Executed April 25, 2013 6:27 p.m. CDT by Lethal Injection in Texas
9th murderer executed in U.S. in 2013
1329th murderer executed in U.S. since 1976
4th murderer executed in Texas in 2013
496th murderer executed in Texas since 1976
(Race/Sex/Age at Murder-Execution)
(Race/Sex/Age at Murder)
Richard Aaron Cobb
W / M / 18 - 29
|Kenneth Wayne Vandever
W / M / 24
Cobb v. State, Not Reported in S.W.3d, 2007 WL 274206 (Tex.Crim.App. 2007). (Direct Appeal)
Cobb v. Thaler, 682 F.3d 364 (5th Cir. 2012). (Federal Habeas)
Texas no longer offers a special "last meal" to condemned inmates. Instead, the inmate is offered the same meal served to the rest of the unit.
“Life is death, and death is life. I hope that someday this absurdity that humanity has come to will come to an end. Life is too short, life is too short, and I hope anyone that has negative energy towards me will resolve that." Minutes after the drug began coursing through his veins, Cobb’s head snapped off the gurney and said, "Wow. This is great. Thank you, warden.”
Texas Department of Criminal Justice - Executed Offenders
Richard Aaron Cobb
Date of Birth: 04/02/1984
Date Received: 01/23/2004
Education: 11 years
Date of Offense: 09/02/2002
County of Offense: Cherokee
Native County: Smith
Hair Color: Brown
Eye Color: Blue
Height: 5' 10"
Prior Prison Record: None
Summary of Incident: On 09/02/2002, in Cherokee County, Texas, Cobb and co-defendant, abducted three victims, a male and two females. Cobb and his codefendant fatally shot the male victim, sexually assaulted and shot the two female victims and left their bodies in a field.
Co-Defendants: Adams, Beunka
Race and Gender of Victim: 1 White/Male; 2 Unknown/Females
Texas Attorney General
Friday, April 19, 2013
Media Advisory: Richard Cobb scheduled for execution
Pursuant to a court order by the 2nd Judicial District Court in Cherokee County, Richard Cobb is scheduled for execution after 6 p.m. on April 25, 2013. In January 2004, Cobb was convicted of capital murder and sentenced to death by a Cherokee County jury.
FACTS OF THE CRIME
The U.S. Court of Appeals for the Fifth Circuit described the facts of the crime as follows: Cobb and Beunka Adams committed two armed robberies in August 2002. On the night of September 2, 2002, they committed a third. Armed with a shotgun, and wearing masks and gloves, they entered a convenience store known as BDJ’s. Nikki Ansley (Dement) and Candace Driver were working as clerks that night. Also present in the store was a frequent customer, Kenneth Vandever. Ansley and Driver were made to stand together behind the cash register. Cobb and Adams demanded money. Driver opened the cash register drawer. While Cobb held the shotgun, Adams grabbed the drawer and took all of the money. Vandever, the customer, began to walk out the front door, but was ordered to join Ansley and Driver behind the register.
Cobb and Adams then decided to take Ansley, Driver, and Vandever as hostages. Driver was ordered to surrender the keys to her Cadillac, which was parked outside, and the three hostages were forced into the vehicle. Adams drove to a remote, open pasture known as the “pea patch.” Everyone got out of the car, and Adams forced Driver and Vandever into the trunk while Cobb held the gun. Adams took Ansley into a wooded area and raped her. Cobb and Adams then told the three hostages that they could wait for a little while, and then leave, but soon Cobb and Adams changed their minds. After debating what to do, Cobb and Adams tied up the women hostages with their shirts and forced them to kneel by the vehicle. They began to walk away with Vandever, intending to allow him to come back later to untie Ansley and Driver. Soon they returned, however, and forced Vandever to sit by the other two victims.
After Vandever began to protest, Cobb shot him. Vandever fell forward, screaming that he had been shot. Either Cobb or Adams then shot Ansley and Driver. Ansley and Driver both fell forward as well, and pretended to be dead. Adams started kicking Ansley, and Cobb joined in. Cobb lifted Ansley up by her ponytail, and he and Adams put their lighters up to her face. After satisfying themselves that the three victims were dead, Adams and Cobb left the scene and went to the residence of Adams’s cousin.
Vandever died, but Ansley and Driver survived. After regaining consciousness, they managed to get to safety. Ansley sustained a shotgun wound to her left shoulder, numerous broken ribs, and a collapsed lung, which required her to spend almost two weeks in the hospital. After undergoing emergency surgery, she identified Cobb and Adams from a photo lineup. Driver, who suffered a gunshot wound to her lower lip, was able to identify Adams, but not Cobb, from a photo lineup while in the hospital. Adams’s cousin contacted the police and disclosed Cobb’s and Adams’s whereabouts. They were arrested at Adams’s cousin’s home on September 3, the day after Vandever’s murder. Adams surrendered, but Cobb resisted arrest and had to be subdued. Under questioning, Cobb confessed to shooting Vandever and to participating in the robbery and kidnaping.
During the guilt-determination phase of the trial, Cobb admitted to participating in the robbery and kidnaping and to shooting Vandever. He testified, however, that Adams pressured him into committing the murder, threatening to kill Cobb if he refused to take part in killing the three hostages. The [S]tate cast doubt on this portion of Cobb’s testimony by getting him to admit on cross-examination that he did not mention any coercion by Adams when he first confessed to the authorities. Moreover, the other surviving witnesses did not corroborate Cobb’s testimony that Adams threatened him.
The [S]tate also rebutted Cobb’s duress defense by calling William Elmer Thomsen to testify. Thomsen was incarcerated with Cobb at the Cherokee County Jail. Thomsen testified that, during several jailhouse conversations he had with Cobb at this time, Cobb extensively discussed Vandever’s murder as well as the robberies that he and Adams committed. Thomsen testified that Cobb “thought armed robberies were the way to go. It’s fast, quick, easy money.” According to Thomsen’s testimony, Cobb also told him that he and Adams had plans to rob a Whataburger in the near future, had they not been caught and arrested. Thomsen also testified that Cobb confided in him that he planned at his trial to blame the murder on Adams by testifying that Adams had threatened to kill him if he did not take part in shooting the hostages.
On cross-examination, the defense asked Thomsen whether he had received a deal from the [S]tate in exchange for his testimony. Thomsen avowed that he had not. He testified that when he contacted the district attorney to offer his testimony against Cobb, the charge he was facing for being a felon in possession of a firearm had already been dismissed. Thomsen was still in jail, however, for violating the terms of his probation for a prior offense. Although Thomsen insisted that he did not receive any benefit from the [S]tate for his testimony, he did concede that the district attorney’s office contacted his parole officer on his behalf.
On September 23, 2002, Cobb was indicted for capital murder.
Cobb was convicted of capital murder and sentenced to death on January 23, 2004.
On Jan. 31, 2007, Cobb's conviction and sentence were affirmed by the Texas Court of Criminal Appeals
On Dec. 5, 2007, Cobb’s first application for state writ of habeas corpus was denied.
On Feb. 15, 20011, the district court denied Cobb’s federal petition for writ of habeas corpus.
On March 23, 2011, the district court granted a certificate of appealability (COA) on one claim.
On May 13, 2011, Cobb sought a certificate of appealability on three additional claims.
On May 25, 2012, the United States Court of Appeals for the Fifth Circuit affirmed.
On January 14, 2013, the Supreme Court denied certiorari review of the Fifth Circuit’s decision.
On April 17, 2013, Cobb filed in the trial court a second subsequent writ for habeas corpus.
On April 19, 2013, the Texas Court of Criminal Appeals dismissed Cobb's successive application.
On April 24, 2013, Cobb filed in the U.S. Supreme Court a petition for a writ of certiorari.
On April 25, 2013, the U.S. Supreme Court denied Cobb's petition for a writ of certiorari.
PRIOR CRIMINAL HISTORY
Under Texas law, the rules of evidence prevent certain prior criminal acts from being presented to a jury during the guilt-innocence phase of the trial. However, once a defendant is found guilty, jurors are presented information about the defendant’s prior criminal conduct during the second phase of the trial––which is when they determine the defendant’s punishment. During the penalty phase of Cobb’s trial, the State presented the testimony of the chief of the Rusk Police Department regarding a judgment against Cobb for unauthorized use of a motor vehicle, and attested to Cobb’s “bad” reputation as a law-abiding citizen.
The Rusk County assistant police chief echoed his chief’s evaluation of Cobb’s reputation as not being a peaceful, law-abiding citizen, and described Cobb’s burglary-of-a-building offense, which occurred one year prior to the Vandever murder. Cobb admitted, in his confession to the Vandever murder, that he and Adams robbed two gas stations—also with a shotgun—the month before the murder. A clerk from one of the two gas stations described the robbery of his station. As a juvenile, Cobb, his brother, and a friend burglarized the weekend residence of a former Cobb family neighbor. The neighbor testified that he confronted the boys with a gun and Cobb dared him to shoot. The neighbor shot at Cobb’s feet and forced him onto the ground until Cobb’s mother and the police arrived.
Beunca Adams’s brother testified that Cobb used a knife to pry his way into his home one night.
Cobb’s juvenile probation officer testified that Cobb assaulted one of his boot camp supervisors, that he was not afraid of people in authority, that his mother had difficulty controlling him, and that his reputation as a law abiding citizen was bad. Also, Cobb would not follow the rules whether he was in boot camp or on probation, and that Cobb was not easily intimidated or influenced by others. Finally, the jury heard the testimony of a psychologist, who opined that Cobb fit the profile of a sociopath, a person who did not care about the welfare of other people and whose condition would be incurable.
Cobb testified in his defense, admitting that he started using drugs at age twelve, and that he escalated from burglary to armed robbery because he was in debt to a drug dealer and needed money quickly.
Texas Execution Information Center by David Carson.
Richard Aaron Cobb, 29, was executed by lethal injection in Huntsville, Texas on 25 April 2013 for the murder of a man in the course of abduction, rape, and robbery.
On 2 September 2002, Cobb, then 18, and Beunka Adams, 19, entered BDJ's convenience store in Rusk in east Texas. Cobb was carrying a 12-gauge shotgun. Both men were wearing masks. Candace Driver, 23, and Nikki Dement, 19, were working in the store. The only other person there was Kenneth Vandever, a 24-year-old mentally impaired man who frequented the store as a customer, sometimes helping clean and taking out trash. Adams ordered Driver and Dement to stand behind the cash register and open it. Cobb held the shotgun while Adams grabbed the cash register drawer and took all of the money. The robbers didn't spot Vandever, who was sitting in the eating area, until he stood and began to walk out the front door. They stopped him and ordered him to stand with the women. The robbers then decided to take the three victims as hostages. Adams demanded the keys to a Cadillac parked in front of the store. Driver, who had borrowed the car to drive to work, retrieved the keys from the back room. Adams then ordered the three into the Cadillac with Cobb and himself. Adams drove south on US Highway 69. As they were driving, Dement, who had gone to school with Adams, said, "I know you, don't I?" Adams answered "Yes" and removed his mask. At some point, Adams turned off the road and drove the vehicle into a pea patch near Alto.
The group exited the car. With Cobb holding the shotgun, Adams ordered Driver and Vandever into the trunk. He then led Dement away from the car and raped her. He then came back to the car with Dement, released Driver and Vandever from the trunk, and told the victims that he and Cobb were waiting for Adams' friends to arrive. He allowed the victims to begin walking away. A few moments later, Adams reconsidered, saying that he was afraid the victims would reach a house before he and Cobb could get away. He and Cobb made the three victims kneel on the ground. They tied the women's hands behind their backs using their shirts. They left Vandever unrestrained and began walking away with him, intending to let him come back later to untie the women. They soon returned, however, and stood behind the victims for several minutes and had a discussion. Adams then returned to the victims and ordered Vandever, who had stood back up, to kneel behind the women. Driver later testified that Vandever said that "it was time for him to take his medicine, and he was ready to go home."
