I. Introduction

John Cockrum through his next friend Mandy Welch Esq. brings the above-entitled and numbered application seeking the writ of habeas corpus. After reviewing the evidence and arguments of the parties it is found pursuant to the following findings of fact and conclusions of law that the application should be granted in part and denied in part and that a writ of habeas corpus should conditionally issue.

II. Factual and Procedural Background

In May 1986 in DeKalb Texas John Cockrum shot and killed Eva May during the course of a robbery of the small convenience store that she owned and operated. Cockrum was arrested along with his accomplice Jerry Morgan and indicted for capital murder by a Bowie County grand jury. *fn1 After trial in December 1986 a jury found Cockrum guilty of intentionally causing the death of another in the course of aggravated robbery and affirmatively answered all special issues as required by former Tex. Code Crim. P. art. 37.071. In accordance with the jury's findings Cockrum was convicted of capital murder and sentenced to death by lethal injection. The Texas Court of Criminal Appeals affirmed his conviction and sentence on direct appeal and the United States Supreme Court denied Cockrum's petition for the writ of certiorari. Cockrum v. State 758 S.W.2d 577 (Tex. Crim. App. 1988) cert. denied 489 U.S. 1072 103 L. Ed. 2d 825 109 S. Ct.1358 (1989).

Cockrum filed an application for the writ of habeas corpus in Texas state court before the same Court who sat at Cockrum's trial. Without an evidentiary hearing the state district court entered findings of fact and conclusions of law which the Texas Court of Criminal Appeals found to be supported by the record. In a per curiam opinion the Court of Criminal Appeals denied the habeas corpus application. Ex parte Cockrum No. 23 249-02 (Tex. Crim. App. 1992).

In 1993 Cockrum applied for the writ of habeas corpus in federal court and his execution was stayed pending review of the application. Since its filing this action has proceeded along a tortuous path requiring among other things the determination of the applicant's competency to waive further review of his conviction and sentence In re Cockrum 867 F. Supp.484 (E.D. Tex. 1994) the substitution of Counsel for the applicant and the resolution of discovery disputes Cockrum v. Johnson 917 F. Supp.479 (E.D. Tex. 1996). In February 1996 a hearing on the merits of Cockrum's application was finally held.

On April 24 1996 the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") Pub. L. 104-132 110 Stat.1217 was signed into law and a new issue was injected into this action-whether the newly enacted law applies to Cockrum's application and if it does what it means. The State argues that Cockrum's application must be evaluated under the newly amended provisions of 28 U.S.C. SEC.2254 and that under these provisions all relief to the applicant must be denied. Cockrum on the other hand contends that the AEDPA does not retroactively apply to pending cases and that contrary to the State's interpretation he is entitled to the writ even under the newly amended provisions. The parties have fully briefed all issues including the impact of the new law and all claims for relief in the application are now ripe for adjudication.

This opinion proceeds in four parts. First the retrospective effect of the new law is considered and it is determined that the newly enacted amendments to the habeas corpus statute do not apply to this case but that the uncertain state of the law justifies analyzing Cockrum's application in the alternative under the AEDPA. Second the applicant's challenge to the presumption of correctness of the state habeas court's fact-findings is addressed and it is found that the presumption should not attach. Third the merits of Cockrum's claims are considered and it is concluded that because Cockrum received ineffective assistance in the punishment phase of his trial the writ of habeas corpus should conditionally issue. Finally Cockrum's application is analyzed in the alternative under the AEDPA and it is likewise determined that Cockrum is entitled to the writ of habeas corpus due to the ineffective assistance of Counsel.

III. Effect of Antiterrorism and Effective Death Penalty Act

Title I of the AEDPA significantly curtails the scope of federal habeas review. The law amends chapter 153 of United States Code title 28 by creating stricter filing deadlines for habeas corpus applications narrowing the circumstances in which an appeal may be taken altering the standards by which a federal court reviews an applicant's claims and restricting the ability of a prisoner to bring more than one application for relief. AEDPA SEC.(s) 101-106 (to be codified at 28 U.S.C. SEC.(s) 2244 2253 2254 & 2255). The AEDPA also creates a new chapter--title 28 chapter 154--establishing procedures that apply only to prisoners in state custody under a death sentence. AEDPA SEC. 107 (to be codified at 28 U.S.C. SEC.(s) 2261-2266).

At issue here is SEC. 104 the amendments to 28 U.S.C. SEC. 2254. The State does not argue that SEC. 107 the new chapter governing death penalty cases applies to this action despite the fact that Cockrum is a prisoner in state custody under a death sentence. This is so because the applicability of the new death penalty chapter is predicated on the adoption of a mechanism for the appointment and payment of Counsel in state post-conviction proceedings. AEDPA SEC. 107(a) (to be codified at 28 U.S.C. SEC. 2261). No such mechanism was in place when Cockrum's habeas corpus application was considered by the Texas state system. Thus SEC. 107 does not apply to this action and is relevant here only to the extent it sheds light on the retrospective effect of SEC. 104.

Landgraf v. USI Film Products 128 L. Ed. 2d 229 114 S. Ct.1483 (1994) provides the framework for determining the initial question of whether the AEDPA applies to pending cases on its date of enactment. First where the congressional intent is clear it governs"; if the statute evinces a clear intent for prospectivity or retroactivity there is no need to analyze the issue further. 114 S. Ct. at 1496 (quoting Kaiser Aluminum & Chem. Corp. v. Bonjorno 494 U.S. 827 837 108 L. Ed. 2d 842 110 S. Ct.1570 (1990)). If congressional intent is ambiguous however then it must be determined whether the statute has "retroactive effect i.e. whether it would impair rights a party possessed when he acted increase a party's liability for past conduct or impose new duties with respect to transactions already completed." 114 S. Ct. at 1505. If the statute would operate retroactively in this manner then it does not apply to pending cases. If the new law does not have retroactive effect--i.e. it is a rule of procedure or a jurisdictional statute changing the tribunal to hear the case or a law altering the standard for granting purely prospective relief--then the new statute does apply to pending cases. Reviewing the AEDPA under the first part of the Landgraf test it is concluded that Congress did not intend SEC. 104 of the AEDPA to apply to actions pending on the date of its enactment and thus it is unnecessary to consider under the second part of the Landgraf test whether the law would have retroactive effect.

In drafting SEC. 107 Congress stated explicitly that the new death-penalty chapter applies retroactively: "Chapter 154 of title 28 United States Code . . . shall apply to cases pending on or after the date of enactment of this Act." AEDPA SEC. 107(c). In contrast the amendments to Chapter 153 including SEC. 104 lack any provision specifying whether they are prospective or retroactive. "Where Congress includes particular language in one section of a statute but omits it in another section of the same Act it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Gozlon-Peretz v. United States 498 U.S. 395 404 112 L. Ed. 2d 919 111 S. Ct.840 (1991) (quoting Russello v. United States 464 U.S. 16 23 78 L. Ed. 2d 17 104 S. Ct.296 (1983)) (internal quotation marks omitted). Applying this maxim to the AEDPA it is found that because SEC. 107 contains an explicitly retroactive provision and because SEC. 104 contains no retroactive provision Congress intended the latter to have only prospective effect. Accordingly because Cockrum's application was pending on the date that the AEDPA was signed into law it is found that SEC. 104 does not apply to this action.

It is recognized that the Supreme Court in Landgraf applying the same canon of statutory construction found a similar although much weaker argument to be insufficient to establish congressional intent on the subject of a statute's retroactivity. See Landgraf 114 S. Ct. at 1494-95 & 1495 n.12 (holding that two minor expressly prospective provisions of the Civil Rights Act of 1991 42 U.S.C. SEC. 1981a do not support a negative inference that the rest of the law should be applied retroactively). It is also recognized that Court that have addressed the issue of the AEDPA's effect on pending cases have not all reached the same conclusion as is reached in this case. Indeed it is difficult to find any points of agreement at all among the many recent decisions on this difficult and important question. Some have found as it is found here that the AEDPA does not apply to pending cases because that is what Congress intended. See United States v. Trevino 1996 U.S. Dist.6420 No. 96 C 828 1996 WL 252570 *3 n.1 (N.D. Ill. May 10 1996); Warner v. United States 926 F. Supp.1387 1390 n.4 (E.D. Ark. 1996); see also Edens v. Hannigan No. 94-3352 1996 WL 339763 *8 n.1 (10th Cir. June 20 1996). At least one court however has found congressional intent to be the opposite i.e. that the AEDPA should apply retroactively. Leavitt v. Arave 927 F. Supp.394 397 (D. Idaho 1996). Several courts have reached a third conclusion--that congressional intent is ambiguous; however even those opinions that have applied the second part of the Landgraf test have not reached consistent conclusions. Compare Lennox v. Evans 87 F.3d 431 1996 WL 343632 *2-*4 (10th Cir.1996) (holding that the AEDPA's amendments to 28 U.S.C. Sec. 2253(c)(2) have no retroactive effect) with Boria v. Keane No. 1332 1996 WL 397290 *2 (2d Cir. July 17 1996) (per curiam) ("Application of the new statute to this case would be retroactive.") and Trevino 1996 U.S. Dist. 1996 WL 252570 *3 n.1 (holding that the AEDPA has a "truly retroactive effect"). In the Fifth Circuit the retroactivity of the new habeas provisions remains an open question. Callins v. Johnson 1996 U.S. App.17112 No. 95-11049 1996 WL 390860 *6 (5^th.Cir. July 12 1996); Mendez-Rosas v. INS 1996 U.S. App.15319 No. 95-60472 1996 WL 350716 *4 n.5 (5^th.Cir. June 26 1996) (per curiam). In light of this uncertainty it would be imprudent to fail to consider the AEDPA altogether in this opinion. Thus Cockrum's claims will be analyzed first under pre-AEDPA law and second in the alternative his claims will be evaluated under the AEDPA.

IV. Presumption of Correctness of State Factfindings

Cockrum challenges the presumption of correctness ordinarily afforded a state court's findings of fact in a federal habeas corpus proceeding. *fn2 28 U.S.C. SEC.2254(d). Although Cockrum relies on a number of . 2254(d)'s eight enumerated exceptions he generally alleges that the presumption should not attach because the fact-finding process was inadequate. *fn3 See Andrews v. Collins 21 F.3d 612 618 (5th Cir.1994) cert. denied 115 S. Ct.908 (1995); Black v. Collins 962 F.2d 394 400 (5th Cir.1992) cert. denied 504 U.S. 992 119 L. Ed. 2d 601 112 S. Ct.2983 (1992) (both treating challenges under multiple statutory exceptions as a general challenge to the adequacy of the fact-finding procedures employed by the state court). Specifically Cockrum contends that he did not receive a full and fair hearing because a live evidentiary hearing was not held and because the state Court and prosecutor engaged in ex parte communications. *fn4

A. Adequacy of Paper Hearing

In February 1992 Cockrum filed his petition in state court along with a motion for discovery and a motion for an evidentiary hearing. After several extensions were granted the State filed its response on August 18 1992. Eight days later on August 26 1992 the trial Court without ruling on the motion for discovery or the motion for an evidentiary hearing signed findings of fact and conclusions of law. In a per curiam order the Texas Court of Criminal Appeals denied the petition on December 14 1992.

Faced with widely divergent factual allegations and with affidavits attesting to contradictory versions of events the state habeas court resolved all factual disputes against Cockrum without hearing any testimony. In Buxton v. Lynaugh 879 F.2d 140 142-47 (5th Cir.1989) cert. denied 110 S. Ct.3295 (1990) it was held that such a procedure is "full and fair" within the meaning of Sec. 2254(d) as long as the state habeas Court was the same Court who presided at trial. That is the case here--the state Court that conducted Cockrum's trial also heard his petition for habeas relief.

As the Fifth Circuit has explained the reason that a "paper hearing" can be adequate in such a case is that the trial The Court is "in an optimal position to assess the credibility of the affidavits" before it. May v. Collins 955 F.2d 299 314 (5^th.Cir.) cert. denied 504 U.S. 901 (1992). When a state Court must "choose between competing versions of the actual events at trial . . . he [can] compare the information presented in the various affidavits against his own firsthand knowledge of the trial." Id. In such a situation live testimony is not necessary and the federal court should generally accord a presumption of correctness to the state Court's conclusions. Consistent with this rationale the Fifth Circuit has upheld "paper hearing" determinations of ineffective assistance claims on the theory that the state habeas Court had an opportunity to observe the conduct of defense Counsel at trial. E.g. Sawyers v. Collins 986 F.2d 1493 1504-05 (5^th.Cir.) cert. denied 508 U.S. 933 124 L. Ed. 2d 300 113 S. Ct.2405 (1993); Clark v. Collins 956 F.2d 68 72 (5^th.Cir.) cert. denied 503 U.S. 901 117 L. Ed. 2d 485 112 S. Ct.1254 (1992). Similarly when an applicant alleges that testimony given at trial was false the trial Court's firsthand observations of the witness on the stand provide a legitimate basis for rejecting the witness's recanting affidavit. E.g. Ellis v. Collins 956 F.2d 76 79-80 (5^th.Cir.) (per curiam) cert. denied 503 U.S. 915 117 L. Ed. 2d 510 112 S. Ct.1285 (1992); May 955 F.2d at 314.

While acknowledging this general rule Cockrum argues that a paper hearing was insufficient in this case to resolve the factual dispute underlying his claim that the State misrepresented the terms of a key witness's plea bargain. Factually this claim alleges that the prosecution struck a deal with Jerry Morgan who was Cockrum's accomplice and the primary witness at Cockrum's trial assuring Morgan of an early release on parole; and further that this deal was improperly withheld from the jury. In support of these allegations Cockrum submitted the affidavit of Jerry Morgan to the state habeas court an affidavit which asserted that the prosecutor "promised me that I would be paroled as soon as I was eligible if I cooperated and provided the State with a statement." Petition for Writ of Habeas Corpus No. 86-F-144-5 app. A P 5 (Affidavit of Jerry Morgan). With its response the State submitted an affidavit from the prosecutor in question as well as an affidavit from Morgan's defense Counsel. These two affidavits which are essentially identical contradict Morgan: "The State did not agree to an early parole release date or promise early release on parole as part of the plea bargain agreement." Response to Petitioner's Application for Writ of Habeas Corpus No. 86-F-144-5 Ex. B P 5 (Affidavit of Paul Hoover); id. Ex. D P 5 (Affidavit of James Elliott). The state habeas court which not only observed Morgan's testimony at Cockrum's trial but also took Morgan's guilty plea found that no deal regarding parole had been made obviously crediting the State's affiants over Morgan. See Findings of Fact and Conclusions of Law No. 86-F-144-5 P 2 (5th Dist. Ct. Bowie County Tex. 1992) ("The plea bargain did not include an agreement for early release on parole.").

