IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-10034 _____________________
VINCENT EDWARD COOKS,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the Northern District of Texas USDC No. 3:96-CV-1380 _________________________________________________________________ July 12, 2001
Before JOLLY, DeMOSS, and STEWART Circuit Judges.
PER CURIAM:*
Vincent Edward Cooks, with the death penalty hanging over his
head, has filed a motion for a certificate of appealability (“COA”)
in this 28 U.S.C. § 2254 habeas proceeding. He alleges that four
constitutional violations occurred during the proceedings in the
Texas trial court: (1) that he was denied the presumption of
innocence and a fair trial because he was shackled during trial,
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. (2) that he was denied effective assistance of counsel because
counsel failed to make a sufficient record that he was shackled
during trial, (3) that he was denied effective assistance of
counsel because counsel failed to present alibi evidence, and (4)
that the in-court identification should therefore have been
excluded because pre-trial lineups were impermissibly suggestive.
Because we conclude that Cooks has not made a substantial showing
of the denial of a constitutional right, we affirm the district
court’s denial of his motion for a COA.
I
A
Cooks was convicted of capital murder and sentenced to death
by the Texas state court for the murder of Gary D. McCarthy
committed in the course of perpetrating a robbery. The facts
surrounding the murder and Cooks’s subsequent conviction are as
follows.
McCarthy was an off-duty police officer who worked part-time
as a security guard at Brancatos Grocery in Dallas, Texas. On
February 26, 1988, he and Mark DeCardenas, the owner of Brancatos
Grocery, went to the bank to withdraw $30,000 in cash, necessary
for the store’s check cashing service. Upon their return to the
store, DeCardenas noticed two men get out of a blue Plymouth, get
into an Oldsmobile, and drive to the parking lot across from the
grocery. DeCardenas and McCarthy were approached by the two men,
who attempted to grab the paper bag that contained the money.
2 McCarthy instructed DeCardenas to run into the store, and pushed
him towards the door; DeCardenas dropped the bag of money during
the scuffle. As one of the robbers was backing away from the
scene, he shot McCarthy, jumped into an Oldsmobile and drove away.
McCarthy shot at the retreating Oldsmobile and shattered the back
windshield. McCarthy died from the gunshot wounds.
As the robber’s car left the scene, two police officers
driving in the opposite direction noticed the broken window, and
followed the Oldsmobile. Although the occupants of the car had
fled by the time the officers caught up to the car, the police
recovered a revolver from the floorboard that was later established
as the murder weapon.
Earlier, on the morning of the day that the robbery occurred,
police officers had stopped and questioned three men in a blue
Plymouth parked down the street from Brancatos Grocery. When asked
what they were doing, the men responded that they were waiting for
a bus. The police officers checked the license plate number, but
found nothing out of the ordinary, and went on their way.
After the murder, police officers traced the license plate
number of the rented blue Plymouth, obtained during the earlier
questioning of the trio. This investigation lead to the arrest of
Tracy Stallworth. Information from Stallworth then led to the
arrests of Cooks and Tony Ray Harvey. Harvey later testified at
Cooks’s trial that he, Stallworth and Cooks stole the Oldsmobile
used in the robbery, and that Cooks was the gunman.
3 B
On March 10, 1988, Cooks was indicted for capital murder for
causing the death of McCarthy while in the course of robbing Mark
DeCardenas. See Tex. Penal Code. Ann. § 19.03(a)(2). The jury
returned a verdict of guilty on December 7, 1988. At the
punishment hearing, the jury found that Cooks deliberately caused
McCarthy’s death when he shot him, that there is a probability that
Cooks will commit future violent acts that pose a threat to
society, and that Cooks’s conduct was not a reasonable response to
any provocation of the deceased. The trial court then sentenced
Cooks to death by lethal injection, as mandated by Texas Crim.
Proc. Code. Ann. art. 37.071(b).
Cooks’s case was automatically appealed to the Texas Court of
Criminal Appeals, which affirmed his conviction and sentence. See
Cooks v. State, 844 S.W.2d 697 (Tex. Crim. App. 1992). The Court
of Criminal Appeals denied rehearing in January 1993. Cooks then
petitioned the United States Supreme Court for a writ of
certiorari, which was denied on June 28, 1993. Cooks filed an
application for a state writ of habeas corpus on April 25, 1995.
The state trial court entered findings of fact and conclusions of
law on February 27, 1996, and the Court of Criminal Appeals denied
habeas relief after determining that the trial court’s findings
were supported by the record.