Suddenly, Cobb fired the shotgun. Adams asked, "Did we get anybody?" Driver answered, "No." Cobb shot again. Vandever cried out, "They shot me." A third shot struck Dement in the left shoulder. When Dement fell forward, Driver did too, pretending to be hit. Adams, now carrying the shotgun, approached Driver and asked if she was bleeding. Driver did not answer, pretending to be dead. Adams then said, "Are you bleeding? You better answer me. I'll shoot you in the face if you don't answer me." Driver answered, "No, no, I'm not bleeding." Adams then fired the shotgun next to her face. The pellets hit her lip. She again pretended to be dead.
Adams and Cobb then turned to Dement and asked her the same questions. Dement also feigned death as both men kicked her for about a minute. She was lifted by her ponytail while one of the men shined a lighter on her face to see if she was still alive. She continued to feign death. Cobb said, "She's dead. Let's go." The men then left and went to Adams' cousin's house. After Adams and Cobb left, Candace Driver, who sustained only minor injuries, ran to a nearby house. Nikki Dement was taken to a hospital via helicopter with injuries including a broken shoulder blade, broken ribs, and collapsed lung. When police arrived at the pea patch, Kenneth Vandever was dead from a shotgun wound to his chest.
Driver identified Adams from a photo lineup. Adams' cousin contacted police and gave them the pair's whereabouts. Adams and Cobb were arrested the day after the murder. Cobb confessed to shooting Vandever. Adams confessed to raping Dement and ultimately admitted to shooting Driver. Each accused the other of shooting Dement, and the surviving witnesses could not tell which of them did.
Adams and Cobb had participated in two other aggravated robberies together in August 2002. Both were gas station robberies where the men also used a shotgun. Cobb also had a prior conviction for burglary.
At his trial, Cobb testified that he shot Vandever and handed the shotgun to Adams, who shot the women. He testified that Adams pressured him into committing the murder, threatening to kill him if he refused. Under cross examination, he admitted that he did not mention any coercion by Adams when he confessed at the time of his arrest. Furthermore, while Dement and Driver's testimony did depict Adams as the leader who did most of the talking during the crime, they did not corroborate Cobb's testimony that Adams threatened him.
William Thomsen, who was incarcerated with Cobb at the Cherokee County Jail, testified that Cobb confided in him that he planned to testify that Adams had threatened to kill him if he did not take part in shooting the hostages. Thomsen further testified that Cobb told him he was mad when he learned that the women survived, because if they had died, he probably wouldn't be in jail. Thomsen said Cobb said he got something like a rush when he shot Vandever. At this point during Thomsen's testimony, Cobb stood in the courtroom and said, "You lying son of a bitch, I never said no such thing." After the judge reprimanded Cobb outside of the jury's presence, Thomsen continued his testimony. He stated that Cobb said he would commit the crime again and that armed robberies were "the way to go. It's fast, quick easy money." He said Cobb told him he and Adams had planned to rob a Whataburger restaurant had they not been arrested.
Tyler Morning Telegraph
"Cobb executed for Cherokee County attack," by Kenneth Dean. (11:21 pm Friday, April 26, 2013)
HUNTSVILLE — Minutes after the drug began coursing through his veins, Richard Aaron Cobb’s head snapped off the gurney he was strapped to and he thanked the warden. “Wow. This is great. Thank you, warden,” Cobb said just before turning his head to stare into the glass and barred window where one of his victims watched the 29-year-old’s execution Thursday.
Outside the Huntsville prison’s walls, a small contingent of demonstrators held signs and shouted their disapproval of the death penalty. Niki Daniels did not waiver. Instead, the 29-year-old victim of Cobb and his co-defendant, Buenka Adams, watched the man who terrorized her, another female victim and killed Kenneth Vandever on Sept. 2, 2002, in a pea patch just north of the rural Cherokee County town of Alto.
Cobb and Adams, who was executed last year, robbed the two women at a convenience store in Rusk, kidnapped the women and Vandever and took them to the pea patch where Vandever and one of the females were locked in a vehicle’s trunk. Mrs. Daniels was assaulted before the three were made to kneel in the pea patch and shot execution style.
Cobb said, lying on the gurney, that he was a source of light and hoped no one held negative feelings against him such as hate or anger. “Life is death, and death is life. I hope that someday this absurdity that humanity has come to will come to an end. Life is too short, life is too short, and I hope anyone that has negative energy towards me will resolve that …” he said.
Mrs. Daniels, her family and Vandever’s father, Donald, said they were glad the justice system worked, but they all felt the pain and suffering caused by Cobb and Adams was greater than the pain they felt in their executions. “I’m glad I don’t have to come back,” Vandever said. “Kenneth is gone, and he has been. I think justice was served, but it didn’t change anything to speak of.” Mrs. Daniels, who suffered a shotgun blast to her upper back that still causes her pain, said she forgave both men years ago, but she had hoped Cobb would show some remorse. “I saw the same evil person I saw 11 years ago. I’m glad that I was probably the last person he saw as he died. I’m glad he knew I was there,” she said.
Mrs. Daniel’s family defended her statements saying until someone had experienced what she and the other two victims had then they could not judge her feelings fairly. Cobb’s death at 6:27 p.m. Thursday closed a chapter, the families said, but they still had to live with the pain, both physically and emotionally, for the rest of their lives.
Jacksonville Daily Progress
"I'm ready to die," by Ben Tinsley. (March 9, 2013)
LAST INTERVIEW: From Death Row, convicted capital murderer Richard Aaron Cobb of Cherokee County expresses remorse and disappointment for his crimes and his life.
LIVINGSTON — Time is running out for Richard Aaron Cobb, scheduled to be executed April 25 for the Sept. 2002 shooting death of a mentally-challenged Rusk convenience store customer. Cobb and co-defendant Beunka Adams, 29, were on the tail end of a two-week robbing spree when they kidnapped Kenneth Vandever, 24, and two female clerks and took them to a Cherokee County field. There, they sexually assaulted at least one of the women, forced all three to kneel on the ground, and shot them all from behind. Vandever was killed. The two women were left for dead in the field and survived. One of them fled to a nearby home to get help.
Cobb, who was subsequently convicted of capital murder and sentenced to lethal injection in January 2004, will die almost exactly a year after co-defendant Adams was executed. The convicted capital murderer will turn 29 next month, shortly before he is executed. He been on death row for a decade and has all but exhausted his appeals. “There's really nothing left to do,” Cobb said during a recent jailhouse interview from Death Row in Livingston. “ … I accept it, you know what I mean? For what it is. There's no getting away from it. At the same time I don't want to die, but I'm ready to die.” A videotape of this interview will be posted soon to the Jacksonville Daily Progress webpage.
On advice from an attorney, Cobb declined to address specifics in the rape and murder. “It was the biggest mistake of my life,” Cobb said. Cobb is no longer the young man he was when he was sent away. His hair is gone, shaved off, and he has the wear and tear of a Death Row decade stamped squarely on his face.
During the interview, Cobb appeared amicable – despite a growing reputation among Death Row guards as a troublemaker. At one point, Cobb apparently managed to sneak a cell phone into jail – a huge infraction. The day of his interview, Cobb initially refused to speak to a reporter, then changed his mind, later explaining, “I woke up in a bad mood.” Cobb said there's a lot he wishes he could have done before he was sent to Death Row. “Looking back, I never really had a life,” Cobb said. “Whenever I thought I did, that got taken away from me. At the time same it (execution) will be somewhat of a relief. I won't be in prison anymore or in captivity in this repressive atmosphere.”
Elmer Beckworth, former Cherokee County District Attorney who prosecuted Cobb – Beckworth is now an Angelina County prosecutor – doesn't have a lot of sympathy for the man. “The nature of his crime was horrible,” Beckworth said. “Kidnapping, aggravated robbery, sexual assault, shooting three people and leaving two of them for dead. Richard Cobb is extremely dangerous.” The capital murder was committed by Cobb and his codefendant as part of a spree that included two other aggravated robberies during a two week period, the former DA said. “The spree was in the past couple of weeks, but this had been going on for years,” Beckworth said.
Cobb contended in court that he killed Vandever, but Adams shot the two women. In his trial testimony, Cobb claimed he was afraid of the victims and had been coerced into committing the crime. Despite Cobb's claims of manipulation on the part of Adams, he nonetheless became extremely violent with Cherokee County Sheriff's deputies and Jacksonville Police when they arrested him in Jacksonville, Beckworth said. Beckworth said he hopes Cobb's execution will bring peace to his victims, “Once it's complete, justice will be done in this case,” Beckworth said. “There is a lot of debate over the death penalty … but I think in Cobb's case, justice will definitely be served.”
Attempts to contact the father of the slain victim were not successful. But Donald Vandever, the father of the slain man, told the Associated Press after Adams' execution that it changes nothing. “As far as I'm concerned, it was way too easy on him,” Donald Vendever told the AP. Likewise, the two female victims, who are not being identified because of the sexual assault, could not be reached for comment. One of them, who still has painful injuries from being shot, told the AP she granted Adams forgiveness. “But he had to pay the consequences,” she said. The woman's mother told the Associated Press an apology will never erase the damage. “It's not going to fix the hole in her back,” she told the AP. The mother was referring to her daughter's wound from the shooting.
Meanwhile, Cobb said he waits for execution in his small cell on death row with very meager supplies – an AM/FM radio and any publications he can get his hands on. Since his execution date was set, he has received a flurry of letters. Although Cobb has no last appeals prepared in his case, he said his attorney is trying for a stay. Cobb remembered when he heard his co-defendant, more of a colleague than a close friend, had been executed. “For me, this is rather sad, you know?” Cobb said. “Another person being killed, being executed by the state. Sort of a long-term, long-reaching effect of everything that happened. Generating waves of, you know, I guess violence. Long term.”
While in captivity, Cobb still has some decisions to make. He has to decide if he will allow his family to attend his execution. Texas Death Row does not offer its prisoners a “last meal” anymore. “I kind of have a feeling I'm not going to be thinking about the food very much,” he said.
Cobb, who said he was adopted, indicated he also is in the process of communicating with his birth mother, whom he has never met. He said he hopes she will come visit him before the execution. He said he grew up in Jacksonville and even attended high school there for a short time before moving to Rusk and attending high school there. He dropped out halfway through his senior year, he said. In and out of jail as a youth, Cobb said he disqualified himself from fulfilling a dream of joining the military because of his felony convictions. At the time of his conviction, Cobb had been working as a temp for a local firm, performing labor tasks in the area.
Cobb said every day he spends on Death Row is grimmer than the next. Every morning he wakes up and thinks, “Wow. How great it is to wake up in the cold reality of this jail again,” he said. He has many regrets. “Constantly,” Cobb said. “You survey ever single mistake you've ever made over and over again. It doesn't stop. Every day. There's regret in the water. Regret every time you look in the mirror. That's just part of life. There's no escaping it.” He looks back at the last year of his life prior to prison with guilt and regret. “The damage, the regret, the remorse,” he said. “I wish I could go back and make this never have happened. Just change it all.”
Cobb said he hopes his victims have been able to heal over the years. “I hope they have found some ability to heal and, you know, deal with the anger and hatred directed at me,” he said. “I hope it has been able to resolve itself over the years.”
Adams, who was 19 when he and Cobb committed the crime, also expressed remorse to his victims as he was executed. Adams offered his love to his family and, like Cobb, asked those witnessing his execution to avoid letting any hate they had for him consume them. Many readers who read about Adams' execution in the Huffington Post indicated they tire of morality statements expressed by killers just before they are executed. “I hate when these criminals have the gall to try to lecture us about right and wrong,” one Huffington Post reader wrote. “We all already know killing is wrong, which is why it wasn't our ass strapped to the gurney.”