Cockrum argues that the rationale for the rule developed in Buxton and May depends on the ability of the Court to draw on his observations at trial when assessing the pleadings and affidavits before him at the habeas stage. Cf. Vuong v. Scott 62 F.3d 673 684 (5^th.Cir.) ("The fact that the Court has a personal recollection of the proceeding actually contributes to the adequacy of a paper hearing rather than detracting from it.") cert. denied 133 L. Ed. 2d 458 116 S. Ct.557 (1995). When the applicant asserts facts that occur outside Courtroom Cockrum points out the trial Court is in no better position to rule on the issue at the habeas stage than a state Court who did not preside over the applicant's trial. Cf. Nethery v. Collins 993 F.2d 1154 1157 n.8 (5^th Cir.1993) (finding paper hearing inadequate when habeas Court different from trial Court) cert. denied 128 L. Ed. 2d 87 114 S. Ct.1416 (1994). Without the Court's benefit of firsthand observation Cockrum argues that the primary rationale for deferring to the "paper hearing" disappears and an evidentiary hearing is necessary to resolve factual disputes especially those raised by contradictory affidavits. Emphasizing that the adequacy of a paper hearing must be determined on a case-by-case basis May 955 F.2d at 312 ("It is necessary to examine in each case whether a paper hearing is appropriate to the resolution of the factual disputes underlying the petitioner's claim.") Cockrum argues that in this case the state Court had no satisfactory basis for resolving the factual dispute raised by the affidavits of the prosecutor and Morgan's Counsel on the one hand and Morgan on the other. Because the plea bargaining process occurred outside the courtroom Cockrum contends that the state Court was not in a position to evaluate the credibility of the affiants on the point of whether a deal regarding parole had been struck.

While the general thrust of Cockrum's argument has merit its application to the facts of this case is foreclosed by Amos v. Scott 61 F.3d 333 346-47 (5^th Cir.) cert. denied 133 L. Ed. 2d 458 116 S. Ct.557 (1995). The applicant in Amos asserted a claim nearly identical to Cockrum's--"that the State failed to disclose that it had reached an agreement with [the witness/accomplice] in exchange for his testimony and failed to correct false testimony elicited from [the witness/accomplice]." Id. at 346. As with Cockrum the state Court that presided over Amos's trial also presided over the state habeas proceedings. With his state habeas petition Amos submitted an affidavit from the witness/accomplice asserting that a deal had been struck with the State a deal which was not revealed to the jury at trial. Id. Without hearing testimony the state habeas court found that no deal was made between the State and the witness/accomplice. In federal court Amos argued that a paper hearing was inadequate to resolve this claim and that therefore the presumption of correctness should not apply. The Fifth Circuit unequivocally rejected this argument:

[A] fact-finding procedure that involves credibility determinations and is based on a "paper hearing" affords the habeas petitioner a full and fair hearing when the state court Court who presided over the petitioner's trial conducts the habeas proceeding. Whenever such a judicial identity exists the presumption of correctness applies and a federal habeas court must accord the presumption of correctness to the factual findings.

In the instant case the disputed facts stem from state habeas credibility assessments that were made by the same state court Court who had presided over Amos' trial. We are satisfied therefore that the fact-finding procedure followed by that Court afforded Amos a full and fair hearing.

Id. at 347 (footnote omitted) (emphasis added). Applying Amos to this case it is concluded that the lack of a live evidentiary hearing on the "parole promise" claim did not deprive Cockrum of a full and fair hearing.

B. Ex Parte Communications

Both the Court and the Counsel representing the State of Texas at the state habeas level testified that they had several ex parte telephone conversations concerning Cockrum's petition. Deposition of the Honorable Jack Carter Jan. 17 1996 at 9; Deposition of Winonia Griffin Jan. 18 1996 at 9-10. The Court without notifying Cockrum initiated the first telephone call shortly after the State filed its response. The Court discussed the merits of Cockrum's claims with the State's Counsel and asked her to submit proposed findings of fact and conclusions of law for his review. Deposition of Winonia Griffin at 9-10. The State's Counsel did so but did not serve the document on Cockrum. Id. At 11-12. The Court called the State's Counsel back and either asked her to make modifications after further discussion of the merits Deposition of the Honorable Jack Carter at 11-12 26 or simply told her to remove the word "Proposed" from the title "Proposed Findings of Fact and Conclusions of Law" and to resubmit the document for his signature Deposition of Winonia Griffin at 9. Once again Cockrum was not notified of the conversation nor was he given any opportunity to review the first or final draft. After the requested revisions were made the document was sent to the Court who signed it as his findings of fact and conclusions of law. Although these ex parte conversations were informal the State was advocating its position on the merits of the petition. Deposition of the Honorable Jack Carter at 20 26-27.

Obviously it is highly improper for the Court to entertain argument in this manner. It is important however to identify precisely why it is improper. Contrary to Cockrum's argument the adoption of findings prepared by the State's Counsel and the concomitant deference to her research is not objectionable although it is certainly not laudable. Nichols v. Scott 69 F.3d 1255 1277 (5^th Cir.1995) cert. denied 116 S. Ct.2558 (1996). What is improper is the fact that the document was solicited submitted and signed without any notice to Cockrum see Brown v. Dixon 891 F.2d 490 495 n.12 (4th Cir.1989) (although adopting a prosecutor's suggestions are not improper "the impropriety arose from the Court's failure to notify defense Counsel of his course") cert. denied 495 U.S. 953 109 L. Ed. 2d 545 110 S. Ct.2220 (1990) and that discussions concerning the substance of the petition occurred outside Cockrum's presence without his knowledge or approval.

It is also important to stress that not all ex parte contacts between prosecutor and Court deprive a party of a fair hearing within the meaning of SEC.2254(d). For instance the fact that a Court merely received a proposed order outside the presence of opposing Counsel does not justify setting aside the presumption of correctness. Campbell v. Wainwright 738 F.2d 1573 1576 (11^th Cir.1984) cert. denied 475 U.S. 1126 90 L. Ed. 2d 195 106 S. Ct.1652 (1986). Similarly an ex parte letter from prosecutor to Court pointing out that a draft order fails to address certain claims for post conviction relief can be said to be "innocuous and the nondisclosure [of the letter] harmless beyond a reasonable doubt." Brown 891 F.2d at 495 (citations omitted). In determining whether ex parte contact requires setting aside the presumption of correctness therefore it is necessary to examine the nature of the communication to assess its impact on the fact-finding process. Cf. Rushen v. Spain 464 U.S. 114 119-20 78 L. Ed. 2d 267 104 S. Ct.453 (1983) (holding that ex parte communication between Court and juror must be evaluated for prejudicial effect).

Here although the Court and Counsel could not recall much detail they both admitted to discussing the merits of Cockrum's claims and the Court concedes that the prosecutor was advocating the State's position during their conversations. They specifically recall discussing Cockrum's claim that he received ineffective assistance of Counsel at the punishment phase a claim which the Court and Counsel felt turned on an application of Penry v. Lynaugh 492 U.S. 302 106 L. Ed. 2d 256 109 S. Ct.2934 (1989). See Deposition of the Honorable Jack Carter at 19-20; Deposition of Winonia Griffin at 10; see also Findings of Fact and Conclusions of Law P 28 ("Evidence of physical and psychological abuse drug abuse and voluntary intoxication does not rise to the level of Penry mitigating evidence. Defense Counsels were not ineffective for failing to present such evidence."); Response to Petitioner's Application for Writ of Habeas Corpus at 29-30 ("Applicant essentially argues that his trial Counsel was ineffective because they failed to present mitigating evidence in accord with Penry v. Lynaugh."). It is found that the ex parte communications at issue in this case were not innocuous or harmless but rather struck at the heart of the fact-finding process.

The Fifth Circuit considered the effect of ex parte contacts on the presumption of correctness in James v. Collins 987 F.2d 1116 1122-23 (5^th.Cir.) cert. denied 509 U.S. 947 (1993) and held the presumption to apply despite allegations that the state habeas court's findings resulted from an ex parte collaboration between Court and prosecutor. James however is distinguishable from the instant case for several reasons. First and foremost the federal district court in James found no evidence that any misconduct had occurred. Id. at 1123. In this case there is ample evidence of ex parte discussions between Court and prosecutor touching on the merits of Cockrum's claims for relief. Second the applicant in James did not "seriously contest" the accuracy of the majority of the state court's findings id. At 1122 and indeed most of the applicant's claims which included broad-based challenges to Texas's capital-murder sentencing scheme did "not depend on the facts as developed by the state court " id. at 1123 n.9.Cockrum by contrast vigorously contests the accuracy of the state court's findings and most of his claims--particularly the ineffective assistance claim and the claim that the State misrepresented the terms of Morgan's plea bargain--are fact-intensive.

"In capital proceedings generally this Court has demanded that fact finding procedures aspire to a heightened standard of reliability." Ford v. Wainwright .477 U.S. 399 411 91 L. Ed. 2d 335 106 S. Ct.2595 (1986) (plurality opinion). The fact finding procedure employed by the state habeas court in this case fell well short of this aspiration and lacked two fundamental safeguards of due process--notice and the opportunity to be heard. It is found that the ex parte communications between Court and prosecutor undermined the integrity and reliability of the fact-finding process so as to deny Cockrum a fair hearing at the state habeas level. Under any of several statutory exceptions 28 U.S.C. SEC. 2254(d)(2) (6) & (7) it is found that the presumption of correctness afforded a state habeas court's findings of fact should not apply in this case.

C. Default

The State contends that even if the state court's fact-finding procedures were inadequate Cockrum is not entitled to complain of these inadequacies in federal court because he raised no objection before the Texas Court of Criminal Appeals. Drawing on the procedural default doctrine and the Supreme Court's decision in Keeney v. Tamayo-Reyes 504 U.S. 1 112 S. Ct.1715 118 L. Ed. 2d 318 (1992) the State argues that in light of the plenary authority of Court of Criminal Appeals in habeas corpus proceedings it is incumbent upon a petitioner to object to any perceived errors in the state district court's fact-finding process. *fn5 By failing to so object an applicant relinquishes the right to complain in federal court of those defects unless the applicant can demonstrate cause and prejudice. Thus in this case the State argues that within the three-month period between the entry of findings of fact by the district court and the denial of the application by Court of Criminal Appeals Cockrum could and should have objected that the fact-finding process was inadequate because of the ex parte communications between Court and prosecutor. In response Cockrum does not argue that cause and prejudice justify his failure to object; rather he argues that he has not defaulted in any way his right to challenge the presumption of correctness.

Initially it bears emphasis that the procedural default doctrine in which federal review is barred because the applicant has failed to comply with an adequate and independent state procedural rule is not applicable to this case. Cf. Coleman v. Thompson 501 U.S. 722 750 115 L. Ed. 2d 640 111 S. Ct.2546 (1991). The doctrine applies "only if the state court denied relief because of the defendant's violation of state procedural requirements " Shaw v. Collins 5 F.3d 128 131 (5th Cir.1993) (emphasis in original) and Court of Criminal Appeals did not rest its denial of any of Cockrum's claims on the failure to raise an objection of the sort described by the State. Moreover no provision in Texas law requires an applicant to file objections with Court of Criminal Appeals and the failure to object to the adequacy of the lower court's fact-finding process does not waive review of such errors. Cf. Coleman 501 U.S. at 727 (applying procedural default doctrine to rule specifying that "no appeal shall be allowed unless a notice of appeal is filed with the trial court within 30 days of final judgment"); Wainwright v. Sykes 433 U.S. 72 86 53 L. Ed. 2d 594 97 S. Ct.2497 (1977) (applying doctrine to contemporaneous objection rule interpreted as requiring that objection be raised at trial or not at all"); Francis v. Henderson 425 U.S. 536 537 48 L. Ed. 2d 149 96 S. Ct.1708 (1976) (applying doctrine to state rule providing that unless objection was timely made "all such objections shall be considered as waived and shall not afterwards be urged or heard"). Clearly Court of Criminal Appeals can and does remedy inadequate fact-finding procedures in the absence of objections by the litigants. E.g. Ex parte Adams 707 S.W.2d 646 647 (Tex. Crim. App. 1986); Ex parte Acosta 672 S.W.2d 470 472 (Tex. Crim. App. 1984); Ex parte Campos 613 S.W.2d 745 746 (Tex. Crim. App. 1981); Ex parte Harris 593 S.W.2d 330 333 (Tex. Crim. App. 1979). Indeed contrary to the State's argument it is uncertain that any objection raised by Cockrum would have been considered at all. Texas Rule of Appellate Procedure 213 provides for summary disposition by Court of Criminal Appeals after an initial screening of a habeas corpus application--a screening that Cockrum's application did not survive-and suggests that briefing and argument will be entertained only after Court of Criminal Appeals determines that the application should be submitted to Court for more thorough review. *fn6

The State relies most heavily on Keeney v. Tamayo-Reyes 504 U.S. 1 112 S. Ct.1715 118 L. Ed. 2d 318 (1992) in which the Supreme Court determined the standard to apply when a habeas corpus applicant seeks an evidentiary hearing after failing to properly develop material facts in state court. In doing so Court partially overruled Townsend v. Sain 372 U.S. 293 313 9 L. Ed. 2d 770 83 S. Ct.745 (1963) the decision in which Court originally identified the six circumstances when a federal court must hold an evidentiary hearing on a habeas corpus application challenging a state conviction. One of the Townsend circumstances is when "the material facts were not developed at the state-court hearing " id. at 313 as long as the failure to develop the facts was not attributable to the "inexcusable neglect" of the applicant id. at 317. The Townsend Court defined inexcusable neglect by citing to Fay v. Noia 372 U.S. 391 438 9 L. Ed. 2d 837 83 S. Ct.822 (1963) a procedural default case which announced the "deliberate bypass standard whereby an applicant's neglect is deemed inexcusable only if the applicant intentionally forgoes an opportunity for state review. Because Court ultimately abandoned Fay's deliberate bypass standard in the procedural default context in favor of the more stringent cause and prejudice standard Coleman 501 U.S. at 750 Court in Keeney similarly replaced the deliberate bypass standard approved in Townsend with the cause and prejudice standard. See Keeney 112 S. Ct. at 1719. Thus after Keeney an applicant seeking a federal evidentiary hearing on the grounds that the material facts were not adequately developed at the state-court level must show cause and prejudice for the applicant's failure to develop them.

