Zimmerman v. Cockrell

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 28, 2003
• Docket: 01-40591
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D May 28, 2003 UNITED STATES COURT OF APPEALS Charles R. Fulbruge III FOR THE FIFTH CIRCUIT Clerk

__________________

No. 01-40591

KEVIN LEE ZIMMERMAN, Petitioner-Appellant,

v.

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

______________________________________________

Appeal from the United States District Court for the Eastern District of Texas 9:95-CV-002 ______________________________________________

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Petitioner Kevin Lee Zimmerman (Zimmerman), convicted of capital murder in Texas and

sentenced to death, appeals the denial of federal habeas relief. The district court granted a certificate

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. of appealability (COA) with respect to three issues: (1) cumulative error based on ineffective

assistance of counsel; (2) wrongful exclusion of a juror for cause; and (3) improper prosecutorial

argument. Additionally, in a previous opinion, this Court granted a COA with respect to

Zimmerman’s claim of ineffective assistance based on counsel’s failure to investigate whether he was

competent to stand trial.

I FACTUAL AND PROCEDURAL HISTORY.

Zimmerman, George Weber, and Kay Gonzales, arrived at a Motel 6 in Beaumont on

October 23, 1987.1 While at the motel, t hey met the victim, Leslie Gilbert Hooks, who also was

staying at the motel. After having some drinks, Hooks suggested that they go to the fair. After

returning from the fair, all four people returned to Zimmerman’s room. After a short time, Hooks

and Kay Gonzales went to Hooks’s motel room, where Hooks paid Gonzales to have sexual

intercourse. Hooks and Gonzales returned to Zimmerman’s room.

After some time, Gonzales went to the bathroom and heard a struggle ensuing in the nearby

bedroom. In that room, Zimmerman and Weber, armed with knives, attacked Hooks. After the two

men stabbed him 31 times, Zimmerman took Hooks’s wallet and gave it to Weber. Zimmerman,

Weber, and Gonzales left in their car to bring Zimmerman to a hospital. While the car broke down

after only a short time, Zimmerman did finally reach the hospital, where he received treatment for a

knife wound.

Zimmerman was subsequently arrested and placed in jail. While in jail, he wrote numerous

letters to Weber and to the district attorney. At trial, the State introduced many pieces of

1 The facts surrounding the offense are taken nearly verbatim from the opinion of the Texas Court of Criminal Appeals. Zimmerman v. State, 860 S.W.2d 89, 92-93 (Tex.Crim.App. 1993).

2 correspondence Zimmerman had written and signed. In one of these letters to the district attorney,

he wrote that:

[Hooks] never stabbed me and we never got into a fight. [Hooks] had 4 or 5 hundred dol[l]ars o n him and we were drinking so I decided to kill him and take his f[—]ing money. When we got back to the room [Hooks] did not leave because I took out my knife and opened it and started stabbing him and in the course of me stabbing him I accidentally got stab[b]ed in my arm. After he was dead and I robbed--I rolled him over took the money out of his front pocket and took his wallet. I told George Weber that if he ever said any thing I would kill him, too an[d] we left. The car broke down on the side of the road I made George flag somebody down to take me to the hospital and he did. I through [sic] the knife in the ditch, kicked off my shoes and threw my wallet out. I don't know how much money there was but it was not much because [Hooks] bought some jew[e]lry for Kay at the fair but however much it was I gave it to George and told him to be cool and split, I would handle the rest.

The contents of this letter were corroborated by the testimony of Gonzales. According to her,

Zimmerman and Hooks were arguing about an incident that had occurred at the fair. Suddenly,

Zimmerman "picked up a knife and ... stabbed him [the decedent] in his shoulder." Gonzales then

went into the bathroom and came back out, only to see both Zimmerman and Weber stabbing the

decedent, who was yelling “Don't kill me. Please don't let me die. Don't kill me. Please don't let

me die." After Hooks stopped moving, Zimmerman "went to get . . .[the] wallet out of his pockets."

A Jefferson County, Texas jury found Zimmerman guilty of capital murder. After the

punishment phase of the trial, the jury affirmatively answered the special issues set forth in Article

37.071(b) of the Texas Code of Criminal Procedure, and the trial court sentenced Zimmerman to

death. The Texas Court of Criminal Appeals affirmed the conviction and sentence. Zimmerman v.

State, 860 S.W.2d 89 (Tex.Crim.App. 1993), and the Supreme Court remanded the case in light of

Johnson v. Texas, 509 U.S. 350, 113 S.Ct. 2658 (1993). Zimmerman v. Texas, 510 U.S. 938, 114

3 S.Ct. 374 (1993). Upon remand, the Court of Criminal Appeals again affirmed the judgment of the

trial court. Zimmerman v. State, 881 S.W.2d 360 (Tex.Crim.App. 1994). The Supreme Court denied

Zimmerman’s petition for writ of certiorari. Zimmerman v. Texas, 513 U.S. 1021, 115 S.Ct. 586

(1994).

Zimmerman subsequently filed a petition for writ of federal habeas corpus in district court that

was dismissed without prejudice for failure to exhaust state remedies. Zimmerman filed a state habeas

petition, and the state court held an evidentiary hearing with respect to the claim of ineffective

assistance of counsel. The state court adopted the proposed findings of fact and conclusions of law

submitted by the State and recommended denying relief. The Court of Criminal Appeals denied relief

“[b]ased upon the trial court’s findings and [its] own review.”

Zimmerman then filed the instant petition, which the district court denied. As noted above,

the district court granted Zimmerman a COA with respect to three issues, and we granted a COA

with respect to Zimmerman’s claim of ineffective assistance based on counsel’s failure to investigate

whether he was competent to stand trial.

II. STANDARD OF REVIEW

Pursuant to 28 U.S.C. § 2254(d), we defer to a state court’s adjudication of a petitioner’s

claims on the merits unless the state court’s decision was: (1) “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.” A state court’s decision

is deemed contrary to clearly established federal law if it reaches a legal conclusion in direct conflict

4 with a prior decision of the Supreme Court or if it reaches a different conclusion than the Supreme

Court based on materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495,

1519-20 (2000). A state court’s decision constitutes an unreaso nable application of clearly

established federal law if it is objectively unreasonable. Id. at 1521. Additionally, pursuant to

section 2254(e)(1), state court findings of fact are presumed to be correct, and the petitioner has the

burden of rebutting the presumption of correctness by clear and convincing evidence. See Valdez v.