After obtaining a stay of execution from the federal district
court on May 20, 1996, Cooks was appointed state habeas counsel to
4 represent him in federal habeas review and filed a petition for
habeas corpus relief in federal court. The case was referred to a
magistrate judge who recommended a denial of Cooks’s petition for
habeas corpus on November 6, 2000. On December 1, 2000, the
district court adopted the magistrate’s findings, entered a final
judgment and denied Cooks’s motion for a COA. Cooks then filed
this motion for a COA on the claims denied by the district court.
II
Cooks’s application for a federal writ of habeas corpus, filed
on April 23, 1997, is governed by the Antiterrorism and Effective
Death Penalty Act (“AEDPA”). Lindh v. Murphy, 521 U.S. 320 (1997).
To obtain a COA, Cooks must make a “substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c). This
substantial showing requires a petitioner to demonstrate that the
issues could have been reasonably resolved differently or that the
issues presented are adequate to deserve encouragement in further
proceedings. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595,
146 L.Ed.2d 542 (2000). Because the district court denied Cooks’s
application for a writ of habeas corpus on the merits, Cooks “must
demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Id.
“In deciding to grant a COA, we view the petitioner’s
application through the deferential scheme created by the AEDPA.”
5 Kutzner v. Johnson, 242 F.3d 605, 608 (5th Cir. 2001).1 Thus, we
defer to a state court’s adjudication of a petitioner’s claims on
the merits unless the state court’s determination was “contrary to,
or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States,” 28 U.S.C. § 2254(d)(1), or “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,” 28 U.S.C. §
2254(d)(2). See Wheat v. Johnson, 238 F.3d 357, 360 (5th Cir.
2001). A state court’s decision is contrary to clearly established
federal law when it reaches a legal conclusion that is in direct
opposition to a legal conclusion reached by the Supreme Court or
when, after reviewing a set of materially indistinguishable facts,
the state court makes a determination different from that of the
Supreme Court. Kutzner, 242 F.3d at 608. A state court’s decision
is only based on an unreasonable determination of the facts when it
is objectively unreasonable. Id.
In his application for a COA, Cooks claims that shackling him
in front of the jury denied him the presumption of innocence and
1 We note that the COA standard articulated in § 2253, requiring the petitioner to make a substantial showing of a constitutional right, does not seem to incorporate the AEDPA standard under § 2254, which requires deference to the state habeas court’s determination. Our precedent, however, requires that “the determination of whether a COA should issue . . . be made by viewing the petitioner’s arguments through the lens of the deferential scheme laid out in 28 U.S.C. § 2254(d).” Barrientes v. Johnson, 221 F.3d 741, 772 (5th Cir. 2000). See also Dowthitt v. Johnson, 230 F.3d 733, 740 (5th Cir.2000).
6 his right to a fair trial under the due process clause of the
Fourteenth Amendment. He also claims that he was denied the
effective assistance of counsel because his attorneys failed to
make a proper record of the shackling. He further claims that
counsel failed to present an alibi defense. Lastly, he claims that
the pretrial photographic and live line-ups were impermissibly
suggestive, and that the witness’s in court identification of him
was therefore a violation of his due process rights. The Texas
courts, and the district court, which adopted the magistrate
judge’s report and recommendations, considered and rejected these
claims.
Cooks first argues that his Fourteenth Amendment rights to a
presumption of innocence and a fair trial were violated by the
trial court’s decision to shackle him during both voir dire and
trial. Cooks was shackled by a two foot chain that cuffed his
feet, which was attached to an ankle bracelet that went up his
right leg. On the first day of voir dire, the defense lawyer
objected to the shackles, noting that there had been no evidence
indicating that Cooks was a security threat. The prosecution
stated that the jurors would not be able to see the leg restraints
from where they were sitting, that the restraints were covered by
Cooks’s pants, and that a box and briefcase placed in front of
Cooks prevented the jury from seeing the shackles. The trial court
overruled Cooks’s counsel’s objection, and stated that Cooks was
7 being shackled at the recommendation of the Dallas County deputy
sheriffs out of an “abundance of prudence and caution.”
On direct appeal, the Court of Criminal Appeals declined to
assess whether the circumstances were sufficient to justify the
shackling, concluding only that Cooks was not harmed by the
shackles because there was no evidence that the jury actually saw
the restraints. Cooks v. State, 844 S.W.2d 697, 722 (Tex. Crim.
