Cole v. Davis

Filing 84

MEMORANDUM AND ORDER entered: The court grants the respondent's motion for summary judgment, (Docket Entry No. 67), and dismisses Cole's petition for a writ of habeas corpus, with prejudice. A certificate of appealability is not issued. The court denies all other pending motions. Final judgment to be entered by separate order. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4)

Case 4:17-cv-00940 Document 84 Filed on 09/07/21 in TXSD Page 1 of 73
United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

September 07, 2021
Nathan Ochsner, Clerk

JAIME PIERO COLE,

§
§
Petitioner,
§
§
v.
§ CIVIL ACTION NO. 4:17-cv-940
§
BOBBY LUMPKIN, Director, Texas
§
Department of Criminal Justice, Correctional §
Institutions Division,
§
§
Respondent.
§
MEMORANDUM AND ORDER
In 2011, a Texas jury convicted Jaime Piero Cole of capital murder for killing his estranged
wife and 15-year-old stepdaughter. The jury’s answers to the Texas special issue questions
required a death sentence. After unsuccessfully seeking Texas appellate and habeas remedies,
Cole petitioned for federal habeas corpus relief and moved for discovery (Docket Entry No. 71)
and a stay to wait for more favorable Supreme Court case law. (Docket Entry No. 77). Respondent
Bobby Lumpkin moved for summary judgment, and Cole replied. (Docket Entries Nos. 67, 82).
After considering the record, the parties’ arguments, and the applicable law, including the AntiTerrorism and Effective Death Penalty Act standards, the court denies Cole’s requests to stay and
for discovery and grants the motion for summary judgment. Because Cole has not made the
necessary showing, no certificate of appealability is issued.
The reasons for these rulings are set out below.
BACKGROUND
The facts of this case are simple. In January 2010, Cole’s wife moved out of their house,
taking their two young sons and her daughter from a prior relationship. On February 3, 2010, Cole
purchased a new firearm. The next day, Cole took his sons out for dinner. When he returned them
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to his wife’s apartment, Cole and his wife began arguing. After moving their argument outside,
Cole suddenly drew his new gun and shot his wife several times. Cole reentered the apartment,
chased his stepdaughter into her bedroom, and shot her. Cole turned his gun on a visiting niece
and fired, but had apparently run out of bullets.
Cole fled with his two-year-old son. Police officers arrested Cole at a Wal-Mart in Wharton
County, where he had just purchased 100 rounds of ammunition and diapers. Cole would later
make inculpatory statements to the police in both Wharton and Harris Counties.
The State of Texas charged Cole with capital murder for the shooting deaths of his wife
and stepdaughter during the same criminal transaction. See Tex. Penal Code § 19.03(a)(7)(A).
Cole stood trial in the 230th District Court of Harris County under Cause No. 1250754, the
Honorable Judge Belinda Hill presiding. The trial court appointed Robert Loper and Jerald Graber
to represent Cole at trial.
Defense trial counsel faced a difficult challenge. Cole had confessed to police officers,
making statements suggesting that he intended to commit the murders. Both Cole’s older son and
his niece would testify about his actions. Trial counsel made vigorous efforts to defend Cole,
retaining a fact and a mitigation investigator. Counsel also consulted with expert witnesses on
topics such as confessions, mental health, addiction, and future dangerousness.

State Habeas

Record at 519-21. In the end, counsel based Cole’s defense on arguing that he was guilty of a
lesser offense than first-degree capital murder because “it was a crime of passion. The emotions
were high. It was a highly-charged instance.” 20 RR 95.1 The jury found Cole guilty of capital
murder.

The respondent has submitted copies of the state court record, including pre-trial hearings, the trial
proceedings, the Clerk’s record, appellate records, and the state habeas papers. (Docket Entry Nos. 6,7,
80). To preserve continuity with the state court record, the court will cite to the trial court reporter’s record
as __ R.R. __; the papers from the trial motions practice Clerk’s Record at __; the state habeas proceedings
2 

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Texas law determines a capital defendant’s punishment in a separate sentencing hearing.
The jury was asked two special issue questions: (1) would Cole pose a future threat to society; and
(2) did mitigating circumstances warrant a life sentence? Tex. Code Crim. Pro. art. 37.071(b)(1)(2), (e)(1). The State based its case for a death sentence both on the viciousness of Cole’s crime
and on his past violent behavior. The State told jurors about Cole’s past arrests for public
intoxication and disorderly conduct. The State called various witnesses to testify about Cole’s
history of violence, particularly toward women. The testimony showed that Cole had choked one
former girlfriend and had been repeatedly violent toward another former girlfriend, including by
punching her in the stomach when she was pregnant with his child and putting a shotgun to her
head. That incident resulted in aggravated assault charges. Cole and that girlfriend had a daughter,
who testified about the physical and sexual abuse she suffered at his hands. Family members
testified about Cole’s earlier aggression and violence. The State argued that Cole’s lawlessness
would extend into prison, noting that prison officials had found controlled substances hidden in
his cell during pretrial detention.
Defense trial counsel responded with vigorous attempts to show mitigation. Through 14
witnesses, counsel presented evidence of positive aspects of Cole’s life and the negative effects of
his substance abuse. Defense counsel told jurors about Cole’s birth and early years in rural
Ecuador. An American couple adopted him and raised him in a loving home. But even with that
nurturing environment, Cole missed his mother and felt a sense of loss from not being with her.
His early adult years were spent well, working and raising children. His separation from his wife,
however, resurrected his feelings of abandonment. He became an alcoholic, which caused him to
handle his feelings “inappropriately, absolutely inappropriately.” 24 RR 30, 48. Defense counsel

as State Habeas Record at __; and the record of the successive state habeas proceedings as Successive State
Habeas Record at __.
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pleaded with the jurors to find that Cole had acted with passion because of his emotional state, not
from cold calculation. Defense counsel took that background and argued that, while Cole deserved
punishment for the murders, the “appropriate” penalty would be to “die in prison.” 24 RR 42.
Defense counsel emphasized that a life sentence would prevent Cole from committing future
violence against members of the public. The jury’s answers to the special issues resulted in a death
sentence.
Cole sought automatic direct review in the Texas Court of Criminal Appeals, raising 17
grounds for relief. The Court of Criminal Appeals found no reversible error in Cole’s conviction
or sentence. See Cole v. State, 2014 WL 2807710 (Tex. Crim. App. 2014).
Under Texas law, a state habeas action proceeds concurrent with the direct appeal. See
Tex. Code Crim. Pro. art. 11.071 § 4. Attorneys from the Texas Office of Capital and Forensic
Writs represented Cole on state habeas review. Cole’s state habeas application raised eight
grounds for relief. The state habeas court held hearings and considered the affidavits provided by
defense trial counsel in deciding his claims. The state habeas court ordered the parties to submit
proposed findings of fact and conclusions of law. The lower state habeas court signed the State’s
findings and conclusions without alteration. “Based upon the trial court’s findings and conclusions
and [its] own review,” the Court of Criminal Appeals denied relief. Ex parte Cole, 2017 WL
562725, at *2 (Tex. Crim. App. 2017).
This court appointed counsel to represent Cole throughout the federal habeas corpus
process. Cole filed a timely federal petition for a writ of habeas corpus in 2018. (Docket Entry
No. 10). Cole’s petition included some issues that he had litigated in state court, but he also raised
some issues for the first time on federal review. On Cole’s motion, the court stayed this case to
allow the exhaustion of state court remedies. (Docket Entry No. 49).

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Cole filed a successive state habeas application. The Court of Criminal Appeals reviewed
Cole’s submission and, finding that he did not satisfy the requirements for successive state
proceedings under Tex. Code Crim. Pro. art. 11.071 § 5, dismissed the habeas action as an abuse
of the writ, without considering the merits. Ex parte Cole, 2020 WL 1542118, at *1 (Tex. Crim.
App. 2020).
This court reopened the habeas case and Cole filed an amended habeas petition. (Docket
Entries Nos. 54, 57, 58). Cole’s amended petition raises the following grounds for relief:
1.

Trial counsel was deficient in investigating
and presenting mitigating evidence,
particularly concerning childhood trauma,
alcoholism,
unstable
interpersonal
relationships, and feelings of abandonment.

2.

Trial counsel was deficient in investigating
and presenting expert testimony concerning
substance abuse.

3.

Trial counsel failed to investigate and present
evidence of Cole’s exposure to neurotoxins.

4.

Trial counsel was deficient in presenting
evidence relating to Cole’s future threat to
society.

5.

Trial counsel was deficient in failing to object
to the State’s use of peremptory strikes on
minority prospective jurors.

6.

Trial counsel was deficient in failing to object
to statements made by the prosecutor.

7.

The jury’s consideration of extraneous
information
violated
Cole’s
Sixth
Amendment rights.

8.

The trial court violated Cole’s rights by not
instructing the jury that a vote for life by one
juror would result in a life sentence.

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9.

The trial court violated Cole’s rights by
allowing his custodial statements to come
before the jury.

10.

The trial court’s instructions and the
prosecutor’s statements limited the jury’s
ability to consider mitigating evidence.

11.

The special issue questions were vague and
undefined.

12.

The first special issue unconstitutionally
lowers the State’s burden of proof.

13.

Cole’s rights were violated when the jury
considered evidence regarding crimes
committed by other inmates.

14.

Texas arbitrarily
punishment.

15.

The
Texas
death
penalty
statute
unconstitutionally coerces jurors into
unanimity.

16.

The cumulative prejudicial effect of Cole’s
claims amount to a constitutional violation.

administers

capital

This memorandum and opinion addresses Cole’s motion for discovery and motion to stay,
and the respondent’s motion for summary judgment. The court finds that no evidentiary hearing
or other factual development is necessary, because the pleadings, the motions and responses, the
record, and the law are an ample basis to resolve the legal issues.
THE APPLICABLE LEGAL STANDARDS
Federal habeas review is secondary to the state court process and limited in scope. Wellestablished standards guide what a federal habeas court may consider and how it must consider it.
Because states “hold the initial responsibility for vindicating constitutional rights,” Engle v. Isaac,
456 U.S. 107, 128 (1982), how an inmate litigates his claims determines the course of federal
habeas adjudication. Federalism guarantees a state “an initial opportunity to pass upon and correct
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alleged violations of its prisoners’ federal rights.” Anderson v. Johnson, 338 F.3d 382, 386 (5th
Cir. 2003) (internal citations and quotations omitted). Under 28 U.S.C. § 2254(b)(1), a federal
habeas petition “shall not be granted unless it appears that . . . the applicant has exhausted the
remedies available in the courts of the State[.]” The exhaustion doctrine precludes federal
consideration of a claim raised for the first time in federal court.
As a corollary to exhaustion, the procedural bar doctrine respects a state court’s reliance
on its own law. See Dretke v. Haley, 541 U.S. 386, 392 (2004); Lambrix v. Singletary, 520 U.S.
518, 523 (1997); Coleman v. Thompson, 501 U.S. 722, 729 (1991). A federal procedural bar
results when the inmate fails to follow well-established state procedural requirements for attacking
a conviction or sentence. See Lambrix, 520 U.S. at 523; Coleman, 501 U.S. at 732. A federal
court may review an inmate’s unexhausted or procedurally barred claims only if the inmate shows:
(1) cause and actual prejudice; or (2) that “a constitutional violation has ‘probably resulted’ in the
conviction of one who is ‘actually innocent[.]’” Haley, 541 U.S. at 393 (quoting Murray v. Carrier,
477 U.S. 478, 496 (1986)).
If an inmate has presented the federal constitutional claims to the state courts in a
procedurally proper manner, and the state courts have adjudicated the merits, AEDPA allows
federal review, within certain constraints. Under AEDPA, a federal court cannot grant habeas
relief on legal issues that a state court has adjudicated on the merits unless its decision was contrary
to, or involved an unreasonable application of, clearly established federal law. Harrington v.
Richter, 562 U.S. 86, 98-99 (2011); Williams v. Taylor, 529 U.S. 362, 404-05 (2000); 28 U.S.C.
§§ 2254(d)(1), (2). A state court decision is contrary to federal precedent if it applies a rule that
contradicts the governing law set forth by the Supreme Court, or if it confronts a set of facts that
are materially indistinguishable from such a decision and arrives at a result different from Supreme
Court precedent. Early v. Packer, 537 U.S. 3, 7-8 (2002).
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A state court unreasonably applies Supreme Court precedent if it unreasonably applies the
correct legal rule to the facts of a particular case, 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 409. “It bears
repeating that even a strong case for relief does not mean the state court’s contrary conclusion was
unreasonable.” Richter, 562 U.S. at 102. “If this standard is difficult to meet, that is because it
was meant to be.” Id.
AEDPA affords deference to a state court’s resolution of factual issues.2 Under 28 U.S.C.
§ 2254(d)(2), a decision adjudicated on the merits in a state court and based on a factual
determination will not be overturned on factual grounds unless it is objectively unreasonable in
light of the evidence presented in the state court proceeding. Miller-El v. Cockrell, 537 U.S. 322,
343 (2003). A federal habeas court must presume the underlying factual determination of the state
court to be correct unless the petitioner rebuts the presumption of correctness by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1); see also Miller-El, 537 U.S. at 330-31. This
presumption extends both to the state court’s express and implicit fact findings. See Garcia v.
Quarterman, 454 F.3d 441, 444 (5th Cir. 2006) (citations omitted).
Summary judgment is proper when the record shows “no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

Cole repeatedly argues that the lack of an evidentiary hearing makes the state habeas findings
unreasonable and unfair. AEDPA does not require a state evidentiary hearing before granting deference to
state court decisions and findings. See Gallegos v. Quarterman, 265 F. App’x 300, 303 (5th Cir. 2008)
(observing that “the lack of an evidentiary hearing in state court does not effect the presumption that the
state court findings of fact are correct”); Morrow v. Dretke, 367 F.3d 309, 315 (5th Cir. 2004) (“The
AEDPA requires that we presume correct the habeas court’s findings of fact unless the petitioner ‘rebuts
the presumption of correctness by clear and convincing evidence.’ This is so even if the hearing was a
‘paper’ hearing and may not have been full and fair.”); Bass v. Dretke, 82 F. App’x 351, 354 (5th Cir. 2003)
(stating that “deference to a state habeas court’s factual determinations is not dependent upon the quality
of the state court's evidentiary hearing”).

2

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“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. 2000), except that a habeas court must view the summary judge evidence
through “the prism of the substantive evidentiary burden.” Anderson, 477 U.S. at 254. The general
summary judgment standards apply to the extent they do not conflict with AEDPA. See Smith v.
Cockrell, 311 F.3d 661, 668 (5th Cir. 2002) (“[Rule 56] applies only to the extent that it does not
conflict with the habeas rules.”), abrogated on other grounds by Tennard v. Dretke, 542 U.S. 274
(2004).3
ANALYSIS
I.

Ineffective Assistance of Counsel (Claims One Through Six)
Cole raises six claims that challenge trial counsel’s representation. The state habeas

transcript contains various records that detail counsel’s efforts, such as billing records and motions
for funding to pursue particular investigations. State Habeas Record at 517-63. Both trial
attorneys provided affidavits in state courts providing details about the decisions they made in
representing Cole. State Habeas Record at 812-24; 816-17. The record indicates that trial counsel

Cole argues that this court should not defer to the state habeas court’s decision because the lower
habeas court signed the state’s proposed order without alteration. Cole concedes that “the Fifth Circuit and
the federal district courts in Texas have sometimes accorded AEDPA deference to state court factual
findings, even where those findings were verbatim adoptions of proposes orders written by the State.”
(Docket Entry No. 58 at 9). Cole has not identified an instance in which federal courts have refused to
apply AEDPA deference under those circumstances. In other contexts, the Supreme Court has criticized
the “verbatim adoption of findings of fact prepared by prevailing parties, particularly when those findings
have taken the form of conclusory statements unsupported by citation to the record.” Anderson v. City of
Bessemer City, 470 U.S. 564, 572 (1985); see also Jefferson v. Upton, 560 U.S. 284, 294-95 (2010)
(“Although we have stated that a court’s verbatim adoption of findings of fact prepared by prevailing parties
should be treated as findings of the court, we have also criticized that practice.”) (quotation omitted). The
Supreme Court, however, has not raised that criticism in an AEDPA case, recognizing the deference
AEDPA requires. AEDPA does not exempt proposed findings signed by a state court from deference. The
Fifth Circuit has repeatedly rejected the argument that habeas findings adopted verbatim from those
submitted by the state are not entitled to deference. See Freeney v. Davis, 737 F. App’x 198, 205-06 (5th
Cir. 2018); Basso v. Stephens, 555 F. App’x 335, 342, 343 (5th Cir. 2014); Green v. Thaler, 699 F.3d 404,
416 n. 8 (5th Cir. 2012).