Cockrell, 274 F.3d 941, 947 (5th Cir. 2001).

III. ANALYSIS

A. CUMULATIVE ERROR OF COUNSEL

The district court granted a COA with respect to the cumulative effect of ineffective

assistance of counsel. “The cumulative error doctrine provides relief only when the constitutional

errors committed in the state court so ‘fatally infected the trial’ that they violated the trial’s

‘fundamental fairness.’” Spence v. Johnson, 80 F.3d 989, 1000 (5th Cir. 1996) (quoting Derden v.

McNeel, 978 F.2d 1453, 1457 (5th Cir. 1992) (en banc)). To determine whether cumulative error

has been shown, this Court “review[s] the record as a whole to determine whether the errors more

likely than not caused a suspect verdict.” Derden, 978 F.2d at 1458.

Zimmerman has alleged numerous allegations to support his claim of cumulative ineffective

assistance of counsel.2 As indicated, the district court granted a COA with respect to the claim of

cumulative ineffective assistance of counsel. Additionally, this Court granted a COA with respect to

2 Zimmerman had several court-appointed attorneys withdraw from representing him prior to trial. Ultimately, Linda Cansler was Zimmerman’s lead counsel and, unless otherwise noted, it is her performance that is at issue.

5 Zimmerman’s claim of ineffective assistance based on counsel’s failure to investigate whether he was

competent to stand trial. Therefore, we will consider the competency argument as an independent

claim of ineffective assistance of counsel. We will also consider the competency claim as an instance

of alleged ineffectiveness in support of his cumulative claim. As set forth below, several of the

alleged instances of ineffective assistance we disposed of as individual claims in our previous opinion

ruling on his request for a COA. The remaining instances of alleged ineffective assistance are not

addressed as independent claims, but solely as support for the claim of cumulative ineffective

assistance. Accordingly, we will address each instance of alleged ineffective assistance of counsel and

then consider all of them in light of the entire record to determine the claim of cumulative error.

The Supreme Court has recently reaffirmed the familiar two-prong test for ineffective

assistance of counsel:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

(Terry ) Williams v. Taylor, 120 S.Ct. 1495, 1511 (2000) (quoting Strickland v. Washington, 466

U.S. 668, 687, 104 S.Ct. 2052 (1984)). To demonstrate that counsel was ineffective, a petitioner

must establish that counsel’s representation fell below an objective standard of reasonableness. See

id. To show prejudice, he must show that there is a reasonable probability that, but for counsel’s

error, the result of the proceeding would have been different. See id. at 1511-12.

1. FAILURE TO INVESTIGATE BACKGROUND OF VICTIM

Zimmerman’s first argument in support of his claim of cumulative ineffective assistance of

6 counsel is that counsel failed to investigate the background of the victim. In our previous opinion,

we denied a COA with respect to this argument pursuant to 28 U.S.C. § 2253(c)(2). We concluded

that had the jury been presented with evidence of the victim’s propensity for violence, there is not a

reasonable probability that the result in either phase of the trial would have been different.

Subsequent to our opinion, the Supreme Court explained that when a COA is sought, the court of

appeals should limit its examination to the threshold inquiry of whether the petitioner has made a

substantial showing of the denial of a constitutional right. Miller-El v. Cockrell, __ U.S. __, 123

S.Ct. 1029, 1038 (2003). To the extent that our previous opinion may be construed as stepping over

the threshold inquiry, we have again examined this claim and determined that Zimmerman has failed

to make a substantial showing of the denial of a constitutional right.

2. FAILURE TO INVESTIGATE ZIMMERMAN’S MENTAL HEALTH

Zimmerman’s next argument in support of his claim of cumulative ineffective assistance of

counsel is that counsel failed to investigate his mental health. In our previous opinion, we denied a

COA with respect to this argument. We concluded that had the jury been presented with the mental

health evidence, there is not a reasonable probability that the result in either phase of the trial would

have been different. To the extent that our previous opinion may be construed as stepping over the

threshold inquiry involved in determining whether to grant a COA, we have again examined this claim

and determined that Zimmerman has failed to make a substantial showing of the denial of a

constitutional right. Miller-El, __ U.S. at __, 123 S.Ct. at 1038.

7 3. FAILURE TO EVALUATE ZIMMERMAN FOR COMPETENCY

As previously set forth, this Court granted a COA with respect to Zimmerman’s claim that

counsel rendered ineffective assistance by failing to have him evaluated for competency to stand trial.

It is well established that “[d]ue process prohibits the conviction of a person who is mentally

incompetent.” Bouchillon v. Collins, 907 F.2d 589, 592 (5th Cir. 1990) (footnote and citation

omitted). The test for determining competency is whether, at the time of trial, the defendant has

“sufficient present ability to consult with his lawyer with a reasonable degree of rational

understanding--and whether he has a rational as well as factual understanding of the proceedings

against him.” Id. (citations and internal quotation marks omitted). To prevail on an ineffective

assistance claim based on counsel’s failure to obtain a competency evaluation, the petitioner must

demonstrate a reasonable probability that he was incompetent to stand trial. Id. at 595.

Here, the district court held that counsel’s failure to request a competency evaluation

constituted deficient perfo rmance but denied the claim because it found that Zimmerman had not

shown prejudice. We will assume for purposes of this appeal that counsel’s performance was

deficient.

Zimmerman first argues that the district court erred in holding him to a higher standard with

respect to the prejudice prong. Zimmerman is mistaken. The district court found that “Zimmerman

has not established that there is a reasonable probability that he was in fact incompetent at the time

of his trial.” This phrasing is almost identical to our language in Theriot v. Whitley, 18 F.3d 311, 313

(5th Cir. 1994) (“even if [the petitioner’s] counsel had investigated his competence to stand trial, [the

petitioner] must show that there was a reasonable probability that he was in fact incompetent”).

8 Zimmerman next faults the district courts for not considering that the trial court had a duty

to sua sponte hold a competency hearing. Although it is not clear, we understand Zimmerman’s

argument to be that because the trial court had a duty to hold a competency hearing, counsel’s failure

to request the hearing constitutes per se prejudice. We do not agree. The claim before us is that

counsel rendered ineffective assistance by failing to seek a competency hearing. We have assumed

counsel’s performance was deficient and are determining whether Zimmerman has shown prejudice

as a result. Thus, the relevant inquiry is not whether the trial court should have held a competency

hearing. The relevant inquiry is whether Zimmerman has established prejudice with respect to this

claim, i.e., a reasonable probability that he was incompetent at the time of his trial.