App. 1993). In state habeas court, Cooks included information
that two jurors were aware that Cooks was restrained during the
trial, but had no evidence that any of the jurors actually saw the
shackles. One of the jurors believed that Cooks was handcuffed
rather than shackled; the other juror remembered that Cooks needed
assistance to stand, presumably because he was shackled. In their
affidavits, both jurors stated that they could not directly see the
shackles from the jury box, that they assumed restraints were
standard procedure in murder cases, and that their awareness of the
restraints did not cause them to believe that Cooks was any more
likely to be guilty or innocent. The state habeas court found the
presence of the shackles harmless, because the shackles were
unobtrusive and the affidavits affirmatively demonstrated that the
jurors were not prejudiced against Cooks by the presence of the
shackles.
A defendant is presumed innocent and therefore, as a general
rule, should be presented to the jury in the trappings of innocence
during trial. Thus, the Supreme Court has found that certain
8 practices, such as shackling or gagging a criminal defendant or
having a defendant dress in prison clothes, may pose a threat to
the fairness of the fact-finding process because they are a
“constant reminder of the accused’s condition.” Estelle v.
Williams, 425 U.S. 501, 504, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976).
See also Holbrook v. Flynn, 475 U.S. 560, 568, 106 S.Ct. 1340, 89
L.Ed.2d 525 (1986). These practices therefore “must be subjected
to ‘close judicial scrutiny.’” Id. (citations omitted). The
Supreme Court, however, has made clear that trial courts do have
the discretion to use physical restraints when confronted with
“obstreperous defendant[s].” Illinois v. Allen, 397 U.S. 337, 343-
344, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). Thus, the Supreme
Court, while labeling shackling an inherently prejudicial practice,
has never held that the use of shackles necessarily deprives a
defendant of the right to a fair trial. Instead, a trial court
must balance the defendant’s presumption of innocence against “the
court's obligation to protect the court and its processes, and to
attend to the safety and security of those in the courtroom.”
United States v. Nicholson, 846 F.2d 277, 279 (5th Cir. 1988).
Even if the trial court decision’s to allow the defendant to be
shackled is erroneous, it is reviewed for harmless error.
Wilkerson v. Whitley, 16 F.3d 64, 68 (5th Cir.1994) (citing
Buchanan v. Kentucky, 483 U.S. 402, 107 S.Ct. 2906, 97 L.Ed.2d 336
(1987)).
Both the state habeas court and the magistrate judge found
9 that any error in forcing the defendant to remain shackled during
the proceedings was harmless, because precautionary measures taken
by the parties prevented the leg shackles from being visible to the
jury, and there was nothing in the juror’s affidavits to indicate
that the defendant’s restraints prejudiced the jury. Although the
jurors’ statements that their decisions were not affected by their
perception of restraints are not entitled to significant weight,2
the evidence that the restraints were not visible from the jury box
supports the state court’s determination that the presence of the
shackles were harmless. The Supreme Court has found that
restraints and other trappings of prison are prejudicial because
they constantly remind the jury of the accused’s condition; the
Court has never found that a defendant is denied the presumption of
innocence if the jury does not see these trappings, or has limited
exposure to them. Thus, Cooks has failed to make a substantial
showing that the presence of shackles denied him his constitutional
rights.
B
Cooks next claims that he was denied the effective assistance
of counsel because (1) his trial counsel failed to make a record to
2 The Supreme Court has found that “[e]ven though a practice may be inherently prejudicial, jurors will not necessarily be fully conscious of the effect it will have on their attitude toward the accused.” Holbrook, 475 U.S. at 570. Thus, the statements of the two jurors who claimed that the sight of restraints did not affect their decisions do not necessarily mean the restraints were harmless.
10 present the shackling issue on appeal, and (2) his trial counsel
erred in not presenting alibi testimony from Cooks’s brother that
Cooks was in Houston, not Dallas, when the victim was killed. The
state habeas courts and the federal magistrate judge denied both of
these ineffective assistance claims.
To show ineffective assistance of counsel under the Sixth and
Fourteenth Amendments, the accused must satisfy the two pronged
test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). Under the first prong, the defendant must show
that counsel’s actions fell below an objective standard of
reasonableness. For the lawyer’s acts and omissions to be
unreasonable, they must fall “outside the wide range of
professionally competent assistance.” Id. at 690. Counsel is
strongly presumed to have rendered adequate assistance. Id. Under
the second prong, the defendant must show that this deficient
performance resulted in actual prejudice to the defendant. Id. at
687. Actual prejudice requires a reasonable probability--a
probability sufficient to undermine confidence in the outcome--
that, but for counsel’s errors, the result of the proceeding would
have been different. Id. at 694.