"Second man executed for 2002 shootings," by Cody Stark. (April 25, 2013)
HUNTSVILLE — A Smith County man asked that the family of the victim and the survivors of a robbery and fatal shooting 11 years ago not harbor any ill feelings toward him before he was executed Thursday. Richard Cobb, 29, was put to death by lethal injection for the 2002 murder of 24-year-old Kenneth Vandever in Cherokee County. Cobb is the fourth inmate to be executed this year in Texas. “I hope that anyone that has negative energy toward me will resolve that,” Cobb said in his final statement. “Life is too short to harbor feelings of hatred and anger.” Cobb told the warden he was ready and the lethal dose was administered. As the drugs began flowing through his veins, he had more to say. “Wow, that is great. That is awesome!” Cobb said as he lifted his head and turned toward the victim’s witness room. “Thank you, warden! Thank you (expletive) warden!” Cobb then dropped his head with his eyes and mouth open and was pronounced dead at 6:27 p.m., 16 minutes after the lethal dose began. The U.S. Supreme Court had rejected a final appeal two hours before the execution was carried out.
On Sept. 2, 2002, Cobb and Beunka Adams, who was executed for his role in the murder a year ago, entered a convenience store in Rusk and robbed the place with a shotgun. Cobb and Adams then forced Vandever and two female clerks into a car belonging to one of the women and kidnapped them. One of the women was sexually assaulted and the other, along with Vandever, was forced into the trunk of the car when the group stopped about 10 miles away. All three victims were forced to their knees and shot. Vandever died as a result of the shooting, but Nikki Daniels, who was present Thursday, and the other woman survived. “They took me as a victim that night, but I came out a survivor,” said Daniels, who also witnessed Adams execution. “And I think I am more of a survivor today.” Cobb never denied his guilt. During his trial, his attorneys argued that Adams forced Cobb to shoot Vandever by threatening Cobb. The survivors of the shooting said they never heard such threats.
Cobb and Adams were arrested in Jacksonville the day after the slaying. They were also tied to a series of other robberies. Vandever’s father, Don Vandever, said he felt that Cobb got off too easy. “All he did was go to sleep, that is it,” he said.
Reuters News"Texas executes man for 2002 murder, kidnapping." (Thu Apr 25, 2013 8:55pm EDT)
(Reuters) - Texas on Thursday executed a convicted murderer who, along with an accomplice, had robbed a convenience store in 2002, kidnapping two women who worked there and a male customer who was later shot dead. Richard Cobb, 29, was given a lethal injection and pronounced dead at 6:27 p.m. CDT (7:27 p.m. EDT) at a state prison in Huntsville, the Texas Department of Criminal Justice said in a statement. In his final statement, Cobb said: "Life is too short to harbor feelings of hatred and anger. That's it."
Cobb and his accomplice, Beunka Adams, who was executed in 2012, entered BDJ's convenience store in Rusk, Texas, armed with a shotgun and wearing masks, and demanded money, according to the state attorney general's office. They took store clerks Candace Driver and Nikki Ansley Dement hostage along with customer Kenneth Vandever and forced them into Driver's Cadillac, the account said. Adams drove to an open pasture and forced Driver and Vandever into the trunk while Cobb held the gun. Adams then took Dement to a wooded area and raped her. Later, according to the account, Cobb fatally shot Vandever and either Cobb or Adams shot the two women, both of whom survived.
Cobb was the fourth person executed in Texas this year and the ninth in the United States, according to the Death Penalty Information Center.
Richard Aaron COBB
Characteristics: Robbery - Kidnapping - Rape
Number of victims: 1
Date of murder: September 2, 2002
Date of birth: April 2, 1984
Victim profile: Kenneth Wayne Vandever, 24 (convenience store customer)
Method of murder: Shooting
Location: Cherokee County, Texas, USA
Status: Sentenced to death on January 23, 2004
Richard Aaron Cobb and Beunka Adams committed two armed robberies in August 2002. On the night of September 2, 2002, they committed a third. Armed with a shotgun, and wearing masks and gloves, they entered a convenience store known as BDJ's. Nikki Ansley and Candace Driver were working as clerks that night. Also present in the store was a frequent customer, Kenneth Vandever, 37. Nikki and Candace were made to stand together behind the cash register. Cobb and Adams demanded money. Candace opened the cash register drawer. While Cobb held the shotgun, Adams grabbed the drawer and took all of the money. Kenneth, who had suffered brain damage in a car accident when he was in college, began to walk out the front door, but was ordered to join Ansley and Candace behind the register.
Cobb and Adams then decided to take Nikki, Candace, and Kenneth as hostages. Candace was ordered to surrender the keys to her Cadillac, which was parked outside, and the three hostages were forced into the vehicle. Adams drove to a remote, open pasture known as the "pea patch." Everyone got out of the car, and Adams forced Candace and Kenneth into the trunk while Cobb held the gun. Adams took Nikki into a wooded area and raped her. Cobb and Adams then told the three hostages that they could wait for a little while, and then leave, but soon Cobb and Adams changed their minds. After debating what to do, Cobb and Adams tied up the women hostages with their shirts and forced them to kneel by the vehicle. They began to walk away with Kenneth, intending to allow him to come back later to untie Nikki and Candace. Soon they returned, however, and forced Vandever to sit by the other two victims. After Kenneth began to protest, Cobb shot him in the back. Kenneth fell forward, screaming that he had been shot. Either Cobb or Adams then shot Nikki. Nikki fell forward as well, and pretended to be dead.
Candace was not hit initially but pretended she had been shot. During testimony she said Adams drew near her and stuck the gun against her head and said, "Are you dead?" When she flinched, he fired and she sustained a grazing wound and powder burns to her mouth. She again pretended to be dead, as Nikki was doing. Adams started kicking Nikki, and Cobb joined in. Cobb lifted Nikki up by her ponytail, and he and Adams put their lighters up to her face. After satisfying themselves that the three victims were dead, Adams and Cobb left the scene and went to the residence of Adams's cousin. Kenneth Vandever died, but Nikki and Candace survived. After regaining consciousness, they managed to get to safety. Nikki sustained a shotgun wound to her left shoulder, numerous broken ribs, and a collapsed lung, which required her to spend almost two weeks in the hospital. After undergoing emergency surgery, she identified Cobb and Adams from a photo lineup. Candace, who suffered a gunshot wound to her lower lip, was able to identify Adams, but not Cobb, from a photo lineup while in the hospital.
Adams's cousin contacted the police and disclosed Cobb's and Adams's whereabouts. They were arrested at Adams's cousin's home on September 3, the day after Kenneth Vandever's murder. Adams surrendered, but Cobb resisted arrest and had to be subdued. Under questioning, Cobb confessed to shooting Kenneth Vandever and to participating in the robbery and kidnapping. On September 23, 2002, Cobb was indicted for capital murder. His trial began on January 5, 2004. On January 23, 2004, he was sentenced to death. Kenneth Vandever's father Don said Kenneth had the mental capacity of a child. "When he (Cobb) killed Kenneth, he basically killed a child, because after his accident he was like a child. Kenneth never knew what was going on that night,'' he said. Beunka Adams was executed for his part in this crime in April 2012.
Jacksonville Daily Progress
"A Date To Die: Victim describes night of horror at the hands of death row inmate about to be executed," by Ben Tinsley. (April 24, 2013) CHEROKEE COUNTY — Although assailant Richard Cobb, 29, is set to be executed today, Nikki Ansley said she will never forget the horrible evening Cobb and his co-defendant Beunka Adams kidnapped her, fellow clerk Candace Driver, and mentally-challenged customer Kenneth Vandever, 37, from a Rusk convenience store.
On the night of Sept. 2, 2002, Adams and Cobb, who wore masks as they came into the store, took them to a remote location in Alto. Ansley was sexually assaulted by Adams as Cobb held a shotgun on her. All three were forced to kneel. Vandever was shot and killed from behind. Ansley and Driver were shot in the same fashion and left for dead. Cobb and Adams were caught 16 hours later. Adams was executed for the crime almost exactly a year ago.
Ansley said she never expects to find closure or peace — even after Cobb is gone. “Closure is kind of small to what is happening,” she said. “The only type of closure I'm getting is the knowledge that our system is giving these guys the punishment they deserve. Things will never be the same for me — from the physical to the emotional. To everything.”
Authorities believe Cobb and Adams, fresh off a spree of recent burglaries, were in a pattern of escalation when they abducted the three. “What started as an armed robbery turned into a kidnapping and a rape and a murder,” explained Randy Hatch, investigator for the Cherokee County District Attorney's office. “They definitely escalated.”
Ansley said when the masked men came into the store at which she was clerking she didn't fully understand what was happening. Later, she would recognize the two as fellow former students of Rusk high school. During the abduction, Ansley said she tried reasoning with the two of them to avoid violence — going as far as to share details of her life with Adams, who had removed his mask at some point after leaving the store. “I was trying to make them understand we were human,” she said. “I was hoping for the best but never sure about what they were going to do. … I did not have clue what was going on.”
But her efforts to convince Adams otherwise did no good. Vandever was helpless to protect himself as Cobb shot and killed him, said former Cherokee County District Attorney Elmer Beckworth, who successfully prosecuted both Adams' and Cobb's cases. Adams then shot at Driver, who fell down, pretending to be hit, Beckworth said.When Adams threatened to shoot at her again she admitted she had not been struck. Adams shot at her again, this time grazing her around the mouth area. Ansley continued to play dead. Cobb and Adams started to viciously kick her repeatedly to see if she would cry out. But Ansley gritted her teeth and and stayed silent. Cobb picked Ansley up off the ground by her pony tail. She stayed limp. Her eyes were partially opened but she managed not to move them. Ansley ultimately convinced Cobb and Adams she was truly dead. “I had to outsmart them … I had to play dead,” Ansley said this week. “… Thanks to the good Lord. I feel He had his hand on me the whole night.”
Beckworth, now an Angelina County prosecutor, marveled at Ansley's will power. He said by playing dead she probably saved hers and Driver's lives. “What if she had given in to the kicks and cried out?” he said. “They probably would have double checked and killed all of them. They kicked her to the point of cracking a cartilage in her ribs.” After Cobb and Adams left them for dead at the scene, Ansley rose and slowly trudged away in great pain, looking for help. She had been savagely beaten, sexually assaulted and was covered in her own blood. “I had broken ribs and a gunshot wound and I had to fight to walk,” She said. “I walked roughly half a mile. At one point I saw car lights and I got on another path that was completely dark. I am glad I did because it was their car lights.” By switching paths, Ansley avoided being caught again by Cobb and Adams. “The good lord guided me,” she said. “I feel that is what it was.” Ansley finally reached a house and help was summoned to the scene.
Ansley's brother, Alto Police Officer Troy Ansley said all law enforcement agencies involved pulled together and had apprehended Adams and Cobb within 16 hours. “We haven't even yet had a chance to say 'Thank you' to them,” Officer Ansley said. This was easily one of Rusk's most brutal crimes — as well as one of the strongest in terms of evidence, Beckworth said. “The fabric of the community is hurt and frayed whenever there is a crime like this,” Beckworth said. “It shocked the whole community.” There were plenty of mitigating factors to choose from for capital murder charges. Kidnapping, sexual assault, aggravated robbery. Plus, Cobb was on probation. Cobb offered a full confession. Adams only partially confessed.