The State seeks to extend Keeney to this case but an applicant's inexcusable neglect under a deliberate bypass standard or otherwise has never been a part of the inquiry into whether a state hearing was full and fair. Rather such an inquiry is confined to the factor at issue in Keeney--whether the material facts were adequately developed at the state court hearing. *fn7 In Townsend Court was concerned that an applicant would take advantage of this factor by "deliberately withholding evidence from the state fact-finder in the hope of finding a more receptive forum in a federal court." Keeney 112 S. Ct. at 1724 (O'Connor J. dissenting); see Townsend 372 U.S. at 317 (inexcusable neglect requirement prevents 'needless piecemeal presentation of constitutional claims"); cf. McCleskey v. Zant .499 U.S. 467 113 L. Ed. 2d 517 111 S. Ct.1454 (1991) (applying cause and prejudice standard to abuse of the writ doctrine because of similar incentives to withhold claims for manipulative purposes). With respect to the denial of a full and fair hearing however Townsend expressed no such concern: "Even where the procedure employed does not violate the Constitution if it appears to be seriously inadequate for the ascertainment of the truth it is the federal Court's duty to disregard the state findings and take evidence anew." Townsend 372 U.S. at 316.

The State nonetheless argues that a concern for abuse similar to the concern underlying Keeney justifies the application of a cause and prejudice standard in the context of this case--i.e. whenever a lower state court deprives an applicant of a full and fair hearing the applicant has an incentive to withhold objection from a higher state court with the expectation that a federal court will set aside the presumption of correctness. To the extent that this is a realistic concern the procedural default doctrine and the exhaustion of state remedies requirement 28 U.S.C. SEC. 2254(b) adequately protect against such abuse and appropriately accommodate the interests of comity and federalism identified by the State. These doctrines assure that an applicant will take full advantage of the State's procedures for preserving error and pursuing appellate remedies before a federal court considers his claims for relief. Nothing in SEC 2254(d) or the Supreme Court's decisions adopting the cause and prejudice standard suggests that a federal court must presume correct facts found pursuant to a process that is less than full and fair simply because an applicant did not raise an objection that the state court did not require and most likely did not allow him to make. It is found that Cockrum's failure to lodge an objection with Court of Criminal Appeals concerning the lower court's fact-finding procedures has no impact on the determination of whether the presumption of correctness should attach in this case.

D. Conclusion

Cockrum was denied a fair hearing of his claims at the state habeas level because of ex parte communications between the state Court and prosecutor. Accordingly it is found that the state court's findings of fact are not entitled to a presumption of correctness and that the relevant facts underlying Cockrum's claims for relief should be re-determined based on the evidence heard at the federal evidentiary hearing. *fn8

In the state habeas proceeding and in his initial filings in federal court Cockrum raised over twenty grounds for relief. By the time of the evidentiary hearing all but the following four claims had been abandoned: (1) a claim that the State in violation of due process suppressed impeachment evidence and failed to correct misleading testimony concerning the terms of Jerry Morgan's plea bargain; (2) a claim that Cockrum's due process rights were violated in connection with the denial of his motion to transfer venue; (3) a claim that the jury's discussions of the possibility of parole during deliberations at the punishment phase denied Cockrum due process; and (4) a claim that Cockrum was denied the effective assistance of Counsel guaranteed by the Sixth Amendment in the punishment phase of his trial. Cockrum bears the burden of proving these claims by a preponderance of the evidence. See Johnson v. Zerbst 304 U.S. 458 469 82 L. Ed. 1461 58 S. Ct.1019 (1938); United States v. Atkins 834 F.2d 426 435 (5th Cir.1987).

A. Suppression of Evidence and Misleading Testimony

Jerry Morgan who drove Cockrum to and from the scene of the crime was originally indicted for capital murder in Bowie County. After jury selection began for his trial Morgan's Counsel negotiated a plea bargain whereby Morgan pleaded guilty to burglary of a habitation. Morgan agreed to testify against Cockrum which he did and the State agreed to recommend a ninety-nine year sentence which is what Morgan received.

Despite the lengthy term of years this was a favorable deal for Morgan because under the prevailing practice at that time in Texas Morgan knew that he would likely be paroled in approximately six years. *fn9 The preponderance of the evidence indicates that during the plea negotiations Morgan's Counsel told Morgan in the presence of the prosecution that accepting the State's offer and pleading guilty to a ninety-nine year sentence would likely mean release on parole after approximately six years. The prosecution did not explicitly promise Morgan that he would be eligible for parole in approximately six years or that Morgan would be paroled when first eligible.

Although Morgan did not make a quid pro quo agreement with the State for early release on parole in exchange for his testimony it appears that the prosecution did agree not to write a letter opposing Morgan's parole at such time as the Texas Board of Pardons and Paroles reviewed his parole eligibility. Whenever a Texas state inmate becomes eligible for parole the district Counsel in the county of conviction among other persons is notified and provided with an opportunity to write a letter to the Texas Board of Pardons and Paroles supporting or opposing the inmate's parole. The letter is merely advisory; the Board of Pardons and Paroles not the district Counsel possesses the authority to grant or deny parole.

Morgan's Counsel testified that when negotiating a plea it is his standard practice to obtain assurances that the prosecution will not write a letter opposing his client's parole and he vaguely remembers making such a request on Morgan's behalf. Transcript Feb. 20 1996 at 139-42 (testimony of Paul Hoover). Morgan on the other hand specifically remembers that the prosecution agreed to recommend that he make parole at the first opportunity but this seems unlikely in light of his Counsel's testimony. Transcript Feb. 21 1996 at 192-93 (testimony of Jerry Morgan). At the other extreme one of the prosecutors who negotiated the plea insisted that he would never make any promises about a defendant's parole in the course of a plea bargain. Deposition of James Elliott Jan. 17 1996 at 45 50 55. He conceded however that his superior who was the District Counsel of Bowie County and who participated in Morgan's plea negotiations may have agreed to a request from Morgan's Counsel not to oppose his client's parole. *fn10 Id. at 49-50. The prosecutor also testified that the Bowie County District Counsel's Office has never opposed parole for persons such as Morgan convicted on a guilty plea id. at 48 and thus it seems plausible that the such a condition would be agreed to when proposed by Morgan's Counsel. Although the evidence is not unequivocal it is found that the State promised not to oppose Morgan's parole. This promise was not disclosed to Cockrum's Counsels.

At Cockrum's trial Morgan testified that he had pleaded guilty and received a ninety-nine year sentence but no mention was made of his parole eligibility or the agreement not to oppose parole:

Q. Are you under a sentence for ninety-nine (99) years?

A. I am.

Q. Did you plead guilty to the burglary of Eva May's store?

A. I did.

Q. And then were you sentenced?

A. I was.

Q. How many years please?

A. Ninety-nine (99) years.

Statement of Facts at 1253.

Although the defense did not know of the State's promise not to oppose Morgan's parole Cockrum's Counsel was aware either through his own knowledge of Texas parole practice or through conversations with Morgan's Counsel that Morgan would serve only a fraction of his actual sentence. Proof of the Counsel's knowledge is in his trial notes which describe the nature of Morgan's plea bargain as "serve only 6-7 yrs on 99 year sentence." Respondent's Exhibit No. 17; Transcript Feb. 22 1996 at 36 (testimony of Rick Shumaker). He decided not to ask Morgan about his parole eligibility after determining that the potentially damaging effect of this information outweighed any benefits of revealing it to the jury. Specifically he feared that if the jury realized how little time a person could actually serve on a lengthy prison sentence then it would be less likely to consider a life sentence for Cockrum in the event he were found guilty. Transcript Feb. 22 1996 at 36-37 (testimony of Rick Shumaker).

Under the principles of due process developed in Napue v. Illinois 360 U.S. 264 269 3 L. Ed. 2d 1217 79 S. Ct.1173 (1959) and Giglio v. United States 405 U.S. 150 153-54 31 L. Ed. 2d 104 92 S. Ct.763 (1972) the State must disclose material impeachment evidence to a defendant and must also correct false testimony when it appears. See Amos 61 F.3d at 346 & n.49. Cockrum contends that at his trial the State violated these principles in two distinct ways (1) by concealing the agreement that the Bowie County District Counsel's Office would not oppose Morgan's parole when he came up for review before the Board of Pardons and paroles and (2) by eliciting testimony concerning the length of Morgan's sentence that misled the jury into believing Morgan would serve ninety-nine years in prison. Each claim is evaluated in turn.

1. Concealment of Promise Not to Oppose Parole

In order to be entitled to relief Cockrum must demonstrate: (1) the prosecution suppressed evidence (2) the evidence was favorable to the defense and (3) the evidence was material. Spence v. Johnson 80 F.3d 989 994 (5th Cir.1996). "Evidence is material only if there is a reasonable probability that had the evidence been disclosed the result of the proceeding would have been different." United States v. Bagley 473 U.S. 667 682 87 L. Ed. 2d 481 105 S. Ct.3375 (1985); see also Kyles v. Whitley 131 L. Ed. 2d 490 115 S. Ct.1555 1566 (1995). "In assessing the materiality of undisclosed impeachment evidence 'we must consider the nature of the impeachment evidence improperly withheld and the additional evidence of the defendant's guilt independent of the disputed testimony.'" Wilson v. Whitley 28 F.3d 433 439 (5^th.Cir.) (quoting United States v. Weintraub 871 F.2d 1257 1262 (5th Cir.1989)) cert. denied 115 S. Ct.754 (1994).

The assurances made by Morgan's Counsel in the presence of the prosecution do not create a promise by the State of early parole see Self v. Blackburn 751 F.2d 789 792-93 (5th Cir.1985) or early parole eligibility see Hayes v. Maggio 699 F.2d 198 202-04 (5th Cir.1983). Thus the State had no duty to disclose any information about Morgan's parole eligibility-information that was in any event known by Cockrum's Counsels. What the prosecution did promise and did not reveal to the defense was that when Morgan became eligible for parole the Bowie County District Counsel's Office would not write a letter of opposition to the Board of Pardons and Paroles.

In evaluating the materiality of concealing a similar promise the Fifth Circuit has recently held:

The fact that such promises were made is not material on the record before us. No reasonable jury would have believed [the witness/accomplice] fabricated his testimony--incriminating himself and his brother in kidnapping rape and murder--and pleaded guilty to two life sentences in prison based on oral promises that two individuals would not oppose his parole efforts some time in the distant future. Such promises were hardly a guarantee that [the witness/accomplice] would be paroled nor did they bind future . . . County officials.

Spence 80 F.3d at 996. Evaluating the promise's potential impact in this case in light of this holding confirms that the failure to disclose the promise to the defense was not material. *fn11 As identified in Spence the incremental impeachment value of the evidence is slight and it is highly unlikely and certainly not reasonably probable that the jury would have discredited Morgan's testimony if it had known of the promise. Indeed the jury may never have learned of the promise if it had been disclosed to Cockrum-the Counsel who cross-examined Morgan doubted that he would have brought the evidence out for the same reasons he did not question Morgan about the parole implications of a ninety-nine year sentence. Transcript Feb. 22 1996 at 63-64 (testimony of Rick Shumaker).

Furthermore although Morgan's testimony was the primary evidence establishing Cockrum as the trigger man there was sufficient evidence connecting Cockrum to the crime for the jury to convict. Shortly before and after the murder several witnesses saw Cockrum a short distance from the crime scene with a gun of the same type used to kill the victim. Statement of Facts at 1178 (testimony of Kenneth Thom); id. at 1300-03 (testimony of Jana McGraw); id. At 1242-44 (testimony of Patrick Besant-Matthews M.D.). Cockrum was apprehended after fleeing to Arkansas and checking into a motel under an assumed name and despite having been impecunious several days before the robbery he possessed a significant sum of money at the time of his arrest. Id. at 1306-07 (testimony of Jana McGraw); id. at 1324 (testimony of Thomas Hodge). Certainly the State's case would have been weakened if Morgan had been discredited but it cannot be said that an acquittal was reasonably probable in the absence of his testimony.

2. Misleading testimony

Cockrum concedes that Morgan's testimony was not perjurious. He rests his Napue/Giglio claim instead on the argument that Morgan's "carefully tailored" testimony deceived the jury into believing that he would serve ninety-nine years behind bars and thus created a misleading impression of the nature of Morgan's plea bargain. Without an understanding of Morgan's parole eligibility Cockrum argues the jury could not see what Morgan stood to gain by pleading guilty and agreeing to testify. Cockrum further alleges that the misimpression was not an innocent mistake but rather part of a deliberate strategy by the State--i.e. the prosecution crafted Morgan's plea bargain with an eye toward bolstering Morgan's credibility before Cockrum's jury and with the knowledge that early parole eligibility was crucial to Morgan's decision to accept the deal asked intentionally leading questions to create the misleading impression that Morgan would serve ninety-nine years in prison without parole and capitalized on this impression at closing argument. *fn12 The State in response not only opposes this claim on the merits but also argues that relief would be barred under the nonretroactivity doctrine which generally prohibits the application of new rules of criminal law on collateral review. See generally Teague v. Lane 489 U.S. 288 103 L. Ed. 2d 334 109 S. Ct.1060 (1989) (plurality opinion).

The question of retroactivity must be addressed first. Penry v. Lynaugh 492 U.S. 302 313 106 L. Ed. 2d 256 109 S. Ct.2934 (1989); Smith v. Black 904 F.2d 950 981-82 (5th Cir.1990) vacated on other grounds 503 U.S. 930 (1992). Notwithstanding the presence of two narrow exceptions *fn13 a federal court is barred from considering a claim on collateral review unless at the time that the conviction became final a state court "would have felt compelled by existing precedent to conclude that the rule [the applicant] seeks was required by the Constitution." Caspari v. Bohlen 127 L. Ed. 2d 236 114 S. Ct.948 953 (1994) (quoting Saffle v. Parks 494 U.S. 484 488 108 L. Ed. 2d 415 110 S. Ct.1257 (1990)); see also Graham v. Collins 506 U.S. 461 113 S. Ct.892 897 122 L. Ed. 2d 260 (1993). The rule Cockrum seeks here is that due process is violated when the truthful testimony of a witness creates a false impression that serves to conceal the true nature of a witness's plea bargain.