Zimmerman’s principal argument is that, based on the evidence offered during his habeas

proceedings, the district court erred in not finding a reasonable probability of his incompetence to

stand trial. Zimmerman first points to the letters he wrote his initial trial counsel, Haden (Sonny)

Cribbs, who withdrew from representing Zimmerman prior to trial.3 In those letters he asked that

counsel seek a “sanity hearing.”4 Zimmerman expressly does not rely on these letters in an attempt

to prove his incompetency. Instead, he relies on them to show that trial counsel should have been

on notice that there were serious issues with respect to his competency to stand trial. We understand

this evidence to be relevant only to the deficiency prong, which we already assume to be proven.

Zimmerman’s strongest evidence in support of showing a reasonable probability that he was

incompetent at the time of trial is a Minnesota Multiphasic Personality Inventory-2 (MMPI-2) test

3 Zimmerman had filed a grievance against Cribbs with the State Bar of Texas. 4 The parties refer to Zimmerman’s request as a request for a “competency” evaluation. Pursuant to the Director’s unopposed motion, the record on appeal was supplemented with three letters from Zimmerman to Cribbs. In those letters, Zimmerman refers to a “sanity hearing.”

9 administered three weeks before his trial in 1990. The “profile validity” section of the MMPI-2

provides that “[t]his client has endorsed a number of psychological problems, suggesting that he is

experiencing a high degree of stress. Although the MMPI-2 profile is probably valid, it may reflect

some exaggeration of symptoms.” Additionally, the “symptomatic patterns” section of the MMPI-2

provide, in part, as follows:

The client appears to be quite confused and disorganized, and is experiencing severe personality deterioration. His MMPI-2 profile reflects an active, florid psychotic process, which includes a loss of contact with reality, inappro priate affect, and erratic, possibly assaultive behavior. He is preoccupied with bizarre ideas and abstract thoughts, and probably has delusions and hallucinations. He tends to project blame onto others and appears to withdraw into fantasy in an attempt to deal with his distress. In an interview, he is likely to be circumstantial, tangential, and disorganized. It is unlikely that he could contribute to his own defense in a legal hearing, since his behavior is inappropriate and his thoughts are illogical.

(emphasis added).5

5 The “symptomatic patterns” section also provides as follows:

He is preoccupied with feeling guilty and unworthy. He feels that he deserves to be punished for wrongs he has committed. He feels regretful and unhappy about life, and seems plagued by anxiety and worry about the future. He feels hopeless at times and feels that he is a condemned person. He endorsed a number of attitudes that reflect feelings of low self-esteem and long-standing beliefs about his inadequacy. He has difficulty managing routine affairs, and the item content he endorsed suggests a poor memory, concentration problems, and an inability to make decisions. He appears to be immobilized and withdrawn and has no energy for life. According to his self-report, there is a strong possibility that he has seriously contemplated suicide. Although he does not admit to having suicidal thoughts at this time, he acknowledged having made a suicidal attempt in the past. Given his current depressed mood, a suicide assessment is indicated. He has endorsed a number of items reflecting a high degree of anger. He appears to have a high potential for explosive behavior at times. He views the world as a

10 The diagnostic considerations section provides that “[t]he most likely diagnosis is

Schizophrenia, possibly Paranoid type, or a Paranoid Disorder. His unusual thinking and bizarre ideas

need to [be] considered in any diagnostic formulation.” As previously set forth, the test for

competency is whether the defendant has sufficient ability to consult with his lawyer and whether he

has a rational as well as factual understanding of the proceedings against him. The emphasized

language in the above quoted portion of the MMPI-2 appears to support Zimmerman’s claim.

Indeed, Zimmerman contends that this evidence by itself carries his burden of showing a reasonable

probability that he was incompetent to stand trial.

Although we believe the MMPI-2 is Zimmerman’s best evidence, we cannot agree that it is

sufficient to show the required prejudice. We do agree with the district court that although the

report’s evidentiary “value is greatly enhanced by the fact that it was produced within a month of the

trial, [it is] lessened by the fact that it is unclear that the examiner understood the legal concept of

incompetency.” Although inappropriate behavior and illogical thinking presumably would hamper

Zimmerman’s ability to assist counsel with his defense, these problems do not necessarily demonstrate

a lack of rational understanding of the proceedings or an inability to consult with counsel.

Accordingly, we agree with the district court’s conclusion that the report fails to provide sufficient

threatening place, sees himself as having been unjustly blamed for others’ problems, and feels that he is getting a raw deal out of life. He endorsed a number of extreme and bizarre thoughts suggesting the presence of delusions and/or hallucinations. He apparently believes that he has special mystical powers or a special “mission” in life which others do not understand or accept. The client reports being quite apathetic and despairing; he may feel sadistic or masochistic at times. The client reports bizarre or unusual sensory experiences and confused thinking which should be evaluated carefully.

11 insight with respect to whether Zimmerman met the legal standard of competency.

Zimmerman next relies on a letter from Dr. Allen Childs dated June 24, 1997. However, as

the Director argues, the letter essentially addressed possible explanations for Zimmerman’s behavior

at the time of the crime in 1987. We agree with the district court’s conclusion that the letter was not

probative of the ultimate determination of whether Zimmerman was legally competent to stand trial

in 1990.

Zimmerman also relies upon Dr. Price’s affidavit dated April 13, 1995. However, Zimmerman

admits that this affidavit and Dr. Childs’ letter are not “direct ly relevant to the question of [his]

competency at the 1990 trial.” Nonetheless, Zimmerman asserts that these two documents are

relevant to counsel’s deficient performance in failing to have her client evaluated. Once again, we

are assuming deficient performance and only addressing the prejudice prong on appeal.6 In any event,

we agree with the district court’s conclusion that Dr. Price’s affidavit is not helpful with respect to

determining Zimmerman’s competency at the time of trial.

Additionally, Zimmerman relies on the letters he wrote to the trial court and the prosecutor.