As noted above, Cooks’s counsel objected to Cooks’s leg
restraints at the start of jury voir dire. Cooks’s trial counsel
did not question the prospective jurors whether they noticed the
restraints because he did not want to unnecessarily draw the
jurors’s attention to the restraints; however, he did not
11 photograph the courtroom or request a post-trial hearing. Cooks
argues that, if his attorney had properly documented the fact that
the jurors saw or could have seen the shackles, he would have been
granted a new trial on direct appeal.
The state habeas court found that Cooks’s counsel was not
deficient by failing to make a more detailed record of the
shackling, and that Cooks was not prejudiced by his counsel’s
actions. The magistrate judge found that Cooks did not establish
a reasonable probability that the Texas Court of Criminal Appeals
would have ruled differently on direct appeal even if counsel had
made a more complete documentary record of the shackling.
On direct appeal, the Court of Criminal Appeals denied Cooks’s
shackling claim because, using harmless error review, the court
concluded that Cooks was not harmed “absent evidence that the jury
actually saw the shackles.” Cooks v. State, 844 S.W.2d at 723.
Even if Cooks’s counsel had made a full record of the proceedings,
however, there is no reasonable probability that the Court of
Criminal Appeals would have ruled differently. The affidavits of
the jurors and the statements of the prosecutor during trial
indicate that the shackles were not visible from the jury box.
Thus, photographs of the courtroom would not have affected the
court’s assessment of the claim. Although the statements from the
two jurors provide some evidence that at least those two jurors
12 were somewhat aware that Cooks was restrained,3 Texas courts have
found that the fact that jurors catch inadvertent and momentary
glimpses of restraints does not require reversal. Clark v. State,
717 S.W.2d 910, 919 (Tex.Crim.App. 1986). Here, where steps were
taken that prevented the visibility of the restraints to the jury,
there is no reasonable probability that the court’s decision would
have been different. In fact, during the state habeas proceedings,
the Court of Criminal Appeals specifically held that shackling the
defendant was harmless error even though there was evidence that
two jurors were aware of restraints. Cooks has not made a
substantial showing that he was denied the effective assistance of
counsel because his counsel failed to make a complete record of the
shackling.
Cooks also fails to make a substantial showing that he was
denied the effective assistance of counsel because his counsel
failed to introduce alibi evidence. At the state habeas level,
Cooks introduced an affidavit from a defense investigator stating
that he had interviewed Cooks’s brother, Timothy Hearne, who said
that Cooks was in Houston, not Dallas, at the time of the murder.
Cooks’s brother also claimed that he was in Dallas at the time of
the trial and was available to testify. In response, the State
submitted an affidavit from one of Cooks’s trial lawyers. Cooks’s
3 The investigator reported that one juror was aware that Cooks was shackled because he had difficulty standing up. The other juror thought that Cooks was handcuffed, which he was not.
13 lawyer said that he had interviewed Hearne, but that Hearne did not
seem interested in the trial and did not arrive at Cooks’s trial as
he was supposed to. The trial lawyer also noted that he advised
Cooks that the introduction of an alibi defense might result in
extraneous offenses being admitted and that the decision not to
call Hearne was trial strategy supported by Cooks.
Under Texas rules of evidence, evidence of extraneous acts can
be introduced to rebut an alibi defense. See Wyatt v. State, 23
S.W.3d 18, 25 (Tex.Crim.App. 2000) (describing Rule 404(b) of the
Texas Rules of Evidence). At the sentencing phase of the trial,
evidence was introduced suggesting that Cooks was involved in two
very similar robberies, in which people who were returning to
stores from the bank with large sums of money were accosted by an
armed robber demanding the money. Because alibi testimony may have
allowed the State to introduce this testimony at the guilt stage of
the trial, counsel’s decision not to introduce the alibi testimony
(assuming Hearne had been available) was a reasonable tactical
decision, and it therefore falls within the range of practical
choices not to be second-guessed. Thus, Cooks has not made a
substantial showing that he was denied the effective assistance of
counsel because his counsel failed to introduce alibi evidence.
C
As a final claim, Cooks argues that pre-trial lineups were
impermissibly suggestive, and that Frank Green’s in-court
identification resulting from them should therefore have been
14 excluded as a violation of due process. This claim was rejected by
the Texas court on direct appeal, as well as by the district court
below.