Well before Cockrum's conviction became final the Fifth Circuit as well as other circuits held that "technically correct yet seriously misleading" testimony could fall within the due process concerns of Napue and Giglio. E.g. Blankenship v. Estelle 545 F.2d 510 513 (5th Cir.1977); Dupart v. United States 541 F.2d 1148 1149-50 (5th Cir.1976) (per curiam); see United States v. McClintic 570 F.2d 685 692 (8th Cir.1978); Boone v. Paderick 541 F.2d 447 450 (4th Cir.1976) cert. denied 430 U.S. 959 51 L. Ed. 2d 811 97 S. Ct.1610 (1977); United States v. Harris; 498 F.2d 1164 1169 (3d.Cir.) cert. denied 419 U.S. 1069 (1974); see also Memorandum Opinion and Order Nov. 15 1995 at 12 (holding that Cockrum's conviction became final for purposes of Teague on March 6 1989). In each of these cases due process was violated because the effect of the witness's truthful answer was to falsely deny what they were being asked--whether a deal had been struck with the prosecution. For example the testimony of a witness who asserts that no "case" is pending against him and that his testimony is "voluntary"--when in fact he had been promised immunity against pending state and federal charges and received monetary payment in exchange for his testimony--is "highly misleading to the jury " although "technically not perjurious." Dupart 541 F.2d at 1150; see also Blankenship 545 F.2d at 513 ("We will not tolerate prosecutorial participation in technically correct yet seriously misleading testimony which serves to conceal the existence of a deal with material witnesses."). Similarly in reviewing testimony that included a witness's assertion that he had not struck a deal with the United States Counsel's office of a particular district--when he had in fact struck a deal with the United States Counsel's office in another district--the Fifth Circuit remarked "The testimony heard by the jury if not outright lies certainly conveyed the false impression that none of these three witnesses had received any promises of leniency or other considerations." United States v. Barham 595 F.2d 231 241 (5th Cir.1979). In light of these decisions it is found that ruling in Cockrum's favor on this claim would not retroactively apply a new rule of law.

While not barred this claim fails on the merits. First Morgan's testimony was not so misleading as to rise to the level of a due process violation. It is one thing to say that a witness's truthful but misleading responses to questions inquiring whether a deal has been struck creates a false impression that a deal has not been struck. It is another to say that the truthful description of a witness's sentence has the effect of falsely concealing a deal struck with the State or that the truthful assertion of the length of a witness's sentence is "highly misleading" in the absence of an estimate of the witness's parole eligibility. In other words for a witness to say that he has no deal with a particular United States Counsel's Office is in effect to deny that he has any deal at all with the government. For Morgan to say he is under a ninety-nine year sentence on the other hand is not to deny that a deal has been reached in exchange for his testimony or to deny the possibility that he will be paroled. Morgan's testimony was neither perjurious nor the type of "technically correct yet seriously misleading" testimony condemned in Dupart Blankenship and Barham.

Additionally this claim must fail because Cockrum's Counsel was aware of the parole implications of Morgan's sentence and chose to avoid the issue on cross-examination. Even if the jury were under the misimpression that Morgan would serve ninety-nine years in prison without parole it was a misimpression that the defense as a result of reasonable trial strategy decided not to correct. While Giglio/Napue error has been found despite the defense's knowledge of the falsity of the testimony a constitutional violation has never been found when the decision to leave the error uncorrected was the result of a deliberate and reasonable trial tactic. See Dupart 541 F.2d at 1150 (remanding with directions to determine if defense Counsel's failure to impeach was a "deliberate trial tactic"); United States v. Iverson 208 U.S. App. D.C.364 648 F.2d 737 738 (D.C. Cir.1981) (per curiam) (petition for rehearing) (drawing distinction between defense Counsel's mere awareness of information and decision to forgo use of information); cf. Barham 595 F.2d at 243 n.17 (suggesting that no reversible error would exist if among other things the prosecutor erroneously but "reasonably assumed defense Counsel knew the evidence was false and was consciously choosing to let it go unimpeached").

B. Transfer of Venue Claim

Under Texas law a criminal defendant who seeks to transfer venue must support his motion with the affidavits of two residents of the county where the action is instituted averring that a fair and impartial trial is not possible in that county. Tex. Code Crim. Proc. art. 31.03. If the State files controverting affidavits the trial Court must hold a hearing to resolve the factual dispute presented. Id. art. 31.04. If no controverting affidavits are filed then the motion to transfer venue must be granted as a matter of law. Foster v. State 779 S.W.2d 845 855 (Tex. Crim. App. 1989) cert. denied 494 U.S. 1039 108 L. Ed. 2d 639 110 S. Ct.1505 (1990); Cockrum 758 S.W.2d at 583 n.3.McManus v. State 591 S.W.2d 505 516 (Tex. Crim. App. 1979) partially overruled on other grounds by Reed v. State 744 S.W.2d 112 (Tex. Crim. App. 1988); Wall v. State 417 S.W.2d 59 63 (Tex. Crim. App. 1967).

Before his trial Cockrum moved to transfer venue and filed two supporting affidavits stating that Cockrum could not receive a fair trial in Bowie County because of the publicity surrounding the murder. The State filed two controverting affidavits both of which asserted in relevant part:

I have read the affidavits in support of Defendant's Motion for Change of Venue in this cause. The affiants of said affidavits are not credible as they are prejudiced to said Defendant and their means of knowledge are not sufficient to support and justify the statements contained therein.

Record at 34 35. These controverting affidavits were executed by a local bail bondsman and the Sheriff of Bowie County. It was established that during the first day of jury selection the prosecutor approached the bail bondsman and the Sheriff who were talking in the hallway of Courthouse and asked if they thought Cockrum could get a fair trial. When they responded that Cockrum could the prosecutor had them sign the controverting affidavits.

After jury selection a hearing was held on the motion to transfer. Statement of Facts at 1105-44. Two representatives of local newspapers testified to the media coverage that Cockrum's trial had received and Cockrum called the State's compurgators as adverse witnesses. The bail bondsman admitted that contrary to the sworn statement in his affidavit he had not read the affidavits in support of Cockrum's motion and he also testified that he had no personal knowledge of the credibility of Cockrum's affiants. The Sheriff who was not asked whether he had read Cockrum's supporting affidavits also admitted that he had no personal knowledge of the credibility of one of Cockrum's affiants. The Sheriff testified that he knew Cockrum's other affiant and while he thought that the affiant was generally a credible person he disagreed with the affiant's opinion that Cockrum could not receive a fair trial.

On cross-examination the bail bondsman testified that he signed the affidavit because he believed that anyone who thought that Cockrum could not get a fair trial must not be credible. The Sheriff likewise testified that although he did not personally know one of Cockrum's affiants he presumed that the person must be prejudiced in Cockrum's favor and also that someone living in Bowie County's less populous section generally would not have an adequate basis for assessing the ability of Cockrum to receive a fair trial. Throughout their testimony both compurgators maintained the position that Cockrum could receive a fair trial in Bowie County.

At the conclusion of the hearing Cockrum's Counsel moved to strike the State's affidavits from the record because they were not based on the personal knowledge of the affiants and argued that once the affidavits were struck the motion to transfer had to be granted as a matter of law. The trial court refused to strike the affidavits and found based not only on the evidence introduced at the hearing but also on his observations during jury selection that Cockrum could receive a fair trial. Consequently the motion to transfer venue was denied. On appeal Court of Criminal Appeals rejected the contention that the insufficiency of the State's affidavits entitled Cockrum to a change of venue as a matter of law and also held that the trial court's denial of the motion to transfer was not an abuse of discretion. Cockrum 758 S.W.2d at 582-84. In a footnote Court of Criminal Appeals remarked "This opinion does not address what consequences might result from the State's compurgators falsely swearing that they knew [Cockrum's] compurgators and knew that their affidavits were unreliable." Id. at 583 n.4. Picking up on this footnote Cockrum contends that the State's affidavits were perjured that they should have been struck from the record and that the motion to transfer venue should have been granted as a matter of law.

As a threshold matter it is doubtful that this claim presents any issues of constitutional dimension. It is clear that "the Texas courts and not the federal courts decide the procedural requirements for the hearing on the change of venue." Cook v. Morrill 783 F.2d 593 596 (5th Cir.1986). Cockrum does not argue constitutional error in the trial court's disposition of the motion on the merits--i.e. that his due process right to a fair and impartial trial was infringed because of extraordinary pretrial publicity. *fn14 Rather Cockrum's claim rests on the assertion that he was denied due process because his change of venue motion was not granted as a matter of law. Stated another way Cockrum claims that he was denied due process because a hearing was held evidence was introduced and the arguments of both sides were heard. While the state-created right to have a hearing may create a protected liberty interest the deprivation of which is a violation of due process see e.g. Pamplin v. Mason 364 F.2d 1 6 (5th Cir.1966) (denial of pretrial hearing on change of venue motion "was in itself a violation of due process"); see also Vitek v. Jones 445 U.S. 480 488-90 63 L. Ed. 2d 552 100 S. Ct.1254 (1980) here Cockrum asserts that the state-created right not to have a hearing creates a constitutionally protected liberty interest the deprivation of which is a violation of due process. Such an assertion is not tenable and even if it were would run headlong into the retroactivity doctrine of Teague v. Lane 489 U.S. 288 103 L. Ed. 2d 334 109 S. Ct.1060 (1989). See supra Part V(A).

Second as a factual matter it does not appear clear from the face of the record which is all Cockrum relies on for this claim that the affidavits were perjurious. The compurgators' reasons for signing the affidavits are not patently implausible and without the benefit of observing the witnesses' demeanor on the stand there is no basis for rejecting their explanations. Moreover the Sheriff was never asked whether he had read Cockrum's affidavits and he testified that he personally knew one of Cockrum's affiants. Thus the only sworn statement that can be definitively identified as false is the bail bondsman's assertion that he had read the affidavits in support of Cockrum's motion. Even this statement cannot be deemed perjurious however because a finding of perjury requires a finding of intent to deceive and the record simply does not support a finding that the State's compurgators intended to deceive the trial court. See Beckanstin v. United States 232 F.2d 1 4 (5^th Cir.1956) ("In order to constitute perjury a false statement must be made with criminal intent that is with intent to deceive and must be willfully deliberately knowingly and corruptly false."); cf. 18 U.S.C. SEC. 1621 (federal perjury statute); Tex. Pen. Code Ann. SEC. 37.02 (Texas perjury statute). Accordingly it is found that the controverting affidavits offered in opposition to Cockrum's change of venue motion were not perjurious. *fn15

C. Juror Misconduct

Due process forbids a jury's consideration of extrinsic factual matter during the course of its deliberations. Llewellyn v. Stynchcombe 609 F.2d 194 195 (5th Cir.1980); see also United States v. Ruggiero 56 F.3d 647 652 (5^th.Cir.) cert. denied 116 S. Ct.397 (1995). Cockrum claims that despite the express instruction of the trial Court the jury improperly considered the effect of parole on a life sentence during its deliberations at the penalty phase. *fn16 In support of this contention Cockrum submitted the following affidavit with his petition:

1. My name is Thomas Keith Mitchell . . . . I was a member of the jury in the capital murder trial of Johnny Cockrum.

2. During deliberations at the sentencing part of the trial there was one woman who thought Cockrum should be sentenced to life imprisonment. I don't remember her name now but she was a white woman and kind of overweight. She believed a life sentence was appropriate.

3. In talking to her it was obvious this woman was not aware that a life sentence meant Cockrum would have been paroled. I told her that a life sentence in Texas meant he would be out on parole in as few as six years which is a fact I knew from watching news programs and the like. She was not aware of this and she didn't like the fact that Cockrum would be out of custody so quickly.

4. Once she realized Cockrum would get out in only a few years she changed her mind about a life sentence and agreed to vote for death. I think it was still hard for her but she didn't want him out right away any more than the rest of us did. We took the vote again and it was unanimous.

I swear that the foregoing information is true and correct and I so state under pain and penalty of perjury.

Second Amended Petition for Writ of Habeas Corpus app. M (Affidavit of Thomas Keith Mitchell). In a prior order it was determined that most of the evidence in this affidavit is inadmissible and that under Fed. R. Evid.606(b) the only evidence that can be considered is any outside influence that was brought to bear on the jury. Memorandum Opinion and Order Nov. 15 1995 at 8-10; see United States v. Straach 987 F.2d 232 241 (5th Cir.1993) ("While a juror may attack the verdict . . . by testifying concerning outside influences on the jury (e.g. newspapers statements by court personnel) his testimony about the jury's internal deliberations cannot result in a mistrial." (emphasis in original) (citations omitted)); see also Monroe v. Collins 951 F.2d 49 53 (5th Cir.1992) ("roughly accurate" discussion of parole law by the jury does not in itself violate due process). With respect to the jury's alleged discussion of parole it was held that Cockrum must show that the jury obtained its information from outside sources. Memorandum Opinion and Order Nov. 15 1995 at 10; see Straach 987 F.2d at 242 (rejecting a claim based on the jury's consideration of penalties because "there is no evidence that [the jury] learned about these penalties from outside sources"); Drew v. Collins 964 F.2d 411 415-16 (5th Cir.1992) (distinguishing between outside influence brought to bear on jury and jurors' violation of court's instructions on parole law) cert. denied 509 U.S. 925 (1993).