Zimmerman indicated that he had been planning to raise self defense but because he realized he was

a dangerous person, he decided to tell the truth. He admitted to conduct comprising the elements of

capital murder and invited the prosecutor to obtain a capital murder indictment.7 Although the letters

6 Zimmerman also argues that counsel failed to obtain medical records relating to the head injury he received as a child and his school records. For example, he cites a “history of abnormal EEGs.” However, it is undisputed that pursuant to his counsel’s request of the state trial court, Zimmerman underwent an EEG, and the results were normal. Zimmerman has failed to show that other medical records relating to his head injury or his school records were particularly probative of his competency to stand trial in 1990. 7 At that time, he had not been indicted for capital murder.

12 could be interpreted as “indirectly” suicidal, the letters also indicate that Zimmerman had some

understanding of the proceedings against him.8

Indeed, Zimmerman wrote a letter to one of his attorneys, Harold Laine,9 requesting a motion

to suppress the letters he had sent to the authorities:

I am very worried and concerned of the seriousness I have brought on myself with all the ridiculous and flabbergasting childish letters I wrote when I was in fact highly frustrated with the system of law, (unfair and conspiring law), co urt appointed attorneys telling me there was no way to justify self-defense because the man was stabbed 31 times and if I went to a jury trial I would get a life sentence on murder. I also feel and believe I was not in a sound st ate of mind because of this frustration to realize the danger I was bringing on myself.

Of course, this letter to Laine was written after Zimmerman’s letters to the authorities and prior to

trial. It certainly indicates a sufficient ability to consult with his lawyer and at leastsome rat ional

understanding of the proceedings against him.

Moreover, the attorney who ultimately represented Zimmerman at trial, Linda Cansler,

submitted an affidavit stating in relevant part that:

I became attorney for Kevin Zimmerman years after Sonny Cribbs had contact with him. I had extensive conversations with Kevin that were both cordial and candid. I’ll assume Habeas Counsel is referring to Article 46.02 o f the Texas Code of Criminal Procedure, when she refers to a competency hearing. That would certainly be the basis for any motion that I would file for a defendant, whether in a capital case or any other. I, myself, felt no need to raise this issue on my motion. Kevin did not pursue it with me. After trial had started, Kevin did make a statement which caused me to request the Court to have Kevin undergo an EEG. Those results were normal. I also had Kevin

8 We note that Zimmerman’s letters detailing the offense are some indication that he could assist counsel with respect to his defense. 9 Prior to trial, Laine withdrew from representing Zimmerman because a state’s witness was a former client.

13 examined by Dr. Coxe and Dr. Dickerson.

* * *

I did not notice the attention deficits mentioned by . . . Habeas Counsel. During the long periods of time I spent with Kevin, he was most attentive to the matters at hand. He was also attentive at court, to the extent of passing notes to his attorneys.

As Zimmerman’s lead trial counsel, Cansler apparently perceived that he had the ability to consult

with her and a reasonable degree of rational understanding of the proceedings against him.

In light of the entire record, including Zimmerman’s letters and counsel’s affidavit, we agree

with the district court’s conclusion that Zimmerman has not shown a reasonable probability that he

was incompetent at the time of his trial. More to the point, we note that “[o]ur role under this

[AEDPA] inquiry is not to determine whether the state court's construction of federal law was merely

wrong, but whether it was wrong to the point of being unreasonable.” DiLosa v. Puckett, 279 F.3d

259, 262 (5th Cir. 2002). Accordingly, even if we were persuaded the state court’s conclusion that

Zimmerman has no t demonstrated ineffective assistance of counsel was “merely” erroneous,

Zimmerman is not entitled to relief under AEDPA. Even assuming the state court’s conclusion was

erroneous, applying the previously set forth deferential AEDPA standard, we would be constrained

to hold that the state court’s conclusion was not contrary to, or an unreasonable application of,

established federal law.

4. FAILURE TO INVESTIGATE FAMILY OF VICTIM WITH RESPECT TO SENTENCING WISHES

Zimmerman next argues that counsel’s failure to interview the victim’s family members to

14 determine their wishes with respect to his punishment supports his claim of cumulative ineffective

assistance of counsel. Zimmerman’s habeas counsel submitted an affidavit indicating that the

victim’s sister, Juanita Chance, t old him that “she saw no reason to execute Zimmerman since it

would not bring back Gilbert.” However, counsel’s affidavit also provides that “[s]he cautioned us

that other members of her family do not feel that way, and if they do, they won’t speak up.” The

state habeas court found that “there is no testimony, no [admissible] evidence of the victim’s family’s

wishes within the record.” Indeed, this Court has made clear that “we are [loath] to accept the

self-serving statements of habeas counsel as evidence that other persons were willing and able to

testify on [a defendant’s] behalf.” Lincecum v. Collins, 958 F.2d 1271, 1280 (5th Cir. 1992).

Accordingly, Zimmerman has failed to rebut the state court’s fact finding that there is no admissible

evidence of the victim’s family’s wishes in the record. He has entirely failed to demonstrate that, had

counsel interviewed the victim’s sister, she would have testified at trial. Even assuming the sister

would have testified, we are not convinced that, had the sister testified that “she saw no reason to

execute Zimmerman since it would not bring back Gilbert,” there is a reasonable probability of a

different outcome at the punishment phase.

5. FAILURE TO MOVE FOR RECUSAL

Zimmerman argues that counsel’s failure to move for recusal of the trial judge and prosecutor

after he sent them threatening letters supports his claim of cumulative ineffective assistance of

counsel. The district court found that counsel’s performance was not deficient, recognizing that

“[t]hreats or attempts to intimidate a judge will normally not satisfy the requirements for recusal.”

(citing United States v. Greenspan, 26 F.3d 1001, 1005 (10th Cir. 1994)). Although Zimmerman

15 recognizes the sound policy reasons for this rule, he argues that it should not apply here because “the

intimidation factor was notably absent here, as Zimmerman had no intent or ability to carry through

with any alleged threats.”10 Instead, he argues that the letters were a result of his severe depression

and designed to obtain a death sentence. Under those circumstances, Zimmerman argues, the judge

and the prosecutor would have been “invaluable witnesses as to the effect of the letters on their

opinion of [his] mental state, and whether they perceived them as the product of a competent mind.”

Because of counsel’s failure to seek recusal of the judge and prosecutor, Zimmerman argues that he

was unable to cross examine t hem. Although the briefing does not make it clear, it appears

Zimmerman is referring to the inability to cross examine the judge and prosecutor in a competency

hearing. We are not persuaded by this argument because we do not believe it would have been

necessary to call the judge or prosecutor regarding the contents of the letters in a competency hearing

in that the letters speak for themselves.