3

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made intensive efforts to mount a vigorous and competent defense for Cole. Trial counsel filed
over 30 pretrial motions. Trial counsel litigated a motion to suppress Cole’s confessions. During
their pretrial investigation, trial counsel retained and consulted with experts witnesses on topics
such as confessions, mental health, addiction, and future dangerousness. Trial counsel retained
the services of two investigators. State Habeas Record at 519-21. Trial counsel called 14 witnesses
during the penalty phase and vigorously cross-examined the State’s witnesses.
Cole, nonetheless, argues that trial counsel’s representation fell short of constitutional
expectations by failing to: (1) investigate Cole’s life history of trauma; (2) present evidence of
Cole’s substance abuse; (3) investigate Cole’s exposure to neurotoxins; (4) investigate evidence
of Cole’s potential for future violence; (5) object to the State’s peremptory strikes against minority
prospective jurors; (6) and object when the trial court made statements about automatic appellate
review of death sentences. Each is addressed below under the standards governing constitutionally
sufficient representation.
A.

The Strickland Standard and Doubly Deferential Federal Review

Courts evaluate challenges to an attorney’s representation under Strickland v. Washington,
466 U.S. 668 (1984). A criminal defendant’s Sixth Amendment rights are “denied when a defense
attorney’s performance falls below an objective standard of reasonableness and thereby prejudices
the defense.” Yarborough v. Gentry, 540 U.S. 1, 3 (2003) (emphasis added); see also Rompilla v.
Beard, 545 U.S. 374, 387 (2005); Wiggins v. Smith, 539 U.S. 510, 520 (2003). Courts give
deference to the decisions trial attorneys make. A court’s review “of counsel’s performance must
be highly deferential,” without “the distorting effects of hindsight.” Strickland, 466 U.S. at 689.
Counsel is “strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Burt v. Titlow, 571 U.S. 12, 21
(2013). Courts assess “challenged conduct on the facts of the particular case, viewed as of the
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time of counsel’s conduct[,]” because otherwise “[i]t is all too tempting for a defendant to secondguess counsel’s assistance . . . .” Strickland, 466 U.S. at 689. A federal habeas court defers to an
attorney’s “conscious and informed decision on trial tactics and strategy,” allowing for federal
relief only when the tactics or strategy are “so ill chosen [as to] permeate[] the entire trial with
obvious unfairness.” Cotton v. Cockrell, 343 F.3d 746, 752-53 (5th Cir. 2003). The inmate must
show both deficient performance and prejudice; “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland, 466
U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id.
When the state court has adjudicated ineffective assistance claims on the merits, a federal
habeas court reviews those claims under the “doubly deferential” standards of both Strickland and
AEDPA. Dunn v. Reeves, ___ U.S. ___, 141 S. Ct. 2405, 2010 (2021); Cullen v. Pinholster, 563
U.S. 170, 190, 202 (2011); see also Rhoades v. Davis, 852 F.3d 422, 434 (5th Cir. 2017). In fact,
deference is “near its apex” in such cases. Sexton v. Beaudreaux, 585 U. S. ____, 138 S. Ct. 2555,
2560-61 (2018); see also Johnson v. Sec’y, DOC, 643 F.3d 907, 910-11 (11th Cir. 2011) (“Double
deference is doubly difficult for a petitioner to overcome, and it will be a rare case in which an
ineffective assistance of counsel claim that was denied on the merits in state court is found to merit
relief in a federal habeas proceeding.”).
B.

Failure to Investigate and Present Life History of Trauma (Claim One)

In his first ground for relief, Cole argues that trial counsel should have focused the
punishment phase case on his childhood trauma. As noted, the defense faced a difficult task in the
penalty phase. The jury had already convicted Cole of shooting his wife numerous times and then
his teenage stepdaughter. Texas law allowed the State to present wide-ranging evidence about a
defendant’s future threat to society. Within that framework, the State contrasted the love and
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security Cole had experienced in his childhood after adoption with his adult rage, aggression, and
violence. Trial counsel responded with 14 punishment witnesses, including a psychotherapist and
an expert in addiction and behavioral medicine. Cole now claims that trial counsel did not do
enough to convince jurors that he deserved a life sentence by failing to present the full extent of
the trauma he experienced in his life. Describing the defense “life history outline” as “basic and
limited,” Cole argues that “[t]he concept of trauma went virtually unmentioned in the penalty phase
testimony.” (Docket Entry No. 58 at 49). Cole argues that “reasonable counsel would have
realized that [his] early life was a fertile source of potential mitigation” and should have
emphasized “the effects it had on his behavior and psychological health.” (Docket Entry No. 58
at 26, 28). Cole exhausted this claim of the failure to investigate his childhood trauma on state
habeas review. Using AEDPA’s “focus[] on what a state court knew and did,” Cullen v.
Pinholster, 563 U.S. 170, 182 (2011), the court reviews the state court’s adjudication of this claim.
1.

State Adjudication

On state habeas review, Cole characterized trial counsel’s presentation of the punishment
phase testimony as “simplistic,” “often times incomplete,” and “one-dimensional.” State Habeas
Record at 56. Cole argued that his trial counsel’s brief interactions with the penalty phase
witnesses meant that they could not convey “the gravity of trauma Cole suffered as a result of his
adoption and permanent relocation to the United States.” State Habeas Record at 57. He criticized
“[t]he failure of trial counsel to properly investigate and/or prepare their lay witnesses for Cole’s
trial,” which “resulted in an incomplete presentation of the childhood trauma Cole experienced
surrounding his adoption and relocation from rural Ecuador to the United States, as well as the
economic social and psychological factors that impacted his development.” State Habeas Record
at 54. Relying on affidavits from his biological family members and others, Cole argues that trial

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counsel should have called lay witnesses who could have testified about four categories of
information:
(1)

his early childhood involving an absent father
and poor, but happy, upbringing in rural
Ecuador;

(2)

the circumstances of his adoption by the Cole
family, which caused him distress, largely
manifesting
itself
as
problems
communicating and inability to sleep alone,
which was renewed on a visit to Ecuador two
years after moving to the United States;

(3)

the good home with his adopted family, the
lack of any professional treatment to help him
deal with any issues from his adoption, and
the problems adjusting to American culture;
and

(4)

concerns Cole “grappled with as an adult—
the loss of culture and identity as well as the
confusion anxiety and depression [he] faced
as a result of years of unanswered questions
about his adoption.”

State Habeas Record at 69-79.4 Cole also argues that trial counsel should have presented more
information about his life-long alcohol abuse and how he handled stress well at work, but would

4

On federal review, Cole argues:
The jury did not hear about how he was abandoned by his
biological father and then by a surrogate father; or how he
was taken to the United States when he was about eight
years old by a woman he had only recently met and who
did not speak his language, returned to Ecuador a year
later, and then was ripped from his biological mother’s
arms by the police. Nor did the jury hear expert testimony
about how long-lasting such trauma is, or about how his
adoptive parents failed to take any steps to alleviate the
effects of the trauma on him. Similarly, the jury did not
hear about his identity disturbance, or about how the
combination of these factors predisposed him to alcohol
abuse and eventual dependence. Nor did trial counsel
present the jury with evidence that would have explained
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become sad angry and depressed when things did not go well in his personal life. State Habeas
Record at 79-81.
Second, Cole argues that “counsel’s failure to present an expert witness regarding the
trauma theory and its impact on an individual’s psychological health precluded the jury from
hearing a critical explanation by which they could properly evaluate the lay witness testimony.”
State Habeas Record at 54. Cole relies primarily on an affidavit from Dr. David Wachtel, a
psychologist. State Habeas Record at 157. Cole argues that an expert witness such as Dr. Wachtel
could have described how Cole’s “arrest for the shooting death of his wife and step-daughter are
best understood as the highly probable consequence of profound psychological trauma due to
ongoing emotional and social experiences beginning in early childhood.” State Habeas Record at
84. Dr. Wachtel focused his affidavit on how “[t]he forcible removal of [Cole] from his biological
mother’s arms was a specific and exacerbating traumatic event of profound separation and loss.”
State Habeas Record at 88. A Dr. Wachtel-type of witness, Cole argues, would have linked Cole’s
childhood trauma with his adult impulsivity, difficulties in relationships, depression, anxiety, and
substance abuse. State Habeas Record at 163. This type of witness could have explained that Cole
“found himself in a great deal of unidentified and unrecognized pain with no one to understand or
acknowledge the depths and complexity of his early life experiences and without the skill set to
regulate his behavior.” State Habeas Record at 170.
The state habeas court extensively summarized the punishment phase testimony presented
by trial counsel.

State Habeas Record at 773-80.

Both trial attorneys filed affidavits or

declarations stating that they “believed that presenting . . . lay witnesses who actually knew Mr.

Petitioner’s extreme reaction to his wife’s departure and
request for a divorce.
(Docket Entry No. 58 at 47).
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Cole was a very effective strategy, rather than using an expert on childhood trauma who did not
personally know Cole.” State Habeas Record at 813, 817. The state habeas court found that Cole’s
trial attorneys “made reasonable trial strategy decisions relating to the presentation of evidence,
including expert testimony, and elicitation of testimony about [Cole’s] life history.” State Habeas
Record at 782. The state habeas court found that “trial counsel presented essentially the same
evidence at trial that the habeas affidavit of Dr. David Wachtel, psychologist, discusses.” State
Habeas Record at 780. The state habeas court also found “that trial counsel were thorough and
effective in counsel’s preparation and presentation of expert testimony to provide the jury with an
explanation for [Cole’s] aberrant behavior at the time of the offense.” State Habeas Record at 781.
In sum, the state habeas court found that “trial counsel effectively presented a ‘full narrative’ of
[Cole’s] life.” State Habeas record at 782.
With that background, the state habeas court concluded:
based on the credible affidavits of trial counsel that
counsel and the defense team thoroughly
investigated [Cole’s] life history that trial counsel
presented numerous punishment witnesses who were
fully prepared by [Cole] to testify and who fully and
accurately presented [Cole’s] life history to the jury
and that counsel believed that presenting lay
witnesses who actually knew [Coel’s] life history
was more effective than using an expert on childhood
trauma who did not personally know [Cole].
State Habeas Record at 781. The state habeas court concluded that Cole “fail[ed] to show
ineffective assistance based on counsel allegedly not presenting a thorough picture of [Cole’s] life;
[Cole] presented essentially the same evidence through fourteen punishment witnesses, including
a psychotherapist and an expert in addiction and behavioral medicine, which [Cole] now asserts
should have been presented.” State Habeas Record at 800.

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2.

AEDPA Review

Cole must show that the state habeas court decision was contrary to, or an unreasonable
application of, federal law. See 28 U.S.C. § 2254(d)(1). Cole disputes the state habeas court
finding that his habeas evidence was “essentially the same” as that presented by trial counsel.
(Docket Entry No. 58 at 49). Cole also argues that trial counsel erred in relying on lay witnesses
to relay that information without framing the evidence through psychological testimony about
trauma.
Cole’s arguments about the representation he received fail to acknowledge the evidence
his attorneys presented at trial. While not using the term “trauma,” trial counsel presented ample
evidence to allow jurors to understand that Cole’s adoption was difficult for him and that its effects
reverberated into his adulthood. Trial counsel urged jurors to give “fair consideration to the whole
story, from beginning . . . until right now.” 24 RR 27. Trial counsel presented witnesses who
described Cole’s childhood, focusing both on the love he received from his adoptive parents and
how he felt at the separation from his birth mother. Cole states that “[t]he jury never heard that as
a child Mr. Cole lived in extreme poverty in Ecuador,” Docket Entry No. 57 at 1, but this ignores
the fact that counsel began arguments in the penalty phase by informing the jurors that they were
“going to learn about a little boy who was born in the jungles of Ecuador to a very, very poor
mother virtually in the jungles of Ecuador.” 21 RR 14.
Cole argues in this court that trial counsel did not present evidence that would allow jurors
to understand the emotional response he had to his adoption. He argues that “[t]he jury . . . never
heard that Mr. Cole’s adoption was an extremely traumatic event: he was ripped from the arms of
his mother and brought to a country where he did not speak the language.” (Docket Entry No. 57
at 1). But trial counsel put on evidence that Cole “carr[ied] that pain” of “being taken away from
his real mother . . . with him in his life as a teenager, as a 20-year-old, and as a 30-something-year16 

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old.” 24 RR 29. Despite his adoption by “good people,” “Cole carried with him something, some
feelings inside of him that affected him about losing . . . his mother.” 24 RR 29. The separation
from his wife resurrected those feelings: “He [was] being abandoned by his family, his wife, and
he [was] losing that family again.” 24 RR 29. “As a little boy he was separated from his birth
mother and now here it is 30 years later his life is literally coming apart. His wife, two children,
it’s all falling apart, they are abandoning him.” 21 RR 17. “Unfortunately, [Cole] dealt with it in
the wrong way.” 24 RR 30.
Other attorneys may have approached the penalty phase differently. Perhaps others would
have used experts to put similar information before the jury. This kind of hindsight is not
appropriate. Trial counsel made a strategic decision to use lay witnesses who knew Cole to connect
the suffering resulting from his childhood adoption and move from his biological mother and
native country to his adult despair at his wife’s departure. AEDPA deference and established law
requires deference to this type of strategic decision. See Batiste v. Davis, 2017 WL 4155461, at
*19 (S.D. Tex. 2017) (“Constitutional law does not require that mitigating evidence come through
one specific vehicle.”); Ward v. Stephens, 777 F.3d 250, 264 (5th Cir. 2015) (because “counsel
has wide latitude in deciding how best to represent a client,” counsel may decide the best manner
in which to put information before jurors).5
Moreover, trial counsel did put on expert testimony. Trial counsel included mitigation
testimony from Dr. Terry Rustin, a psychiatrist who specializes in addiction and behavioral
medicine. Dr. Rustin testified that Cole experienced an “adjustment disorder” that resulted from

The respondent extensively argues that Cole has not shown Strickland prejudice. The state habeas
court did not elaborate on the prejudice prong. The court, however, notes that “[f]ailure to present more of
the same evidence cannot support a finding of prejudice.” Reynoso v. Lumpkin, ____ F. App’x ___, 2021
WL 3233919, at *2 (5th Cir. 2021). The record fails to show that more or different expert testimony would
have created a reasonable probability of a different result, given the aggravating evidence presented at trial.
5

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his wife’s departure. 22 RR 194. Dr. Rustin explained to jurors that Cole’s alcohol dependence,
alcoholism, and period of abstinence from alcohol immediately before the shootings, acted with
his adjustment disorder to cause lowered inhibitions, diminished coordination, heightened
impulsivity, greater aggression, more focused self-centeredness, and poor decision making. In
short, Dr. Rustin explained how substance abuse combined with other issues to lessen Cole’s moral
blameworthiness. The state habeas court found that “Dr. Rustin based his testimony on numerous
records and reports relevant to [Cole’s] case, including a mitigation report from the defense's
mitigation expert, Gina Vitale, prescriptions written for [Cole] by Dr. Glenn Orsak as well as
medical records from Dr. Orsak, clinical records from therapist Sharon Boyd, a psychological
assessment report from Dr. Steve Rubenzer, [Cole’s] medical records from the Harris County Jail,
and police reports[.]” State Habeas Record at 771.
This is “not a case in which the defendant’s attorneys failed to act while potentially
powerful mitigating evidence stared them in the face, or would have been apparent from
documents any reasonable attorney would have obtained[.]” Bobby v. Van Hook, 558 U.S. 4, 11
(2009). The state court’s rejection of this claim was not contrary to, or an unreasonable application
of, federal law. See 28 U.S.C. § 2254(d)(1).
C.

Failure to Investigate and Present Expert Testimony about Substance Abuse
for Use in the Guilt/Innocence Phase (Claim Two)

In his second ground for relief, Cole argues that trial counsel ineffectively addressed the
effect of various substances on his cognition and behavior at the time of the offense. In the time
leading up to the murders, Cole argues, he abused diet pills containing phentermine and Zoloft.
Cole argues that these substances combined with his heavy alcohol use to impair his cognitive

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abilities, and that expert testimony about his substance abuse would have shown that he lacked the
criminal intent to kill.
Contrary to Cole’s arguments, his trial counsel did investigate and present evidence of
Cole’s substance abuse.