In a deposition taken shortly before the evidentiary hearing Mitchell recanted many of the assertions in the above affidavit. Deposition of Thomas Mitchell Jan. 18 1996 at 22-29. *fn17 Mitchell specifically described the statement that his knowledge about parole was derived "from watching news programs and the like"--which is the only portion of the affidavit suggesting that information may have been introduced from an outside source--as "totally absurd " "ridiculous " and "not true." Id. at 26-27. In his deposition Mitchell describes the incident involving parole as follows:

To my knowledge now this is exactly the way I remember it. There was one lady she could be sitting at this table and I wouldn't recognize her but she had a question and we were all there to discuss this. She had a question she said and if I'm not mistaken I'm pretty close to exactly what she said if we give this man life that means that he's going to be in jail for the rest of his life. Now we didn't get into a long drawn out two hour discussion about it. She brought up the question and if I'm not mistaken somebody there says not necessarily it could mean that he could spend the rest of his natural life in prison but it also could mean a possibility they didn't say oh yeah he's going to be out in six months they said a possibility that he could be paroled. Now there was no long drawn out discussion about it. There was nobody sitting there trying to sway this woman into thinking that he's going to be out in six months because there's not a soul anywhere Court Carter or anybody that can tell you exactly when somebody is going to be eligible for parole or whether they're going to even you know come up for parole. Nobody knows and everyone every one of the jurors knew except--that's the reason that lady brought it up. She was thinking that life in prison meant for the rest of his natural life without the possibility of parole. And that's exactly what we said there is the possibility that he could be paroled.

Id. at 10-11. At most this testimony establishes that a brief isolated and roughly accurate discussion of parole law took place in the jury room. See Monroe 951 F.2d at 53 (holding that such a discussion does not violate due process). In addition the depositions of five other jurors were taken. None of these jurors recall anything remotely similar to the incidents described in Mitchell's affidavit or his deposition and none testified to the introduction of extrinsic materials into the jury room. Deposition of Patricia Reynolds Jan. 18 1996 at 7-8; Deposition of Karen Stafford Jan. 18 1996 at 9-10; Deposition of Sherlie Horton Jan. 18 1996 at 7-8; Deposition of Linda Preston Watson Jan. 18 1996 at 7-8; Deposition of Joann Fisher Jan. 18 1996 at 8-9. Cockrum has produced little evidence to suggest that any discussion about parole took place and even less evidence to suggest that the information discussed came from an external source. It is found that Cockrum has not carried his burden of proof with respect to this claim and thus it is found that no juror misconduct occurred.

D. Ineffective Assistance of Counsel at Punishment Phase

Cockrum argues that he was denied his Sixth Amendment right to the effective assistance of Counsel during the punishment phase of his trial because his Counsels failed to investigate potentially mitigating evidence or adequately prepare a defense. Under Strickland v. Washington 466 U.S. 668 80 L. Ed. 2d 674 104 S. Ct.2052 (1984) Cockrum has the burden of proving both that his Counsel's performance was deficient and that this deficient performance deprived him of a fair trial. Westley v. Johnson 83 F.3d 714 719 (5th Cir.1996). In addition to opposing this claim on the merits the State argues that granting relief to Cockrum would violate the nonretroactivity rule of Teague v. Lane 489 U.S. 288 103 L. Ed. 2d 334 109 S. Ct.1060 (1989) and also contends that Cockrum has not exhausted his state remedies with respect to this claim.

1. Retroactivity

As noted above when the State raises Teague it must be evaluated as a threshold matter before reaching the merits. See supra Part V(A)(2). The State argues that granting relief in this case on this claim would establish new rules of law for the representation of capital defendants. The legal standard for Counsel's duty to investigate however was articulated in Strickland well before Cockrum's conviction became final. See also Burger v. Kemp 483 U.S. 776 97 L. Ed. 2d 638 107 S. Ct.3114 (1987). Cockrum seeks no new rule of law but only the application of the test developed in Strickland--a lawyer must provide reasonably professional representation to his or her client and when Counsel's performance falls below this standard a new trial is required if the error deprived the client of a fair trial. An ineffective assistance claim is necessarily fact-specific and simply because the facts are unique it does not follow that to grant relief announces a new rule of law. It is found that the Teague nonretroactivity doctrine does not bar Cockrum from relief on his ineffective assistance of Counsel claim.

2. Exhaustion of State Remedies

Under the exhaustion doctrine state courts must be afforded a meaningful opportunity to consider a claim before a federal court passes upon it. 28 U.S.C. SEC. 2254(b); Vasquez v. Hillery 474 U.S. 254 257 88 L. Ed. 2d 598 106 S. Ct.617 (1986). The submission of new factual evidence to a federal court can render a claim unexhausted if the new evidence places a claim in a "significantly different and stronger evidentiary posture" than when before the state court. Brown v. Estelle 701 F.2d 494 495 (5th Cir.1983) (per curiam); see also Joyner v. King 786 F.2d 1317 1319-21 (5^th.Cir.) cert. denied 479 U.S. 1010 (1986); Hart v. Estelle 634 F.2d 987 989 (5^th.Cir. Unit A 1981) (per curiam). If it is determined that any claim is unexhausted then the claim is treated as procedurally defaulted. Gray v. Netherland 116 S. Ct.2073 (1996); see Tex. Code Crim. P. art. 11.071 SEC. 5(a) (Vernon Supp. 1996) (barring consideration of subsequent application for the writ of habeas corpus unless among other things the claims asserted could not have been raised in previous application).

The State contends that by introducing at the evidentiary hearing the testimony of Miledge Oglesby Cockrum's teacher from junior high school; John Blackburn his ex-father-in-law; and J.R. O'Rear his former employer Cockrum has altered the basis of his ineffective assistance claim to such a degree as to render the claim unexhausted. *fn18 Transcript Feb. 21 1996 at 104-36 (testimony of Miledge Oglesby); id. at 137-54 (testimony of John Blackburn); Deposition of J.R. O'Rear Feb. 29 1996. Generally these witnesses testified to their close relationship with Cockrum and his ability to act responsibly--especially his good work habits and respectful and generous personality--when not under the influence of alcohol or drugs. They also testified to the aspects of Cockrum's background that have always formed the basis of this claim--all three were aware of Cockrum's abuse of alcohol and drugs; Oglesby observed Cockrum's disciplinary problems in school and was somewhat familiar with the circumstances of Cockrum's father's death; and Blackburn was witness to the tumultuous even violent marriage between his daughter and Cockrum.

It is found that this evidence does not render the ineffective assistance claim un- exhausted. The thrust of this claim in the state court was that Cockrum's Counsels failed to conduct any investigation into their client's background and had they done so they would have uncovered a great deal of potentially mitigating information including the effect on the applicant of the abuse of his father the psychological harm flowing from Cockrum's role in his father's death and the extent and consequences of Cockrum's drug abuse. See Petition for Writ of Habeas Corpus at 41-85. The essential basis for the claim remains the same here in federal court. The testimony of Oglesby Blackburn and O'Rear flesh out the allegations in the petition and provide a fuller picture of Cockrum but they do not put this claim in a "significantly different or stronger evidentiary posture" than when before the state court.

3. Merits of Ineffective Assistance Claim

a. Legal Standard

"Judicial scrutiny of Counsel's performance must be highly deferential." Strickland 466 U.S. at 689.Cockrum must overcome "a strong presumption that Counsel's conduct falls within the wide range of reasonable professional assistance " id. and in this regard "it is not enough to show that some or even most defense lawyers would have handled the case differently." Westley 83 F.3d at 719 (quoting-Green v. Lynaugh 868 F.2d 176 178 (5^th.Cir.) cert. denied 493 U.S. 831 107 L. Ed. 2d 66 110 S. Ct.102 (1989)). The focus is on the information available to Counsel at the time of trial. See Strickland 466 U.S. at 690 (stressing that it is necessary to "Court . . . Counsel's challenged conduct on the facts of the particular case viewed as of the time of Counsel's conduct"). Speaking to Counsel's duty to investigate Court explained:

Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances applying a heavy measure of deference to Counsel's judgments.

Id. at 690-91. *fn19

If he succeeds in proving his Counsels' representation fell below an objective standard of reasonableness Cockrum must show that his Counsels' errors deprived him of a fair trial. See United States v. Cronic 466 U.S. 648 658 80 L. Ed. 2d 657 104 S. Ct.2039 (1984) ("Absent some effect of challenged conduct on the reliability of the trial process the Sixth Amendment guarantee is generally not implicated."). "The defendant must show that there is a reasonable probability that but for Counsel's unprofessional errors the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland 466 U.S. at 694. "When a defendant challenges a death sentence . . . the question is whether there is a reasonable probability that absent the errors the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Id. at 695. The prejudice test is not merely focused on outcome however but instead encompasses a consideration of whether the result of the proceeding was fundamentally unfair or unreliable. Lockhart v. Fretwell 506 U.S. 364 122 L. Ed. 2d 180 113 S. Ct.838 (1993); Armstead v. Scott 37 F.3d 202 206-07 (5th Cir.1994) cert. denied 131 L. Ed. 2d 570 115 S. Ct.1709 (1995); see Strickland 466 U.S. at 696 ("The ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged."); Nix v. Whiteside 475 U.S. 157 175 89 L. Ed. 2d 123 106 S. Ct.988 (1986) ("[A] defendant need not establish that the Counsel's deficient performance more likely than not altered the outcome in order to establish prejudice under Strickland.").

b. Analysis

Cockrum's defense team consisted of three persons. Two Counsels were appointed: David Malaby Esq. in July 1986 and Richard Shumaker Esq. approximately six weeks later. An investigator Chris Marbut was appointed in late October. Jury selection began in early December and lasted roughly four days. The guilt-innocence phase took a little over a day and the punishment phase lasted a few hours. At the time of Cockrum's trial Malaby had been practicing law approximately five years primarily as an assistant district Counsel for Bowie County. Shumaker had been practicing about the same amount of time with a general practice of both civil and criminal cases. Cockrum's trial was Malaby's first capital murder case while Shumaker had previously represented a defendant in a capital murder trial in Arkansas.

Cockrum's Counsels split the responsibility for Cockrum's trial between them--Shumaker was primarily responsible for the guilt-innocence phase while Malaby was primarily responsible for the sentencing phase. Transcript Feb. 22 1996 at 8-9 (testimony of Rick Shumaker) . This division was not absolute: both Counsels would interview Cockrum at the same time and discuss trial strategy together and Malaby examined some witnesses during the guilt-innocence phase. Shumaker did not examine any witnesses or argue at the punishment phase however and it was Malaby who was in charge of the investigation: Shumaker testified that he was not actively involved in investigation id. at 30 and Chris Marbut Court-appointed investigator testified that he dealt primarily with Malaby Deposition of Chris Marbut at 11. As a consequence even though both Counsels shared the duty to provide effective assistance throughout the representation of their client much of the inquiry for this claim focuses on the conduct of Malaby.

At the punishment phase of Cockrum's trial the jury was required to answer the following special issues:

(1) whether conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that death of the deceased or another would result; (2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and (3) if raised by the evidence whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation if any by the deceased. Tex. Code Crim. P. art. 37.071 (amended). *fn20 The victim in this case was an unarmed elderly woman who had been shot in the head at close range. Thus the only legitimately contestable issue at the punishment phase was the second special issue--whether Cockrum would be a future danger to society.

The State put on four witnesses at the sentencing phase: a Bowie County probation officer who testified that Cockrum had previous convictions for burglary of a building attempted burglary of a habitation and felony possession of marijuana; and three character witnesses who all testified that Cockrum had a bad reputation in the community for being a peaceful and law-abiding citizen. Statement of Facts at 1390-96. Cockrum also put on four witnesses: a jailer who testified that Cockrum had been a "good prisoner" in the roughly four months that Cockrum had been detained pending trial; and Cockrum's mother and two sisters who all testified that Cockrum was loving and affectionate and that his life should be spared. Id. at 1396-1405. *fn21 In its deliberations the jury could also consider all evidence introduced during the guilt-innocence phase which in light of the guilty verdict established that Cockrum had committed an execution-style killing in the course of a robbery.

Several facts about the penalty phase investigation on Cockrum's behalf are not in dispute. Both Counsels testified that they knew that Cockrum had been using drugs at the time of his arrest but that they did not question Cockrum or anyone else about his history of drug use. Cockrum's Counsels were also aware that when he was approximately seventeen years old Cockrum had shot his father. From records at the Bowie County Sheriff's Office Malaby learned that the police investigation labeled the shooting a justified homicide and both Counsels testified that Cockrum was reluctant to discuss the subject of his father's death when they asked him about it. It is also uncontested that their investigation left them with less than a thorough understanding of these areas of Cockrum's background and that they did not request a mental health examination of their client. *fn22

On several points relevant to the investigation and preparation for the penalty phase conflicts in the testimony arose. Malaby testified that he met or talked frequently almost weekly with Cockrum's mother or other family members about Cockrum's case and that he asked them to provide him with the names of potential character witnesses to be used at the punishment phase. Transcript Feb. 20 1996 at 169-73 (testimony of David Malaby). Cockrum's mother and sister on the other hand testified that other than one office meeting a brief encounter after Cockrum's pretrial hearing and a few telephone calls they never had any contact with Malaby. Transcript Feb. 22 1996 at 74-75 79-82 (testimony of Barbara Sutherland); Transcript Feb. 21 1996 at 155-60 (testimony of Becky Wharton). Further Cockrum's mother testified that neither of Cockrum's Counsels explained that there might be a punishment phase or what a punishment phase was much less asked her for names of potential witnesses who could provide favorable testimony at such a hearing. Transcript Feb. 22 1996 at 84-85 (testimony of Barbara Sutherland). According to Cockrum's mother and sister most of their discussions with the defense concerned witnesses with some knowledge of the circumstances of the crime not potential mitigation witnesses. Id. at 75-76 (testimony of Barbara Sutherland); Transcript Feb. 21 1996 at 160-61 (testimony of Becky Wharton).

Malaby also asserted that from a very early stage of his representation he informed Cockrum's family members that their testimony would be necessary in the event a punishment phase were held and he discussed the scope of their testimony with them. Transcript Feb. 21 1996 at 10-11 (testimony of David Malaby). To the contrary Cockrum's mother and sister testified that Malaby did not ask them to testify until shortly before the punishment phase began and that he never went over their testimony with them before they took the stand. Transcript Feb. 22 1996 at 83-84 (testimony of Barbara Sutherland); Transcript Feb. 21 1996 at 161-63 (testimony of Becky Wharton). Malaby claimed that Cockrum's mother and sister regarded the death of Cockrum's father as a "closed subject" that they did not want to discuss Transcript Feb. 20 1996 at 180-81 (testimony of David Malaby); these witnesses did not recall being questioned in any detail about the circumstances of Cockrum's death and asserted that they would have fully answered any questions put to them. Transcript Feb. 22 1996 at 78 (testimony of Barbara Sutherland); Transcript Feb. 21 1996 at 164-65 (testimony of Becky Wharton).