In any event, the state habeas court found that “there was no evidence of disqualification of

either the judge or the prosecutor.” Zimmerman has not rebutted these factual findings with clear and

convincing evidence. Zimmerman has failed to show deficient performance or that a motion to recuse

would have been granted.

6. FAILURE TO OBJECT TO ADMISSION OF EVIDENCE

Zimmerman makes a general argument in support of his cumulative ineffective assistance

10 Of course, this concession undermines any claim that the judge or prosecutor actually felt threatened. More importantly, simply because the defendant is in jail cannot mean that he does not have the means to carry out any threats because such an interpretation would swallow the rule that recusal is not granted based solely on the fact that a party has threatened a judge.

16 claim that counsel failed to make any motions to suppress evidence and failed to object to

“inadmissible penalty phase evidence at the guilt stage.” However, Zimmerman cites only one

instance of counsel’s specific failure to object. He asserts that counsel should have objected to the

lack of a proper foundation for the introduction of the victim’s wallet .

In Lockhart v. McCotter, 782 F.2d 1275, 1280 (5th Cir. 1986), the petitioner argued that his

counsel rendered ineffective assistance by failing to lodge a chain of custody objection to the state’s

introduct ion of the robbery victim’s wallet. This Court explained that “when an object cannot be

easily altered or substituted, establishing a continuous chain of custody is not as important.” Id. at

1281 (citing McCormick’s Handbook of the Law of Evidence, 427 (E. Cleary 2d ed. 1972)). In that

case, the wallet contained pictures of the victim’s girlfriend and her children, was easily identifiable

and “not subject to undetectable alteration.” Id. Additionally, a police officer identified the wallet

as the same one he had removed from the petitioner’s personal property envelope. Id. We concluded

that an objection under those circumstances would not have successfully excluded the wallet. Id.

Thus, we held that the failure to object could not have prejudiced the petitioner. Id.

Likewise, in the instant case, the victim’s wallet was readily identifiable because it contained

pictures of three of the victim’s children, his mother, and his wife. Zimmerman acknowledges the

holding in Lockhart, but fails to distinguish it from his case. Lockhart precludes a showing of

ineffective assistance based on failure to object to the chain of custody of the victim’s wallet in this

case.

7. FAILURE TO OBTAIN MEDICAL & MENTAL HEALTH RECORDS

In further support of his claim of cumulative ineffective assistance of counsel, Zimmerman

17 argues that counsel failed to obtain his medical and mental health records. In his previous motion for

COA, Zimmerman raised this argument in the context of his claim that counsel was ineffective for

failing to investigate his mental health. In our previous opinion, we denied a COA with respect to

this argument. We concluded that had the jury been presented with such evidence, there is not a

reasonable probability that the result in either phase of the trial would have been different. To the

extent that our previous opinion may be construed as stepping over the threshold inquiry involved

in determining whether to grant a COA, we have again examined this claim and determined that

Zimmerman has failed to make a substantial showing of the denial of a constitutional right. Miller-El,

__ U.S. at __, 123 S.Ct. at 1038.

8. FAILURE TO REPRESENT ZIMMERMAN PRIOR TO TRIAL

In further support of his cumulative ineffective assistance of counsel claim, Zimmerman argues

that counsel failed to actually represent Zimmerman prior to trial. In his motion for COA,

Zimmerman raised this argument in the context of his conflict of interest claim. To demonstrate that

the conflict of interest had an adverse effect with respect to counsel’s performance, Zimmerman relied

upon his own conduct (the letters he wrote admitting his guilt to the capital murder charges). In our

previous opinion, we rejected this argument, concluding that Zimmerman’s actions were not the

proper focus.9 Likewise, we believe that counsel’s actions (not Zimmerman’s) are the proper focus

in determining whether counsel’s deficient performance prejudiced him.

9 To the extent that our previous opinion may be construed as stepping over the threshold inquiry involved in determining whether to grant a COA, we have again examined this claim and determined that Zimmerman has failed to make a substantial showing of the denial of a constitutional right. Miller-El, __ U.S. at __, 123 S.Ct. at 1038.

18 The briefing is unclear but it appears that Zimmerman is not raising an absence-of-counsel

type claim under United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039 (1984). Instead, he is

alleging two instances of ineffective assistance prior to trial: (1) counsel’s failure to have him

evaluated for competency; and (2) counsel’s failure to hire an investigator to interview the cab driver.

In this opinion, we have already addressed the failure of counsel to have Zimmerman evaluated for

competency. With respect to his claim regarding counsel’s failure to interview the cab driver, we

noted in the context of another claim in our previous opinion that although the victim did not pay the

driver, the driver did not state that Hooks had no money but rather that Zimmerman actually paid.

Also, Gonzales’ testimony and Zimmerman’s letter indicate that the victim had cash prior to the

murder. Moreover, regardless of the amount of cash the victim had, it is undisputed that the victim’s

wallet was taken. Zimmerman has not shown that, but for counsel’s inactions, there is a reasonable

probability of a different outcome at trial.

9. FAILURE TO INVESTIGATE PENRY EVIDENCE

Zimmerman also contends that counsel’s failure to investigate and present mitigating evidence

at the punishment phase supports his claim of cumulative ineffective assistance. More specifically,

Zimmerman argues that counsel’s failure to present his “medical and mental health evidence, head

injury, [and] organic brain damage [constitutes] a failure under Penry v. Lynaugh, 492 U.S. 302

(1989).” For the most part, this argument is encompassed in Zimmerman’s above previous

complaints with respect to counsel’s alleged failure to investigate his mental health and present such

evidence at the punishment phase.

In any event, Zimmerman cites Lockett v. Anderson, 230 F.3d 695 (5th Cir. 2000), for the

19 proposition that counsel is ineffective for failing to prepare and present adequate mitigation evidence.

Lockett is distinguishable from the instant case. In Lockett, although defense counsel was aware of

the defendant’s seizure problem and incidents of head trauma, counsel failed to conduct even a

minimal investigation of this mitigating evidence. As a result, during the punishment phase, counsel

simply pleaded for mercy and did not introduce any mitigating evidence with respect to the

defendant’s mental condition. Lockett, 230 F.3d at 714-16.

