidence at issue
must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; that evidence must have
been suppressed by the State, either willfully or inadvertently;
and prejudice must have ensued." Banks v. Dretke, 540 U.S. 668,
691 (2004) (quoting Strickler v. Green, 527 U.S. 263, 281-82
Three witnesses testified about the collection,
transmittal, analysis, and results of DNA testing. McCoskey notes
that the Houston Police Department Crime Lab suspended DNA testing
in 2002 because of shoddy work by its employees, including one of
the witnesses in this case. That employee was fired in 2003 over
her mishandling of DNA in another case.
McCoskey presents no evidence, however, that
anyone associated with the prosecution, including the crime lab
employees themselves, had any knowledge of this incompetence at
the time of his trial. As respondent points out, independent
testing of the DNA evidence in this case, conducted after the
crime lab scandal broke, confirmed that the results presented to
the jury were accurate. Because there is no evidence that the
proscutors had any knowledge of the problems at the crime lab,
there is no basis for McCoskey's claim that the State suppressed
E. Ineffective Assistance of Counsel
In his sixth claim for relief, McCoskey raises
three separate claims of ineffective assistance of counsel. To
prevail on a claim for ineffective assistance of counsel,
petitioner must show that . . . counsel made errors so serious
that counsel was not functioning as the "counsel" guaranteed the
defendant by the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense. This
requires showing that counsel's errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is
Strickland v. Washington, 466 U.S. 668, 687
(1984). In order to prevail on the first prong of the Strickland
test, petitioner must demonstrate that counsel's representation
fell below an objective standard of reasonableness. Id. at 687-88.
Reasonableness is measured against prevailing professional norms,
and must be viewed under the totality of the circumstances. Id. at
688. Review of counsel's performance is deferential. Id. at 689.
1. Failure to Object to the Jury Instruction
In his first claim of ineffective assistance of
counsel, McCoskey argues that counsel's failure to object to the
flawed penalty phase jury instruction constituted ineffective
assistance. As discussed above, the instruction was flawed, as the
TCCA acknowledged. There is no question that counsel should have
recognized the internal contradictions in the instruction and
objected. On direct appeal the TCCA held that McCoskey was not
harmed by the erroneous instruction. Slip op. at 31-32. The state
habeas court concluded that this claim was "essentially raised and
rejected on direct appeal." Alternatively, the court held that
McCoskey had failed to show that he had been harmed under the
Strickland analysis. Ex parte McCoskey, No. 56-820-02 (Tex. Crim.
App. March 11, 2009), p. 529.
In assessing prejudice in a capital sentencing
proceeding, "the question is whether there is a reasonable
probability that, absent the errors, the sentencer . . . would
have concluded that the balance of aggravating and mitigating
circumstances did not warrant death." Strickland, 465 U.S. at 695.
"A reasonable probability is a probability sufficient to undermine
confidence in the outcome." Id. at 694.
On federal habeas review, however, the question
is not merely whether the petitioner has proven both deficient
performance and prejudice, but whether the state court's
application of Strickland was itself unreasonable.
". . . The standards created by Strickland and
[28 U.S.C.] § 2254(d) are both 'highly deferential,' id., at 689
[104 S.Ct. 2052]; Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117
S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when the two apply in
tandem, review is 'doubly' so, Knowles [v. Mirzayance,] 556 U.S.,
at ----, 129 S.Ct., at 1420.
The Strickland standard is a general one, so
the range of reasonable applications is substantial. 556 U.S., at
---- [129 S.Ct., at 1420]. Federal habeas courts must guard
against the danger of equating unreasonableness under Strickland
with unreasonableness under § 2254(d).
When § 2254(d) applies, the question is not
whether counsel's actions were reasonable. The question is whether
there is any reasonable argument that counsel satisfied
Strickland's deferential standard."