Malaby's testimony did not conflict solely with Cockrum's family members. Malaby recalled that someone from the defense team spoke to J.R. O'Rear who is a former employer of Cockrum's about the potential of O'Rear's testifying at the punishment phase. Transcript Feb. 20 1996 at 184-85 (testimony of David Malaby). O'Rear says he was never contacted. Deposition of J.R. O'Rear at 13. Malaby insisted that he did not know Cockrum was hospitalized on the day of his arrest from a drug overdose Transcript Feb. 21 1996 at 55 (testimony of David Malaby) but his notes suggest that he did. *fn23

On all of these points of conflict it is found that Malaby is not worthy of belief and his general assertions that he pursued character witnesses in contemplation of a punishment-phase defense are rejected. Aside from Malaby's general demeanor on the witness stand--which impressed this court as not merely hampered by the long passage of time since the trial but as genuinely lacking in credibility--the objective evidence available from the time of trial does not support Malaby's version of events. First the extremely brief and general examination of Cockrum's family members at the punishment phase reflects a lack of preparation; after hearing Cockrum's mother testify at several hearings in connection with this action this court is convinced that with little prompting she could have added compelling detail to the short and nonspecific testimony given at trial. Second Malaby's time sheets prepared for submission to the trial Court for purposes of calculating Counsels' fees note only one meeting with Cockrum's family. Applicant's Ex. 16Q. Finally among the notes from the case file--which was the most persuasive evidence offered at the evidentiary hearing bearing on the scope and extent of pretrial investigation by Cockrum's Counsels--only one page containing a bare list of the witnesses who testified and an outline of Malaby's closing argument contains any information relevant to the punishment phase. Applicant's Exhibit 15-46. The rest of the notes primarily taken during interviews with Cockrum focus either on evidence relevant to the guilt-innocence phase of trial--e.g. Cockrum's whereabouts at the time of the crime Cockrum's explanations for the large sum of money he possessed at the time of his arrest lists of potential alibi witnesses etc.--or matters such as jury selection and the change of venue motion. See Applicant's Ex. 15-1 to 15-90 16A-16Q & 17. It is recognized that Cockrum's Counsels did not record every single conversation with a potential witness or every thought about trial strategy but had some meaningful effort been put into the investigation and preparation of the punishment phase the case file would surely contain some hint that such an effort had been made.

Malaby testified that he asked Cockrum and Cockrum's mother for the names of potential character witnesses that he investigated the few names that he was given and that he gave up the search after he was unable to locate anyone with anything favorable to say about his client. Transcript Feb. 20 1996 at 166-67 (testimony of David Malaby). However it is implausible that Cockrum would have not given at least the name of his long-time employer J.R. O'Rear who was never contacted by a member of the defense team and it is clear that if she had been asked Cockrum's mother would have readily directed Cockrum's Counsels not only to O'Rear but also to Oglesby Blackburn and a number of others with favorable opinions of Cockrum none of whom were approached about their testimony Transcript Feb. 22 1996 at 115-19 (testimony of Barbara Sutherland). It is found that prior to the time that Cockrum's jailer was subpoenaed in the middle of jury selection Applicant's Ex. 17 Cockrum's Counsels made no attempt to locate witnesses to testify at the punishment phase or to investigate mitigating evidence to present on their client's behalf. Furthermore based on the documentary evidence submitted as well as the testimony heard at the evidentiary hearing it is found that the failure to investigate punishment evidence in this case was based not on a reasoned decision to cut off the investigation; rather it was the result of a simple lack of effort.

Even if Court were persuaded that the lack of investigation for the penalty phase was the result of a conscious decision on the part of Cockrum's Counsels the reasons offered for limiting their investigation into potential punishment-phase evidence were not reasonable under the circumstances of this case. Both Counsels asserted that the failure to investigate Cockrum's history of drug use was based on a concern that the mere mention of drugs to the jury would irreparably prejudice their client Transcript Feb. 22 1996 at 32-34 (testimony of Rick Shumaker); Transcript Feb. 21 1996 at 32-33 (testimony of David Malaby) and a related concern that any favorable evidence they could put on in this area would "open the door" to the State's putting on more damaging evidence about Cockrum's past Transcript Feb. 21 1996 at 41 (testimony of David Malaby). Similarly Malaby testified that he feared that introducing the circumstances of Cockrum's father's death would open the door for the State to introduce prior violent acts committed by Cockrum. Transcript Feb. 20 1996 at 179 (testimony of David Malaby); see also Transcript Feb. 21 1996 at 27-28 53-54 (testimony of David Malaby). It is apparent however that these reasons were developed as part of a strategy for the guilt-innocence phase of trial and that no strategy at all was developed for the punishment phase. In this regard the following exchange from the evidentiary hearing is illuminating:

Q. . . . Since you decided you didn't want anything in the trial about drug usage or abuse that led you not to conduct an investigation independent of Mr. Cockrum of his history of drug abuse; is that right?

A. That's correct.

Q. Now why is it that you were so fearful of anything about drug abuse coming into this trial?

A. In trying cases in Bowie County and seeing how Bowie County jurors and jurors in our area reacted to it we felt like once we opened the door for drugs that we would taint the jury; and any hope that we had for anything would be out the door.

Q. Now is it just the mere mention of drug use that could do that?

A. In our locale it is.

Q. So if anything happened to slip out in trial--I mean you knew that this was a drug community that Johnny Cockrum was associated with at the time didn't you?

A. Yes.

Q. You knew he had at least had some history of drug usage? In fact you knew that he had--before trial he got a felon in possession of marijuana conviction didn't he?

A. Yes.

Q. You knew that was going to come in the penalty phase? A. We knew it was coming in the penalty phase. We didn't want it in guilt/innocence.

Q. But you knew at least in the penalty phase there was going to be some evidence of Johnny Cockrum being connected to drugs?

A. I knew in the penalty phase. I wanted to keep it out in guilt/innocence phase because if we had any chance whatsoever of him being found not guilty of capital murder it was out the door if drugs came in in my opinion.

Q. Now since you knew that in the penalty phase something was going to come out connecting him to drugs there was going to be a conviction for felon in possession of marijuana your thinking needed to be a little different about the penalty phase didn't it?

A. Well like I say I was worried about the guilt/innocence stage. I was leaving that up to David [Malaby] as to how he was handling that. I didn't know how he was going to handle it. That was his preparation. But we talked about it. We made the decision to try and keep anything out about drugs in the guilt/innocence stage.

Transcript at 31-34 (testimony of Rick Shumaker).

In addition to the near certainty that Cockrum's prior drug conviction would be put in evidence at the punishment phase the State could have put on evidence of unadjudicated bad acts no matter what evidence Cockrum introduced. See e.g. Smith v. State 676 S.W.2d 379 390 (Tex. Crim. App 1984) ("It has been consistently held that evidence of unadjudicated extraneous offenses are admissible at the penalty phase of a capital murder trial absent showing of unfair prejudice.") cert. denied 471 U.S. 1061 (1985); see also Motley v. Collins 18 F.3d 1223 1227 (5th Cir.1994) cert. denied 115 S. Ct.418 (1995). Simply put there was no door to open at the punishment phase and a decision not to investigate punishment phase evidence predicated on this misunderstanding of the law would be unreasonable. In any event it is apparent that Cockrum's Counsels never made this decision but instead focused their investigation solely on the harmful implications of this evidence for the guilt-innocence phase without any thought as to how this evidence might or might not be used at the penalty phase. As Cockrum puts it in his post-hearing brief "Because they did not prepare for or conduct any penalty phase investigation the guilt phase strategy became by default and not design their strategy for the penalty phase." Applicant's Post-Hearing Brief at 35.

Cockrum's jailer was subpoenaed a few days before he testified and Cockrum's mother and sisters were asked to testify no more than a few hours before they took the stand. The trial record the documentary evidence submitted and the credible testimony heard at the evidentiary hearing establish that Cockrum's Counsels put no more thought investigation or preparation into the punishment phase of their client's trial than that. It is found that the near total lack of preparation by Cockrum's Counsels for the punishment phase fell below an objective standard of reasonableness.

A reasonably competent investigation in preparation for a punishment phase in this case would have produced a wealth of readily available information about Cockrum's family background and medical history. Had she been asked Cockrum's mother could have provided valuable insight into her deceased husband's increasing problems with alcohol and his periods of violence toward his family the complex relationship between Cockrum and his father and the profound impact of his father's death on Cockrum's behavior Deposition of Barbara Sutherland Dec. 12 1995 at 31-39; Transcript Feb. 22 1996 at 89-91 (testimony of Barbara Sutherland); she could have informed Cockrum's Counsels about her son's long history of hospitalization Transcript Feb. 22 1996 at 93-95 (testimony of Barbara Sutherland); and she could have provided a list of persons who thought highly of Cockrum and who would have made excellent mitigation witnesses including Miledge Oglesby John Blackburn and J.R. O'Rear. See id. at 115-19 (testimony of Barbara Sutherland). Had Cockrum's medical and institutional records been subpoenaed they would have revealed a period of institutionalization at the Texas Youth Commission's Gatesville State School for Boys Second Amended Petition for Writ of Habeas Corpus app. O-2 a long history of severe drug abuse id. app. O-4 several suicide attempts id. app. O-6; id. app. O-8 and several psychotic episodes including one in which a twenty-five-year-old Cockrum thought that he was seventeen years old again and that his father was still alive id. app. O-11. If a mental health examination had been conducted Cockrum could have been diagnosed with post-traumatic stress disorder antisocial personality disorder polysubstance abuse and dysthemia (long-term depression) all with their roots in Cockrum's shooting of his father. Transcript Feb. 20 1996 at 22 (testimony of Jack Randal Price Ph.D.).

Although it is clear that Cockrum's Counsels provided deficient performance at the punishment phase by failing to conduct any meaningful investigation the more difficult question posed by this claim is whether Counsels' deficiencies prejudiced Cockrum. The State did not as it could have put on evidence of unadjudicated conduct from Cockrum's past and much of the evidence that Cockrum's Counsels could have learned possesses both aggravating and mitigating characteristics. It is thus difficult to hypothesize in this case what a penalty phase defense would have looked like after a reasonable investigation much less how a jury would have reacted to it. This evidence could form the basis of a persuasive case that (1) explained why Cockrum was violent--i.e. the enduring mental health consequences of his father's killing that led to a deepening cycle of drug abuse suicide attempts and violence; (2) identified his potential for responsible behavior and his capacity for forming close relationships with others--i.e. his long period of employment with J.R. O'Rear the high opinion that O'Rear Miledge Oglesby and John Blackburn had of Cockrum despite knowledge of his failings and the close ties Cockrum maintained with his mother and sisters; and (3) demonstrated why if given a life sentence Cockrum could be rehabilitated--i.e. the crippling drug addiction and the mental diseases from which he suffered could be alleviated through the professional treatment available in the prison system and the support of his family. On the other hand it would be nonsense to contend that a jury could not find a person with a long history of severe drug abuse a diagnosis of antisocial personality disorder and an extensive criminal record culminating in a cold-blooded murder to be a continuing threat to society. Case law in this area does not resolve the difficulty: although it is clear that Counsel's decision to forgo the presentation of "double-edged" evidence at the punishment phase is a reasonable strategic choice and hence not professionally deficient e.g. Mann v. Scott 41 F.3d 968 983-84 (5th Cir.1994) cert. denied 131 L. Ed. 2d 865 115 S. Ct.1977 (1995); Sawyers v. Collins 986 F.2d 1493 1505-06 (5^th.Cir.) cert. denied 508 U.S. 933 124 L. Ed. 2d 300 113 S. Ct.2405 (1993); it is unclear what prejudice results from Counsels' wholesale failure in the first instance to balance the aggravating and mitigating aspects of such evidence.

This difficulty is compounded by a genuine uncertainty over whether Cockrum himself would have opposed a mitigation defense that relied on his father's death as a partial explanation for his behavior. At the time of his trial Cockrum was reluctant to discuss his father's killing as doubtless any person would be. In connection with this action Cockrum sought for a period of time to waive further review of his conviction and sentence primarily because he felt that his then-habeas Counsel were misrepresenting the extent of the abuse he and his family suffered at the hands of his father and the precise circumstances surrounding his father's shooting. See In re Cockrum 867 F. Supp.484 488-91 (E.D. Tex. 1994). At the evidentiary hearing Cockrum could not say one way or the other whether he would have opposed the Presentation of such evidence. *fn24

Reconstructing a penalty phase without the errors of Counsel in this case is to a certain extent an exercise in guesswork. This much however can be said: Had Cockrum's Counsels conducted a reasonable investigation in preparation for the punishment phase of trial they would have learned a great deal of information about Cockrum's social history and family background his long-term drug abuse and the psychological consequences of his father's death. Had they had this information Cockrum's Counsels could have presented a significantly stronger defense at the punishment phase of trial than was actually presented. Had this case been made Cockrum's chances for obtaining a life sentence would have been significantly enhanced and there is a reasonable probability--understood as "a probability sufficient to undermine confidence in the outcome"--that a jury would not have concluded unanimously beyond a reasonable doubt that Cockrum posed a continuing threat to society. Strickland 466 U.S. at 694.

It should also be kept in mind that "the benchmark for judging any claim of ineffectiveness must be whether Counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686. The difficulty in recasting Cockrum's trial with the effective assistance of Counsel is largely traceable to the near complete failure of Cockrum's Counsels to adequately prepare a defense and to make the hard choices over whether the mitigating potential of Cockrum's background outweighs its aggravating aspects. It little overstates the case to say that Cockrum was essentially abandoned at the punishment phase of his trial and it is concluded that the punishment phase was rendered fundamentally unfair by the breakdown in the adversary process occasioned by the failure of his Counsel meaningfully to investigate or prepare. Because of this fundamental unfairness and because there exists a reasonable probability of a different sentencing outcome it is found that Cockrum has satisfied the prejudice prong of the Strickland test.

VI. Analysis Under Antiterrorism and Effective Death Penalty Act

As discussed above supra Part III because of the uncertainty surrounding the retroactivity of the AEDPA the effect of the new law on this case is addressed in the alternative. Giving consideration to the foregoing analysis of Cockrum's application under prior law which concludes that all but one claim is without merit only the ineffective assistance claim need be addressed here. Whatever changes the AEDPA may make to the collateral review of state convictions it is nowhere suggested that the AEDPA breathes life into claims that would be denied under prior law.