In contrast, during the punishment phase at Zimmerman’s trial, defense counsel called a

psychologist who testified that Zimmerman had a low I.Q. and a paranoid personality disorder. With

respect to future dangerousness, the psychologist further testified that, after an adjustment period,

Zimmerman would likely do well in a prison setting. Defense counsel presented testimony with

respect to a head injury Zimmerman received as a child and a metallic plate inserted in his skull as a

result of the injury. Counsel also presented evidence that Zimmerman and his family had always

believed that he had to be careful of the injury because if “he was hit on his head that he could die.”

As set forth in our previous opinion, although the jury learned of the metallic plate in

Zimmerman’s skull, the jury did no t learn of his violent tendencies that appeared after the injury.

Again, as set forth in our previous opinion, this evidence “mitigated his culpability and at the same

time it indicated that he would be dangerous in the future.” Lackey v. Scott, 28 F.3d 486, 488 (5th

Cir. 1994). Under these circumstances, we conclude that, had counsel introduced further evidence

with respect to Zimmerman’s head injury, there is not a reasonable probability of a different outcome.

10. FAILURE TO SEEK HEARING

Zimmerman urges this Court to find cumulative ineffective assistance of counsel based, in

part, on the failure to seek a hearing on the voluntariness of the oral and written statements he made

20 to authorities. Prior to trial, counsel moved the trial court for a hearing as to the voluntariness of the

oral and writ ten statements made by Zimmerman to the authorities. The trial court granted that

motion and ruled that no evidence was to be allowed without a hearing.

Counsel objected to the admission of the letters, arguing that they constituted hearsay, that

there was a lack of a proper predicate, and that an insufficient chain of custody had been shown.

Counsel did not object based on the lack of a hearing.

The state habeas court found that Zimmerman had “fail[ed] to allege specific facts. He

fail[ed] to state which specific pieces of evidence should have been ruled on pursuant to a hearing.”

The state habeas court further found that the letters were not a “result of custodial interrogation and

therefore not subject to a hearing on the voluntariness.”

Zimmerman argues that because of counsel’s failure to request a hearing with respect to the

admissibility of the letters, he did not have an opportunity to show that they were not the result of

knowing and voluntary waivers. However, Zimmerman makes no argument whatsoever in his brief

demonstrating how any statement was involuntary. This Court has explained that:

[c]oercive police conduct is a necessary prerequisite to the conclusion that a confession was involuntary, and the defendant must establish a causal link between the coercive conduct and the confession. See Colorado v. Connelly, 479 U.S. 157, 163-67, 107 S.Ct. 515, 519-22, 93 L.Ed.2d 473 (1986). Although mental condition may be a significant factor in the voluntariness calculus, “this fact does not justify a conclusion that a defendant's mental condition, by itself and apart from its relation to official coercion, should ever dispose of the inquiry into constitutional ‘voluntariness.’” Id. at 164, 107 S.Ct. at 520.

Carter v. Johnson, 131 F.3d 452, 462 (5th Cir.1997). We are aware of no allegations of coercive

police conduct. Zimmerman has failed entirely to demonstrate a reasonable probability that, had

21 counsel sought a hearing on the voluntariness of his statements, the statements would have been

suppressed.

11. CONFLICT OF INTEREST (Doug Barlow)

Zimmerman’s next argument in support of his claim of cumulative ineffective assistance of

counsel is that Doug Barlow had an actual conflict of interest while representing him. As set forth

above, in our previous opinion, we denied a COA with respect to this precise argument. Among other

things, we found that Zimmerman had not shown that any conflict had an adverse effect on counsel’s

performance. To the extent that our previous opinion may be construed as stepping over the

threshold inquiry involved in determining whether to grant a COA, we have again examined this claim

and determined that Zimmerman has failed to make a substantial showing of the denial of a

constitutional right. Miller-El, __ U.S. at __, 123 S.Ct. at 1038.10

12. CUMULATIVE ERROR CONCLUSION

Finally, we address whether the above claims constitute cumulative error. With respect to the

cumulative error claim, the state habeas court found that Zimmerman “was convicted due to the

substantial amount of evidence against him.” Among other things, the court found that Zimmerman

was convicted and sentenced by a jury based on the evidence not because he had a bad lawyer.”

Finally, the court “concluded that [Zimmerman] has entirely failed to meet the burden placed upon

him under Strickland v. Washington, at 466 U.S. 693, which requires him to plead and prove specific

10 Although Zimmerman has not requested rehearing of our previous opinion, we have re- examined the remaining claims we denied in Zimmerman’s COA application in light of the Supreme Court’s decision in Miller-El, and we remain convinced that reasonable jurists would not find the district court’s assessment of those claims debatable or wrong.

22 acts or failures of trial counsel that show her performance was deficient and plead and prove that such

alleged deficient performance was so serious as to deprive [him] of a fair trial whose result is reliable.”

As stated previously, the cumulative error doctrine provides relief only when the constitutional

errors committed in the state court trial so fatally infected the trial that they violated the trial's

fundamental fairness. Spence, 80 F.3d at 1000. We find it curious that the district court granted a

COA with respect to cumulative error based on ineffective assistance of counsel but denied a COA

with respect to each of the individual claims of ineffective assistance. The Director does not argue

and this Court apparently has not specifically addressed the issue whether cumulative error applies

in the context of ineffective assistance of counsel after AEDPA. See Miller v. Johnson, 200 F.3d 274,

285-86 n.6 (5th Cir. 2000) (holding that petitioner had not shown cumulative error with respect to

his ineffective assistance of counsel claim but not specifically addressing whether cumulative error

applied after AEDPA). We have reservations with respect to the applicability of cumulative error in

the context of ineffective assistance after the enactment of AEDPA. This is because in order for there

to be constitutional error in the form of ineffective assistance of counsel, the petitioner must fulfill

both prongs of Strickland. If either prong is not satisfied, then the petitioner has not shown

constitutional error, much less unreasonable constitutional error.11 On the other hand, if a petitioner

demonstrates both prongs of Strickland and an objectively unreasonable determination in state court,

relief is available. There is no need to cumulate. Nonetheless, in an abundance of caution, we have

11 Cf. Bell v. Cone, __ U.S. __, 122 S.Ct. 1843 (2002) (although not in the context of a cumulative error claim, Supreme Court recently reversed a court of appeals’ holding that a state court’s denial of an ineffective assistance claim involved an unreasonable application of clearly established federal law).

23 examined Zimmerman’s claim of ineffective assistance under the rubric of cumulative error and reject

Zimmerman’s claim. Accordingly, the above-claimed individual errors do not merit relief, nor do we

conclude that the cumulative effect of the alleged errors fatally infected the fundamental fairness of

the trial.