“The only misgiving Cobb seemed to have is that he backed away from Kenneth before he shot him because he didn't want to get he blood splatted on him. That was it,” Beckworth said. “And at the jail he said to one of the jailers 'How did we get caught?' When the jailer said, 'What do you think?' he answered, 'One of them must have lived.'” Beckworth said both men committed the violence of the crime but Cobb barely said anything and was taking Adams' verbal cues. Kenneth Vandever probably didn't really realize gravity of the situation until right before he died, Beckworth said. Vandever had lived a normal life in the Dallas area until an accident robbed him of short term memory. “Just before the shooting death, Kenneth was going along with it,” Beck worth said. “But at the last minute he stated screaming 'Hey! This isn't funny! I have to get home and take my medication!' It was during that outburst, when they were kneeling that he was murdered.”
Cobb, who was convicted of capital murder and sentenced to lethal injection in January 2004, will die almost exactly a year after co-defendant Adams was executed. He been on death row for a decade and has all but exhausted his appeals. “There's really nothing left to do,” Cobb said during a recent jailhouse interview from Death Row in Livingston. “ … I accept it, you know what I mean? For what it is. There's no getting away from it. At the same time I don't want to die, but I'm ready to die.”
During an interview with reporters this week at her Cherokee County home, Ansley — who shared her story with Montel Williams on his show eight or nine years ago — said she wants to spend her life helping others, sharing what happened to her in churches and in public as an inspirational speaker. Ansley said she is glad Adams received just punishment. She fears Cobb might be granted a last minute stay. But as far as closure? Officer Ansley agrees with his sister that there is no such thing. “What this is on Thursday is our family can open up a new chapter and not think about this thing and go over it again and again and again,” he said. “All we can do is pray every day to the good lord.”
Cobb v. State, Not Reported in S.W.3d, 2007 WL 274206 (Tex.Crim.App. 2007). (Direct Appeal)
MEYERS, J., delivered the opinion of the unanimous Court.
Appellant was convicted in January 2004, of capital murder. Tex. Penal Code § 19.03(a). Based on the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, sections 2(b) and 2(e), the trial judge sentenced Appellant to death. Art. 37.071, § 2(g). FN1 Direct appeal to this Court is automatic. Art. 37.071, § 2(h). After reviewing Appellant's eight points of error, we find them to be without merit. Consequently, we affirm the trial court's judgment and sentence of death. FN1. Unless otherwise indicated, all references to Articles refer to the Texas Code of Criminal Procedure.
Appellant argues his first three points of error together. In point of error one, he asserts that Article 37.071 violates the Fourteenth Amendment to the United States Constitution because it “implicitly put the burden of proving the mitigation special issue on appellant rather than requiring a jury finding against appellant on that issue under the beyond a reasonable doubt standard.” In point of error two, he alleges that the trial court erroneously overruled his motion to hold the statute unconstitutional. In point of error three, he contends that the trial court erred “by failing to instruct the jury at punishment that they could only answer the mitigation special issue ‘no’ if the State proved a negative answer [to] that issue beyond a reasonable doubt.” Appellant cites Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002), in support of his claims. He asserts that these cases establish that the State should bear the burden of proving beyond a reasonable doubt that there is insufficient mitigation evidence to support a life sentence. We have previously addressed and rejected this argument. Resendiz v. State, 112 S.W.3d 541, 550 (Tex.Crim.App.2003); Rayford v. State, 125 S.W.3d 521, 534 (Tex.Crim.App.2003). Points of error one, two, and three are overruled.
In point of error four, Appellant argues that Article 37.071 violates the Eighth Amendment prohibition against cruel and unusual punishment because it allows the jury too much discretion and lacks the minimal standards and guidelines necessary to avoid an arbitrary and capricious imposition of the death penalty. We have previously addressed and rejected this claim, and we decline to revisit the issue. Jones v. State, 119 S.W.3d 766, 790 (Tex.Crim.App.2003); Moore v. State, 999 S.W.2d 385, 408 (Tex.Crim.App.1999). Point of error four is overruled. In point of error five, Appellant complains that Article 37.071 violates the Eighth Amendment as interpreted in Penry v. Johnson, 532 U.S. 782 (2001), because the mitigation special issue sends “mixed signals” to the jury. We rejected this claim in Jones. 119 S.W.3d at 790. The mitigation special issue does not send “mixed signals” because it permits the jury to give effect to mitigating evidence in every conceivable manner in which the evidence might be relevant. Perry v. State, 158 S.W.3d 438, 448-449 (Tex.Crim.App.2004). Point of error five is overruled.
In point of error six, Appellant asserts that the trial court “erred in overruling the motion to quash the indictment because the grand-jury members were discriminatorily or otherwise improperly selected.” See Castaneda v. Partida, 430 U.S. 482 (1977). Challenges to the composition of grand juries are provided for in Article 19.27, which states: Before the grand jury has been impaneled, any person may challenge the array of jurors or any person presented as a grand juror. In no other way shall objections to the qualifications and legality of the grand jury be heard. A person confined in jail in the county shall upon his request be brought into court to make such challenge.
We have interpreted Article 19.27 to mean that the array must be challenged at the first opportunity, which ordinarily means when the grand jury is impaneled. Muniz v. State, 672 S.W.2d 804, 807 (Tex.Crim.App.1984), citing Muniz v. State, 573 S.W.2d 792 (Tex.Crim.App.1978). If it is impossible to challenge the array at that time, then the array may be attacked in a motion to quash the indictment before trial commences. Id. However, if a defendant had an opportunity to challenge the array when it was impaneled and failed to do so, he may not challenge it at a later date. Id. On September 3, 2002, Appellant was incarcerated in the county jail and had counsel appointed for him. On September 23, 2002, the grand jury was impaneled, and Appellant was indicted. The prosecutor verbally notified counsel of the date that the case would be presented to the grand jury. No challenge was made to the array on or before September 23, 2002. Appellant was in custody, represented by counsel, and aware, at the time the grand jury was impaneled, that he was to be the object of its scrutiny. See Muniz, 573 S.W.2d at 796. Appellant's later challenge to the array in his motion to quash the indictment was untimely. Point of error six is overruled.
In point of error seven, Appellant argues that the trial court erroneously excluded the testimony of two defense expert witnesses, Dr. Seth Silverman and Dr. Joan Mayfield, because their testimony was relevant to his duress defense. A trial court's admission or exclusion of evidence is subject to an abuse of discretion standard on appellate review. Sells v. State, 121 S.W.3d 748, 766 (Tex.Crim.App.2003). If the trial court's decision was within the bounds of reasonable disagreement we will not disturb its ruling. Id. Section 8.05 of the Texas Penal Code provides for the affirmative defense of duress if “the actor engaged in the proscribed conduct because he was compelled to do so by threat of imminent death or serious bodily injury to himself or another.” TEX. PENAL CODE § 8.05(a). “Compulsion” exists “only if the force or threat of force would render a person of reasonable firmness incapable of resisting the pressure.” TEX. PENAL CODE § 8.05(c). Appellant argued at trial that he shot the victim because he was acting under duress from his co-defendant, Beunka Adams. Appellant testified that Adams told him, “[I]f only one does the shooting then only one is leaving,” and he believed that Adams would kill him if he did not do as he was told.
Appellant made bills of exception presenting the proposed testimony of Silverman and Mayfield. Silverman would have testified that Appellant was “more suggestible” to outside forces and less able “to consider other options” than an “average person” because he was neglected by his chemically dependent mother as a child and suffered from depression and chemical dependency as an adult. Mayfield would have testified that Appellant had cognitive weaknesses that were consistent with fetal-alcohol syndrome; thus, he was more susceptible to compulsion and less likely to consider other alternatives than an average person. The State argued at trial that compulsion was measured by an objective standard, rather than a subjective standard, and thus “any testimony from an expert that this individual ... is more likely to be compelled than the average person simply is not relevant or material to the issues in this case as far as duress is concerned.” TEX. R. EVID. 401, 402; TEX. PENAL CODE § 8.05(c). The trial court agreed that the duress defense was “based upon a person of reasonable firmness” and was “not based upon a particular Defendant and the particular Defendant['s] susceptibility to influence.” The trial court sustained the State's objection and refused to allow “any testimony that would relate to whether or not this Defendant is more susceptible to influence or duress than the average ordinary person of reasonable firmness.” The trial court did not abuse its discretion. The inquiry is whether a “person of reasonable firmness” would be incapable of resisting the pressure to engage in the proscribed conduct, not whether this particular defendant could have resisted in light of cognitive weaknesses, depression, chemical dependency, and the neglect he suffered as a child. It is an objective inquiry rather than a subjective one. See United States v. Willis, 38 F.3d 170, 176 (5th Cir.1994); Wood v. State, 18 S.W.3d 642, 651 n. 8 (Tex.Crim.App.2000); Kessler v. State, 850 S.W.2d 217, 222 (Tex.App.-Fort Worth 1993, no pet.). Appellant also argues that the expert testimony of Silverman and Mayfield was admissible to show his state of mind, citing Fielder v. State, 756 S.W.2d 309 (Tex.Crim.App.1988). However, Fielder is not applicable here because this is not a case of family violence in which a defendant raises self-defense. Id.; Art. 38.36(b)(1) and (2). The trial court did not abuse its discretion in excluding the testimony. Point of error seven is overruled.
In point of error eight, Appellant claims that the trial court erroneously denied his motion for new trial, which was based on allegations of prosecutorial misconduct. Appellant alleged in his motion that the State failed to timely disclose evidence that was necessary to effectively cross-examine and impeach State's witnesses William Thompsen and Nickie Dement. Thompsen, who was incarcerated in the Cherokee County Jail at the same time as Appellant, testified at trial that Appellant told him that he planned to falsely place the blame for the instant offense on Adams, “[s]aying that [Adams] had threatened him, that if he didn't take part in the killing that he wouldn't live to see the crime either.” When defense counsel asked Thompsen on cross-examination if he received any benefit as a result of his cooperation in Appellant's case, he replied: “No, sir, I didn't. There was no deal made whatsoever.” Dement testified that Appellant and Adams robbed the convenience store where she and Candace Driver worked and kidnapped her, Driver, and customer Kenneth Vandever, the victim in the instant case. She testified that they were taken to a second location, where Adams sexually assaulted her, and Adams and Appellant shot her, Driver, and Vandever. She described the ordeal in detail and explained Appellant's role in the events that transpired. Appellant argued in his motion for new trial that the prosecutor failed to disclose: (1) “the full extent of the arrangements and agreements made” concerning the testimony of Thompsen, and (2) the fact that Dement “was in the process of writing a book for publication concerning this offense” and “was scheduled to appear for a taping of the ‘Montel Williams' Nationally Broadcast Television Show soon after the conclusion of the trial.” Under Brady v. Maryland, 373 U.S. 83 (1963), a prosecutor has an affirmative duty to turn over material, exculpatory evidence. Impeachment evidence is included within the scope of the Brady rule. United States v. Bagley, 473 U.S. 667, 676 (1985). Evidence withheld by a prosecutor is “material” if there is “a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been different.” Id. at 682. A “reasonable probability” is a “probability sufficient to undermine confidence in the outcome.” Id. Thus, a due-process violation has occurred if a prosecutor: (1) fails to disclose evidence, (2) favorable to the accused, (3) which creates a probability of a different outcome. Id.; Thomas v. State, 841 S .W.2d 399, 404 (Tex.Crim.App.1992).
At the hearing on the motion for new trial, Appellant introduced into evidence two letters pertaining to Thompsen. One letter was written by Thompsen to the prosecutor, Elmer C. Beckworth, Jr., on December 26, 2002. In this letter, Thompsen referenced a meeting with Beckworth and investigator Randy Hatch, stating: “At our meeting in Mr. Hatch's office on 12-19-02 you agreed to completely clear this charge as well as try to have the parole hold lifted so I could get released.” Another letter was written by Beckworth on January 10, 2003. Although it was addressed “to whom it may concern,” Beckworth testified that it was sent to Thompsen's parole officer, Roy Shamblin. The letter stated: “Please be advised that this office will not seek prosecution on [William Thompsen] for the offense of Unlawful Possession of Firearm by Felon. If anything further is needed please contact this office.” Defense counsel testified that the State provided him with the letter from Beckworth at the end of the guilt phase of the trial, after Thompsen had already testified. Beckworth explained that he first became aware that defense counsel did not have possession of that particular letter “on the morning before final arguments.” He discovered that the letter had inadvertently been placed in Adams' file and gave it to defense counsel before closing arguments. On March 25, 2004, after Appellant's trial, Beckworth also discovered that the letter from Thompson to Beckworth had inadvertently been placed in Adams' file and immediately faxed it to defense counsel.