A. Evidentiary Hearing

In a change from the prior statute which was silent on the subject the AEDPA identifies the circumstances in which an applicant is entitled to an evidentiary hearing in federal court:

If the applicant has failed to develop the factual basis of a claim in State court proceedings Court shall not hold an evidentiary hearing on the claim unless the applicant shows that--

(A) the claim relies on--

(i) a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error no reasonable fact finder would have found the applicant guilty of the underlying offense.

AEDPA SEC. 104 (to be codified at 28 U.S.C. SEC. 2254(e)(2)).

In a previous order applying prior law it was determined that an evidentiary hearing should be held Memorandum Opinion and Order Nov. 15 1995 at 6 and the hearing was actually held several months before the AEDPA was enacted. The State argues that the evidence from the hearing must now be disregarded because under the newly amended version of Sec. 2254 Cockrum would not be entitled to an evidentiary hearing. However "when a procedural matter has been properly decided under the old rule and a new procedural rule is subsequently enacted while the ultimate resolution of the case is still pending " the new provision does not apply. Shipes v. Trinity Indus. 31 F.3d 347 349 (5th Cir.1994); see Landgraf 114 S. Ct. at 1502 n.29 ("The mere fact that a new rule is procedural does not mean that it applies to every pending case."). Thus even if the AEDPA were retroactive and assuming it would bar a federal evidentiary hearing in this case the AEDPA does not undo the previous ruling that an evidentiary hearing should be held nor require evidence already received in such a hearing to be disregarded. For these reasons the State's contention that the AEDPA does not allow consideration of the evidence heard at the evidentiary hearing in this action is rejected.

B. Presumption of Correctness of State Court Factfindings

With respect to the deference accorded a state court's fact-findings the AEDPA amends SEC. 2254 by eliminating the eight enumerated reasons for setting aside the presumption of correctness and specifying that a state court's factual finding may be disregarded only if the presumption is overcome by clear and convincing evidence:

In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

AEDPA SEC. 104 (to be codified at 28 U.S.C. SEC. 2254(e)(1)). Thus the ex parte contacts between the state Court and the State's Counsel and the conclusion that Cockrum did not receive a fair hearing at the state habeas level do not justify setting aside the presumption of correctness under the AEDPA. Cf. supra Part IV(D) (setting aside presumption of correctness on this basis pursuant to former SEC. 2254(d)(2) (6) & (7)). Instead the state court's fact-findings must be examined in light of the evidence introduced at the evidentiary hearing for clear and convincing error.

The state habeas court made the following findings regarding the ineffective assistance claim:

Counsels David Malaby and Rick Shumaker provided effective assistance at the punishment phase of the trial.

Defense Counsels presented mitigating evidence at the punishment phase.

Defense Counsels were not ineffective for failing to develop and present evidence of insanity because the defendant was competent prior to and during trial and their investigation and objections reasonably indicated that there was no evidence of incompetence or insanity.

Physical and psychological evidence are presented for the first time on habeas corpus by applicant. Evidence of physical and psychological abuse drug abuse and voluntary intoxication does not rise to the level of Penry mitigating evidence. Defense Counsels were not ineffective for failing to present such evidence. Counsels' decision not to use such evidence due to the fact it would open the door to more harmful evidence amounted to trial strategy.

Findings of Fact and Conclusions of Law PP 25-28.

"Although state court findings of fact made in the course of deciding an ineffectiveness claim are subject to the deference requirement of SEC. 2254(d) . .. both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact" that are not subject to the presumption of correctness. *fn25.Strickland v. Washington 466 U.S. 668 698 80 L. Ed. 2d 674 104 S. Ct.2052 (1984); Motley 18 F.3d at 1226. Separating legal conclusion from historical fact it is apparent that the following factual findings underlie the state court's disposition of this claim: Cockrum's Counsels conducted an investigation into Cockrum's life history and made an informed decision not to put on any evidence about his background at the punishment phase of trial. In light of the clear and convincing evidence introduced at the federal evidentiary hearing it is found that these findings of fact are erroneous. As discussed above supra Part V(D)(3)(b) it is apparent clearly and convincingly so that Cockrum's Counsels conducted no meaningful investigation into penalty-phase evidence and that this failure to investigate was not the result of an informed tactical decision.

This finding is relevant also to the analysis of Cockrum's claims under pre-AEDPA law. See supra note 8 (noting that the clear and convincing evidence standard is the same under the old and new habeas corpus statute). Although it has been found that under former SEC. 2254(d) the presumption should be set aside because of the ex parte contacts at the state habeas level it is found in the alternative that with respect to the fact findings underlying the state court's disposition of the ineffective assistance of Counsel claim Cockrum has rebutted the presumption of correctness. With respect to all other fact-findings by the state habeas court relevant to the claims for relief in this opinion however Cockrum has not produced clear and convincing evidence that the state court's findings of fact are erroneous.

C. Standard of Review

The AEDPA amends SEC. 2254 by specifying the conditions under which an application for the writ of habeas corpus may be granted:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--

(1) resulted in a decision that 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) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

AEDPA SEC. 104 (to be codified at 28 U.S.C. SEC. 2254(d)). *fn26

Although this provision has no direct antecedent in the prior statute subsection (d)(2) is analogous to former SEC. 2254(d)(8) which provides that a federal court must defer to a state court finding of fact as long as the finding is "fairly supported" by the record of the state court hearing. Cf. Marshall v. Lonberger 459 U.S. 422 432 74 L. Ed. 2d 646 103 S. Ct.843 (1983) ("This deference requires that a federal habeas court more than simply disagree with the state court before rejecting its factual determinations. Instead it must conclude that the state court's findings lacked even 'fair support' in the record."). Using this previous test as a guide it is found that the state court's disposition of the ineffectiveness claim was not "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." *fn27

The first subsection however--allowing relief only when the state court's "decision . . . was contrary to or involved an unreasonable application of clearly established Federal law"--is not expressly limited to a review of the state court record. Furthermore based on a consideration of the evidence received at the evidentiary hearing taking into account the newly amended presumption of correctness provision it has been found that the relevant facts underlying the state court's resolution of this claim are clearly and convincingly erroneous. It follows that the state court's disposition of the ineffective assistance claim--which concluded that Cockrum's Counsels provided effective assistance in part because the failure to introduce information from Cockrum's past "amounted to trial strategy"--"resulted in a decision that . . .involved an unreasonable application of clearly established Federal law as determined by the Supreme Court of the United States" in Strickland v. Washington 466 U.S. 668 80 L. Ed. 2d 674 104 S. Ct.2052 (1984) 28 U.S.C. SEC. 2254(d)(1) (emphasis added). Thus it is concluded that under the AEDPA Cockrum would be entitled to relief on his ineffective assistance of Counsel claim.

VII. Conclusion

During the punishment phase of his capital murder trial John Cockrum was denied the effective assistance of Counsel guaranteed by the Sixth Amendment. It is therefore found that he is held in custody by the State of Texas in violation of the federal Constitution and that he is entitled to the writ of habeas corpus. The writ will issue conditionally. Unless within ninety days from the date this order becomes final the sentence of death by lethal injection in Cause Number 86-F-144-5 in the District Court of Bowie County 5^th Judicial District of Texas is vacated and a new punishment hearing is initiated then the applicant shall be released from custody. No constitutional error is found in the guilt-innocence phase of Cockrum's trial however nor in his conviction for capital murder. The writ is therefore not conditioned on the initiation of a new trial on the question of Cockrum's guilt or innocence or on the conviction in Cause Number 86-F-144-5 being set aside. An order incorporating the adjudication's herein set forth shall be issued simultaneously with the issuance of this memorandum opinion.

SIGNED the 25th day of July 1996.

William Wayne Justice

United States District Court

APPENDIX

Transcript of Punishment Phase in State v. Cockrum

Statement of Facts at 1390-1419.

State's Evidence

Testimony of Harlan Jones

Q. State your name please sir?

A. Harlan Jones.

Q. How are you employed?

A. I am an Adult Probation Officer with Bowie County.

Q. And how long have you been so employed?

A. A little over eight (8) years.

Q. What does an Adult Probation Officer do?

A. Responsible for the supervision of persons placed on probation by the District Courts of this County and of this State for both felony and misdemeanor offenses.

Q. And with regard to a felony offense what distinguishes that from a misdemeanor offense?

A. A felony offense is one that is punishable by time in the Texas Department of Corrections.

Q. And just generally speaking very compactly if you can what is probation?

A. It is an alternative to incarceration where the person actually serves his sentence although he serves it on the street under the supervision of Court.

Q. And in essence it's a second chance?

A. Yes sir.

Q. And when you say 'serve it on the street' the person actually resides in their home and . . . ?

A. . . . yes sir that's right.

Q. Do you know John Cockrum?

A. Yes sir I do.

Q. Do you know John Cockrum seated right here?

A. Yes sir I do.

Q. Do you know if John Cockrum has ever been convicted of a felony offense in the State of Texas?

A. Yes sir I do.

Q. Will you tell Court and jury about that please sir?

A. We first received Mr. Cockrum on probation in 1981 from Morris County Texas. Although probation was granted in 1979 the offense was for burglary of a building. The next time . . . that sentence was subsequently dismissed in September of 1981. The next time we had Mr. Cockrum was in January of 1985 he was placed on probation in Dallas County Texas for attempted burglary of a habitation. That sentence is still running and is active at this time. In . . .I can't recall the month . . . it's been in the last two or three months he pled guilty to the offense of felony possession of marijuana in Bowie County and I believe received a three (3) year sentence in the Department of Corrections.

Q. We pass the witness Your Honor.

Cross Examination

Q. Mr. Jones just one question the last offense you referred to those proceedings took place while Mr. Cockrum was in jail for this offense is that correct?

A. That's right.

Q. Thank you.

Testimony of Thomas Hodge

Q. You are the same Thomas Hodge who was previously sworn and testified in this case are you not?

A. Yes sir.

Q. With regard to John Cockrum are you familiar with the reputation of John Cockrum in the community in which he lives for being a peaceful and law abiding citizen?

A. Yes I am.

Q. Is that reputation good or is that reputation bad?

A. It's bad.

Testimony of George Huggins

Q. You are the same George Huggins that was previously sworn and testified in this trial are you not?

A. Yes sir.

Q. And I believe you told us at that time that you are a Bowie County Sheriff's Deputy?

A. Yes sir.

Q. Prior to being the Bowie County Sheriff's Deputy did you hold any other position in law enforcement?

A. I worked nights Dekalb.

Q. And are you familiar with the reputation of John Cockrum in the community in which he lives for being a peaceful and law abiding citizen?

A. Yes sir.

Q. Is that reputation good or is that reputation bad?

A. Bad sir.

Testimony of Carey Pinkham

Q. State your name please sir?

A. Carey Pinkham.

Q. How are you employed?

A. New Boston Police Department.

Q. How long have you been so employed?

A. Almost fifteen (15) years.

Q. Let me ask you this how long have you known John Cockrum?

A. Since the day that he was a small boy.

Q. Are you familiar with the reputation . . . his reputation for being a peaceful and law abiding citizen in the community in which he lives?

A. Yes.

Q. Is that reputation good or is that reputation bad?

A. It's bad.

Defendant's Evidence

Testimony of Wayne Green

Q. State your name please?

A. Charles Wayne Green.

Q. Mr. Green where do you live?

A. On Route 15 Box 528 Texarkana Texas.

Q. And how are you employed?

A. Arkansas Department of Corrections.

Q. And are you on duty right now?

A. Yes sir.

Q. And did we have to call you off duty to come down here?

A. Yes sir.

Q. In what capacity do you serve for the Arkansas Department of Corrections?

A. I work in the Detention Center in the Jail.

Q. Alright which jail?

A. Bi-State Justice Building.

Q. You don't actually work in the prison do you?

A. I work for the prison facility but I work in the Jail for Texarkana Texas and Arkansas.

Q. Then it's true the Arkansas Department of Corrections actually runs the Bi-State Criminal Justice Center Jail in Texarkana?

A. Yes sir.

Q. How long have you served in that capacity?

A. A little over a year now.

Q. While serving in that capacity have you had the opportunity to deal with a young man named John Cockrum?

A. Yes sir I have.

Q. Do you see him in Courtroom today?

A. Now I do.

Q. Behind me here at the Counsel table. Can you tell this jury have you dealt with him often?

A. Well ever since he's been incarcerated I have.

Q. How often?

A. On a regular daily basis.

Q. How many times a day would you say you dealt with him?

A. About every hour just about.

Q. How long has he been in the Bi-State Justice Center Jail?

A. I really don't know but approximately three or four months. I don't know the exact date he was incarcerated.

Q. In dealing with Mr. Cockrum do you take him out of his cell?

A. Yes sir I have.

Q. You handled him yourself?

A. Back and forth to visitation and such as that.

Q. When you deal with Mr. Cockrum is it you and him one on one sometimes?

A. Yes it has been.

Q. Has he ever been violent with you?

A. No sir none whatsoever.

Q. Has he been a good prisoner as far as prisoners go?

A. To myself personally yes he has.

Q. Thank you Mr. Green.

Cross Examination

Q. Mr. Green do you know about the criminal record of Johnny Cockrum?

A. No I don't.

Q. You don't really know about his past do you?

A. No sir.

Q. Do you know about his reputation in the community in which he lives?

A. No sir I do not.

Q. Pass the witness Your Honor.

Testimony of Donna Chadwick

Q. State your name please?

A. Donna Chadwick.

Q. Where do you live?

A. Greenville Mississippi.

Q. How long have you lived there?

A. Since August of this year.

Q. Prior to moving to Mississippi where did you live?

A. In New Boston Texas.

Q. Do you know Johnny Cockrum?

A. Yes sir.

Q. How do you know him?

A. He's my brother.

Q. Ms. Chadwick you've been in Courtroom and heard the proceedings and you've heard the verdict of the jury has Johnny been a good brother to you?

A. Yes.

Q. Is he a loving brother?

A. Yes sir he is.

Q. Have you ever known him to hurt you violently?

A. No sir.

Q. Have you ever known him to be a bad person?

A. No sir.

Q. Ms. Chadwick are you testifying today to ask this jury to spare your

brother's life?