Several months before trial, defense counsel retained a forensic

psychologist, Dr. Steve Rubenzer, to evaluate Cole. Dr. Rubenzer reported on Cole’s extensive
history of alcohol use and opined that Cole’s substance abuse made him impulsive and unable to
anticipate the consequences of his actions. (Docket Entry No. 58 at 58).
Less than a month before the trial began, trial counsel also retained Dr. Terry A. Rustin, a
medical doctor who specializes in addiction. Dr. Rustin reviewed numerous records, including a
report prepared by the mitigation expert, medical records, a pretrial psychological assessment, jail
medical records, and police reports. State Habeas Record at 771. Dr. Rustin also interviewed Cole
and conducted a thorough evaluation. State Habeas Record at 771. Dr. Rustin testified in the
penalty phase. As summarized on state habeas review, Dr. Rustin:
. . . testified that [Cole] showed a great deal of denial,
which is common in people with addictions; that
[Cole] was unable to see and understand how alcohol
has affected him; that [Cole] was consuming twelve
to twenty-four bottles of beer a day; that [Cole] dealt
with all of his problems by using alcohol; that [Cole]
dealt with difficulties with his wife and children by
retreating into an alcoholic haze; that [Cole] dealt
with stress at work by using alcohol; that all of
[Cole’s] friendships with people were based on using
alcohol; and, that [Cole] had no close friends other
than alcohol.
Dr. Rustin further testified that the effect of twelve
to twenty-four beers a day on a person would be that
it would lower a person’s inhibitions; that it would
make a person more likely to act on impulses; that it
would make a person act more aggressively; that it
would make a person more self-centered or
egocentric; that a person would become less
coordinated and less able to make good decisions;
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and, that a person who drank twelve to twenty-fours
beers a day would be considered an alcoholic.
State Habeas Record at 770-71.
Cole argues that trial counsel should have handled the substance abuse issue differently.
Cole argues that trial counsel improperly limited Dr. Rustin’s focus to Cole’s abuse of alcohol
without asking about all the substances Cole took. Cole argues that trial counsel also should have
developed information and lay testimony about his substance abuse from family and friends. In
essence, Cole argues that trial counsel should have used his substance abuse to raise a question
with the jurors about his intent to commit capital murder. Cole argues that trial counsel should
have used additional information about his substance abuse in two ways: (1) as a defense in the
liability phase to show that he lacked the intent to commit capital murder; and (2) as additional
mitigating evidence in the penalty phase.
Cole raised this claim on state habeas review, relying on an affidavit from Dr. William
Alexander Morton, an expert in psychopharmacology and psychiatry. Dr. Morton performed a
clinical evaluation of Cole, reviewed numerous documents, and read relevant trial testimony. State
Habeas Record at 138-55. Dr. Morton’s affidavit traced Cole’s alcohol use to his early childhood.
By his teenage years, Cole drank regularly. As an adult, Cole would drink to excess, frequently
consuming 24 beers daily. Cole attempted to stop drinking when his wife left him, but he began
again on the day of the murder. By that point, Cole was abusing diet pills to excess. Dr. Morton
opined that the alcohol and substance abuse would have compounded impairment of Cole’s mental
state. At the time of the murders, Cole would have been impulsive, agitated, paranoid, and
aggressive. Cole argues that a psycho-pharmacologist would have helped the jury find that Cole
“was most likely in an aggressive, survival state” and therefore lacked the intent to commit capital
murder. (Docket Entry No. 58 at 63).
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The state habeas court rejected this claim. First, the state habeas court found that Cole’s
trial counsel made “reasonable trial strategy decisions relating to the presentation of evidence,
including expert testimony.” State Habeas Record at 772. Second, the state habeas court found
that trial counsel was not “deficient in the representation of [Cole] or that the presentation of
evidence proposed in the instant habeas proceeding would have been any more effective than that
elicited by trial counsel.” State Habeas Record at 772. Third, the state habeas court found
unpersuasive Dr. Morton’s affidavit opinion that “the testimony from a psycho-pharmacologist
would have benefitted the defense by providing an explanation to the jury that [Cole’s] impulsivity,
agitation, and aggression at the time of the primary offense that stemmed from the combined
substances he allegedly ingested would have significantly impaired [Cole’s] mental state,
including diminishing his ability to make logical decisions.” State Habeas Record at 773. The
state habeas court concluded that Cole had not met Strickland’s deficient performance or prejudice
prongs. State Habeas Record at 799. The record does not show that the Texas court’s denial of
this claim was contrary to, or an unreasonable application of, federal law. See 28 U.S.C. §
2254(d)(1).
1.

The Liability Phase

Cole asserts that, because trial counsel allegedly did not develop another defense to
liability, no strategic reason would justify forgoing a defense that questioned whether substance
abuse impaired Cole’s intent to kill. Cole argues that the state court “unreasonabl[y] discount[ed]
proffered mitigating evidence.” (Docket Entry No. 58 at 67). But the record does not show that
Cole’s trial counsel ignored or failed to present a strong defense for his crime. As a general matter,
Texas law does not allow evidence of voluntary intoxication to negate the specific intent to commit
murder. See Tex. Penal Code § 8.04(a); Thomas v. Lumpkin, 995 F.3d 432, 452 (5th Cir. 2021).
Cole does not dispute that he voluntarily took the diet pills, Zoloft, and alcohol that allegedly
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reduced his mental capacity. Cole’s voluntary abuse of alcohol and diet pills were not a valid
defense under Texas law.
Cole’s argument hinges on his use of medically prescribed Zoloft, which might have made
a defense of involuntary intoxication available. While “[t]he affirmative defense of involuntary
intoxication does not appear in the Texas Penal Code,” Westbrooks v. State, 2015 WL 10550096,
at *3 (Tex.App.-Hous. [14th Dist.], 2015), the Court of Criminal Appeals has recognized
involuntary intoxication as an affirmative defense. See Mendenhall v. State, 77 S.W.3d 815, 81718 (Tex. Crim. App. 2002). Texas law considers the effects of taking a drug under a valid
prescription as involuntary intoxication. Heard v. State, 887 S.W.2d 94, 98 (Tex. App.–Texarkana
1994, pet. ref'd); see also Shurbet v. State, 652 S.W.2d 425, 428 (Tex. App. –Austin 1982, no pet.).
Even so, the record does not show that constitutionally adequate defense counsel would
have used expert testimony to present an involuntary intoxication defense. Texas law has two
requirements for an involuntary intoxication affirmative defense: (1) the accused exercised no
independent judgment or volition in taking the intoxicant; and (2) as a result of a severe mental
disease or defect caused by the involuntary intoxicant, the accused did not know that his conduct
was wrong. See Mendenhall, 77 S.W.3d at 818; Torres v. State, 585 S.W.2d 746, 749 (Tex. Crim.
App. 1979). The fact that Cole bases his claim on prescription use sets another requirement:
“Involuntary intoxication by prescription medicine occurs only when the person has no knowledge
that the medicine has possibly intoxicating side effects.” Woodman v. State, 491 S.W.3d 424, 429
(Tex. App.–Hous. [14 Dist.], 2016, pet. ref'd).
Dr. Morton’s affidavit and report could have provided a basis for defense counsel to present
evidence that “Zoloft can cause initial side effects of increased anxiety restlessness and agitation.”
State Habeas Record at 58, 148. Evidence of those side effects, however, would not provide a
basis for an involuntary intoxication defense that would make counsel’s failure to present such
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evidence either deficient performance or prejudicial. Dr. Morton’s testimony about Zoloft, alone
or in combination with the other substances Cole took, did not call into question Cole’s ability to
exercise independent judgment or his knowledge that his conduct was wrong. Even assuming that
Cole was intoxicated when he committed the murders, the record does not show that he could not
or did not understand the wrongfulness of his conduct.
In addition, the State presented strong evidence that Cole intended to kill. Cole bought a
gun and brought it to his estranged wife’s apartment. He made statements to the police that he had
intended to kill his wife and stepdaughter. Cole fired his gun into both victims numerous times.
Cole has not shown that an impairment defense would have fared better than the throes-of-passion
defense trial counsel did present.
The state habeas court reasonably found that Dr. Morton’s opinion did not provide a basis
for an intoxication defense that made counsel’s failure to present such an expert opinion deficient.
The record similarly support’s the state habeas court’s finding that there was no reasonable
probability of a different result if counsel had relied on an expert such as Dr. Morton. Cole has
not made a strong showing that, given the evidence in the liability phase, the jury hearing such an
expert would have reached a different conclusion about Cole’s guilt. Cole has not shown that the
state court’s decision was contrary to, or an unreasonable application of, federal law. See 28 U.S.C.
§ 2254(d)(1).
2.

The Penalty Phase

Cole argues that trial counsel was ineffective in relying on Dr. Rustin alone because he did
not discuss “the interaction between alcohol, Zoloft, and stimulants.” (Docket Entry No. 58 at 66).
Trial counsel had already put before the jury testimony about impairments Cole suffered from his
alcohol abuse. Additional testimony about the use of other substances would not meaningfully
enhance the information that was already before the jurors. Habeas relief is not available when
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the additional mitigation evidence presented on habeas is “largely cumulative and differ[s] from
the evidence presented at trial only in detail, not in mitigation thrust.” Villegas v. Quarterman,
274 F. App’x 378, 384 (5th Cir. 2008).
Cole has not made a strong showing that counsel should have presented additional
information about substance abuse or that it would have made a difference in the outcome. Habeas
relief is not available on this ground.
D.

The Failure to Investigate and Present Evidence of Exposure to Neurotoxins
and Resultant Brain Damage (Claim Three)

Cole argues that trial counsel provided deficient representation by failing to investigate and
present evidence of Cole’s exposure to neurotoxins and possible resulting brain damage. Cole
argues that several red flags should have prompted counsel to seek psychological testing, including
that: (1) his parents were cousins; (2) he grew up near Ecuadorian oil fields, which exposed toxins
into the environment; (3) he drank alcohol beginning at a young age; and (4) he suffered two
serious head injuries as a child. One of the psychologists who examined Cole before trial advised
counsel that his possible early exposure to toxins suggested the need for a neuropsychological
examination. While trial counsel retained a neuropsychologist a month before trial, that expert
performed psychological, not neuropsychological, testing.
Cole did not raise this challenge to trial counsel’s handling of neuropsychological testing
in his first state habeas proceeding. For the first time on federal review, Cole retained a
toxicologist. This expert reviewed his background and opined that Cole had “suffered chronic
environmental exposure to neurotoxic and neuro-endocrine disrupting chemicals that are capable
of causing brain damage and neuropsychiatric health problems.” (Docket Entry No. 58 at 76).
Federal counsel also retained a neuropsychologist, who performed tests and determined that Cole

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has impaired executive and memory functioning, as well as a learning disability. (Docket Entry
No. 58 at 80).
After the court stayed the case for the exhaustion of state remedies, Cole raised this claim
in his successive state habeas application. The Court of Criminal Appeals applied the Texas abuseof-the-writ statute, Tex. Code Crim. Pro. 11.071, to this claim, a procedural determination that
generally bars federal habeas review. See Russell v. Lumpkin, 827 F. App’x 378, 389 (5th Cir.
2020). Cole now argues that he can overcome the procedural default of his claim because state
habeas counsel performed deficiently by not raising it in his initial habeas action.
1.

Martinez v. Ryan

In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court created a narrow exception to
the procedural bar doctrine. The exception “treats ineffective assistance by a prisoner’s state
postconviction counsel as cause to overcome the default of a single claim.” Davila v. Davis, ___
U.S. ___, 137 S. Ct. 2058, 2062 (2017). A federal habeas petitioner relying on Martinez to show
ineffective representation by state habeas counsel must make three showings before the court can
consider the underlying defaulted Strickland claim. First, the petitioner must show that “his claim
of ineffective assistance of counsel at trial is substantial—i.e., has some merit . . . .” Cantu v.
Davis, 665 F. App’x 384, 386 (5th Cir. 2016); see also Allen v. Stephens, 805 F.3d 617, 626 (5th
Cir. 2015). Second, the petitioner must “show that habeas counsel was ineffective” for not raising
the underlying Strickland claim. Garza v. Stephens, 738 F.3d 669, 676 (5th Cir. 2013). In
reviewing this issue, the federal habeas court applies Strickland to “indulge[s] a strong
presumption that [habeas] counsel’s conduct falls within the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689. Federal habeas courts recognize that habeas counsel
“‘who files a merits brief need not (and should not) raise every nonfrivolous claim, but rather may
select from among them in order to maximize the likelihood of success on appeal.’” Vasquez v.
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Stephens, 597 F. App’x 775, 780 (5th Cir. 2015) (quoting Smith v. Robbins, 528 U.S. 259, 288
(2000)). To prove ineffective assistance, the petitioner must demonstrate that “‘a particular
nonfrivolous issue was clearly stronger than issues that counsel did present.’” Vasquez, 597 F.
App’x at 780 (quoting Robins, 528 U.S. at 288).
Third, even after showing cause flowing from habeas counsel’s representation, a petitioner
must demonstrate “actual prejudice.” Canales v. Stephens, 765 F.3d 551, 571 (5th Cir. 2014); see
also Martinez, 566 U.S. at 18 (remanding for an assessment of actual prejudice). The Fifth Circuit
has held that, even after showing cause under Martinez, a petitioner must show actual prejudice
by “establish[ing] not merely that the errors at his trial created a possibility of prejudice, but that
they worked to his actual and substantial disadvantage, infecting his entire trial with error of
constitutional dimensions.” Hernandez v. Stephens, 537 F. App’x 531, 542 (5th Cir. 2013); see
also Carrier, 477 U.S. at 488; United States v. Frady, 456 U.S. 152, 170 (1982). At a minimum,
actual prejudice under Martinez requires the petitioner to show a reasonable probability that he or
she would have been granted state habeas relief had his habeas counsel’s performance not been
deficient. See Soliz v. Davis, 750 F. App’x 282, 290 (5th Cir. 2018); Mamou v. Davis, 742 F.
App’x 820, 828 (5th Cir. 2018); Barbee v. Davis, 660 F. App’x 293, 314 (5th Cir. 2016); Newbury
v. Stephens, 756 F.3d 850, 872 (5th Cir. 2014).
2.

Exposure to Toxins

State habeas counsel provided affidavits explaining why they did not investigate possible
brain damage from possible childhood neurotoxin exposure. State habeas counsel hired an expert,
neuropsychologist Dr. James Underhill, to examine Cole. Because the results from that expert did
not indicate brain dysfunction, state habeas counsel chose not to expend available resources on a
toxicologist or similar expert. Successive State Habeas Record at 54-55.

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In this court, Cole presents an affidavit from another neuropsychologist, Dr. Daniel
Martell. According to Dr. Martell, Dr. Underhill did not score or interpret all the testing he did on
Cole. Dr. Martell opines that, properly evaluated, the unscored sections of Dr. Underhill’s
testimony indicate “specific abnormal brain findings primarily involving frontal lobe/executive
functioning, and memory functioning.” Successive State Habeas Record at 86.
Cole has not shown that Martinez allows him to overcome the procedural bar. Even though
trial counsel had several mental health experts evaluate Cole, none diagnosed brain dysfunction.
State habeas counsel hired a neuropsychologist, Dr. Underhill. Nothing from Dr. Underhill’s
evaluation suggested the need for another expert to evaluate Dr. Underhill’s own evaluation. See
Green v. Lumpkin, ___ F. App’x ___, 2021 WL 2786461 *6 (5th Cir. July 2, 2021) (counsel’s
failure to seek a second expert opinion is unreasonable only “when an expert’s evaluation is so
clearly deficient or the expert’s conclusions so obviously wrong that the shortcomings should be
apparent to even defense counsel's untrained eye”).

Cole has not shown deficiencies in Dr.

Underhill’s evaluation that would have been obvious to nonexperts, including his attorneys. “The
very fact that an expert opinion is needed to determine whether the defense experts’ mental health
evaluations were adequate indicates that any deficiency was not so obvious to a lay person that
trial counsel’s reliance was unreasonable.” Id. Cole has not shown that habeas counsel was
deficient in selecting habeas claims.
Cole also fails to meet Martinez’s second prong by showing actual prejudice. Despite
spending numerous pages describing the testimony that could have resulted from an investigation
into neurotoxin exposure, Cole’s arguments for prejudice are cursory and incomplete. Cole
summarizes his argument in a way that shows its inadequacy: “[o]rganic brain damage is a highly
mitigating condition.” (Docket Entry No. 57 at 75). The record does not support a finding that

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counsel was deficient in failing to make an argument of Cole’s organic brain damage or that, had
counsel done so, the outcome would have been different.
Postconviction claims do not exist independent from the trial proceedings. In the context
of claims challenging counsel’s representation in the punishment phase of a capital trial, a federal
habeas court evaluates the evidence in aggravation against the totality of available mitigating
evidence (including the evidence on which the petitioner bases the federal habeas claims). See
Wong v. Belmontes, 558 U.S. 15, 20 (2009); Wiggins v. Smith, 539 U.S. 510, 534 (2003); see also
Blanton v. Quarterman, 543 F.3d 230, 236 (5th Cir. 2008) (a court must “weigh the quality and
quantity of the available mitigating evidence, including that presented in post-conviction
proceedings, along with . . . any aggravating evidence”). A court must ask if an inmate’s new
“mitigation evidence is dwarfed by the State’s aggravation case.” Reynoso v. Lumpkin, ___ F.
App’x ___, 2021 WL 3233919, at *2 (5th Cir. 2021).
The State based its closing argument on contrasting the mitigating evidence Cole’s counsel
presented against the strong evidence of Cole’s future violence the State presented. After
reviewing the mitigation evidence, the prosecutor argued that the evidence did not “sufficiently
mitigate[] against the fact[s]” presented in aggravation. 24 RR 73. Cole argues how the evidence
presented may have mitigated against a death sentence, but he does not address how additional
evidence of possible childhood neurotoxin exposure would have likely altered the outcome.
The respondent persuasively argues that “when compared to the . . .

aggravating

evidence—excluding the already heinous facts of Cole murdering his wife and stepdaughter in
front of his sons and niece—it seems unlikely that any mitigating effect of Cole having somehow
been impacted from the toxins to which he was exposed for 7 years in Ecuador before he lived the
remainder of his life in the United States would have balanced in favor of a sentence of life[.]”