Beckworth testified that the State did not make any deal with Thompsen regarding his charge for unlawful possession of a firearm by a felon. Forrest Phifer, Thompsen's attorney, also testified that he was present at the meeting with Hatch and Beckworth and that no deals were made in exchange for Thompsen's testimony. Phifer explained that Thompsen had not been indicted for the charge, and it was Phifer's standard practice to file a motion for an examining trial in cases without indictments. Both Phifer and Beckworth testified that cases in Cherokee County are routinely dismissed at the magistrate level when a defense attorney files a motion for an examining trial. Beckworth testified that he did not prosecute Thompsen on the charge, not because of any deal for his testimony, but because the case was “just not prosecutable,” explaining as follows:
With reference to Mr. Thom[p]sen's case the offense report indicated that he was riding a four wheeler on a location and law enforcement found him in possession of a firearm, that he was-indicated to them that he was going to do some target practicing in a field or in the woods somewhere. My experience in over 20 years of felony prosecution the citizens of Cherokee County and East Texas generally are not real fond of weapons offenses, very difficult to get a jury in a felon in possession with a firearm. And in situations where someone is hunting the weapon is in their home or something like this where it's target practicing and there is no other crimes involved or activities indicating a danger situation it is very difficult to get a conviction and most of those cases are not prosecuted and are declined on the basis of insufficient evidence. In this particular case, parole was notified that we were not going to prosecute, some of that took place through Mr. Hatch, and unknown to me until a point shortly before trial at which time the Defense was made aware of it, I believe Mr. Hatch did ask Mr. Shamblin [for] leniency for [Thompsen] and I believe that was developed by the defense during the trial. The record reflects that the defense was able to argue at trial that Thompsen received a benefit in exchange for his testimony. When cross-examined at trial by defense counsel, Thompsen admitted that the State never showed up for the examining trial and that Hatch made a phone call to his parole officer on his behalf. Defense counsel also made the following statements in this regard during his closing argument: Mr. Beckworth wants to talk about Mr. Thompsen. Mr. Thompsen got a benefit. Randy Hatch called his parole officer and asked for leniency. Mr. Thompsen got another benefit. When his examining trial came up the State didn't even show up so all charges against him were dismissed.
Appellant has failed to show that the letters pertaining to Thompsen were “material” as required by Brady. Thompsen, his attorney, and the prosecutor all denied that there was a deal in exchange for his testimony. Thompsen, however, acknowledged at trial that the State asked his parole officer for leniency and ultimately failed to prosecute him for the unlawful possession of a firearm by a felon charge. Even if the evidence were material, the jury was aware of the same matters referenced in the letters and was able to take this into consideration in their deliberations at trial. Thus there was no reasonable probability that the outcome of the trial would have been different if defense counsel had known about the letters earlier. Bagley, 473 U.S. at 682. Nickie Dement testified at the hearing on the motion for new trial that she was not writing a book about the incident and that she had never indicated to anyone that she planned to write a book. She testified that she contacted the Montel Williams Show via telephone “a week or so after trial had begun” and that she appeared on the show “[a] week or two after the trial.” Defense counsel testified that he did not know about Dement's appearance on the show “until after the close of the testimony” in Appellant's trial. Beckworth testified as follows:
I had no knowledge either at the time of trial or since then concerning Nickie Dement writing any kind of book concerning this experience. The only information I had concerning an appearance on the Montel Williams' Show occurred I think the Friday evening after the first week of trial and Ms. Dement's father contacted me indicating that she might appear on the Montel Williams' Show and what he told me was that it was concerning something about the job's [sic] people get and how they were after they are a victim of crime and how that alleviates it. During the time that the Jury was out on punishment I believe I spoke further with the Ansley family and discovered that the Montel Williams' Show may be more detailed about it, but that it was not going to take place until a week or two later. I did express concern about it but my concern was related to jury selection in the Adams case.
Appellant has not shown that Dement's planned appearance on the Montel Williams Show was “material” evidence. He states in his brief that he could have used this evidence to argue “that she was, perhaps, embellishing her testimony so as to make a greater impact, or notoriety, concerning her upcoming television appearance.” Appellant, however, has failed to show that Dement actually embellished her testimony in any way. Further, although Dement initiated contact with the television show staff, she testified that they already “knew the story” without her telling them about it. There is no reasonable probability that the outcome would have been different if the State had informed defense counsel during trial about Dement's planned television show appearance. Point of error eight is overruled. We affirm the judgment of the trial court.
Cobb v. Thaler, 682 F.3d 364 (5th Cir. 2012). (Federal Habeas)
Background: Following affirmance of his conviction for capital murder and death sentence, 2007 WL 274206, and following denial of his state application for writ of habeas corpus, 2007 WL 4306840, petitioner sought habeas corpus relief. The United States District Court for the Eastern District of Texas, David Folsom, J., 2011 WL 672333, denied petition but granted certificate of appealability (COA).
Holdings: The Court of Appeals, Jennifer Walker Elrod, Circuit Judge, held that: (1) standard of Antiterrorism and Effective Death Penalty Act (AEDPA) for granting habeas relief did not interfere with decisional independence of federal courts, so as to violate Article III; (2) state court's conclusion, that prosecution did not suppress evidence, was not unreasonable application of federal law; and (3) state court's conclusion, that evidence in question was not material, was not unreasonable application of federal law. Affirmed.
JENNIFER WALKER ELROD, Circuit Judge:
Richard Cobb was convicted of capital murder and sentenced to death in Texas state court. He filed a habeas petition in federal district court pursuant to 28 U.S.C. § 2254. The district court denied that petition, but granted a certificate of appealability (COA) on one issue: whether the state withheld impeachment evidence from Cobb in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We AFFIRM the district court's denial of habeas relief. We DENY Cobb's request for a COA on three additional issues.
Cobb and Beunka Adams committed two armed robberies in August 2002. On the night of September 2, 2002, they committed a third. Armed with a shotgun, and wearing masks and gloves, they entered a convenience store known as BDJ's. Nikki Ansley (Dement)FN1 and Candace Driver were working as clerks that night. Also present in the store was a frequent customer, Kenneth Vandever. Ansley and Driver were made to stand together behind the cash register. Cobb and Adams demanded money. Driver opened the cash register drawer. While Cobb held the shotgun, Adams grabbed the drawer and took all of the money. Vandever, the customer, began to walk out the front door, but was ordered to join Ansley and Driver behind the register. FN1. When Cobb committed his capital offense, Ansley was not married. When she testified at Cobb's trial, she was married and her last name had changed to Dement.
Cobb and Adams then decided to take Ansley, Driver, and Vandever as hostages. Driver was ordered to surrender the keys to her Cadillac, which was parked outside, and the three hostages were forced into the vehicle. Adams drove to a remote, open pasture known as the “pea patch.” Everyone got out of the car, and Adams forced Driver and Vandever into the trunk while Cobb held the gun. Adams took Ansley into a wooded area and raped her. Cobb and Adams then told the three hostages that they could wait for a little while, and then leave, but soon Cobb and Adams changed their minds. After debating what to do, Cobb and Adams tied up the women hostages with their shirts and forced them to kneel by the vehicle. They began to walk away with Vandever, intending to allow him to come back later to untie Ansley and Driver. Soon they returned, however, and forced Vandever to sit by the other two victims.
After Vandever began to protest, Cobb shot him. Vandever fell forward, screaming that he had been shot. Either Cobb or Adams then shot Ansley and Driver.FN2 Ansley and Driver both fell forward as well, and pretended to be dead. Adams started kicking Ansley, and Cobb joined in. Cobb lifted Ansley up by her ponytail, and he and Adams put their lighters up to her face. After satisfying themselves that the three victims were dead, Adams and Cobb left the scene and went to the residence of Adams's cousin. FN2. It is unclear which perpetrator shot which victim.
Vandever died, but Ansley and Driver survived. After regaining consciousness, they managed to get to safety. Ansley sustained a shotgun wound to her left shoulder, numerous broken ribs, and a collapsed lung, which required her to spend almost two weeks in the hospital. After undergoing emergency surgery, she identified Cobb and Adams from a photo lineup. Driver, who suffered a gunshot wound to her lower lip, was able to identify Adams, but not Cobb, from a photo lineup while in the hospital. Adams's cousin contacted the police and disclosed Cobb's and Adams's whereabouts. They were arrested at Adams's cousin's home on September 3, the day after Vandever's murder. Adams surrendered, but Cobb resisted arrest and had to be subdued. Under questioning, Cobb confessed to shooting Vandever and to participating in the robbery and kidnaping.
On September 23, 2002, Cobb was indicted for capital murder under Tex. Penal Code § 19.03(a)(2) (murder in the course of committing, inter alia, kidnaping and robbery). His trial began on January 5, 2004. On January 23, 2004, he was sentenced to death. During the guilt-determination phase of the trial, Cobb admitted to participating in the robbery and kidnaping and to shooting Vandever. He testified, however, that Adams pressured him into committing the murder, threatening to kill Cobb if he refused to take part in killing the three hostages. The state cast doubt on this portion of Cobb's testimony by getting him to admit on cross-examination that he did not mention any coercion by Adams when he first confessed to the authorities. Moreover, the other surviving witnesses did not corroborate Cobb's testimony that Adams threatened him.
The state also rebutted Cobb's duress defense by calling William Elmer Thomsen to testify. Thomsen was incarcerated with Cobb at the Cherokee County Jail. Thomsen testified that, during several jailhouse conversations he had with Cobb at this time, Cobb extensively discussed Vandever's murder as well as the robberies that he and Adams committed. Thomsen testified that Cobb “thought armed robberies were the way to go. It's fast, quick, easy money.” According to Thomsen's testimony, Cobb also told him that he and Adams had plans to rob a Whataburger in the near future, had they not been caught and arrested. Thomsen also testified that Cobb confided in him that he planned at his trial to blame the murder on Adams by testifying that Adams had threatened to kill him if he did not take part in shooting the hostages. On cross-examination, the defense asked Thomsen whether he had received a deal from the state in exchange for his testimony. Thomsen avowed that he had not. He testified that when he contacted the district attorney to offer his testimony against Cobb, the charge he was facing for being a felon in possession of a firearm had already been dismissed.FN3 Thomsen was still in jail, however, for violating the terms of his probation for a prior offense. Although Thomsen insisted that he did not receive any benefit from the state for his testimony, he did concede that the district attorney's office contacted his parole officer on his behalf. FN3. This charge against Thomsen was dismissed when the district attorney chose not to attend the examining trial. When testifying at Cobb's state habeas hearing, the district attorney suggested that his reason for dismissing the weapons charge against Thomsen was his prediction that had he taken the case to trial, Thomsen would have had a 75 to 80 percent chance of acquittal.
After the jury convicted Cobb of capital murder, the sentencing phase of Cobb's trial began. Salient here are two special issues that the jury was required to answer. First, the jury had to determine whether it was probable that Cobb would commit future criminal acts of violence that would constitute a continuing threat to society. If the jury answered this question in the affirmative, it had to determine whether mitigating circumstances made a sentence of life imprisonment without parole more appropriate than a death sentence. Tex.Code Crim. Pro. art. 37.071.