The Supreme Court has held that in the case of an eyewitness
identification at trial that follows a pretrial photographic
identification, the conviction will only be set aside “if the
photographic identification procedure was so impermissibly
suggestive as to give rise to a very substantial likelihood of
misidentification.” Simmons v. United States, 390 U.S. 377, 384,
88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). “It is the likelihood of
misidentification that violates the defendant’s right to due
process.” Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34
L.Ed.2d 401 (1972). This concern over misidentification has
resulted in a two part test when considering whether to exclude in-
court identification evidence. First, we must determine whether
the photo lineup was impermissibly suggestive. Where, as here, the
photographic lineup was not preserved by the state and consequently
not entered into evidence, there is a presumption that it was
impermissibly suggestive. United States v. Honer, 225 F.3d 549,
553 (5th Cir. 2000). Second, we must ask whether, based on the
totality of the circumstances, the display posed a substantial
likelihood of irreparable misidentification. Simmons, 390 U.S. at
384. “The admission of testimony concerning a suggestive and
unnecessary identification procedure does not violate due process
so long as the identification possesses sufficient aspects of
15 reliability.” Manson v. Brathwaite, 432 U.S. 98, 106, 97 S.Ct.
2243, 53 L.Ed.2d 140 (1977). When assessing the reliability of the
identification, the Supreme Court has instructed us to consider
the following factors: the opportunity of the witness to view the
perpetrator at the time of the crime, the degree of the witness’s
attention, the accuracy of the witness’s prior description of the
criminal, the witness’s level of certainty at the time of
confrontation, and the length of time between the crime and
confrontation. Biggers, 409 U.S. at 200-201.
The witness at issue here was Frank Green, the grocery store
manager. He saw the events occur through the store window. He was
approximately 25 feet from the robbery. He watched the offense for
two to three minutes. Immediately after the offense, Green
described the offender as being approximately five feet ten inches
tall and weighing 210 to 220 pounds; Cooks is six feet three inches
tall and 250 to 260 pounds. Green later explained this discrepancy
by stating “[w]hen a man is jumping around with a pistol, you can’t
measure his weight down to a point.” On the evening of the
offense, Green was shown a photographic lineup. Cooks’s picture
was not included in this initial lineup, and Green did not pick
anyone out of lineup as the offender. Green testified that he
tentatively picked out Cooks the next day from a second photo
lineup, but did not make a positive identification because he did
not want to pick the wrong person. A short time later, Green
identified Cooks out of a live lineup. Cooks was the only
16 individual who appeared in more than one of the five to six person
lineups.
On direct appeal, the Court of Criminal Appeals held that the
trial court did not err in overruling Cooks’s objections to Green’s
in-court identification. The court found that, even if the lineup
was impermissibly suggestive, Cooks had failed to demonstrate that
Green’s testimony was unreliable under the totality of the
circumstances. The court noted that Green was in close proximity
to and observed the full commission of the offense, that Green
identified Cooks with certainty at trial, and that Green testified
that he would have been able to identify Cooks in the courtroom
without having viewed the pretrial lineups. Cooks, 844 S.W.2d. at
731. The magistrate judge found that the state court ruling was
not an unreasonable application of clear Supreme Court precedent.
The magistrate judge also observed that Green was extensively
cross-examined on both the pretrial lineup and his observation of
the crime.
Cooks argues that Green’s opportunity for observation during
the crime was limited, and occurred while Green was frantically
searching the inside of the store for a gun. To establish the
unreliability of Green’s testimony, Cooks also points to the
discrepancy between Green’s initial description of the suspect and
the description Green gave after having been shown a photograph of
Cooks. As the magistrate judge noted, however, Green was cross-
examined on these issues and the jury convicted Cooks in spite of
17 other evidence that tended to undermine the reliability of the
identification. Although Green was the only eyewitness to identify
Cooks out of a live lineup, we cannot say that the state court
unreasonably applied clear Supreme Court precedent or made an
unreasonable determination of fact by holding that Green’s
identification–-an identification made close in time to the events,
based on observing events from 25 feet away, and testimony that the
witness was confident he would have been able to make even without
the lineup--was sufficiently reliable to pass constitutional
muster. Cooks therefore has not made a substantial showing that
Green’s in-court identification denied him due process.4
III
Thus, for the reasons we have stated, we hold that Cooks has
not made a substantial showing of the denial of a constitutional
right on any of his claims, and we affirm the district court’s
denial of his request for a COA.
A F F I R M E D.
4 Although the precise issue is the reliability of eyewitness testimony, for added measure, we would observe that Cooks was identified as the gunman by Harvey, his co-defendant, and by Green, the store manager, and that no claim is made that Cooks did not participate in the robbery. Thus, we cannot say that Cooks made a substantial showing that the jury’s and state habeas courts’ determination of fact upon which this conviction for capital murder rests was “an unreasonable determination of fact,” which would justify the grant of habeas relief.