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(Docket Entry No. 67 at 53). The respondent supports this argument by cataloguing the extensive
evidence on which the State based its case for a death sentence.
Cole does not counter the respondent’s additional argument that evidence of neurotoxin
exposure could have been a “double-edged sword,” Martinez v. Dretke, 404 F.3d 878, 889 (5th
Cir. 2005), because jurors could fear that Cole’s asserted impairment meant that he could not
control his violent behavior. See Nelson v. Quarterman, 472 F.3d 287, 307-08 (5th Cir. 2006).
“Presenting evidence of ‘organic (i.e., permanent) brain damage,’ which is associated with poor
impulse control and a violent propensity, would have substantiated the state’s evidence and
increased the likelihood of a future dangerousness finding.” Martinez, 404 F.3d at 890. Simply,
jurors “may not be impressed with the idea that to know the cause of viciousness is to excuse it;
they may conclude instead that when violent behavior appears to be outside the defendant’s power
of control, capital punishment is appropriate to incapacitate.” Foster v. Schomig, 223 F.3d 626,
637 (7th Cir. 2000) (quotation omitted). Cole cites information that may have raised a possibility
of brain damage, but the expert evidence he argues should have been presented does not discuss a
concomitant risk of future violence or whether medication or treatment could have reduced it.
Cole does not explain any way to soften the aggravating edge of the evidence he blames counsel
for not presenting.
In sum, Cole’s argument for prejudice goes no farther the conclusory statements that more
investigation could have shown brain damage. (Docket Entry No. 58). That provides no insight
into how neuropsychological testing would have influenced jurors, much less the habeas court.
The court finds that Cole’s evidence of possible brain damage from neurotoxin exposure would
neither (1) create a reasonable probability of a different result or (2) change the result of his habeas
proceedings had Cole’s initial habeas attorney raised that argument. The court finds that the record

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fails to show either cause or actual prejudice that would overcome a procedural bar under Martinez
or prove ineffective assistance of trial counsel.
E.

Failure to Develop Evidence to Show Cole Would Not Be a Future
Danger (Claim Four)

Cole argues that trial counsel provided deficient representation relating to his future
violence. In the penalty phase, a jury must decide “whether there is a probability that the defendant
would commit criminal acts of violence that would constitute a continuing threat to society.” Tex.
Code. Crim. Proc. art. 37.071 § 2(b). Trial counsel called Frank Aubuchon, a former Texas
corrections officer and expert on the Texas prison classification system, to explain how the
constraints of prison life reduce the risk of prison violence.

Cole faults counsel for not

individualizing the expert testimony. Cole argues that trial counsel should have called an expert
who would have made an individualized assessment as to whether Cole himself would be violent
in prison.
1.

The Future Dangerousness Special Issue

Texas sentencing law allows the parties in a capital penalty hearing to present “any matter
the court deems relevant to sentencing.” Tex. Code Crim. Pro. art. 37.07 § 3(a). When considering
future dangerousness, “it is essential . . . that the jury have before it all possible relevant
information about the individual defendant whose fate it must determine.” Jurek v. Texas, 428
U.S. 262, 275-76 (1976). The Court of Criminal Appeals has recognized a nonexhaustive list of
factors a jury may consider in determining whether a capital defendant sentenced to prison will
pose a continuing threat of violence, including:
1.

2.

the circumstances of the capital offense,
including the defendant’s state of mind and
whether he or she was working alone or with
other parties;
the calculated nature of the defendant’s acts;
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3.
4.
5.
6.
7.
8.

the forethought and deliberateness exhibited
by the crime’s execution;
the existence of a prior criminal record, and
the severity of the prior crimes;
the defendant’s age and personal
circumstances at the time of the offense;
whether the defendant was acting under
duress or the domination of another at the
time of the commission of the offense;
psychiatric evidence; and
character evidence.

Keeton v. State, 724 S.W.2d 58, 61 (Tex. Crim. App. 1987); see also Walbey v. State, 926 S.W.2d
307, 311 (Tex. Crim. App. 1996); Devoe v. State, 354 S.W.3d 457, 461-62 (Tex. Crim. App. 2011).
“Often, the circumstances of the crime provide greater probative evidence of a defendant’s
probability for committing future acts of violence than any other factor relevant to the future
dangerousness special issue.” Dewberry v. State, 4 S.W.3d 735, 741 (Tex. Crim. App. 1999).
“[T]he facts of the offense alone may be sufficient to sustain the jury’s finding of future
dangerousness.” Martinez v. State, 327 S.W.3d 727, 730 (Tex. Crim. App. 2010); see also Fuller
v. State, 253 S.W.3d 220, 231-32 (Tex. Crim. App. 2008); Sonnier v. State, 913 S.W.2d 511, 517
(Tex. Crim. App. 1995).
The future-dangerousness focus for an inmate convicted of capital murder is usually in the
prison context. See Speer v. Lumpkin, 845 F. App’x 345, 350 (5th Cir. 2021); Perkins v.
Quarterman, 254 F. App’x 366, 371 (5th Cir. 2007). A common strategy for capital defense
attorneys is to present general testimony suggesting that the strictures of prison life would lessen
an inmate’s ability to act violently. See Milam v. Director, TDCJ-CID, 2017 WL 3537272, at *25
(E.D. Tex. 2017) (calling a witness to testify about a “prison system’s classification and statistics
was consistent with the prevailing practice”). Capital defense attorneys often call experts on the
prison system to describe the inmate-classification system, provide information about the controls
the prison environment places on an inmate’s behavior, and explain “the statistical fact that inmates
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convicted of capital murder are less likely to commit violent acts.” Freeney v. Stephens, 2016 WL
320768, at *4 (S.D. Tex. 2016).
2.

Trial Counsel’s Efforts

Trial counsel relied on Frank Aubuchon, the former corrections officer, to discuss the
limited opportunities for violence available to a capital defendant serving a life sentence in TDCJ.
Aubuchon reviewed Cole’s arrest and incarceration history and testified that Cole would be housed
in a restricted status. Aubuchon’s testimony was intended to allow jurors to find that Cole’s
opportunities for violence would be reduced in the prison setting.
This testimony also had risks for the defense.

General testimony about the prison

classification system opens the door to testimony that violence is prevalent within the prison
system. See Threadgill v. State, 146 S.W.3d 654, 670-71 (Tex. Crim. App. 2004). On crossexamination, the prosecution questioned Aubuchon about the numbers of serious incidents in
prison, including escapes, attempted escapes, sexual assaults, staff assaults, and offender assaults.
Cross-examination allowed jurors to see that the prison environment would not prevent Cole from
violent acts.
3.

Cole’s Claim and Procedural Bar

Cole’s fourth claim argues that his trial counsel should have called an expert in risk
assessment to testify that Cole would not be a dangerous inmate. Federal habeas counsel retained
Dr. Mark Cunningham, “a forensic psychologist, nationally recognized for his research concerning
factors that predict violence in prison and his research in capital sentencing,” Coble v. Davis, 728
F. App’x 297, 300 (5th Cir. 2018). Dr. Cunningham was asked to perform an individual risk
assessment of Cole’s future threat of violence in prison. Dr. Cunningham’s general approach is to
evaluate trends of violence committed by other inmates and compare a defendant’s individual
characteristics against those trends. Dr. Cunningham has provided an affidavit stating that he
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“would have testified that based on [Cole’s] age, education, career history, ties with his
community, pre-trial jail record, lack of a gang affiliation, and status as a convicted capital offender
serving life without parole in TDCJ, [Cole] would present a low risk for future serious violence in
prison.” Successive State Habeas Record at 38, 171-252.
Cole raised this claim in his successive state habeas application. The Court of Criminal
Appeals barred the claim as an abuse of the writ. Federal habeas review is available only if cause
and actual prejudice are shown. As with the previous claim, Cole argues that state habeas counsel’s
representation should forgive the procedural bar of this claim under Martinez v. Ryan.
State habeas counsel provided an affidavit explaining why they did not retain an expert like
Dr. Cunningham. “It was our office’s practice to not hire an expert on the issue of future danger if
defense counsel hired one. We did this to save money. There would have been no strategic reason
as to why we did not consult with an expert on the issue of Mr. Cole's future danger.” Successive
State Habeas Record at 57. With that basis, Cole argues that “a rote decision to close off viable
avenues of investigation solely for the purpose of saving money is unreasonable.” (Docket Entry
No. 98 at 96).
Even though state habeas counsel disclaimed a specific strategy behind not hiring a futuredangerousness expert like Dr. Cunningham to add to the expert trial counsel had retained, that is a
strategy; if trial counsel had an expert, the presumption is no additional or duplicative one is needed
on habeas. This is the type of calculated decisionmaking that a court defers to under Strickland.
An effective attorney is “entitled to formulate a strategy . . . to balance limited resources in accord
with effective trial tactics and strategies.” Harrington v. Richter, 562 U.S. 86, 107 (2011). Habeas
counsel’s choice of how to allocate resources is not one to be second guessed on this record. See
Evans v. Davis, 875 F.3d 210, 218 (5th Cir. 2017).

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There is no record basis to find that Dr. Cunningham would have provided testimony
stronger than trial counsel had put before the jury. At trial, the State rebutted Aubuchon’s
testimony by highlighting Cole’s history of violence. The State argued: “[Cole] hasn’t shown any
desire to change, that . . . is how he’s going to be. [Incarceration] is not going to change that. . . .
And you know from everything he’s done in the past and you know from everything that he did
that horrible day that [he is a continuing threat]. There is no question about it.” 24 RR 18. Like
Aubuchon, Dr. Cunningham did not take into account the violent acts Cole had committed. Dr.
Cunningham isolated some background evidence and plugged it into an actuarial analysis, but he
did not account for Cole’s past “violent episodes—including firing his shotgun near his friend,
forcefully throwing his daughter Brittnie to the concrete ground once and into the tv another time,
choking a former girlfriend, and kicking and punching several former girlfriends, including one
while she was pregnant.” (Docket Entry No. 67 at 60-61). Dr. Cunningham’s testimony would
have provided little information about Cole’s behavior. See United States v. Bourgeois, 537 F.
App’x 604, 658 (5th Cir. 2013) (affirming district court’s finding in a capital habeas proceeding
that “Dr. Cunningham’s testimony [was] detached from the extensive testimony that the jury had
already heard about” the inmate’s violent acts).
Cross-examination would open Dr. Cunningham to questioning that could reinforce the
State’s case for a death sentence.

The State cross-examined Aubuchon about the prison

environment in general. Dr. Cunningham’s report would have allowed broad cross-examination
about Cole’s specific violent acts; Dr. Cunningham’s testimony could have been more prejudicial
to the defense than that presented by trial counsel. Dr. Cunningham’s report could have allowed
the State to individualize the threat Cole would present in prison.
A habeas attorney who files a brief on the merits is not obligated to raise every nonfrivolous
claim. Reasonable habeas counsel may, and should, select the claims that will maximize the
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likelihood of success. Smith v. Robbins, 528 U.S. 259, 288 (2000). See Smith v. Murray, 477 U.S.
527, 536 (1986) (“The process of ‘winnowing out weaker arguments on appeal and focusing on’
those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective
appellate advocacy.”). The record fails to show that state habeas counsel was deficient in not
retaining Dr. Cunningham and instead focusing on other areas. Nor does the record support finding
a likelihood of success had this claim been presented in Cole’s initial habeas petition. Because the
record shows neither deficient performance nor prejudice, there is no basis to overcome the
procedural bar of this claim.6
F.

Failure to Object to the State’s Peremptory Strikes Against Two
Prospective Jurors (Claim Five)

The jury in Cole’s trial consisted of seven white jurors, three Hispanic jurors, one Asian
juror, and one black juror. During voir dire, prosecutors exercised only seven of their allotted
peremptory strikes. The State used peremptory challenges against three of the four black potential
jurors. Cole argues that trial counsel should have objected to striking two prospective jurors—Ms.
Robinson and Ms. Roberts—based on Batson v. Kentucky, 476 U.S. 79 (1986). Under Batson, the
prosecution violates the equal protection clause by striking potential jurors based on race. In
deciding whether the prosecution’s decision to strike potential jurors is impermissible under
Batson,
the trial court must determine whether the defendant
has made a prima facie showing that the prosecutor
exercised a peremptory challenge on the basis of
race. Second, if the showing is made, the burden
shifts to the prosecutor to present a race-neutral
explanation for striking the juror in question.
Although the prosecutor must present a
comprehensible reason, the second step of this
process does not demand an explanation that is

For the same reasons, if the court were to reach the underlying Strickland claim on the merits, it
would be denied for lack of record support.

6

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persuasive, or even plausible; so long as the reason is
not inherently discriminatory, it suffices. Third, the
court must then determine whether the defendant has
carried his burden of proving purposeful
discrimination. This final step involves evaluating
the persuasiveness of the justification proffered by
the prosecutor, but the ultimate burden of persuasion
regarding racial motivation rests with, and never
shifts from, the opponent of the strike.
Rice v. Collins, 546 U.S. 333, 338 (2006) (quotations and citations omitted); see also Johnson v.
California, 545 U.S. 162, 168 (2005); Miller-El v. Dretke, 545 U.S. 231, 251-52 (2005).
On state habeas review, affidavits from both the trial prosecutors and defense counsel
provided insight into why the defense did not make a Batson objection. Cole’s trial attorneys
stated that “[a] Batson challenge would have been raised if purposeful discrimination in the State’s
exercise of a peremptory strike of a potential juror on the basis of race had been detected.” State
Habeas Record at 817-18. Cole’s defense attorneys explained that they “did not perceive that the
State used peremptory strikes on prospective jurors [Ms.] Robinson and [Ms.] Roberts on the basis
of their race,” and that they “believed that these jurors were struck by the State for race-neutral
reasons.” State Habeas Record at 813. The attorneys based this assessment on the “answers on
both the [jury panel] questionnaires and their testimony from the witness stand that these jurors
were struck by the State for race-neutral reasons.” State Habeas Record at 817-18.
The two prosecutors who handled jury selection stated that they “did not exercise a
peremptory strike against Robinson or Roberts, or any other juror, based on their race.” Both
prosecutors provided race-neutral reasons for striking each of the challenged jurors. Prosecutor
Anshu Mitchell stated that during Robinson’s voir dire, “it appeared that she was hesitant on all
the major issues dealing with the death penalty and sentencing someone to death.” State Habeas
Record at 572. Prosecutor Tise, who conducted the voir dire, “found [Robinson] to be hesitant in
both her answers and her demeanor particularly on her thoughts of assessing the death penalty.”
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State Habeas Record at 566. Ms. Tise identified four specific instances in the record that
“underscored [Robinson’s] hesitation.” State Habeas Record at 566-67. Most importantly, the
prosecutors expressed “concerns with [Robinson’s] feelings on premeditation and felt that she had
disqualified herself on that issue.” State Habeas Record at 572. Even after efforts to rehabilitate
Robinson on that issue, the prosecutors still had reservations “about her overall hesitation.” State
Habeas Record at 572. Robinson related that “she had a close friend, who she referred to as
‘someone more like a sister,’ under federal indictment for Medicare fraud and she felt like her
friend was wrongfully accused.” State Habeas Record at 784. The prosecution had continuing
concerns about Ms. Robinson. Ms. Tise worried that “Robinson would not under any circumstance
answer the special issues so that death would result.” State Habeas Record at 572. “In the end[,] I
believed Ms. Robinson’s hesitation and demeanor indicated to me that coupled with her emotional
feelings on the death penalty and her desire to be with her close friend during her upcoming trial,
she would have difficulty answering the special issues so that death would result—regardless of
her assurance that she could.” State Habeas Record at 567.
The prosecutors’ explanation for striking Ms. Roberts focused directly on her demeanor.
Ms. Tise explained:
During my voir dire of Roberts I felt she was very
defensive.
Her juror questionnaire showed
conflicting and inconsistent statements and when I
attempted to inquire about those inconsistencies she
became argumentative. My overall impression of
Roberts was that she was saying what needed to be
said and was hesitant in being truthful with her
feelings on the issue of the death penalty and in
particular the special issues. The record reflects that
Roberts was so agitated that the trial court excused
Roberts in the middle of my voir dire and asked
either side if they would like to continue the voir dire
of this juror.