The district court summarized the evidence presented to the jury at the sentencing phase as follows: The prosecution put on evidence of Cobb's other criminal conduct prior to the capital murder, including the testimony of the victims of the two previous armed robberies. They also presented testimony from several law enforcement officials who testified that Cobb had a bad reputation as far as obeying the law. They presented additional testimony from Ansley about the severity of her physical and emotional injuries. They presented testimony about the possibility of escape from prison, and they presented the testimony of Dr. Tynus McNeel, a psychologist who opined that Cobb fit the profile of a sociopath, a person who did not care about the welfare of other people and whose condition would be incurable. They also offered the testimony of Cobb's juvenile probation officer, who testified that Cobb assaulted one of his boot camp supervisors, that he was not afraid of people in authority, that his mother had difficulty controlling him, and that his reputation as a law abiding citizen was bad.
The prosecution also recalled Thomsen. This time, he testified that Cobb told him that when he learned that the two girls survived he was mad, because if they had died he probably wouldn't be in jail. He further testified that Cobb never expressed any remorse, which is why Thomsen was in court testifying. Thomsen stated that Cobb said that he got almost like a rush when he shot Vandever. This testimony caused Cobb to stand up and say “You lying son of a bitch, I never said no such thing,” whereupon the trial judge excused the jury and warned Cobb, “If you expect to remain in this courtroom for the remainder of this trial you will stay in your seat and keep your mouth shut.” After the jury returned, Thomsen testified that Cobb told him that if he were put in the same situation, he would do it again. Asked if Cobb ever said whose shotgun he used, Thompsen [ sic ] answered that Cobb said it was his, then added that Cobb “traded some gram of powder cocaine to some guy here in Rusk for it.” Thomsen also testified that Cobb discussed escaping from jail “Numerous times. He said if he ever had the chance and could figure out how to do it he would.” The defense did not cross-examine Thomsen.
The defense offered first the testimony of Cobb's adoptive mother, Edna Bell, who explained that Cobb and two of his brothers had been placed in foster care because their mother was unable to care for them, and that she decided to adopt all three of them. Bell described all three boys as having serious emotional problems from the beginning of her caring for them. She testified that she once visited the boys' mother's house and found it in horrific condition, with roach infestation. Several witnesses testified that Cobb's biological mother had alcohol and drug addiction issues and that as a result, her children suffered from abuse and extreme neglect. Bell testified that she loved and cared for the boys, and obtained psychological treatment for them, but they all had acute problems growing up. Bell testified that on one occasion Cobb protected her from a physical assault by one of his brothers. Cobb testified that he started using drugs at age twelve. He also testified that the reason he changed from doing burglaries to doing armed robberies was because he was in debt to a drug dealer and needed money quickly, and Adams suggested that armed robberies were an easier and better way to make money.
The defense also offered expert testimony that Cobb suffered some brain damage from his mother's alcohol and drug use while she was pregnant with him. Cobb v. Thaler, No. 2:08–CV–123, 2011 WL 672333, at *5–6 (E.D. Tex. Feb. 15, 2011) (citations omitted).
On the morning before closing arguments, the state discovered that it had not provided the defense with a letter written by the district attorney to Thomsen's parole officer. The district attorney's staff found the letter in the file of Cobb's co-defendant, Adams. The state then provided a copy of the letter to the defense. Dated January 10, 2003, the letter states: TO WHOM IT MAY CONCERN: Re: Wiliam Thomsen Please be advised that this office will not seek prosecution of the above individual for the offense of Unlawful Possession of Firearm by Felon. If anything further is needed please contact this office. Sincerely, Elmer C. Beckworth, Jr. Although it received this letter the day before closing arguments, the defense chose not to move to reopen the case to introduce the letter into evidence. In its closing, the defense argued:
The other person who testified was Mr. Thomsen. He had a lists [ sic ] of felonies. You remember all the stuff that he testified—that he testified to. He got a deal. Some reason of [ sic ] another, you know, miraculously, convicted felon with several actual convictions, person having been in TDCJ. Who knows what kind of enhancements could have been derived from that? Miraculously decide not to show up at the examining trial or not to prosecute him any further. He had an awful lot to gain. As far as people who said, Why would he say these things? When Richard was—why would Richard say these things to people? He knew, Richard knew before he ever got to the jail that there were survivors. He talked to Ranger Flores, you know. The jail house snitches and so forth aren't always reliable and sometimes information is just not received properly or misunderstood. There is no reason for him to say that, he already knew that. .... Mr. Thomsen. William Elmer Thomsen. Richard told you that he was always looking for a way to show a bruise or something so that he could claim that he was hurt in jail and sue the county. They didn't bring him back up here to deny that. I suspect that there were obviously claims or letters that he wrote somewhere along the line saying he had been hurt, this or that. He likes to fabricate evidence, information for his own benefit. I submit to you that's what he did when he talked about what he claimed Richard told him. Fabricated it for his own benefit. Number one, he gets a letter to his parole officer asking for leniency, We are not going to prosecute him. He has an examining trial to determine is there probable cause to hold him on his felon in possession of a firearm and the state doesn't even show up for the hearing; it's dropped, never to be brought up again. Would you allow William Elmer Thomsen to pick up your kids or grandkids from kindergarten? Would you invite William Elmer Thomsen to your home for dinner? I think not. Then how in the world can you rely on his testimony in making a life or death decision? That's what the State is asking you to do. They're asking you to rely on Tynus McKnight—Tynus McNeel and William Elmer Thomsen to vote for a sentence of death.
The state then argued in its closing: But he is asking, “How would you trust William Earl [ sic ] Thomsen? Would you have him pick up your kids, do anything?” He is probably right, I wouldn't. But somebody is, he is now a supervisor where he works. And on whatever deal he got contacting the parole board or the parole officer, he was revoked and got several months in the other facility. But what is important about Thomsen besides the fact he was the only person to be in the position to hear what Cobb said in the jail, is how did he know about these other robberies in Jacksonville? How did he know the girls were on their knees praying? And how did he know this location was called the pea patch? That could have only come from one person, Richard Cobb.
After hearing closing arguments, the jury returned a verdict on January 16, 2004. In response to Special Issue No. 1—whether there was a probability that Cobb would commit criminal acts of violence that would constitute a continuing threat to society—the jury answered “yes.” In response to Special Issue No. 2—whether there were mitigating circumstances that warranted a sentence of life imprisonment instead of death—the jury answered “no.” On January 23, 2004, the state court sentenced Cobb to death.
Two months later, while reviewing the file of Cobb's co-defendant, Adams, the prosecutor discovered another letter. Dated December 26, 2002, this letter was written by Thomsen and sent to the district attorney. The full text of the letter is as follows: Mr. Beckworth— Greetings, Sir. I hope your holidays were enjoyable— I'm sorry to bother you. Last check—Mon., 12–21–02 that Felony Possession of a firearm by a Felon and the parole hold were still on the computer holding me in jail. I have written my attorney Mr. Phifer 3 times this month reminding him that he needs to process the paperwork for the dismissal that occurred in Nov. on this gun charge. It was supposedly dismissed in Nov., however, I never received the paperwork stating it— At our meeting in Mr. Hatch's office on 12–19–02 you agreed to completely clear this charge as well as to try to have the parole hold lifted so I could get released. Mr. Hatch tried to phone my parole officer—Roy Shamblin—directly after our meeting but was unable to locate him. As you know the parole hold cannot be lifted until the gun charge is paperwork clear— The only reason I bother you with this is because all efforts by myself and my girlfriend to contact Mr. Phifer by letter and phone have gone astray—Could you please take steps to get Mr. Phifer in gear and have Mr. Hatch (remind him) to try contacting Roy Shamblin again—I realize the holidays have caused a slow process. I'm only asking for reminders for I'm sure everyone's mind is still in holiday mode—I would dearly love to at least spend New Years with my family. Also—you asked a question at our meeting if Richard Cobb told me why they decided to take the girls and Kenneth after robbing that store? I now recall his answer was: They wanted the keys to a car—I believe [Adams] had removed his mask at this time and spoke Rich's name so they told the girls to come with them”! The girls said: “Please just take my car, here the keys, leave us here—we won't tell anything”! It's on my notes I gave Mr. Phifer. I just forgot it—you're welcome to those notes if you would like to bring them in as evidence—Thank you for your time Sir— Sincerely, William Thomsen
After receiving this letter, Cobb filed a motion for a new trial in which he claimed, inter alia, that the state committed a Brady violation by withholding the letter. The state trial court denied the motion. On direct appeal, the Texas Court of Criminal Appeals affirmed Cobb's conviction and sentence. Cobb v. State, No. AP–74875, 2007 WL 274206 (Tex.Crim.App. Jan 31, 2007) (unpublished). His subsequent state application for writ of habeas corpus was denied. Ex parte Cobb, No. WR–68192–01, 2007 WL 4306840 (Tex.Crim.App. Dec. 5, 2007) (unpublished). Cobb then filed a petition for a writ of habeas corpus in federal district court, in which he raised eleven claims. The district court denied relief on each claim. Cobb v. Thaler, 2011 WL 672333. The district court subsequently granted a COA for Cobb's Brady claim and this appeal followed.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) defines “[t]he statutory authority of federal courts to issue habeas corpus relief for persons in state custody.” Premo v. Moore, ––– U.S. ––––, 131 S.Ct. 733, 739, 178 L.Ed.2d 649 (2011). “AEDPA prohibits federal habeas relief for any claim adjudicated on the merits in state court, unless one of the exceptions listed in § 2254(d) obtains.” Id. Under § 2254(d), a federal court may not grant habeas relief on such claims unless the state court's decision (1) “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”; or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”
A state court decision involves an unreasonable application of federal law if it “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case.” Williams v. Taylor, 529 U.S. 362, 407–08, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The state court's application of the law must be “objectively unreasonable,” not merely “erroneous” or “incorrect.” Id. 409–11, 120 S.Ct. 1495. The Supreme Court has recently emphasized that this standard is met only “in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [Supreme Court] precedents.” Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011). This exception to AEDPA's relitigation bar “is difficult to meet ... because it was meant to be.” Id. “[H]abeas corpus is a ‘guard against extreme malfunctions in the state criminal justice systems,’ not a substitute for ordinary error correction through appeal.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 332 n. 5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in the judgment)). In addition, in elaborating the “unreasonable application” exception, the Supreme Court has explained that the range of reasonable judgment can depend in part on the nature of the relevant rule. If a legal rule is specific, the range may be narrow. Applications of the rule may be plainly correct or incorrect. Other rules are more general, and their meaning must emerge in application over the course of time. Applying a general standard to a specific case can demand a substantial element of judgment. As a result, evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations. Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004).
Before turning to Cobb's Brady claim, we address his contention that AEDPA's standard of review is unconstitutional under Article III of the U.S. Constitution. Cobb argues that § 2254(d)(1) interferes with the decisional independence of the federal courts, and thereby violates Article III, in two ways.FN4 First, § 2254(d)(1) limits federal habeas relief to detentions pursuant to state court violations of “clearly established Federal law, as determined by the Supreme Court.” Cobb contends that this limitation dictates how federal courts adjudicate habeas cases by restricting them to considering only certain legal authorities. In particular, Cobb argues, this restriction prevents circuit courts from giving stare decisis effect to their own precedents. Second, and relatedly, Cobb argues that § 2254(d)(1)' s “unreasonable application” standard instructs federal courts to defer to state court interpretations of federal law. FN4. Although Cobb frames his constitutional challenge as based on the “doctrine of separation of powers,” given his reliance on Article III precedents it is better characterized as a claim that AEDPA is at odds with Article III's vesting of the “judicial Power” in the courts. See Boumediene v. Bush, 553 U.S. 723, 833, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008) (Scalia, J., dissenting) (“The ‘fundamental separation-of-powers principles' that the Constitution embodies are to be derived not from some judicially imagined matrix, but from the sum total of the individual separation-of-powers provisions that the Constitution sets forth. Only by considering them one-by-one does the full shape of the Constitution's separation-of-powers principles emerge.”).