B. WRONGFUL EXCLUSION OF PROSPECTIVE JUROR

Zimmerman contends that the trial court’s exclusion of a prospective juror, Imogene

Whitaker, violated his right to an impartial jury. Zimmerman argues that the trial court excused the

prospective juror based upon an incorrect understanding of the proper legal standard.

The standard for determining when a prospective juror may be excluded for cause is whether

the prospective “juror’s views would prevent or substantially impair the performance of his duties as

a juror in accordance with his instructions and his oath.” Wainwright v. Witt, 469 U.S. 412, 424, 105

S.Ct. 844, 852 (1985) (internal quotation marks and footnote omitted). In other words, “if

prospective jurors are barred from jury service because of their views about capital punishment on

any broader basis than inability to follow the law or abide by their oaths, the death sentence cannot

be carried out.” Adams v. Texas, 448 U.S. 38, 48, 100 S.Ct. 2521, 2527 (1980) (internal quotation

marks and citation omitted). A state court’s determination of bias is a finding of fact and therefore

accorded a presumption of correctness under 28 U.S.C. § 2254(e)(1). Fuller v. Johnson, 114 F.3d

491, 500-501 (5th Cir. 1997).

Zimmerman complains of the following statement made by the trial court to counsel during

the questioning of Whitaker: “Before I rule I would like to give you the opportunity to address the

24 issue raised by Mr. McWilliams [the prosecutor], that her belief would effect [sic10] her deliberations

on the fact issues. You’ve not asked her that. That’s the issue . . . .” During his questioning, the

prosecutor had stated to Whitaker that “[i]f a juror is opposed to the death penalty they are not

disqualified from being a juror. If, however, their beliefs in opposition to the death penalty are such

that it will effect [sic] or substantially impair their ability to serve as a juror, to determine guilt or to

answer these questions, not that it would be an automatic, but just effect [sic] them or substantially

impair them in performing those duties, then they are not qualified to be on a jury, because the law

recognizes that that is unf[air] to do to people.” (emphasis added). Of course, as set forth above, the

proper standard is whether the prospective juror’s beliefs would “prevent or substantially impair” the

performance of a juror’s duties.

On Zimmerman’s direct appeal, the Texas Court of Criminal Appeals expressly applied the

proper standard, recognizing that “[p]rospective jurors should be excused for cause only if their views

would prevent or substantially impair the performance of their duties as jurors.” Zimmerman v. State,

860 S.W.2d 89, 95 (Tex.Cr.App. 1993) (citing Wainwright v. Witt, 469 U.S. at 424, 105 S.Ct. 852).

After setting forth the proper standard, the Texas Court of Criminal Appeals noted that “Whitaker

expressly indicated that she would not be able to answer the punishment issues fairly.” Zimmerman,

860 S.W.2d at 95. The court then concluded that the trial court acted within its discretion in

excluding Whitaker. Importantly, it is the state appellate court’s determination that we must accord

a presumption of correctness. Williams v. Lynaugh, 809 F.2d 1063, 1066-66 (5th Cir. 1987).11

10 It appears the court reporter incorrectly transcribed “affect” as “effect” throughout the transcript. 11 In Williams, a pre-AEDPA death penalty case, the petitioner argued that the state trial court failed to apply the correct standard in excluding a prospective juror. 809 F.2d at 1065-66.

25 Thus, Zimmerman’s focus on the trial court’s enunciation of the standard is misplaced. Moreover,

we disagree with Zimmerman’s assertion that Whitaker did not waver until after the complained of

exchange between the trial court and counsel. Prior to this exchange, Whitaker had stated that she

“could really make a true judgment according to the evidence and just blot out my beliefs, as long as

[she was] not making the decision for the death penalty. . . .” (emphasis added). Also prior to the

exchange in question, the prosecutor inquired of Whitaker as follows: “I think your feelings about

the death penalty are such that they would effect [sic] your ability to answer those questions. This

would substantially impair your ability to answer those questions. Do you [agree] with that?”

Whitaker responded “No, not if the evidence is present and I didn’t have to take part in the

punishment phase of it.” (emphasis added).

The record reveals that Whitaker equivocated during voir dire. As is not uncommon during

questioning of a prospective juror, Whitaker’s responses varied depending upon the phrasing of the

quest ions propounded by the prosecutor or defense counsel. In view of the presumption of

correctness afforded the state court’s factual finding that Whitaker’s views would prevent or

substantially impair the performance of her duties as a juror, we are unpersuaded that Zimmerman has

rebutted the presumption with clear and convincing evidence. As such, Zimmerman is not entitled

to relief on this issue.

C. PROSECUTORIAL ARGUMENT

This Court explained that the Texas appellate court properly applied the correct standard and thus we must accord its determination a presumption of correctness. Id. at 1066.

26 Zimmerman contends that the prosecutor’s summations at the guilt and punishment phases

misrepresented material evidence. For constitutional error to have occurred, a prosecutor's improper

argument must have "so infected the trial with unfairness as to make the resulting conviction a denial

of due process.” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471 (1986); cf. Earvin

v. Lynaugh, 860 F.2d 623 (5th Cir. 1988) (the evidence must be so insubstantial that no conviction

would have occurred but for the argument made by the prosecutor).

The district court held that this claim was procedurally barred under the contemporaneous

objection rule. Zimmerman argues that because the Texas Court of Criminal Appeals does not

consistently apply the contemporaneous objection rule, the procedural default is excused. However,

this Court has held that “[t]he Texas contemporaneous objection rule constitutes an adequate and

independent state ground that procedurally bars federal habeas review of a petitioner's claims.”

Jackson v. Johnson, 194 F.3d 641, 652 (5th Cir.1999) (internal citations and quotation marks

omitted). Precedent thus precludes excusal of the procedural default on the asserted basis.

Zimmerman further argues that trial counsel’s failure to object constitutes “cause” for the

procedural default. If a state court has explicitly relied on a procedural bar, a state prisoner may not

obtain federal habeas relief absent a showing of cause for the default and actual prejudice that is

attributable to the default. See Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 2565 (1991).

Ineffective assistance of counsel may constitute “cause.” Ellis v. Lynaugh, 883 F.2d 363, 367 (5th

Cir.1989).