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State Habeas Record at 598. Ms. Mitchell agreed. “Regarding Roberts[,] I felt she became more
argumentative and frustrated with Ms. Tise particularly when questioned about inconsistencies
between her juror questionnaire and voir dire answers. Roberts[’] ‘demeanor with Ms. Tise
suggested to me that she was unhappy being questioned.” State Habeas Record at 572. According
to Ms. Mitchell, “[t]he combination of Ms. Roberts’[s] apparent problems explaining her
inconsistent answers on her juror questionnaire, her overall argumentative demeanor when I
questioned her, and her seeming inability to be honest with how she truly felt about the death
penalty[,] i.e. her only saying what she thought we all wanted to hear, all lead to my exercising a
strike against her.” State Habeas Record at 568.
The state habeas court found that Cole had “not made a prima facie showing that the State
struck a potential juror because of race.” State Habeas Record at 783. The state habeas court
analyzed the voir dire of both challenged prospective jurors. The court explicitly found the
prosecutors’ affidavits credible on the reasons for striking Ms. Robinson. State Habeas Record at
785. The state habeas court noted that Ms. Robinson “was particularly emotional regarding the
subject matter of the death penalty,” that she “struggled” with concepts, “paused a long time”
before giving some answers, and even “agreed with the prosecutor in understanding why the State
might have some concerns about her and her ability to serve as a fair and impartial juror in this
case.” State Habeas Record at 782, 784. The court also noted that Robinson hesitated she was
told that she could not use a “proof beyond all doubt” standard. State Habeas Record at 784.
The state habeas court made detailed findings on the reasons for striking Ms. Roberts as
well. The court noted that, when questioned about inconsistencies,
[Ms.] Roberts almost immediately became
argumentative and frustrated and said that she was
probably exhausted by the time she got to page nine
and maybe did not fully understand the question
regarding her feelings on capital punishment;
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moreover, the records reflect that Roberts became so
agitated, confused, and inconsistent regarding her
juror questionnaire that the trial court sent Roberts
out to the hall with her questionnaire during voir dire,
called the attorneys up to the bench, and asked,
“Does either side want this woman?” (XI R.R. at 9,
15).
State Habeas Record at 786. The state habeas court found the prosecutors’ affidavits credible,
particular because of their concerns about her argumentative demeanor. State Habeas Record at
786.
Cole’s habeas application also emphasized a comparative analysis between those two
prospective jurors and the others. Cole argued that the stricken jurors’ responses “are favorable
and nearly indistinguishable from those of venire members accepted by the State.” (Docket Entry
No 58 at 101). The state habeas court specifically addressed Cole’s juror comparison analysis.
State Habeas Record at 787-89. The state habeas court found “that a comparative analysis of the
prospective jurors struck by the State and other jurors named by [Cole] shows no purposeful
discrimination.” State Habeas Record at 790. Additionally, the state habeas court found that,
“based on the credible affidavits of Tise and Mitchell[,] that the State’s strikes against Robinson
and Roberts were race-neutral.” State Habeas Record at 790.
The state habeas court concluded that, “[b]ased on the absence of a Batson challenge at
trial,” Cole “fail[ed] to make a prima facie showing that the State struck a potential juror based on
race, and, “[i]n the alternative,” that he “fail[ed] to show that the State lodged peremptory strikes
against prospective jurors [] Robinson or [] Roberts for reasons based on race”; and failed to “show
that the State’s strikes were not race-neutral.” State Habeas Record at 801. The state habeas court
found that a “comparative analysis of jurors shows that [Cole] fails to establish discrimination” or
“disparate treatment” between prospective jurors. State Habeas Record at 801-02. The court
concluded that Cole failed to show his “constitutional rights were violated by the State’s neutral
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strikes of prospective jurors Robinson and Roberts,” and failed “to show ineffective assistance of
trial counsel based on trial counsel not lodging a meritless Batson challenge.” State Habeas Record
at 802.
This court reviews the state court’s resolution of Cole’s Batson arguments under the double
deference of Strickland. The question before this court is not whether Cole has met the threepronged Batson test; the question is whether the state courts were reasonable in deciding whether
trial counsel was deficient in this aspect of jury selection.
Cole challenges the state habeas court’s comparative analysis as unreasonable and
criticizes the reliance on the prosecutors’ affidavits. (Docket Entry No. 58 at 112). Cole attempts
to link the actions in his case with a history of alleged discrimination in jury selection by Harris
County prosecutors. (Docket Entry No. 58 at 108-11). Cole, however, has not shown that the state
habeas court was unreasonable in its assessment of the law and facts. Cole has not shown that the
state habeas court unreasonably relied on the prosecutors’ opinions about the prospective jurors’
demeanor. The record supports the state habeas court. The record fails to show that the state
habeas court was unreasonable in finding that trial counsel provided constitutionally sufficient
representation during jury selection, and fails to show that the state court decision was contrary to,
or an unreasonable application of, federal law. See 28 U.S.C. § 2254(d)(1). This claim provides
no basis for relief.
G.

Failure to Object to Statements about the Automatic Review of Death
Sentences (Claim Six)

Cole argues that trial counsel provided deficient representation by not raising an objection
during voir dire based on Caldwell v. Mississippi, 472 U.S. 320 (1985). In Caldwell, the Supreme
Court held that “it is constitutionally impermissible to rest a death sentence on a determination
made by a sentencer who has been led to believe that the responsibility for determining the
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appropriateness of the defendant’s death sentence rests elsewhere.” Id. at 329; see also Dugger v.
Adams, 489 U.S. 401, 407 (1989) (a Caldwell violation occurs when a defendant shows that “the
remarks to the jury improperly described the role assigned to the jury by local law”). In Caldwell,
the prosecutor had urged jurors that, because the state supreme court would review any appeal,
they should not view themselves as the ones determining whether the defendant would die. The
Supreme Court found a constitutional violation because the prosecutor’s arguments minimized the
sentencing jury’s sense of responsibility for determining a death sentence.
Cole claims that the trial court made comments in voir dire that minimized the jury’s
responsibility.

The trial court told one panel of prospective jurors that “[i]f there is a death

sentence there is automatic review whether the defendant wants it or not. It’s automatically
reviewed if there is a death sentence in a capital case. Okay?” 7 RR 134. Cole argues that this
minimized the jury’s role in deciding the case, and he faults counsel for not objecting.
Cole did not raise this claim in his first state habeas petition. To raise it now, Cole must
show cause under Martinez and actual prejudice. The record fails to show that Cole’s habeas
attorney was deficient in not raising a Strickland claim based on an alleged Caldwell violation.
As an initial matter, the Texas Court of Criminal Appeals has not extended Caldwell to
remarks made during voir dire. See Sattiewhite v. State, 786 S.W.2d 271, 282 (Tex. Crim. App.
1989); see also Miniel v. Cockrell, 339 F.3d 331, 344 (5th Cir. 2003) (a Caldwell violation during
voir dire was not likely to affect sentencing). Cole has not shown that a reasonable attorney would
raise a claim that is not favored under state law.
A Caldwell violation requires showing that the jury is provided an incorrect
characterization of its role under applicable law. See Adams, 489 U.S. at 407. There is no Caldwell
violation when a jury is correctly informed about its duty. See Caldwell, 472 U.S. at 328-39;
Sawyer v. Butler, 881 F.2d 1273, 1282 (5th Cir. 1989) (“The evil of Caldwell-type prosecutorial
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arguments is not that they divest juries of their responsibility, but rather that they distort the jury's
understanding of a power which it in fact retains.”), aff’d sub. nom., Sawyer v. Smith, 497 U.S. 227
(1990). Cole does not, and could not, argue that the trial court incorrectly stated Texas law. Article
37.071 § 2(h) of the Texas Code of Criminal Procedure states that “[t]he judgment of conviction
and sentence of death shall be subject to automatic review by the Court of Criminal Appeals.” See
also Adams, 489 U.S. at 407 (1989) (a defendant must “show that the remarks to the jury
improperly described the role assigned to the jury by local law” to establish a Caldwell violation).
The trial court correctly told the jury that the Texas Court of Criminal Appeals automatically
reviews all death sentences. The record does not show that a habeas attorney could have
reasonably believed—or that habeas counsel did believe—that a successful Caldwell claim could
be raised, because the trial court gave the jury a correct description of the Texas law.
A habeas court evaluates a Caldwell claim by looking to the “‘total trial scene,’ including
jury selection, the guilt phase of trial, and the sentencing hearing, examining both the court’s
instructions and counsel’s argument to the jury.” Montoya v. Scott, 65 F.3d 405, 420 (5th Cir.
1995) (quoting Sawyer v. Butler, 881 F.2d 1273, 1286-87 (5th Cir. 1989)). Cole has not alleged
that the trial judge made other incorrect statements during the trial. The court and counsel for both
the prosecution and defense repeatedly provided jurors a correct understanding of their roles in
determining Cole’s sentence. The jury instructions accurately stated the jury’s role in deciding
whether Cole would receive a life sentence. See Cotton v. Cockrell, 343 F.3d 746, 755 (5th Cir.
2003) (there was no prejudice when “[t]hroughout voir dire and during closing arguments the court
and counsel repeatedly informed the jury that whether [the defendant] received a death sentence
would be based on the jury’s answers to the special issues submitted to them at the end of the
punishment phase of the trial”).

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The record does not show that Cole’s habeas counsel should have raised a Caldwell claim
or that, if he had, the state habeas court would have granted relief. The court finds that Cole has
not overcome the procedural bar of this claim, and that, if this court considered the Strickland
claim on the merits, it would fail.
The record does not provide a basis for relief on this ground.
II.

Jury Deliberations (Claim Seven)
In his seventh ground for relief, Cole argues that extraneous evidence infected the jury’s

deliberations. Cole relies on an affidavit from one juror stating that, during deliberations, she
considered the fact that Cole would receive an automatic appeal if sentenced to death. Cole argues
that a juror’s use of extraneous information to determine his sentence violated his Sixth
Amendment right to a fair trial.
Cole raised this claim on state habeas review. The Texas Court of Criminal Appeals found
that it “may not consider the juror’s affidavit under Rule 606(b) of the Texas Rules of Evidence”
and, “without more, [the] claim[] ha[d] no merit.” Cole, 2017 WL 562725, at *1. Texas law bars
review of juror deliberations in postverdict proceedings. Texas Rule of Evidence 606(b)(1) states:
During an inquiry into the validity of a verdict . . ., a
juror may not testify about any statement made or
incident that occurred during the jury’s deliberations;
the effect of anything on that juror’s or another
juror’s vote; or any juror’s mental processes
concerning the verdict or indictment. The court may
not receive a juror’s affidavit or evidence of a juror’s
statement on these matters.
Tex. R. Evid. 606(b)(1).
The Fifth Circuit has similarly held that a federal habeas court may not probe a jury’s
deliberative process. Because Rule 606(b) of the Federal Rules of Civil Procedure and the Texas
Rules of Civil Procedure “bar all juror testimony concerning the juror’s subjective thought
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process,” Salazar v. Dretke, 419 F.3d 384, 402 (5th Cir. 2005), the Fifth Circuit has stated that the
“post-verdict inquiry of jury members, as live witnesses or by affidavit, is inappropriate and
precluded . . . .” Williams v. Collins, 16 F.3d 626, 636 (5th Cir. 1994).
Even considering the substance of the juror’s affidavit, the state habeas court found that
she “did not assert anything that would be considered outside influence constituting jury
misconduct.” State Habeas Record at 769. Texas law considers an “outside influence” to be
“something originating from a source outside of the jury room and other than from the jurors
themselves.” McQuarrie v. State, 380 S.W.3d 145, 154 (Tex. Code App. 2012). Cole has not
shown that a juror’s correct understanding of Texas law may be an improper outside influence on
deliberation.
Cole does not show what in the record provides admissible evidence of an improper
extraneous influence on the jury’s deliberative process. The state habeas court’s application of
Rule 606(b) was not contrary to, or an unreasonable application of, clearly established law as
determined by the Supreme Court. This claim is denied.
III.

Jury Instructions on the 10-12 Rule (Claim Eight)
Cole’s eighth claim argues that the Texas capital sentencing instructions confused jurors

by not informing them that a single juror’s vote could result in a life sentence. The jury answered
two questions in the penalty phase: (1) will the defendant be a future danger to society; and (2) do
sufficient circumstances mitigate against a death sentence? See Tex. Crim. Code art. 37.071 §
2(b). The Texas statute requires jurors to answer the future-dangerousness issue first. See id. at §
2(d). In a provision called the “10-12” or “12-10” Rule, the statute requires instructing the the jury
that an affirmative answer to the future-dangerousness issue must be unanimous and the jury “may
not answer any issue ‘no’ unless 10 or more jurors agree.” See id. at § 2(d)(2). Under the statute,
“if the jury returns an affirmative finding” on the future-dangerousness issue, then jurors must
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consider whether mitigating circumstances provide for a life sentence. See id. at § 2(e)(1). A “no”
answer on the mitigation question requires unanimity, but a “yes” answer requires only 10 votes.
See id. at § 2(f).7 An answer resulting in a death sentence must be unanimous, but an answer that
would result in a life sentence requires only ten votes.
Texas law specifies that if the jurors are “unable to answer any issue . . . the court shall
sentence the defendant to confinement in the institutional division of the Texas Department of
Criminal Justice for life imprisonment without parole.” Id. at § 2(g). A life sentence results when
jurors cannot reach the required number of votes on answers that would result in a death sentence.
Texas law, however, forbids the court or counsel from informing the jury “of the effect of a failure
of a jury to agree” on the special issues. Id. § 2(a)(1). Cole argues that Texas’ sentencing
instructions confuse jurors.
Inmates have repeatedly challenged the 10-12 Rule in both state and federal courts,
generally alleging that “that the failure to explain to the jury important elements of the sentencing
scheme creates an intolerable risk of confusing the jury.” Druery v. Thaler, 647 F.3d 535, 544
(5th Cir. 2011). On state habeas review, the Court of Criminal Appeals rejected this claim, noting
that it had “repeatedly upheld the ‘10-12 Rule’ as constitutional.” Cole, 2017 WL 562725, at *1
(citing Leza v. State, 351 S.W.3d 344, 362 (Tex. Crim. App. 2011) and Russeau v. State, 171
S.W.3d 871, 886 (Tex. Crim. App. 2005)). The Fifth Circuit has similarly repeatedly denied 1012 Rule claims. See Allen v. Stephens, 805 F.3d 617, 632 (5th Cir. 2015); Holiday v. Stephens,
587 F. App’x 767, 789 (5th Cir. 2014); Reed v. Stephens, 739 F.3d 753, 779 (5th Cir. 2014); Parr

Jurors do not need unanimity to find that mitigating circumstances support a life sentence. Because
the Constitution requires that jurors be able to consider mitigating evidence, see Lockett v. Ohio, 438 U.S.
586, 604 (1978), the Supreme Court in Mills v. Maryland, 486 U.S. 367, 384 (1988), prohibited sentencing
instructions that preclude jurors “from considering any mitigating evidence unless all 12 jurors agreed on
the existence of a particular such circumstance.” Smith v. Spisak, 558 U.S. 139, 148 (2010); Beard v. Banks,
542 U.S. 406, 408 (2004); McKoy v. North Carolina, 494 U.S. 433, 439-40 (1990).
7

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v. Thaler, 481 F. App’x 872, 878 (5th Cir. 2012); Druery, 647 F.3d at 542-43; Greer v. Thaler,
380 F. App’x 373, 389 (5th Cir. 2010).
Cole attempts to distinguish his case from the overwhelming precedent by relying on an
affidavit from a juror stating that she would have voted for a life sentence but believed that she
would have to get nine other jurors to agree with her. The Court of Criminal Appeals held that it
could “not consider the juror’s affidavit under Rule 606(b) of the Texas Rules of Evidence.” Cole,
2017 WL 562725, at *1. Like the state courts, federal courts “will not inquire into the jury’s
deliberative process absent a showing of external influences on the jurors.” Greer v. Thaler, 380
F. App’x 373, 382 (5th Cir. 2010); see also Williams v. Collins, 16 F.3d 626, 636 (5th Cir. 1994)
(finding that the “post-verdict inquiry of jury members, as live witnesses or by affidavit, is
inappropriate and precluded by Federal Rules of Evidence 606(b)”). Cole’s reliance on the juror’s
affidavit does not change the settled law on his claim.
With the overwhelming precedent against Cole’s arguments, and the lack of evidence
showing improper influences on the deliberative process, the court finds that Cole has not shown
that the state court’s adjudication was contrary to, or an unreasonable application of, federal law.
See 28 U.S.C. § 2254(d)(1). There is no basis for relief on this claim.
IV.