In Cobb's view, these two features of § 2254(d)(1) violate Article III by restricting the independent interpretive authority of the federal courts. Specifically, Cobb contends that these perceived restrictions violate the conception of Article III's “judicial Power” that Marbury v. Madison famously enunciated: “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.” 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803). In addition, Cobb argues that § 2254(d)(1)'s asserted restrictions on independent federal adjudication offend the principle that Congress may not “prescribe rules of decision to the Judicial Department of the government in cases pending before it.” United States v. Klein, 80 U.S. (13 Wall.) 128, 146, 20 L.Ed. 519 (1872); see also Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995) (identifying the quoted language from Klein as describing a type of legislation that impermissibly “require[s] federal courts to exercise the judicial power in a manner that Article III forbids”). In addressing Cobb's constitutional challenge to AEDPA, we are aided by the considered views of several of our sister circuits. Four circuits have addressed constitutional challenges to AEDPA similar to Cobb's, and each has rejected that challenge. See Evans v. Thompson, 518 F.3d 1, 6–11 (1st Cir.2008); Crater v. Galaza, 491 F.3d 1119, 1126–30 (9th Cir.2007); Green v. French, 143 F.3d 865, 874–75 (4th Cir.1998), abrogated on other grounds by Williams, 529 U.S. 362, 120 S.Ct. 1495; Lindh v. Murphy, 96 F.3d 856, 871–74 (7th Cir.1996) (en banc), rev'd on other grounds, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). We are mindful, of course, that not all of our colleagues from other circuits share this view. See Evans v. Thompson, 524 F.3d 1 (1st Cir.2008) (Lipez, J., dissenting from denial of rehearing en banc) (joined by Torruella, J.); Crater v. Galaza, 508 F.3d 1261 (9th Cir.2007) (Reinhardt, J., dissenting from denial of rehearing en banc) (joined by Pregerson, Gould, Paez, and Berzon, JJ.); Lindh, 96 F.3d at 885–90 (Ripple, J., dissenting) (joined by Rovner, J.). Indeed, Cobb relies on the dissenting opinions from the First and Ninth Circuits as support for his position.
In our judgment, Cobb's argument and the dissenting opinions on which it relies are not persuasive. As each circuit to address the question has recognized, § 2254(d)(1) does not intrude on the independent adjudicative authority of the federal courts. Rather, it limits the grounds on which federal courts may grant the habeas remedy to upset a state conviction. See Evans, 518 F.3d at 11 (“There is a world of difference between telling a court how to decide a case given a certain set of facts and limiting the availability of relief ...”); Crater, 491 F.3d at 1128 (“Section 2254(d)(1) does not restrict the federal courts' power to interpret the law, but only sets standards for what state court errors of law require federal habeas relief.”); Green, 143 F.3d at 874–75 (“[S]ection 2254(d)(1) does not limit any inferior federal court's independent interpretive authority to determine the meaning of federal law in any Article III case or controversy. Under the AEDPA, we are free, if we choose, to decide whether a habeas petitioner's conviction and sentence violate any constitutional rights. Section 2254(d) only places an additional restriction upon the scope of the habeas remedy in certain circumstances.”); Lindh, 96 F.3d at 872 (majority opinion) (“Regulating relief is a far cry from limiting the interpretive power of the courts ... and Congress has ample power to adjust the circumstances under which the remedy of the writ of habeas corpus is deployed.”). AEDPA is hardly unique, of course, in limiting the availability of a remedy even for aggrieved individuals who may have legitimate federal constitutional claims. Plain error doctrine authorizes courts to correct forfeited errors only in rare circumstances. See United States v. Olano, 507 U.S. 725, 733–37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The harmless error rule plays a similar, albeit less severe, function. See Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Qualified immunity can prevent meritorious constitutional plaintiffs from recovering. See Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). In the habeas context, the Supreme Court's retroactivity doctrine creates a chasm between valid claims and the right to relief. See Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Supreme Court precedent similarly forecloses federal habeas relief for state prisoners convicted on the basis of evidence obtained in an unconstitutional search and seizure. Stone v. Powell, 428 U.S. 465, 481–82, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). In short, federal courts routinely deny relief even for known constitutional violations. The “distinction between rights and remedies is fundamental.” Lindh, 96 F.3d at 872.
Most fundamentally, Cobb's Article III challenge is untenable because it depends on an assumption that contradicts nearly two centuries of Supreme Court precedent. Cobb assumes that if Congress gives federal courts habeas jurisdiction to consider collateral attacks on state convictions it must give them plenary authority to consider afresh any and every error of federal law made by the state court. The Supreme Court, however, has long permitted Congress to extend habeas jurisdiction to federal courts without authorizing them to reconsider the legal determinations of criminal courts. Indeed, the common law understanding of the writ forbade reexamination of the judgments of criminal courts of competent jurisdiction. See Lindh, 96 F.3d at 867 (“The writ known in 1789 was the pre-trial contest to the executive's power to hold a person captive, the device that prevents arbitrary detention without trial. [It] did not include the ability to reexamine judgments rendered by courts possessing jurisdiction.” (citing cases)). Accordingly, in 1830 the Supreme Court interpreted its habeas jurisdiction under the Judiciary Act of 1789 as prohibiting it from reevaluating a federal prisoner's conviction because “[t]he judgment of the circuit court in a criminal case is of itself evidence of its own legality.” Ex parte Watkins, 28 U.S (3 Pet.) 193, 207, 7 L.Ed. 650 (1830); see also Felker v. Turpin, 518 U.S. 651, 663, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing Watkins ); Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L.Rev. 441, 465–66 (1963) (discussing Watkins's acceptance of “the black-letter principle of the common law that the writ was simply not available at all to one convicted of crime by a court of competent jurisdiction”). “[A]t common law a judgment of conviction rendered by a court of general criminal jurisdiction was conclusive proof that confinement was legal.” United States v. Hayman, 342 U.S. 205, 211, 72 S.Ct. 263, 96 L.Ed. 232 (1952). Even after Congress made the writ available to state prisoners in the latter half of the nineteenth century,FN5 the Supreme Court continued to adhere to the common law understanding that habeas was unavailable to test convictions by courts vested with jurisdiction. See, e.g., Ex parte Spencer, 228 U.S. 652, 660, 33 S.Ct. 709, 57 L.Ed. 1010 (1913); Harkrader v. Wadley, 172 U.S. 148, 163–64, 19 S.Ct. 119, 43 L.Ed. 399 (1898); In re Wood, 140 U.S. 278, 285–87, 11 S.Ct. 738, 35 L.Ed. 505 (1891). Over time, the Court relaxed this rule, recognizing new categories of habeas claims as challenging the convicting court's jurisdiction. See, e.g., Ex parte Siebold, 100 U.S. 371, 376–77, 25 L.Ed. 717 (1880) (unconstitutional criminal statute does not confer jurisdiction and habeas is proper to test the statute's constitutionality); Ex parte Lange, 85 U.S. (18 Wall.) 163, 175–76, 21 L.Ed. 872 (1874) (circuit court lacked jurisdiction to impose a second sentence where law only allowed imposition of one sentence). The Court also allowed habeas claims to remedy violations of federal law where the state failed to afford the prisoner “corrective process” to litigate his federal claim. See, e.g., Moore v. Dempsey, 261 U.S. 86, 90–92, 43 S.Ct. 265, 67 L.Ed. 543 (1923); Frank v. Mangum, 237 U.S. 309, 335–36, 35 S.Ct. 582, 59 L.Ed. 969 (1915). Despite these exceptions, however, the general rule remained. Not until the landmark case of Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953), did the Supreme Court clearly interpret the Habeas Corpus Act of 1867 as conferring on federal courts the authority to reexamine claims fully litigated on the merits in state court. See Wright v. West, 505 U.S. 277, 285–87, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (plurality opinion) (recounting the history); see generally Bator, 76 Harv. L.Rev. at 463–99 (same). FN6 As late as 1949, Judge Learned Hand could write:
FN5. The Judiciary Act of 1789 did not extend the writ to prisoners detained under state authority. Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 82; Ex parte Dorr, 44 U.S. (3 How.) 103, 105, 11 L.Ed. 514 (1845). Congress granted this authority in the Habeas Corpus Act of 1867, which authorized federal courts “to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States.” Act of Feb. 5, 1867, ch. 28, § 1, 14 Stat. 385. The next year, Congress repealed the Supreme Court's appellate jurisdiction over habeas decisions by the circuit courts. Act of Mar. 27, 1868, ch. 34, § 2, 15 Stat. 44; see also Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 (1868) (upholding the 1868 repeal). Congress reinstated the Court's jurisdiction over habeas appeals in 1885. Act of Mar. 3, 1885, ch. 353, 23 Stat. 437.
FN6. It is a matter of some debate whether Brown v. Allen was the first case to permit wholesale relitigation of state convictions on federal habeas review. A plurality of the Supreme Court took this view of the history in Wright. 505 U.S. at 285–87, 112 S.Ct. 2482 (plurality opinion) (Thomas, J.) (joined by Rehnquist, C.J. and Scalia, J.). Justice O'Connor disagreed. See id. at 299–300, 112 S.Ct. 2482 (O'Connor, J., concurring in the judgment) (joined by Blackmun and Stevens, JJ.). For present purposes, it does not ultimately matter which position is correct. At the very least, as the Seventh Circuit has explained, “[c]ollateral review of judgments entered after full opportunity for litigation is the work of the 20th Century.” Lindh, 96 F.3d at 868.
It must be remembered that upon habeas corpus a federal court does not in any sense review the decision in the state courts. Here, for example, the District Court could not properly have issued the writ, no matter how erroneous the judge had thought the state judge's conclusion .... If the state courts have honestly applied the pertinent doctrines to the best of their ability, they have accorded to an accused his constitutional rights. Schechtman v. Foster, 172 F.2d 339, 341 (2d Cir.1949). In light of these centuries-old precedents, Congress may constitutionally grant federal courts habeas jurisdiction over collateral challenges to state convictions and yet limit the availability of the remedy to exceptional circumstances. As the Seventh Circuit put it in rejecting an Article III challenge identical to Cobb's: “We would have to cast history to the winds to say that [§ 2254(d)(1) ], which respects fully-litigated judgments unless the state court has gone seriously wrong, transgresses constitutional limitations.” Lindh, 96 F.3d at 873–74. Indeed, in rejecting a Suspension Clause challenge to a different provision of AEDPA, the Supreme Court emphasized that “judgments about the proper scope of the writ are ‘normally for Congress to make.’ ” Felker, 518 U.S. at 664, 116 S.Ct. 2333 (quoting Lonchar v. Thomas, 517 U.S. 314, 323, 116 S.Ct. 1293, 134 L.Ed.2d 440 (1996)). We reject Cobb's argument that § 2254(d)(1) is unconstitutional under Article III and proceed to his Brady claim.
Cobb argues that the state courts unreasonably applied clearly established federal law as determined by the Supreme Court in Brady. In Brady, the Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S.Ct. 1194. Subsequent Supreme Court cases have made clear that the duty to disclose arises “even if no request is made,” United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), and that “the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police.” Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Moreover, the duty to disclose includes impeachment evidence. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).