Premo v. Moore, ___ U.S. ___, 131 S.Ct. 733,
740 (2011). As discussed above, the TCCA's conclusion that the
flawed instruction did not prevent the jury from considering and
giving weight to evidence mitigating against finding that McCoskey
posed a future danger was a reasonable conclusion. Because the
TCCA's conclusions were reasonable, its rejection of this claim is
entitled to deference, and McCoskey is not entitled to relief. As
discussed above, however, reasonable jurists could disagree about
whether the instruction prevented the jury from considering and
giving effect to mitigating evidence. If the jury was so
prevented, then McCoskey was also prejudiced by counsel's failure
to object to the flawed instruction. Therefore, a certificate of
appealability will be granted on this claim.
2. Failure to Present Psychological Evidence
In an argument comprising two sentences,
McCoskey claims that counsel failed to provide his psychological
expert with psychiatric and medical records. The state habeas
court found "that trial counsel presented the extensive testimony
of Dr. James Ray Hays concerning his diagnosis and testing of [McCoskey]
and his review of [McCoskey]'s medical records[.]" 3 SH at 507-08.
Based on this, the state habeas court rejected McCoskey's claim.
McCoskey does nothing to demonstrate that the state habeas court's
findings or conclusions were unreasonable. These findings and
conclusions are therefore entitled to deference, and McCoskey has
not demonstrated that he is entitled to relief on this claim.
3. Failure to Present Evidence that McCoskey
was Socializing With the Victims
In his final claim of ineffective assistance of
counsel, McCoskey claims that counsel failed to present evidence
that he was socializing with the victims before the crime. He
points to a deposition given in a civil suit brought by Collins
against the apartment complex. The witness, Stuart Chapple,
testified that McCoskey, Collins, and Dwyer were sitting in his
apartment with other guests before the crime. When Collins and
Dwyer got up to go purchase food, McCoskey also left. McCoskey
returned when they did, followed them up the steps, and asked for
a ride. McCoskey claims that this evidence would have undermined
the State's argument that he intended to kidnap the couple,
instead showing that he acted impulsively.
The state habeas court rejected this claim,
finding that the evidence showed that Chapple testified that Dwyer
was already at his apartment when McCoskey arrived. Collins came
to the door 15 to 20 minutes later, and Dwyer left with her.
Chapple later saw McCoskey follow Dwyer and Collins up the stairs
and saw him standing in the doorway of their apartment. The court
found that Chapple's testimony did not contradict Collins' trial
testimony, and that the fact that McCoskey and Dwyer were briefly
in the same room together, along with a group of other people, did
not establish that McCoskey knew his victims. SH at 511-12. The
court therefore concluded that counsel were not deficient for not
calling Chapple, and that McCoskey was not prejudiced. McCoskey
has not shown that these findings are unreasonable.
F. Extraneous Offense Evidence
In his seventh claim for relief, McCoskey
argues that admission of Collins' testimony about the rape
violated due process because the rape was not sufficiently related
to the murder. McCoskey did not raise this claim in state court.
It is therefore unexhausted and procedurally defaulted for the
same reasons discussed in connection with McCoskey's claim that
the jury instruction was unconstitutionally arbitrary. This court
may not grant relief on the claim.
G. Failure to Provide Medication
In his eighth claim for relief, McCoskey
contends that the State failed to provide him with needed
medication before and during trial, and that this violated his
Fifth, Sixth, and Fourteenth Amendment rights. The only case he
cites in support of this argument is Riggins v. Nevada, 504 U.S.
In Riggins the defendant was prescribed
antipsychotic drugs during his pretrial detention. Before trial,
the defense moved for an order suspending administration of the
drugs until the end of trial, in part because Riggins intended to
offer an insanity defense and he wanted the jury to observe him in
his true mental state. The trial court denied the motion and
Riggins was medicated throughout his trial. Id. at 129-31. The
Supreme Court held that medicating a defendant against his will
could violate his due process rights absent a showing of medical
necessity. Id. at 135-37.