Admission of Cole’s Statements (Claim Nine)
The State introduced and relied on statements Cole made to law enforcement officers after

his arrest.8 Late on the evening of the murders, police officers arrested Cole in a Wal-Mart in
Wharton County after he had purchased 100 rounds of ammunition. Cole was taken before a
magistrate in Wharton County and informed of his constitutional rights. Cole subsequently made
statements to police officers in Wharton County. A few hours later, police transported Cole to

The court takes the facts in this section from the record of the state suppression hearing, the trial
transcript, and the relevant state court opinions.

8

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Harris County, where Cole gave a videotaped statement in which he described the killings. Cole
insisted that he had not planned any of the violence.
Trial counsel moved to suppress Cole’s statements before trial.9 The trial court suppressed
some of the statements Cole had made in Wharton County, but admitted his other statements.
Cole’s federal petition argues that “the admission of petitioner’s statements violated his Fifth,
Sixth, and Fourteenth Amendment rights.” (Docket Entry No. 58 at 135). Cole first argues that
he did not validly waive his right to counsel before making his statement in Wharton County.
Second, Cole argues that the Houston police officers failed to honor the invocation of his right to
remain silent which he made in Wharton County. Finally, Cole contends that the Houston police
officers ignored his right to counsel at the outset of their interrogation. The state habeas court
rejected these arguments.
A.

Waiver of Counsel in Wharton County

Cole argues that he did not validly waive his right to counsel before making his statement
to police officers in Wharton County, where he was arrested. The police officer who arrested Cole
did not immediately deliver the Miranda warnings. Cole appeared before a Wharton County
justice of the peace in the early morning hours. 14 RR 52, 54. The justice of the peace informed
Cole of his rights and warned him about the consequences of waiving them. Cole signed a written
waiver. Cole claims that the warnings caused him to make an invalid waiver of his right to counsel.
Testimony in the suppression hearing indicated that, when going over the written forms
with Cole, the justice of the peace “show[ed] him where to initial not requesting an attorney, since

Trial counsel based the suppression arguments on three theories: (1) when the first magistrate judge
informed Cole of his rights, the judge told Cole that no attorney would be appointed for him in Wharton
County because the crime occurred in Harris County; (2) the Houston Police Department officers did not
scrupulously honor Cole’s right to silence while initially interrogating him in Wharton County; and (3) the
Houston Police Department officers did not scrupulously honor his invocation of the right to counsel when
interrogating him in Harris County.

9

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he was going into another county, and where to sign.” 14 RR 62. The justice of the peace
explained “that if [Cole] requested an attorney to be appointed, it would have to be in Harris
County,” and “asked him to sign that he understood and to initial that Wharton County would not
be appointing an attorney for him.” 14 RR 69-70. The justice of the peace testified that she “would
have told him . . . he would have to request an attorney in Harris County” because “the offenses
didn’t happen in Wharton County . . . .” 14 RR 70, 75.
Police officers were present during the hearing and then took Cole to a separate room for
interrogation. Houston Police Department Sergeant Roger Chappell informed Cole of his rights.
Cole appeared to understand the warnings. Cole did not ask for a lawyer.
A suspect waiving his right to counsel must do so “with a full awareness of both the nature
of the right being abandoned and the consequences of the decision to abandon it.” Moran v.
Burbine, 475 U.S. 412, 421 (1986). Cole contends that the justice of the peace signaled that he
“did not have an effective right to counsel as long as he was in Wharton County.” (Docket Entry
No. 58 at 138). Cole argues that the police officers “went through the motions of advising Mr.
Cole that he had a right to counsel,” but their warnings were “meaningless, since Mr. Cole had just
been advised in the officers’ presence that he actually had no right to counsel in Wharton County.”
(Docket Entry No. 58 at 138-39) (citation omitted). He argues that the justice of the peace “advised
Mr. Cole that he could request counsel once he arrived in Harris County, and that is exactly what
he did.” (Docket Entry No. 58 at 139) (citation omitted). Cole contends that a reasonable person
would not have understood that a lawyer was available before the interrogation began in Wharton
County.
Cole raised this claim on appeal. The Court of Criminal Appeals took issue with Cole’s
“characterization of the magistrate’s statements regarding the appointment of counsel in Wharton
County.” Cole, 2014 WL 2807710, at *19. The Court of Criminal Appeals found that the justice
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of the peace did not discourage Cole from exerting his right to counsel. Instead, “[t]he record
supports a finding that the magistrate simply and accurately stated an administrative fact: should
[Cole] request it, Harris County, rather than Wharton County, would handle the appointment of
counsel.” Id.
The Court of Criminal Appeals explained:
[Cole] was essentially in the same situation as a
defendant who is arrested after a roadside stop and
read his Miranda rights. The Fifth Amendment does
not require police to have, in tow, lawyers who are
ready to be appointed at a moment’s notice to assist
such defendants. See Davis v. United States, 512
U.S. 452, 460[ ] (1994) (“In Miranda itself, we
expressly rejected the suggestion ‘that each police
station must have a “station house lawyer” present at
all times to advise prisoners,’ and held instead that a
suspect must be told of his right to have an attorney
present and that he may not be questioned after
invoking his right to counsel.”) (internal citation
omitted). “[T]he primary protection afforded
suspects subject to custodial interrogation is the
Miranda warnings themselves. ‘Full comprehension
of the rights to remain silent and request an attorney
[is] sufficient to dispel whatever coercion is inherent
in the interrogation process.’” Id. (quoting Burbine,
475 U.S. at 427). Nor does the Constitution require
immediate magistration. See County of Riverside v.
McLaughlin, 500 U.S. 44, 56, 111 S. Ct. 1661, 114
L.Ed.2d 49 (1991) (stating the general rule that
jurisdictions that provide judicial determinations of
probable cause within forty-eight hours of arrest
comply with the Fourth Amendment). What is
critical is the individual’s immediate ability to
invoke his Miranda rights upon being placed in
custody. The actual appointment of counsel—
assuming that it occurs within a constitutionally
reasonable time after the invocation of this right—is
of lesser importance.
At the very most, this record supports a finding that
there may have been some potential for confusion on
[Cole]’s part regarding his ability to obtain appointed
interrogation counsel in Wharton County. But it was
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entirely within the zone of reasonable disagreement
for the trial judge to find, as it implicitly did, that
[Cole] experienced no actual confusion. Defense
counsel argued that it was reasonable for [Cole] to
interpret the magistrate’s statement to mean that he
could not obtain appointed counsel in Wharton
County. However, [Cole] did not present any
evidence from any source that he was actually
confused by the magistrate’s statements. The record
is thus devoid of evidence that he was actually
confused by the magistrate’s statements and that, but
for them, he would have invoked his right to counsel
when [police officers] approached him.
Cole, 2014 WL 2807710, at 19-20.
Cole has not shown that the state court’s rejection of his claim was contrary to, or an
unreasonable application of, federal law. See 28 U.S.C. § 2254(d)(1). The record shows that Cole
presented no evidence in state court that he was confused about his right to legal representation,
either when informed of his rights by the justice of the peace or when interrogated by police
officers. At best, Cole shows that some confusion might have been possible because the justice of
the peace in Wharton County assured him that he could ask for and obtain legal representation
when he was taken to Harris County, and police officers questioned him while he was still in
Wharton County. Cole points to no record evidence that he was pressured, or felt pressured, to
give the police a statement in Wharton County, without legal representation, knowing that he
would be taken to Harris County and provided legal representation.
A court considering whether an inmate waived his right to counsel during custodial
interrogation looks at “what happens when the defendant is approached for interrogation, and (if
he consents) what happens during the interrogation—not what happened at any preliminary
hearing.” Montejo v. Louisiana, 556 U.S. 778, 797 (2009). The record does not show that Cole
failed to understand when told by police officers in Wharton County that he did not have to speak
with them without an attorney present. The testimony in state court indicated that he understood
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the warnings and made a valid waiver before speaking to police officers. The state court was
reasonable in finding that he made an informed and voluntary waiver of his right to counsel before
speaking with police officers in Wharton County.
B.

The Harris County Statement

When interrogated by police officers in Wharton County, Cole extensively talked about
not wanting his young son to testify against him. When police officers informed Cole that his son
would likely have to testify, Cole began crying and asked the officers to “just kill me now.” Cole
then said, “I don’t want to talk anymore.” The police questioning continued. The trial court
suppressed the remainder of the statement Cole made to the officers in Wharton County.
After the Wharton County interview ended, Cole was transported to Harris County.
Houston Police Department Officer Xavier Avila began interrogating Cole again about three hours
after he said, in Wharton County, that he did not want to talk anymore. The Houston Police Officer
began by reading Cole his rights again. When asked if wanted to waive his rights and voluntarily
talk about what happened, Cole said that he wanted an attorney appointed. Officer Avila told Cole
that the interview was over and left the room to turn off the video.
Office Avila turned the video back on 15 minutes later. In the suppression hearing, Officer
Avila testified about what happened in the 15 minutes between stopping and starting the video
recording. After turning the video off, Officer Avila returned to the interview room and told Cole
that he would be transported to the Harris County Jail, and that the Harris County District
Attorney’s Office would take over the case. Cole asked if his ten-year-old son would have to
testify. Officer Avila responded that the son’s testimony was a possibility. Cole then said that he
wanted to give a statement.
Officer Avila began recording again. On the tape, Cole acknowledged that he had
voluntarily changed his mind about speaking to the police without counsel. Cole said that he
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wanted to give a statement to explain what had happened. Cole then gave a videotaped statement
with specific details about how he committed the murders.
Trial counsel moved to suppress the statements Cole made in Harris County. The trial
court found that Cole had reinitiated discussion with the police and consented to the interrogation
and sentence after learning that his son might have to testify. The trial court also found that the
police fully informed Cole of his rights, that he understood and waived his rights, and that he made
his taped statement voluntarily and knowingly.10
Cole now raises two arguments relating to the admissibility of his Harris County statement.
First, Cole argues that the police violated his rights by continuing any interrogation, in both
Wharton and Harris Counties, after he said in Wharton County that he did not “want to talk
anymore.” Second, Cole argues that the trial court should not have admitted the statements that
followed Cole’s reinitiation of the interrogation by the police in Harris County.
1.

Cole’s Invocation of the Right to Silence in Wharton County

The police must “scrupulously honor” an inmate’s invocation of the right to remain silent.
Michigan v. Mosley, 423 U.S. 96, 104 (1975). Cole argues that the police in Wharton County
should have stopped questioning him after he said, “I don’t want to talk anymore,” and that the

10

The state habeas court summarized the facts leading up to Cole’s Harris County police statement:
When [Cole] arrived at HPD homicide, Officer Avila read
[Cole] his Miranda warnings, and [Cole] initialed each
warning indicating that he understood them (XVII R.R. at
164, 166-68). Initially, [Cole] said he wanted to talk to
Avila, then requested an attorney, at which time Avila
stopped the interview (XVfll R.R. at 171-73). After
expressing concern that [his young son] would be
required to testify against him, [Cole] re-initiated the
interview, waived his Miranda warnings, and described
in a recorded statement how he shot [the two victims]
(XVIII R.R. at l 7 l-73).

State Habeas Record at 761.
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police in Harris County should not have interrogated him at all because he had invoked his right
to silence in Wharton County.
The trial court suppressed the portion of Cole’s Wharton County statement that occurred
after he had said he did not want to continue talking, invoking his right to silence. The court
focuses on the Harris County statement. The Supreme Court’s decision in Michigan v. Mosley,
423 U.S. 96, 104 (1975) governs this claim. Mosely did not “iss[ue] a bright-line rule for
determining when police were scrupulous in honoring a suspect’s rights . . . .” Hebert v. Cain,
2005 WL 147260, at *2 (5th Cir. 2005). Whether the police “scrupulously honored” Cole’s rights
by taking his later statement “hinges on an unweighted, multifactor test.” Madrid v. Vannoy, 2018
WL 3968203, at *1 (5th Cir. 2018) (citing Mosley, 423 U.S. at 106; Charles v. Smith, 894 F.2d
718, 726 (5th Cir. 1990)). Courts have organized the Mosley factors into four categories:
(1) whether the suspect was advised prior to initial
interrogation that he was under no obligation to
answer question [sic]; (2) whether the suspect was
advised of his right to remain silent prior to the
reinterrogation; (3) the length of time between the
two interrogations; [and] (4) whether the second
interrogation was restricted to a crime that had not
been the subject of earlier interrogation . . . .
United States v. Alvarado-Saldivar, 62 F.3d 697, 699 (5th Cir. 1995) (citing Mosley, 423 U.S. at
104-05); see also Gutierrez v. Stephens, 590 F. App’x 371, 376 (5th Cir. 2014).11
The Court of Criminal Appeals applied Mosley to Cole’s constitutional arguments:
We may quickly dispose of the first, second, and
fourth Mosley factors. As [Cole] concedes and the
record reflects, he was advised of his right to remain
silent before both his Wharton and Harris County
interviews. Thus, Mosley’s first and second factors
weigh in favor of a finding that the officers

The Fifth Circuit has read Mosley to include a fifth factor, implicit in the third, that “the suspect
was advised prior to initial interrogation that he was under no obligation to answer question[s].” AlvaradoSaldivar, 62 F.3d at 699.

11

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scrupulously honored his right to silence. Because
the questioning by Sgts. Chappell and Bush in
Wharton County and by Officer Avila in Harris
County related to the same offense, we find that the
fourth Mosley factor weighs against a finding that
law enforcement scrupulously honored [Cole’s]
invocation of his right to silence.
Cole, 2014 WL 2807710, at *21. The Court of Criminal Appeals discussed the third Mosley factor,
“the length of time that passed between [the] initial questioning of [Cole] in Wharton County and
Officers Avila’s subsequent request to interview appellant in Harris County,” id., observing
The trial court found that roughly three hours passed
between these two events. [Cole] offered no contrary
evidence at the suppression hearing. We note that in
Mosley itself, “an interval of more than two hours”
passed between the initial and subsequent
questioning at issue. 423 U.S. at 104. Moreover, the
Supreme Court described this interval as “the
passage of a significant period of time.” Id. at 106.
Because the passage of almost three hours in [Cole’s]
case exceeds the “significant period of time” in
Mosley, the third Mosley factor weighs in favor of a
finding that law enforcement ‘scrupulously honored’
[his] right to cut off questioning.
Id. at *22.
The Court of Criminal Appeals resolution of the Mosley factors was not unreasonable. The
first two factors weigh in favor of admitting Cole’s statement: the police advised Cole of his rights
before the interrogations in both counties. The three hours between interrogations was longer than
the two-hour interval the court in Mosley found to be a significant passage of time. Mosely, 423
U.S. at 06; see also Hatley v. Lockhart, 990 F.3d 1070, 1074 (8th Cir. 1993). The fourth factor
weighed in Cole’s favor because the interrogations all involved the same crime. Looking at the
totality of the circumstances, the Court of Criminal Appeals reasonably found that the police
sufficiently respected Cole’s right to remain silent. Cole has not identified or cited clearly

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established Supreme Court precedent supporting his argument that the state court erred or was
unreasonable in its analysis. Cole has not shown a basis for relief under AEDPA on this claim.
2.

Cole’s Invocation of the Right to Counsel at the Beginning of the Harris
County Interrogation

Cole unambiguously invoked his right to counsel at the outset of the Harris County
interrogation. The law required the police then to cease all interrogation unless Cole reinitiated
the conversation. See Davis v. United States, 512 U.S. 452, 458 (1994) (“[I]f a suspect requests
counsel at any time during the interview, he is not subject to further questioning until a lawyer has
been made available or the suspect himself reinitiates conversation.”). The record developed in
state court showed that, after Cole invoked his right to counsel, Officer Avila ceased questioning,
left the room, and turned off the recorder.
Officer Avila testified in the suppression hearing that Cole reinitiated the conversation.
Officer Avila told Cole that he would be transferred to jail and that the District Attorney’s Office
would handle his case. Cole asked if his ten-year-old son would have to testify. After being told
that it was possible, Cole said that he had changed his mind and wanted to give a statement.
“Officer Avila, whom the trial court found to be a credible witness, asserted that this exchange
represented the entirety of the conversation that he had with [Cole] before restarting the
videotape.” Cole, 2014 WL 2807710, at *25.
Cole weakly challenges Officer Avila’s testimony because “[t]he only evidence of what
took place during that conversation comes from Officer Avila.” (Docket Entry No. 58 at 142).
Cole, however, has never presented any contrary evidence regarding what happened. The record
does not provide a basis to question or raise significant doubt as to the state court’s reliance on
Officer Avila’s testimony.