The district court held that Zimmerman could not establish cause and prejudice because he

failed to raise counsel’s failure to object to the prosecutor’s arguments as a separate ineffective

assistance of counsel claim. Zimmerman does not now dispute this holding. We therefore find this

27 claim procedurally barred. Nonetheless, assuming arguendo that the claim was not procedurally

barred, as set forth below, because Zimmerman has failed to show that the Court of Criminal Appeals’

determination with respect to this claim is contrary to, or involved an unreasonable application of,

clearly established federal law, he is not entitled to relief under AEDPA.

1. Guilt Phase

Zimmerman first complains of the following remarks made by the prosecutor during closing

argument at the guilt phase of trial:

And those two crime buddies, those two crime partners come to Beaumont in a rattletrap car with virtually no money on the way to Houston. And they get stuck here. And they are sitting in a Motel 6 trying to decide what to do next when, low and behold, Gilbert Hooks shows up and takes everybody to the fair and spends money on Kay Gonzales. And everybody knows that . . . Gilbert Hooks has got some money to spend and they don’t.

Zimmerman claims there was no evidence to show that he was aware that Hooks had any money.

Zimmerman is mistaken. Zimmerman’s letter introduced at trial provided that he knew that Hooks

had four or five hundred dollars and had decided to kill Hooks and take the money.

Zimmerman also argues that the evidence did not support the prosecutor’s remarks indicating

that Donald Ray Feast had testified that Zimmerman admitted to robbing or planning to rob Hooks.

Contrary to Zimmerman’s assertion, Feast’s testimony was consistent with these remarks.12

Zimmerman next challenges the prosecutor’s argument that, according to Kay Gonzales,

Zimmerman killed Hooks because Hooks refused to give him the money. Zimmerman correctly

asserts that although Gonzales testified that Zimmerman and Hooks argued, she never testified that

12 For example, Feast testified that “[f]rom what [Zimmerman] told me, I gathered they was trying to rob him.”

28 Zimmerman demanded Hooks’ wallet. Nonetheless, Gonzales did testify that Zimmerman took

Hooks’ wallet after he and Weber stabbed Hooks to death. Moreover, the prosecutor’s argument is

not inconsistent with Zimmerman’s admission that he killed Hooks for the money. Thus, we find that

these inaccurate remarks did not prejudice Zimmerman.

Zimmerman complains that the following argument made by the prosecutor incorrectly

implied that the wallet, which had no blood on it, was found with Zimmerman’s bloody clothing:

“This wallet belonged to Gilbert Hooks. That was found in Lumberton right near where Kevin

Zimmerman tossed everything else that may incriminate him or identify him and connect him with

that bloody room, Room 132.” (emphasis added). The district court found that the statement

“right near” was an exaggeration because the wallet was found perhaps a quarter mile from

Zimmerman’s clothing. However, in light of the other evidence that Zimmerman took Hooks’

wallet, Zimmerman has not shown that these remarks prejudiced his conviction.

The prosecutor’s argument that codefendant Weber agreed to testify because Zimmerman

threatened Weber’s life was “made up out of whole cloth,” contends Zimmerman. During closing

arguments at the guilt phase, the prosecutor stated “And how do you know what kind of person

Kevin Zimmerman is? Because he tells you. George [Weber], if you don’t do what I want you to

I’m going to kill you.” Zimmerman fails to acknowledge that in the letter to the district attorney

he admitted that “I told George Weber if he ever said anything I would kill him too. . . .” We find

this argument to be a fair comment on the evidence.

Accordingly, Zimmerman has failed to show either improper argument or prejudice from

improper argument during the guilt phase.

29 2. Punishment Phase

Zimmerman complains that the prosecutor falsely represented evidence during the

punishment phase of the trial with respect to the robbery element of the offense. The prosecutor

argued as follows:

What provocation did Leslie Gilbert Hooks Jr. portray to that defendant that would justify [Hooks] being stabbed 31 times? [“]No you can’t have my money.[”] So, he gets stabbed in the shoulder a couple a times. Was that the provocation that it was a reasonable provocation to kill that man?

We find no error with respect to the robbery element of the offense because, prior to this

punishment phase argument, Zimmerman had been found guilty of capital murder during the guilt

stage of the trial. Further, the above remarks (perhaps more correctly described as the

prosecutor’s rhetorical question) were relevant to the special issues at punishment. More

specifically, it appears the prosecutor intended to demonstrate to the jury that Hooks did not

provoke the murder. Such argument is clearly relevant to the third special issue submitted to the

jury at punishment.13

Once again, Zimmerman argues the prosecutor’s remarks during the punishment phase

argument constituted a “manufactured robbery scenario.” The prosecutor argued that “You

know from the facts of this case Kevin Zimmerman wanted his money and [ Hooks] wouldn’t give

it to [Zimmerman]. So he died.” Although inaccurate, in light of the evidence showing that

Zimmerman killed Hooks for the money, we are not persuaded that the sentence would have been

different had the prosecutor’s remarks more accurately set forth the evidence.

13 “Do you believe beyond a reasonable doubt that the conduct of the defendant in killing Leslie Gilbert Hooks, Jr. was unreasonable in response to the provocation, if any, by Leslie Gilbert Hooks, Jr.?”

30 Finally, Zimmerman complains of the prosecutor’s statement that “You know from the

officer from Breaux Bridge [that Zimmerman] wanted Adley Corville’s car or car keys and

[Corville] got stabbed for it when he didn’t give [Zimmerman] the car keys.” Zimmerman

characterizes this statement as an “unproven, uncharged allegation.” Contrary to Zimmerman’s

characterization, the following testimony elicited from the Breaux Bridge police officer was

consistent with the prosecutor’s remarks: “[Zimmerman] was at a bar and he tried to steal another

car. Well, he had pulled a knife on Mr. Corville from CeCilia and ordered [Corville] to give him

the keys. When [Corville] didn’t, he stabbed [Corville].”

To summarize, as set forth above, we find several of the challenged remarks to be a fair

comment on the evidence. With respect to the inaccurate comments, Zimmerman’s principal

complaint is that the prosecutor manufactured a robbery scenario. Ultimately, the inaccuracy of

the prosecutor’s remarks boils down to alleging that Zimmerman demanded Hooks’ money prior

to murdering him–as opposed to arguing that Zimmerman murdered Hooks to take his wallet.

Such inaccuracy falls woefully short of a showing that his conviction or death sentence constituted

a denial of due process.

The district court’s judgment denying habeas corpus relief is AFFIRMED.14

14 Zimmerman’s motion for oral argument is denied.