A. Yes sir.

Q. Thank you.

Testimony of Becky Wharton

Q. State your name please?

A. Becky Wharton.

Q. Ms. Wharton where do you live?

A. New Boston.

Q. Do you know Johnny Cockrum?

A. Yes sir.

Q. How do you know him?

A. He's my brother.

Q. Do you all have regular contact?

A. Yes sir.

Q. How often?

A. Oh as often as we can since he's been up there.

Q. Prior to the time he was put in jail how often would you see Johnny?

A. Often . . . weekly every couple weeks.

Q. Could you call on him for help if you needed him?

A. I believe I could.

Q. Do you love your brother?

A. Yes sir.

Q. Is he affectionate toward you?

A. Very affectionate.

Q. Is he a good brother to you?

A. Yes sir always.

Q. Are you asking this jury to spare his life?

A. Yes I am.

Q. Thank you.

Testimony of Barbara Southerland

Q. State your name please?

A. Barbara Sutherland.

Q. Ms. Southerland is it true you're Johnny Cockrum's mother?

A. Yes I am.

Q. Where do you live?

A. New Boston.

Q. Has Johnny been a good son to you?

A. Yes he has.

Q. Does he help you?

A. Yes.

Q. Do you feel like you can call on him for help if you need him?

A. Yes I could.

Q Have you done that in the past?

A. Yes.

Q. Has he been a source of support to you during previous times?

A. Yes he has.

Q. Did you see him often before he was put in jail?

A. He was living with us.

Q. Did he help you around the house?

A. Yes. Yes.

Q. Does he show affection back to you more than normal or average how would you express it to the jury?

A. We're a very close family . . . a very affectionate family.

Q. Do you talk to him a lot [sic]?

A. Yes.

Q. Since he's been in jail have you been able to see him?

A. On the average of twice a week at least.

Q. Is that through a glass window?

A. Yes it is.

Q. Are you asking this jury to spare your son's life?

A. Yes I am asking them that.

Q. Thank you Ms. Southerland.

State's Argument

First I would like to thank you for your verdict. It was the only fair and just verdict that you could have reached based upon the evidence you heard.

Now I would like to tell you that your job is done. I would like to tell you that you can go home but that's not so. We are now in the punishment phase of this trial. Unlike most cases you do not set punishment.

Mr. Malaby asked the witnesses here . . . some of the witnesses for you to spare his life. That is not a choice that you are going to make. You are not going to make a choice as to punishment to be handed down in this case. That's not your function. Each of you will recall we spent time with you individually and Court instructed you in his general voir dire and Mr. Elliott instructed you in the general voir dire that it's your responsibility to answer questions. Based upon those questions His Honor will take whatever action is appropriate.

Each of you promised that you could answer those questions based upon the law and the evidence that you heard and that were presented to you in this trial and I know you can.

Let me visit with you shortly about the questions you are getting ready to answer. As you well know there are three questions. I will speak to you on the first and the third questions and Mr. Elliott will speak to you on [the] second. As Court's Charge tells you this is Number 1 Do you find that the evidence beyond a reasonable doubt that the conduct of the Defendant John Cockrum caused the death of Eva May was committed deliberately and with the reasonable expectation that the death of the deceased or another would result?

Ladies and Gentlemen there are two things in that question that I think are important to you. No. 1 it mentions the term 'deliberately' and there is no definition here. Court does not give you a definition for you to go back and look at it and determine what deliberately means. You use your common sense. Your everyday practical experience what life tells you deliberately is. Intentionally knowingly did he mean to do it what it means to you and you answer that question based upon that.

The second portion of that question is with the reasonable expectation that the death of the deceased Eva May or another would result. You are not confined at this stage of the trial to just conclude your testimony or your decision on the evidence that you've heard in this punishment phase. Go back and look at the entire trial and the testimony.

If you will recall the pathologist came in here and talked about his qualifications and the man told you that Eva May was shot by a person from top to bottom and a little bit from left to right. He also told you that there was strippling and was shot from a distance of from six to twelve inches approximately a foot. I think a reasonable deduction . . . the only deduction to make the person was shot in the head at a distance such as that one would reasonably expect that death would result.

Now Question 3 Court instructs you Do you find from the evidence beyond a reasonable doubt if raised by the evidence whether the conduct of the Defendant in killing the deceased was unreasonable in response to the provocation if any by the deceased.

Again calling back your recollection to the testimony Sheriff Hodge was the investigating officer. You saw the picture of the hands of Eva May. You remember Mr. Elliott asked was there a weapon on the floor. I think if you will again consider the evidence and you will determine that there was no provocation . .. you can see strippling on the hand there was no provocation. That answer should also be 'yes.'

Ladies and Gentlemen I know you are taking your job seriously and your responsibility and it's your duty to answer these questions based upon the law and the evidence and I know that you can. Thank you.

Defendant's Argument

It has been a long week. Everybody has put in a lot [sic] of work on this case. We appreciate all of your consideration. We appreciate the time that you listened to the evidence and the consideration that you gave to the case but now comes the most important part of this trial. The toughest part is yet to come.

Now we must respect your verdict. That's our system of justice. I can't deny that we're somewhat disappointed. When I decided to go to Law School and I stood in front of Court to be sworn in I took my oath as a lawyer I committed myself to our system of justice at that time. I stand committed to that system today and I will continue to stand committed to our system.

Let me point out a few things. A few things that I want you to think about when you retire as a group again.

Think about the evidence that you've been provided with.

Now the State will have the opportunity to get back up again like they did on the first phase so because we're not the last ones to speak please don't forget what I'm going to say to you. Like we talked about when we brought each of you in here individually all during the week one at a time you were each advised of the three issues and one at a time you were each advised that the State's burden of proof is beyond a reasonable doubt on each and every one of those issues. And we took each one of you one at a time and asked you can you commit to us can you commit to us before you would ever invoke a verdict which would cause the most harshest [sic] sentence in our world being imposed on this young man right here. Everyone of you committed that you would make the State bring you all the evidence you needed to say beyond a reasonable doubt that that should be the result.

Let's look at those issues briefly Ladies and Gentleman to see what you have to work with.

You'll get this Charge to take with you. Look at them one at a time as a group question each other. Question each other as to what basis of evidence you have to vote 'yes' on these issues.

Number 1 do you find from the evidence beyond a reasonable doubt that the conduct of the Defendant John Cockrum that caused the death of Eva May was committed deliberately and with the reasonable expectation that the death of the deceased or another would result?

Have they proved that beyond a reasonable doubt? You've got the testimony of Jerry Morgan. What else is there to support that? What else? Does that erase all reasonable doubt that will allow you to render that verdict and live with that verdict the rest of your life knowing the consequences?

Number 2 do you find from the evidence beyond a reasonable doubt that there is a probability that the Defendant John Cockrum would commit criminal acts of violence that would constitute a continuing threat to society?

They showed you his record. No previous acts of violence. Nothing else has this young man done that was violent towards anybody. Let's go further.

Number 3 do you find from the evidence beyond a reasonable doubt that if raised by the evidence the conduct of the Defendant John Cockrum in killing the deceased was unreasonable in response to provocation if any by the deceased?

There's no evidence on that point Ladies and Gentlemen. You're going to be required to assume some facts. You're going to be required to assume some facts to get to that point beyond a reasonable doubt. That's [sic] don't square up.

What do we seek to achieve by our system of justice? That's a question that ought to bear heavy on these issues.

This young man can be punished by a sentence of life imprisonment to live beyond [sic] bars to conduct every bit of his day to day activities in a cage and in a society all to itself. How can he be a threat on society if he is locked up behind bars in a sentence of life imprisonment? Ask yourself that.

Sometime back the Supreme Court re-established the death sentence for this Country. Every time our system of justice as a society invokes a punishment on one of our members . . . fellow members of society history is made . . . the history of our society is made every time.

When rehabilitation is attempted our society is taking a step forward. We're making an attempt to improve our society to show that we are a civilized people.

This young man is twenty-seven years old. He has a family that loves him. He can be rehabilitated. Does the death of a person justify intentional killing of another? What do we accomplish? What happens when that happens? What do we say as a society when we do that?

Ladies and Gentlemen all throughout the course of this proceeding I feel like you people have followed the law and you have abided by the commitments that you have made to this Court under your oath. Each and everyone of you committed to me committed to Mr. Shumaker committed to this Defendant John Cockrum you committed to Mr. Elliott and the State that before you would ever vote for any kind of punishment that would result in such extreme measures you would make them prove it . . . prove it has to be done . . . prove that there is no other alternative beyond a reasonable doubt . . . beyond any reasonable doubt whatsoever.

He's a human being. Ladies and Gentlemen his life is in your hands and I trust and I hope that you will do the right and just and Christian thing. Thank you very much.

State's Rebuttal Argument

I want to begin by addressing squarely head on eye to eye the issues . . .the questions just posed to you by Mr. Malaby. And I want to begin first with what he covered last.

He talked about rehabilitation. That's fine . . . it's well it's good . . .we have rehabilitation. We have rehabilitation. It's called probation and we routinely and regularly give people second chances up to a point and then there comes a point when we as a society if we are indeed a civilized people can afford no more. How many second chances do we give. How many Eva May's do we suffer. How many times are we going to have to look at pools of blood and dead bodies because people don't choose to behave. We weep and we are sad about what has happened. If we are going to be sad for anybody let us be sad for those who truly did not bring this on themselves. Eva May did not deserve to wind up laying in that pool of blood in her store. She didn't deserve to have her head shot a distance of six inches to a foot with her hand whatever it was doing up here by her face shielding her eyes from the fatal bullet praying begging whatever that's the difference between Eva May and John Cockrum.

John Cockrum put Eva May on that floor. John Cockrum put himself right here and this is not the first time. He had a second chance out of Morris County he had a second chance out of Dallas County. He was convicted of felony marijuana and been found guilty of capital murder. Yes we're civilized and it's time for civilized people to say 'enough' . . . it's time for civilized people to recognize that one of the goals of punishment is deterrence. It's not that we just can't stand any more of this from John Cockrum it is our way of saying to whoever out in society who is so predisposed you will pay a price a high price and a heavy penalty so don't do criminal acts. You'll be made to pay. We fail if we're week [sic] on that point . . . we fail and not a little bit of what we do here quite frankly is to punish people for a bad act just as you would spank a child for a bad act.

In that regard ask yourself this. What's the nature of the crime that we have here? What is more serious than capital murder? How do you describe capital murder? In thinking how we would try to describe it to you I can't put anything together but several words pop to mind. Cruel brutal painful cowardly it goes on and on and on . . . it's the bottom of the barrel. There is nothing worse. We've tried everything. We've suffered long enough. Let us protect ourselves. Let us protect society as this system of justice strives to do.

Question 1 and 3 have already really been answered or we wouldn't be here. The act was intentional it was deliberate. Mr. Raffaelli covered Question 1 and 3 very well. There is absolutely no provocation. None. There is no evidence of provocation. You saw the picture of Eva May's hand did you see a weapon in her hand? Did you see any evidence that she threatened anyone? And what that really brings us to is Question 2 and that's why we ask you will you wait until you hear all of the evidence before you decide. If you were asked to decide that question immediately after rendering your verdict of guilt or innocence without hearing any evidence you wouldn't know about the past of John Cockrum. You wouldn't be able to adequately and fairly Court him. You wouldn't know how many second chances he's been given you wouldn't know how much society has suffered in order to try to rehabilitate John Cockrum. A second chance is a present and what has he done with it? Thrown it in the dirt. He's said this is not precious to me. My life is not precious to me. I will not pay the small price that society asks for each of our freedom. That is I won't be responsible I won't be . . . I'm not going to obey the law so he says by his actions.

Mr. Malaby asked you about previous acts of violence. That is not what the question says. The question addresses the future. The question says do you find that there is a probability that the Defendant will commit criminal acts of violence. Not the same thing . . . not capital murder . . . but criminal acts of violence that would constitute a continuing threat to society. Let me give you a simple example of what I think this is telling us in a case like this. We don't mean to demean the seriousness of what we're doing here and I hope I don't offend anybody by making this illustration but let's say we were walking by a fence every day and there was a dog in the fence and the dog would growl at us. It never bit us before but it growled at us and we went inside the fence and our leg was severely mauled by the dog. The next day when we walked by even though that dog has only committed one act of violence just as John Cockrum has only committed one murder. Are we willing to go inside the fence with the dog? No. Your common sense tells you to stay out. Well this is the problem that we've got. Are we willing to gamble? And that's what Mr. Malaby asks us to do when he says spare John's life. He's saying let's gamble. Let's take a chance. I can't make the death of Eva May any more horrible than it is. You've seen the picture and the picture speaks for itself.

You know we predict the future everyday in our lives. If you are a loan officer in a bank and a person came in to see you and asked for a loan and that person has a bad credit history what would you think the chances of that person paying that loan back in the future would be? If he didn't pay his loans before why should he pay this loan in the future.

Someone with a bad work record. Let's say that you're a personnel manager or a personnel administrator and someone walks up and wishes to hire on and he says here's my work record and you've got absence tardiness laziness fired from several jobs what would you predict about that person in the future. Will he be a good employee or a bad employee?

If you were a designer or an engineer and you were to build things and constantly be working with designs and you know that there was one design that constantly failed would you continue to use that design? No. You in essence predict the future based on past performance. What's so different about this?

Look at the capital murder. Look at the criminal record of John Cockrum and you tell us and say by your verdict yes we're willing to gamble we'll take one more chance because there will be more Eva May's.

You told us that you would answer the questions according to the evidence . .. you'd let the evidence speak to you . . . you'd let the chips fall where they may.

If what you try to do if you get outside that is to forgive John Cockrum I would urge you to forget that. You cannot forgive John Cockrum. The stain on his soul is like the blood on his hands it will be there forever and you can't wash it off and you shouldn't try.

What do we do? How much do we cry for the victim? How much do we mourn for Eva May is she any less a human being? John Cockrum is a human being. Was Eva May any less a human being?

In answering these questions and considering the problem we have let's draw . . . let's draw on something that we all lean on. Let's draw on a quote from the Book of Amos. "Let Judgment run down like the waters and righteousness like a mighty stream." That's all we ask on behalf of Eva May and every living breathing law abiding citizen that needs your protection. It is all dependent on you because in the final analysis of you each of you for the real protectors of our lives. Help us. Do your duty. Thank you.