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Cole argues that Officer Avila “did not scrupulously honor Mr. Cole’s invocation of his
right to counsel” because he “took actions that could elicit an incriminating response.” (Docket
Entry No. 58 at 141). Cole argues that when Officer Avila told Cole that “he would be booked
into the jail, the District Attorney would be called, and formal charges would be filed,” these
statements were “likely to elicit incriminating responses[.]” (Docket Entry No. 58). The Court of
Criminal Appeals rejected Cole’s argument because these statements by Office Avila did not occur
during an interrogation of Cole.
“‘[I]nterrogation’ for Miranda purposes means express questioning or ‘its functional
equivalent’” including “[a]ny words or actions on the part of the police (other than those normally
attendant to arrest and custody) that the police should know are reasonably likely to elicit an
incriminating response from the suspect.” Cole, 2014 WL 2807710, at *24 (quoting Rhode Island
v. Innis, 446 U.S. 291, 300-01 (1980)). The Court of Criminal Appeals found that Officer Avila’s
statements about taking Cole to jail—as he described “the process, what was going to happen to
him”—were not ones that “could reasonably be expected to elicit an incriminating response.”
Cole, 2014 WL 2807710, at *24. Simply, “Officer Avila’s statement is akin to a question normally
attendant to arrest and custody, which is excluded from the self-incrimination privilege that the
Fifth Amendment protects.” Id. Cole has not pointed to record evidence or clearly established
Supreme Court precedent showing that those informational statements about procedure were an
interrogation or were likely to compel an incriminating response.
Simply, the Court of Criminal Appeals was not unreasonable in finding that Cole reinitiated
communication with the police. The record shows no basis to find a violation of Cole’s right to
counsel or to suppress the statement he gave to Officer Avila. The court denies relief on this claim.

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V.

The Jury’s Ability to Consider Mitigating Evidence (Claim Ten)
Cole argues that the Texas capital sentencing statute impaired the jury’s ability to consider

factors that would result in a life sentence. Jurors decide an inmate’s fate in the penalty phase of
a capital murder trial by answering whether sufficient mitigating circumstances warrant a life
sentence.

The Texas Criminal Procedure statute on capital sentencing defines “mitigating

evidence” as “evidence that a juror might regard as reducing the defendant’s moral
blameworthiness.” Tex. Code Crim. Pro. art. 37.071 § 2(f)(4).
In accordance with the statute, the trial court informed jurors that:
In answering Special Issue No.2 you shall consider
mitigating evidence to be evidence that a juror might
regard as reducing the defendant’s moral
blameworthiness, including evidence of the
defendant’s background character or the
circumstances of the offense that mitigates against
the imposition of the death penalty.
24 RR 8. The State reminded jurors that “mitigating means reduces his moral blameworthiness.”
24 RR 72.
Cole argues that the use of the term “moral blameworthiness” violates the Constitution by:
(1) precluding meaningful consideration of some mitigating evidence unrelated to that term; and
(2) creating an improper nexus between mitigating evidence and evidence connected to the crime
itself. (Docket Entry No. 58 at 146). Numerous capital inmates have raised similar arguments
before. Cole raised this claim on direct appeal. The Texas Court of Criminal Appeals relied on
prior law and found no error, either in the Texas definition of mitigating evidence generally or in
how the parties and court addressed the issue in this case. Cole, 2014 WL 2807710, at *37 (citing
Coble v. State, 330 S.W.3d 253, 296 (Tex. Crim. App. 2010)); Roberts v. State, 220 S.W.3d 521,
534 (Tex. Crim. App. 2007); Perry v. State, 158 S.W.3d 438, 449 (Tex. Crim. App. 2004)).

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Cole has not pointed to evidence or law showing that the state court decision was contrary
to, or an unreasonable application of, federal law. 28 U.S.C. § 2254(d)(1). The Fifth Circuit has
routinely held that the Texas definition of mitigating factors “encompasses ‘virtually any
mitigating evidence.’” Roach v. Quarterman, 220 F. App’x 270, 277 (5th Cir. 2007) (quoting
Beazley, 242 F.3d at 260). The Fifth Circuit has repeatedly rejected similar attacks on this
description of mitigating evidence. See Blue v. Thaler, 665 F.3d 647, 666 (5th Cir. 2011); Cantu
v. Quarterman, 341 F. App’x 55, 60-61 (5th Cir. 2009); Roach v. Quarterman, 220 F. App’x 270,
277 (5th Cir. 2007); Jackson v. Dretke, 181 F. App’x 400, 412-13 (5th Cir. 2006); O’Brien v.
Dretke, 156 F. App’x 724, 735-36 (5th Cir. 2005). The Supreme Court itself has used the term
“moral blameworthiness” as a way to describe what a jury considers in its mitigation inquiry. See
Schriro v. Landrigan, 550 U.S. 465, 499 (2007); South Carolina v. Gathers, 490 U.S. 805, 818
(1984). The Supreme Court has used the term to describe how a jury gives effect to good-character
evidence that is not “directly relevant” to the crime. Gathers, 490 U.S. at 818. “Far from rejecting
the current scheme regarding mitigation, . . . the Supreme Court implicitly endorsed it” in Penry
v. Johnson, 532 U.S. 782 (2001); see Oliver v. Quarterman, 254 F. App’x 381, 387 (5th Cir. 2007).
Given the precedent, the statute, and the instructions in this case, the court finds no basis for relief
on this claim.
VI.

Future Dangerousness (Claims Eleven, Twelve, and Thirteen)
Cole raises three challenges to the presentation and determination of his future

dangerousness. None meets the AEDPA standards for relief.
A.

Vagueness and Lack of Definition in Future Dangerousness Issue (Claim
Eleven)

Cole argues that the Texas special issue questions are unconstitutionally vague because
neither the statute nor the jury instructions define the terms “probability,” “criminal acts of
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violence,” or “continuing threat to society.” See Tex. Code Crim. Proc. art. 37.071 § 2(b)(1). The
Court of Criminal Appeals denied this claim on direct appeal, noting that it had “repeatedly
overruled such challenges.” Cole, 2014 WL 2807710, at *32. The Fifth Circuit has similarly
rejected this “far from novel” claim. Green v. Johnson, 160 F.3d 1029, 1043 (5th Cir. 1998);
Sprouse v. Stephens, 748 F.3d 609, 622-23 (5th Cir. 2014); Kerr v. Thaler, 384 F. App’x 400, 404
(5th Cir. 2010); Paredes v. Quarterman, 574 F.3d 281, 294 (5th Cir. 2009); Scheanette v.
Quarterman, 482 F.3d 815, 827-28 (5th Cir. 2007); Turner v. Quarterman, 481 F.3d 292, 299-300
(5th Cir. 2007); Leal v. Dretke, 428 F.3d 543, 553 (5th Cir. 2005); Rowell v. Dretke, 398 F.3d 370,
379 (5th Cir. 2005). Cole has not shown that the decision by the Texas Court of Criminal Appeals
to deny this claim was contrary to, or an unreasonable application of, federal law. See 28 U.S.C.
§ 2254(d)(1).
B.

Burden of Proof (Claim Twelve)

In his twelfth claim, Cole argues that the specific language of the future dangerousness
special issue lowers the prosecution’s burden below the beyond-a-reasonable-doubt standard. The
Texas statute states that the jury may not answer “yes” unless it unanimously agrees that the
prosecution proved the issue beyond a reasonable doubt. Tex. Code Crim. Pro. art. 37.071 §
2(c),(d). Cole argues that “[b]ecause jurors are permitted to sentence a defendant to death on an
affirmative finding of a ‘probability of future dangerousness,’ the statute shifts the State’s burden
of proof from ‘beyond a reasonable doubt’ to a ‘probability.’” (Docket Entry No. 58 at 152).
Cole bases his arguments on Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). In
Apprendi, the Supreme Court held that “any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” The Supreme Court extended Apprendi to capital cases in Ring v. Arizona, 536 U.S. 584
(2002). Cole argues that the future-dangerousness issue violates Apprendi by asking whether there
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is “a probability that the defendant will commit future acts of violence,” rather than holding the
State’s burden to the beyond-a-reasonable-doubt standard.
The Fifth Circuit has rejected the argument that the language of the future dangerousness
issue runs afoul of Apprendi. In Rowell v. Dretke, 398 F.3d 370, 379 (5th Cir. 2005), the Fifth
Circuit held:
Texas’s use of special issue no. 1 in the punishment
phase of Rowell’s capital case, which required the
jury to answer “yes” only if the State had proven
“beyond a reasonable doubt that there is a probability
that [Rowell] would commit criminal acts of
violence that would constitute a continuing threat to
society,” does not ‘violate Blakely, Apprendi, or
Ring. Accepting Rowell’s argument that special
issue no. 1 is unconstitutional because the term
“probability” swallows the reasonable doubt
standard under an extension of Apprendi and Ring by
Blakely would be a violation of Teague [v. Lane].
Rowell v. Dretke, 398 F.3d 370, 379 (5th Cir. 2005).
Apprendi does not make the use of the term “probability” in the future dangerousness issue
unconstitutional. See id. This court could not grant relief on Cole’s Apprendi-based claim without
creating a new rule of constitutional law, in violation of Teague v. Lane, 489 U.S. 288 (1989).
There is no basis for relief on this ground.
C.

Evidence of Crimes Committed by Other Defendants (Claim Thirteen)

In his thirteenth claim, Cole argues that the State violated his Eighth and Fourteenth
Amendment rights by presenting punishment phase testimony about violent acts committed by
other inmates. The prosecution based its penalty-phase case on showing that the prison setting
would not keep Cole from violent acts. The prosecution supported this argument with information
about the rates of violence in TDCJ prisons. The prosecution also questioned the defense expert

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witness Frank Aubuchon, the former Texas corrections officer, who testified about a report
containing data on offenses committed by Texas inmates.
In rejecting this claim on direct appeal, the Texas Court of Criminal Appeals stated that
“[t]he trial court did not permit the state to question Aubuchon regarding specific incidents of
conduct by other inmates, nor did it allow the state to suggest that [Cole] was responsible for any
of the incidents reflected in the . . . report.” Cole, 2014 WL 2807710, at *31. Cole states in his
habeas petition that “the prosecution presented evidence that in August 2011, two months before
Mr. Cole’s trial, 1,760 serious or unusual incidents occurred within the entire TDCJ prison
system.” (Docket Entry No. 58 at 154). The prosecution explained that these offenses included
weapon offenses, sexual assaults, attacks on staff, and other violent acts. The prosecution told
jurors that 12,550 serious or unusual incidents had occurred in Texas prisons during the previous
year. The prosecution relied on that evidence to argue that Cole’s future violence could extend
into the prison setting. Cole now argues that “[t]he prosecution’s presentation of evidence and
argument about the misdeeds of other inmates who were unrelated to Mr. Cole to support the future
dangerousness aggravator violated his Eighth and Fourteenth Amendment rights.” (Docket Entry
No. 58 at 155).
1.

Exhaustion of State Court Remedies

The respondent first urges that Cole has not exhausted this claim because his argument—
“that his Eighth and Fourteenth Amendment rights were violated when, in support of Cole’s futuredangerousness, evidence was presented to the jury of the violence within TDCJ prison units”—
was not part of his previously raised claims. (Docket Entry No. 67 at 104). Cole correctly observes
that, in both federal and state court, his claims have relied on the Eighth and Fourteenth
Amendments. (Docket Entry No. 82 at 4; see also Docket Entry No. 6, Exhibit 37 at 87). In state
court, Cole focused on Supreme Court precedent addressing individualized sentencings. Cole now
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argues that the challenged testimony “fail[ed] to narrow the class of death-eligible defendants.”
(Docket Entry No. 58 at 155). Cole’s change in argument has made his claim unexhausted.
Because Cole presumably could not raise the claim again in state court, his federal claim is
procedurally barred, and Cole has not shown a basis to overcome the bar. The court nonetheless
also addresses the merits of the claim.
2.

The Merits

Alternatively, the court finds that Cole’s argument lacks merit. As an initial matter, the
court observes that the challenged testimony does not differ in some ways from that which Cole
argued trial counsel should have presented through Dr. Cunningham—an assessment of an
inmate’s future violence based on what other inmates have done. Dr. Cunningham’s testimony
depends on analyzing the rates and risks of violence within the prison population and what prisoner
factors correlate to, or are indicators of, violence in prison. Like Dr. Cunningham’s affidavit, the
challenged testimony is based on the violent acts of other inmates. The challenged testimony
differs from Dr. Cunningham’s affidavit testimony in its conclusions, not in its reliance on the acts
of other inmates. Cole is now challenging the introduction of testimony similar to testimony that
he faults his trial counsel for not presenting.
The respondent argues that Aubuchon’s testimony was directly relevant to the jury’s job in
capital sentencing. “General testimony as to the number and types of disorderly and violent
incidents provides the jury with evidence to consider whether an individual who has been
convicted of capital murder will be capable of not posing a danger to others in the future—that is,
whether acts of violence may be instigated by him, or in response to others, in what may be
unstable conditions.” (Docket Entry No. 67 at 106). This court’s concern, however, is not whether
the information is relevant under Texas evidentiary law. The Texas courts have determined that
this type of general statistical evidence is relevant in a capital murder trial, to inform the jury’s
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assessment of whether a defendant would commit acts of violence in prison society.

See

Muhammad v. State, 2015 WL 6749922, at *32 (Tex. Crim. App. 2015); Lucero v. State, 246
S.W.3d 86, 97 (Tex. Crim. App. 2008); see also Milam v. Director, TDCJ-CID, 2017 WL
3537272, at *25 (E.D. Tex. 2017) (“The question of whether a defendant will pose a future danger
if given a life sentence, instead of death, is a basic issue that is raised in capital murder cases, and
the [Court of Criminal Appeals] has specifically found that testimony regarding the possibility of
violence in prison is relevant and admissible to the future dangerousness issue.”). The question is
whether the testimony violated Cole’s federal constitutional rights.
Cole has not identified established constitutional or federal law that would preclude the
State from putting before jurors factual information about prison misconduct to assess an inmate’s
likelihood of commiting violent acts. Cole only cites a Supreme Court case to support his
argument, Godfrey v. Georgia, 446 U.S. 420 (1980). In Godfrey, the Supreme Court found error
in evidence of an aggravating circumstance that was so broad that “a person of ordinary sensibility
could find that almost every murder fit the stated criteria.” 446 U.S at 428-29. The evidence at
issue was not similar to that challenged here. Godfrey did not address the evidence a jury could
consider in deciding a defendant’s sentence in an otherwise-constitutional sentencing system. The
claim provides no basis for relief on the merits.
VII.

The Allegedly Arbitrary Administration of Capital Punishment (Claim Fourteen)
In his fourteenth claim, Cole argues that both the State of Texas and Harris County have

engaged in a systemic pattern of discrimination in capital sentencing, based on geography and
race. Cole relies on studies reporting the differences between the use of capital punishment against
minorities in Texas and Harris County compared to other states and jurisdictions. Cole argues that
this arbitrariness and unfairness in capital prosecutions and sentences violates his constitutional
rights. The court finds that this claim is both procedurally barred from review and without merit.
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A.

Procedural Bar

Cole raised this claim on state habeas review. Both the state habeas trial court and the
Court of Criminal Appeals found the claim procedurally barred, although for different reasons.
The lower state habeas court barred this claim because trial counsel did not object at trial. State
Habeas Record at 805. The Court of Criminal Appeals refused to “review the merits of [that]
habeas claim[] because [Cole] failed to raise [it] on direct appeal.” Cole, 2017 WL 562725, at *2
(citing Ex parte Nelson, 137 S.W.3d 666, 667 (Tex. Crim. App. 2004), and Ex parte Goodman,
816 S.W.2d 383, 385 (Tex. Crim. App. 1991)). The respondent argues that the Court of Criminal
Appeals decision bars federal habeas review.
Cole disputes whether the Court of Criminal Appeals procedural determination is an
adequate basis to bar federal review. “Texas courts have long held that ‘the writ of habeas corpus
should not be used to litigate matters which should have been raised on direct appeal.’” Buntion
v. Lumpkin, 982 F.3d 945, 951 (5th Cir. 2020) (quoting Nelson, 137 S.W.3d at 667). The Fifth
Circuit has held that the Texas direct appeal requirement “sets forth an adequate state ground
capable of barring federal habeas review.” Dorsey v. Quarterman, 494 F.3d 527, 532 (5th Cir.
2007); see also Buntion, 982 F.3d at 951; Luna v. Davis, 793 F. Appx 229, 233 (5th Cir. 2019);
Aguilar v. Dretke, 428 F.3d 526, 535 (5th Cir. 2005); cf. Sanchez-Llamas v. Oregon, 548 U.S. 331,
350-51 (2006) (“The general rule . . . that a defendant who fails to raise a claim on direct appeal is
barred from raising the claim on collateral review . . . constitute[s] an adequate and independent
state-law ground preventing us from reviewing the federal claim.”).
The record shows no basis to find either cause or actual prejudice to overcome the
procedural bar of this claim. Cole’s default of this claim bars federal habeas review of its merits.