Riggins is not on point. The Riggins court
noted a defendant's liberty interest in being free from forcible
administration of personality-altering psychotropic drugs. The
court also observed that the issue arose in the context of
Riggins' wish to present an insanity defense and the accompanying
need for the jury to see him in his unmedicated state. In
contrast, McCoskey does not claim that the State attempted to
force him to take personality-altering medications.
The TCCA denied relief on this claim because
the record did not support McCoskey's claim that the State denied
him medication. Slip op. at 22-24. In fact, the trial court
granted McCoskey's motion to provide him medication without
charging his inmate trust account, and the motion that McCoskey
presented at trial did not claim that McCoskey was not receiving
his medication. Id. Because the TCCA's findings are reasonable,
McCoskey is not entitled to relief.
H. Dismissal of A Juror
In his tenth*fn5 claim for relief, McCoskey
argues that the trial court denied him due process by dismissing a
juror who had already been accepted by both the prosecution and
the defense. The day after being accepted by both sides, venire
member Barfield returned to court and announced that she could not
be fair and impartial. Under questioning by the court, Barfield
stated that she was going through a divorce, was emotionally
fragile, and did not think that she could properly discharge her
duties as a juror. The trial court excused her. McCoskey claims
that this violated his right to due process and an impartial jury,
but neither explains how Barfield's removal violated his rights
nor cites any authority in support of his claim.
The TCCA held that Texas law gives trial courts
the power to excuse a juror until the time the jury is seated.
Slip op. at 15. Finding that Barfield was unequivocal in her
belief that she could not be fair and impartial, the TCCA held
that the trial court did not err in excusing Barfield from the
jury. McCoskey cites nothing to show that this exercise of the
trial court's authority violated his rights.
I. Suppression of Exculpatory Evidence
In his eleventh claim for relief, McCoskey
expresses his disbelief of Collins' version of events and, based
on that disbelief, asserts "on information and belief" that
Collins and Dwyer were intoxicated during the crime. While a
prosecutor must disclose evidence favorable to an accused if it
"is of sufficient significance to result in the denial of the
defendant's right to a fair trial," United States v. Agurs, 427
U.S. 97, 108 (1976), McCoskey cites no evidence in support of this
claim. Instead, he postulates that the victims had opportunities
to escape, and speculates that their failure to do so was because
they were intoxicated. A petitioner's speculation about the
suppression of exculpatory evidence is an insufficient basis to
support this claim. Hughes v. Johnson, 191 F.3d 607, 630 (5th Cir.
J. Actual Innocence
In his twelfth claim for relief, McCoskey
contends that advances in diagnosis of mental illness since his
trial would enable him to mount a successful insanity defense. He
argues that this shows that he is actually innocent of capital
murder. "Claims of actual innocence based on new . . . evidence
have never been held to state a ground for federal habeas relief
absent an independent constitutional violation occurring in the
underlying state criminal proceeding." Herrera v. Collins, 506
U.S. 390, 400 (1993). This claim will be denied.
K. Mental Retardation
In his final claim for relief, McCoskey
contends that he is constitutionally ineligible for a death
sentence because he is mentally retarded. See Atkins v. Virginia,
536 U.S. 304 (2002).
The American Association on Mental Retardation
("AAMR") defines mental retardation as (1) sub-average general
intellectual functioning; (2) related limitations in two or more
of the following adaptive skill areas: communication, self-care,
home living, social skills, community use, self-direction, health
and safety, functional academics, leisure, and work; and (3) onset
before the age of 18. R. Luckasson, et al., Mental Retardation:
Definition, Classification, and Systems of Supports (9th ed.
The Texas Court of Criminal Appeals articulated
standards by which to evaluate Atkins claims, opting for a blend
of the AAMR and APA standards and the standards of Texas's Persons
With Mental Retardation Act, TEX. HEALTH & SAFETY CODE ANN., §
See Ex parte Briseno, 135 S.W.3d 1, 7 (Tex.