To prevail on his Brady claim, Cobb “must show that (1) the prosecution suppressed evidence, (2) the evidence was favorable to the defense, and (3) the evidence was material to his guilt or punishment.” Mahler v. Kaylo, 537 F.3d 494, 500 (5th Cir.2008). Materiality “is generally the most difficult [element] to prove.” Id. “[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Bagley, 473 U.S. at 682, 105 S.Ct. 3375. The Brady materiality determination is a mixed question of law and fact. LaCaze v. Warden La. Corr. Inst. for Women, 645 F.3d 728, 736 (5th Cir.2011). The state habeas court denied Cobb's Brady claim on the merits after entering detailed findings of fact and conclusions of law. First, it concluded that the prosecution did not suppress the evidence because Cobb “had access to the files in both his and Beunka Adams [ sic ] case, and failed to avail himself of the open file policy.”FN7 Second, it concluded that Cobb “fails to show the letter was material especially in light of trial counsel insinuating a deal on cross-examination, and argument without challenge by the State.” Accordingly, the state court found, “there is no reasonable probability that the outcome of the trial would have been different if trial counsel had known about the letters earlier.”
FN7. The habeas court found the following facts: 17. [T]he Cherokee County District Attorney's Office has an “open file policy.” 18. [T]he “open file policy” was announced in the record several times with attorneys for both [Cobb] and Beunka Adams present, and all attorneys were therefore aware of said policy. .... 21. The Court finds from the record, the testimony of District Attorney Elmer Beckworth and the testimony of William House that Counsel for the State requested trial counsel to inspect everything the State had in its files. 22. The Court finds from the record, that trial counsel for [Cobb] did not come to the District Attorney's Office and go through all of the files made available. 23. The Court finds from the record, that trial counsel for Co-defendant Beunka Adams did go through all of the State's files as to both cases. 24. The Court finds from the record, and the testimony of District Attorney Elmer Beckworth, that had trial counsel availed himself of access to the State's files, he would have obtained the letter. 25. The Court finds from the record, that trial counsel aggressively cross-examined William Elmer Thomsen. The district court determined that the first of these conclusions was an unreasonable application of Brady while the second was reasonable. Cobb, 2011 WL 672333, at *9–11. It therefore denied federal habeas relief on Cobb's Brady claim. Id. at *11. In our view, both of the state court's conclusions were reasonable. We address each in turn.
A. Did the Prosecution Suppress the Evidence?
“ Brady does not obligate the State to furnish a defendant with exculpatory evidence that is fully available to the defendant through the exercise of reasonable diligence.” Kutzner v. Cockrell, 303 F.3d 333, 336 (5th Cir.2002) (citing Rector v. Johnson, 120 F.3d 551, 558 (5th Cir.1997)). Relying on this quoted language, the Director argues that it was not unreasonable for the state court to conclude that “reasonable diligence” for Cobb's capital murder trial counsel would have included inspecting the file of Cobb's co-defendant Adams.FN8 This conclusion is buttressed by the state habeas court's factual findings, cited supra note 7, that had Cobb's attorney examined both of the open files as he requested, and as did the attorney for co-defendant Adams, he would have discovered the evidence. These factual determinations, of course, “shall be presumed to be correct” unless Cobb carries “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Cobb has not challenged these findings of fact. FN8. The state court did not cite Kutzner or expressly apply a reasonable diligence standard. Nevertheless, the state court's decision may still be affirmed on this ground: “[A] federal habeas court is authorized by Section 2254(d) to review only a state court's ‘decision,’ and not the written opinion explaining that decision .... [O]ur focus ... should be on the ultimate legal conclusion that the state court reached.” Neal v. Puckett, 286 F.3d 230, 246 (5th Cir.2002) (en banc).
In arguing that the prosecution suppressed the evidence, Cobb relies heavily on the determination of the district court that the state court's conclusion was unreasonable. The district court concluded that Cobb's attorney exercised due diligence because “[w]hile it would have been good practice for Cobb's counsel to review the case file of his co-defendant, unless they knew that evidence the prosecution would rely on in Cobb's trial would only be found in Adams's file, they had no duty to review Adams's file.” Cobb, 2011 WL 672333, at *9. Cobb also relies on the following quote from the Supreme Court to establish that his attorney exercised reasonable diligence in not inspecting Adams's file: If it was reasonable for trial counsel to rely on, not just the presumption that the prosecutor would fully perform his duty to disclose all exculpatory materials, but also the implicit representation that such materials would be included in the open files tendered to defense counsel for their examination, we think such reliance by counsel appointed to represent petitioner in state habeas proceedings was equally reasonable. Strickler v. Greene, 527 U.S. 263, 284, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).
We are persuaded that the state habeas court reasonably applied Brady in determining that the prosecution did not suppress Thomsen's letter. Neither party cites to clearly established Supreme Court case law that indicates one way or the other whether defense counsel has a duty to inspect the open file of a co-defendant. Cobb's citation to Strickler does not answer the question. Strickler merely states that defense counsel may rely on the implicit representations of the prosecution that Brady material will be available “in the open files tendered to defense counsel for their examination.” Id. This statement is ambiguous as to whether “open files” includes a co-defendant's open file. Thus, the only clearly established Supreme Court determination that Cobb cites is the basic rule that the prosecution has a duty to disclose material exculpatory evidence. It was not unreasonable for the state court to conclude that the prosecution satisfied that duty by providing open access to the case files for the two co-defendants. Moreover, given that the Supreme Court has stated the Brady disclosure requirement at a high level of generality, the state court had substantial leeway in deciding whether, in this particular case, the inclusion of the evidence in Cobb's co-defendant's file satisfied the prosecution's disclosure obligation. See Yarborough, 541 U.S. at 664, 124 S.Ct. 2140 (“The more general the rule, the more leeway [state] courts have in reaching outcomes in case-by-case determinations.”). Because “fairminded jurists could disagree that the state court's decision conflicts with [Supreme Court] precedents,” Harrington, 131 S.Ct. at 786, we conclude that the state court's determination was reasonable.
B. Was the Evidence Material?
Cobb argues that Thomsen's letter is material because it reveals that he thought he had a deal to exchange testimony against Cobb for prosecutorial leniency. Cobb maintains that the letter contains potent impeachment evidence that was material to two jury determinations that were necessary to its imposing a sentence of death: the probability of Cobb's future dangerousness and the sufficiency of his mitigation evidence. With regard to future dangerousness, Cobb argues that each side's expert testimony cancelled the other's out, and that Thomsen's testimony that Cobb felt no remorse, wanted to escape, and would kill again, was “the tipping point.” With regard to the mitigation evidence, Cobb argues that he presented a “compelling case” but that Thomsen's testimony undermined it. He argues that Thomsen's letter “would have clearly exposed Thomsen for what he was—a jailhouse snitch making up tales to get out of jail free.” The district court rejected Cobb's argument, reasoning that: [I]t is not at all clear that the defense, even had it received the letters in a timely fashion, could have further impeached Thomsen's credibility. The state court found that defense counsel insinuated the existence of “some kind of deal” during its aggressive cross-examination of Thomsen, and when they argued at closing that there was an agreement between the state and Thomsen, the State did not challenge, object to, or attempt to rebut the argument. The Court further found that the letter from Thomsen to the District Attorney merely “requests information and help,” and “was cumulative to information trial counsel already had which he used to cross-examine Thomsen and argue to the jury.” Finally, the Court found that there was “no undisclosed agreement for favorable treatment for William Elmer Thomsen.”
The Court finds that the letter at issue was not material because it did not compellingly contradict Thomsen's testimony. His letter to the District Attorney establishes that in their meeting, the District Attorney agreed to complete the administrative paperwork necessary to completely clear the charge and to alert his parole officer that it had been completely cleared. There is no indication in the record that this is not what the District Attorney should have done, as a matter of course, in any case. Further, while it is clear from his letter that Thomsen was very optimistic that he would be released from prison quickly as a result of the District Attorney's actions, his letter establishes that the District Attorney agreed to do no more than to contact his parole officer and inform him of the dismissal. In addition, nowhere in Thomsen's letter does he state that he would testify in return for what the District Attorney agreed to do. Cobb, 2011 WL 672333, at *10.
We agree with the district court that it was reasonable for the state court to determine that Thomsen's letter was immaterial. In elaborating Brady's materiality requirement, this court has held that “when the undisclosed evidence is merely cumulative of other evidence, no Brady violation occurs.” Spence v. Johnson, 80 F.3d 989, 995 (5th Cir.1996) (citing Allridge v. Scott, 41 F.3d 213, 218 (5th Cir.1994)). Although Cobb characterizes the letter as demonstrating Thomsen's belief that he had a testimony-for-leniency “deal,” the letter shows nothing more than that the district attorney had agreed to clear Thomsen's felon-in-possession charge and that he was willing to cooperate with the prosecution by testifying against Cobb.FN9 Thus, while the defense surely could have used the letter in its cross-examination of Thomsen, it would not have significantly added to the impeachment ammunition that Cobb's counsel already had. As the state habeas court found, Cobb's counsel “aggressively cross-examined” Thomsen. Moreover, the defense emphasized during its closing argument the only facts that the letter plainly establishes: Thomsen had a strong incentive to lie and received leniency from the district attorney. FN9. Contrary to Cobb's assertions, the letter is neither “astonishing” nor “irrefutable evidence that Thomsen would say whatever he thought the state wanted him to say in exchange for the state ‘taking care of’ his criminal troubles.” The letter indicates that Thomsen had a motive to lie, hardly an earth-shattering revelation given his status as a jailhouse informant.
Cobb's comparison between his case and the facts in Bagley is unconvincing. The government-agent witnesses in Bagley, despite an undisclosed contract suggesting they would receive pecuniary reward for a successful outcome based on their testimony, signed affidavits attesting that they provided their testimony freely, without any promise of reward. 473 U.S. at 670–71, 105 S.Ct. 3375. Because of this affirmative misrepresentation and the prosecutor's failure to disclose the inducements, the Court concluded that “there is a significant likelihood that the prosecutor's response to respondent's discovery motion misleadingly induced defense counsel to believe that [the government witnesses] could not be impeached on the basis of bias or interest arising from inducements offered by the Government.” Id. at 683, 105 S.Ct. 3375. In Cobb's case, by contrast, the defense was in no way misled about Thomsen's incentive to lie. Rather, it zealously sought to impeach Thomsen on that basis.
At the very least, “fairminded jurists could disagree that the state court's decision conflicts with [Supreme Court] precedents.” Harrington, 131 S.Ct. at 786. Moreover, like Brady's disclosure requirement, the materiality standard is a general rule, meaning a wide range of reasonable applications exist. See Yarborough, 541 U.S. at 664, 124 S.Ct. 2140 (“The more general the rule, the more leeway [state] courts have in reaching outcomes in case-by-case determinations.”). We therefore conclude that the state court did not unreasonably apply Brady in holding that the letter was immaterial.
Finally, Cobb asks for a COA on three additional issues. He concedes, however, that each argument is foreclosed by precedent. We therefore deny his request for a COA as to each issue. First, Cobb requests a COA on the question of whether the Texas death penalty scheme is unconstitutional under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution because it requires jurors to make future dangerousness predictions beyond their skill and expertise. Cobb concedes that this argument is foreclosed by Jurek v. Texas, 428 U.S. 262, 274–76, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). Second, Cobb requests a COA on the question of whether the state trial court unconstitutionally relieved the state of the burden of proving the lack of mitigating circumstances beyond a reasonable doubt. Cobb concedes that this argument is precluded by Scheanette v. Quarterman, 482 F.3d 815, 828 (5th Cir.2007), and Rowell v. Dretke, 398 F.3d 370, 378–79 (5th Cir.2005). Third, Cobb requests a COA on the question of whether the Texas death penalty scheme is unconstitutional under the Eighth and Fourteenth Amendments for failure to provide for proportionality review. He concedes that Pulley v. Harris, 465 U.S. 37, 42–44, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), forecloses this argument.
For the foregoing reasons, we AFFIRM the district court's denial of Cobb's petition for a writ of habeas corpus. We DENY Cobb's motion for an additional COA.