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B.

The Merits

Alternatively, the court finds that this claim lacks merit. The Constitution requires
“eliminating total arbitrariness and capriciousness in” imposing a death sentence. Proffitt v.
Florida, 428 U.S. 242, 258 (1976); see also Gregg v. Georgia, 428 U.S. 153 (1976); Furman v.
Georgia, 408 U.S. 238 (1972). The Constitution does not require uniformity in all features of
capital sentencing. The Constitution tolerates discretion at various stages of the capital punishment
process: “the prosecutor’s decision whether to charge a capital offense in the first place, his
decision whether to accept a plea to a lesser offense, the jury’s consideration of lesser included
offenses, and, after conviction and unsuccessful appeal, the Executive’s decision whether to
commute a death sentence.” Proffitt, 428 U.S. at 254. This discretion does not “render[] the capital
sentences imposed arbitrary and capricious.” McCleskey v. Kemp, 481 U.S. 279, 307 (1987)
(quoting Gregg, 428 U.S. at 199); see also Spinkellink v. Wainwright, 578 F.2d 582, 608 (5th Cir.
1978); Proffitt, 428 U.S. at 254. To obtain relief on this ground, a defendant sentenced to death
must show that the discretion was “deliberately based upon an unjustifiable standard such as race,
religion, or other arbitrary classification[.]” Wayte v. United States, 470 U.S. 598, 608 (1985)
(quotations omitted); see also United States v. Armstrong, 517 U.S. 456, 465 (1996).
The Fifth Circuit has rejected similar constitutional challenges, stating as follows:
Texas’s capital-sentencing regime focuses the
decision to impose the death penalty on the
circumstances of the crime and the characteristics of
the defendant. Moreover, the Supreme Court has
specifically held that, “absent a showing that [a]
capital punishment system operates in an arbitrary
and capricious manner, [a defendant] cannot prove a
constitutional violation by demonstrating that other
defendants who may be similarly situated
did not receive
the
death
penalty,”
and
“opportunities for discretionary leniency [do not
render] the capital sentences imposed arbitrary and
capricious.” McCleskey, 481 U.S. at 306-07, 107 S.
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Ct. 1756. The court in McCleskey further noted that
“[n]umerous legitimate factors may influence the
outcome of a trial and a defendant’s ultimate
sentence, even though they may be irrelevant to his
actual guilt”; for example, “[t]he capability of the
responsible law enforcement agency can vary
widely.” Id. at 307 n. 28, 107 S. Ct. 1756.
Allen v. Stephens, 805 F.3d 617, 631 (5th Cir. 2015); abrogated on other grounds by Ayestas v.
Davis, 138 S. Ct. 1080 (2018). The Fifth Circuit has noted that “no Supreme Court case has held
that the Constitution prohibits geographically disparate application of the death penalty due to
varying resources across jurisdictions.” Allen, 805 F.3d at 629; see also United States v. Lightly,
616 F.3d 321, 370 (4th Cir. 2010) (recognizing “the amount of resources required to convict a
defendant” and “the extent of prosecutorial resources” as “legitimate prosecutorial factors that
would justify” the use of discretion); Jennings v. City of Stillwater, 383 F.3d 1199, 1214 (10th Cir.
2004) (noting “the optimal deployment of prosecutorial resources” as among the permissible “host
of variables” in deciding to prosecute).
Citing studies finding that certain racial groups are more likely than others to be sentenced
to death, Cole also claims that racism makes the Texas capital sentencing scheme arbitrary and
unconstitutional. The Supreme Court has held that a defendant claiming an equal protection
violation in a death penalty case must prove that prosecutors acted with a discriminatory purpose
in that defendant’s case. See McCleskey, 481 U.S. at 292; see also Lincecum v. Collins, 958 F.2d
1271, 1282 (5th Cir. 1992). “[T]o prevail under the Equal Protection Clause, [Cole] must prove
that the decisionmakers in his case acted with discriminatory purpose.” McCleskey, 481 U.S. at
292-93; see also Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 489 (1999)
(requiring “a criminal defendant to introduce ‘clear evidence’ displacing the presumption that a
prosecutor has acted lawfully.”). Cole “offers no evidence specific to his own case that would
support an inference that racial considerations played a part in his sentence.” McCleskey, 481 U.S.
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at 292-93. Cole’s alleged crimes easily fit the statutory requirements for capital murder. Nothing
suggests that the prosecutor in this case considered anything other than the severity of the crimes
in deciding the severity of the punishment to seek. Cole speculates that the relatively large amount
of resources in Harris County compared to other, smaller jurisdictions made it more likely that he
would be charged with capital murder because he was prosecuted in Harris County.
The record provides no support for finding that impermissible racial discrimination, rather
than a legitimate exercise of prosecutorial discretion, was the motivating factor in the State’s
decision to seek a sentence of death. There is no legal or factual support for his claim that Texas
arbitrarily sought his capital conviction and sentence. In addition to the procedural bar that
forecloses full review, the court alternatively finds that Cole’s thirteenth claim lacks merit.
VIII. Consequences of a Non-Unanimous Jury Verdict (Claim Fifteen)
For the first time on federal review, Cole argues that recent Supreme Court precedent
requires jury unanimity in answering the Texas special issues. During the period that this case
was stayed, from 2019 until early 2020, the United States Supreme Court decided Ramos v.
Louisiana, ___ U.S. ___, 140 S. Ct. 1390 (2020).12 The Ramos Court found “that the Sixth
Amendment, as incorporated against the states in the Fourteenth Amendment, requires a
unanimous verdict to convict a defendant of a serious offense.” In re Sharp, 969 F.3d 527, 528
(5th Cir. 2020). In 2020, Cole filed an amended federal petition, raised a new claim based on
Ramos. (Docket Entry No. 58). In reasoning that mirrors his 10-12 Rule claim, Cole argues that
the Texas capital-sentencing statute violates Ramos because it confusingly forces jurors into

After Cole submitted his federal petition in 2018, he moved to stay the federal proceedings to allow
the exhaustion of state court remedies on certain claims. (Docket Entry No. 35). The court subsequently
stayed and administratively closed this case to allow the exhaustion. (Docket Entry No. 49). After the
Texas Court of Criminal Appeals refused to permit the filing of a successive habeas application, Ex parte
Cole, 2020 WL 1542118 (Tex. Crim. App. 2020), this court reopened Cole’s federal proceeding (Docket
Entry No. 54).

12

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unanimity. (Docket Entry No. 58 at 165-84). This claim is neither exhausted in state court nor
persuasive in light of the Teague ban on retroactivity.
Beginning with the premise that “[a] necessary corollary to the unqualified right to a
unanimous jury verdict is that any procedures that unduly diminish this right are also
unconstitutional,” Cole argues that the Texas statute encourages jurors whose vote would result in
a life sentence to switch their vote because others did not agree with them. Cole looks beyond the
holding in Ramos to argue that “however benign the intent of the Texas legislature may have been
by ‘encouraging’ unanimity, it does not change the undeniable fact that the procedures impaired
[his] Sixth Amendment right to a unanimous jury by employing artificial, legally misleading, and
ultimately coercive means to achieve this end.” (Docket Entry No. 58 at 179). Cole’s argument
would extend Ramos to a case in which the sentencing statute had the potential to confuse, coerce,
or mislead jurors into arriving at a unanimous verdict.
Ramos does not directly apply to the Texas sentencing statute. Ramos held that “the Sixth
Amendment’s right to a jury trial requires a unanimous verdict to support a conviction . . . .”
Ramos, 140 S. Ct. at 1397. Cole has not identified precedent extending Ramos to sentencing. See
Ruiz v. Davis, 819 F. App’x 238, 246 n.9 (5th Cir. 2020) (emphasizing that Ramos requires
unanimity for a conviction but does not discuss sentencing); Woods v. Warden, Holman
Correctional Facility, 951 F.3d 1296, 1298 (11th Cir. 2020) (Ramos would not apply to
sentencing).
Even assuming that Ramos applies to the Texas capital sentencing statute, the Supreme
Court has recently “conclude[d] that the Ramos jury-unanimity rule . . . does not apply retroactively
on federal collateral review.” Edwards v. Vannoy, ___ U.S. ___, 141 S. Ct. 1547, 1552 (2021).13

The Supreme Court decided the Edwards case, which conclusively forecloses relief, before Cole
filed his reply to the summary judgment motion. Cole does not address the Edwards case in his reply.

13

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Ramos created a new rule of constitutional law that cannot apply to Cole’s federal habeas petition.
This claim is denied as unexhausted and barred by Teague’s nonretroactivity principle.
IX.

Cumulative Error (Claim Sixteen)
Cole contends that the cumulative effect of the errors requires habeas relief.

An

independent claim based on cumulative error is viable only when: “(1) the individual errors
involved matters of constitutional dimension rather than mere violations of state law; (2) the errors
were not procedurally defaulted for habeas purposes; and (3) the errors ‘so infected the entire trial
that the resulting conviction violates due process.’” Derden v. McNeel, 978 F.2d 1453, 1454 (5th
Cir. 1992) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). “Meritless claims or claims
that are not prejudicial cannot be cumulated, regardless of the total number raised.” Westley v.
Johnson, 83 F.3d 714, 726 (5th Cir. 1996); see also Mullen v. Blackburn, 808 F.2d 1143, 1147
(5th Cir. 1987) (“Twenty times zero equals zero.”).
Because Cole has not demonstrated an error of constitutional magnitude at his trial, he “has
presented nothing to cumulate.” Yohey v. Collins, 985 F.2d 222, 229 (5th Cir. 1993). Cole’s
cumulative-error claim is denied.
X.

PENDING MOTIONS
Two motions remain pending: Cole’s motion for discovery (Docket Entry No. 71), and for

another stay of these proceedings (Docket Entry No. 77). The court will deny both claims.
A.

Discovery

Cole moves for discovery that would support three of his claims. Specifically, Cole wants
to issue subpoenas to Texaco/Chevron to obtain evidence that would support his third claim by
showing that he grew up in an area polluted by neurotoxins in the 1970’s. Cole also wants to
support claim five with material including the prosecutors’ jury selection notes. Finally, Cole

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wants documents and materials from the Harris County District Attorney’s Office to prove in claim
fourteen that racism permeated his prosecution. (Docket Entry No. 71).
The law is “clear that there was no intention to extend to habeas corpus, as a matter of right,
the broad discovery provisions” available to other civil litigants. Harris v. Nelson, 394 U.S. 286,
295 (1969). Under Rule 6(a) of the Rules Governing Section 2254 Cases, an inmate must receive
leave of the court for discovery, which the court may authorize only “for good cause” and with
limits on the extent. The Supreme Court has linked the “good cause” clause of Rule 6(a) to an
inmate’s burden to show an entitlement to federal habeas relief, Bracy v. Gramley, 520 U.S. 899,
908-09 (1997).
The record shows no basis to find good cause for the discovery Cole seeks. Claims three
and fourteen are procedurally barred. Cole has not shown that the court can reach the merits of
those claims. A petitioner cannot show good cause for discovery on a claim in federal court if
procedural impediments preclude considering the merits of that claim. See Rucker v. Norris, 563
F.3d 766, 771 (8th Cir. 2009); Williams v. Bagley, 380 F.3d 932, 975 (6th Cir. 2004); Campbell v.
Dretke, 117 F. App’x 946, 959 (5th Cir. 2004); Royal v. Taylor, 188 F.3d 239, 249 (4th Cir. 1999);
Calderon, 144 F.3d at 621; In re Pruett, 133 F.3d 275, 277 n.1 (4th Cir. 1997); see also Thompson
v. Stephens, 2014 WL 2765666, at *2 (S.D. Tex. 2014) (“As a threshold matter, however, a court
must also take into account the procedural posture of an inmate’s claims. A petitioner cannot show
good cause if a federal court cannot reach the merits of the disputed claims.”). Cole has not shown
that factual development would likely help Cole overcome the procedural bar.
To the extent that Cole seeks discovery on the habeas claims he exhausted in state court,
the Supreme Court in Cullen v. Pinholster, 563 U.S. 170 (2011), held that a federal court’s AEDPA
review may look only at the facts developed in state court. Under Pinholster, new “evidence
introduced in federal court has no bearing on § 2254(d)(1) review . . . .” 563 U.S. at 185; see also
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Williams v. Thaler, 684 F.3d 597, 603 (5th Cir. 2012). Federal habeas courts have relied on
Pinholster to limit a petitioner’s ability to develop new facts in the federal habeas process,
including through discovery. See Soffar v. Stephens, 2014 WL 12642575, at *2 (S.D. Tex. 2014)
(“Presumably, good cause cannot exist for discovery that would result in evidence a court cannot
consider.”). Because Cole has not overcome section 2254(d)’s requirements, he is not entitled to
the discovery he seeks.
Nor has Cole shown that an evidentiary hearing is necessary to resolve his claims. Requests
for discovery “in habeas proceedings normally follow the granting of an evidentiary hearing . . . .”
Advisory Committee Notes to Rule 6. The record in this case was voluminous and detailed. The
court has been able to resolve Cole’s claims without discovery or an evidentiary hearing.
Because Cole is not entitled to an evidentiary hearing in this case, Supreme Court precedent
prevents the introduction of new facts for claims adjudicated on the merits, and Cole has not shown
that this court can reach the merits of his procedurally barred claims, the court denies Cole’s
request for discovery.
B.

The Motion to Stay

Cole asks this court to stay the case again while the Supreme Court decides Shinn v.
Ramirez, No. 20-1009, ___ S. Ct. ___, 2021 WL 1951793 (May 17, 2021) (Docket Entry No. 77).
In Shinn, the Supreme Court has granted review to decide whether “application of the equitable
rule this Court announced in Martinez v. Ryan render[s] 28 U.S.C. § 2254(e)(2) inapplicable to a
federal court’s merits review of a claim for habeas relief?” Shinn v. Ramirez, 2021 WL 294337
(Jan. 20, 2021).
Cole has not shown that a stay would be necessary. The Fifth Circuit has long shown
reluctance to stay capital cases based on the possibility of a change in Supreme Court precedent.
See Neville v. Johnson, 440 F.3d 221, 222 (5th Cir. 2006) (holding that Fifth Circuit precedent
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“remains binding until the Supreme Court provides contrary guidance”); Cantu v. Collins, 967
F.3d 1006, 1012 n.10 (5th Cir. 1992) (holding that “[t]he [Supreme] Court’s grant of certiorari in
a capital case does not cause us to deviate from circuit law, nor is it grounds for a stay of
execution”). And Martinez does not allow for consideration of any procedurally barred claim.
Any change in federal law on evidentiary development would not change the reasoning or result
in this court. Cole’s motion for a stay is denied.
XI. CERTIFICATE OF APPEALABILITY
Under AEDPA, a prisoner cannot seek appellate review from a lower court’s judgment
without receiving a Certificate of Appealability (“COA”). See 28 U.S.C. § 2253(c). Cole has not
yet requested that this court grant him a COA, though this court can consider the issue sua sponte.
See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000). “The COA statute establishes
procedural rules and requires a threshold inquiry into whether the circuit court may entertain an
appeal.” Slack v. McDaniel, 529 U.S. 473, 482 (2000). A court may only issue a COA when “the
applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2).
The Fifth Circuit holds that the severity of an inmate’s punishment, even a sentence of
death, “does not, in and of itself, require the issuance of a COA.” Clark v. Johnson, 202 F.3d 760,
764 (5th Cir. 2000). The Fifth Circuit anticipates that a federal habeas court will resolve any
questions about a certificate in the death-row inmate’s favor. See Hernandez v. Johnson, 213 F.3d
243, 248 (5th Cir. 2000). The Supreme Court has explained the standard for evaluating the
propriety of granting a certificate on claims rejected on their merits as follows: “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.” Slack, 529 U.S. at 484;
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Miller-El, 537 U.S. at 336-38. A district court that has denied habeas relief on procedural grounds
should issue a certificate of appealability only “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 ruling. Slack, 529 U.S. at 484; Miller-El, 537 U.S. at 336-38. If a prisoner
does not meet this standard, “no appeal would be warranted.” Slack, 529 U.S. at 484.
Cole’s petition was thorough and well presented. The issues he raised warranted, and
received, careful review. The results of that review, with the AEDPA standards and controlling
precedent, lead this court to determines that a certificate of appealability should not issue on any
of Cole’s claims.
XII.

CONCLUSION AND ORDER
The court grants the respondent’s motion for summary judgment, (Docket Entry No. 67),

and dismisses Cole’s petition for a writ of habeas corpus, with prejudice. A certificate of
appealability is not issued. The court denies all other pending motions.
SIGNED on September 7, 2021, at Houston, Texas.
_______________________________________
Lee H. Rosenthal
Chief United States District Judge

`

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