Crim. App. 2004). These standards are in substantial agreement
that a diagnosis of mental retardation requires: (1) significantly
sub-average intellectual functioning; (2) deficits in adaptive
functioning; and (3) onset before age 18.
McCoskey raised this issue in a successive
state habeas application. The trial judge entered findings of fact
and conclusions of law and found that McCoskey is not mentally
retarded. The TCCA adopted these findings and conclusions. Ex
parte McCoskey, No. 56,820-02, slip op. at 1-2.
McCoskey's federal petition merely incorporates
by reference the Atkins claim in his state petition. Plainly, this
does not meet his burden of showing by clear and convincing
evidence that the state court's findings were based on an
unreasonable determination of the facts in light of the evidence
presented. The state court's findings are therefore entitled to a
presumption of correctness, and McCoskey is not entitled to relief
on this claim.
IV. Certificate of Appealability
Although McCoskey has not requested a
certificate of appealability ("COA"), the court may nevertheless
determine whether he is entitled to this relief in light of the
court's rulings. See Alexander v. Johnson, 211 F.3d 895, 898 (5th
Cir. 2000) ("It is perfectly lawful for district court's [sic] to
deny a COA sua sponte. The statute does not require that a
petitioner move for a COA; it merely states that an appeal may not
be taken without a certificate of appealability having been
issued."). A petitioner may obtain a COA either from the district
court or an appellate court, but an appellate court will not
consider a petitioner's request for a COA until the district court
has denied such a request. See Whitehead v. Johnson, 157 F.3d 384,
388 (5th Cir. 1988); see also Hill v. Johnson, 114 F.3d 78, 82
(5th Cir. 1997)
("[T]he district court should continue to
review COA requests before the court of appeals does.").
A COA may issue only if the petitioner has made
a "substantial showing of the denial of a constitutional right."
28 U.S.C. § 2253(c)(2); see also United States v. Kimler, 150 F.3d
429, 431 (5th Cir. 1998). A petitioner "makes a substantial
showing when he demonstrates that his application involves issues
that are debatable among jurists of reason, that another court
could resolve the issues differently, or that the issues are
suitable enough to deserve encouragement to proceed further."
Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.), cert. denied,
531 U.S. 966 (2000). The Supreme Court has stated that
Where a district court has rejected the
constitutional claims on the merits, the showing required to
satisfy § 2253(c) is straightforward: The petitioner must
demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims debatable or
wrong. The issue becomes somewhat more complicated where . . . the
district court dismisses the petition based on procedural grounds.
We hold as follows: When the district court denies a habeas
petition on procedural grounds without reaching the prisoner's
underlying constitutional claim, a COA should issue when the
prisoner shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial
of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural
Slack v. McDaniel, 529 U.S. 473, 484 (2000). "[T]he
determination of whether a COA should issue must be made by
viewing the petitioner's arguments through the lens of the
deferential scheme laid out in 28 U.S.C. § 2254(d)." Barrientes v.
Johnson, 221 F.3d 741, 772 (5th Cir. 2000), cert. dismissed, 531
U.S. 1134 (2001).
The court has carefully considered each of
McCoskey's claims and concludes that each of the claims, with the
exception of McCoskey's jury instruction and ineffective
assistance of counsel claims, is foreclosed by clear, binding
precedent, and McCoskey thus fails to make a "substantial showing
of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
The court grants a COA on the jury instruction and ineffective
assistance of counsel claims (Claims 1.B. and 6.B.1). McCoskey is
not entitled to a certificate of appealability on his other
V. Conclusion and Order
For the foregoing reasons, it is ORDERED as
1. Petitioner Jamie Bruce McCoskey's First
Amended Petition for a Writ of Habeas Corpus (Docket Entry No. 5)
is DENIED; and
2. A Certificate of Appealability shall issue
only as to Claims 1.B. and 6.B.1.
Jamie Bruce McCoskey