Summary:

Zimmerman, George Weber, and Kay Gonzales were staying at a Motel 6 in Beaumont, where they met 33-year-old Leslie Gilbert Hooks, Jr., who was also staying at the motel.

After having drinks with the group, they went to the fair together and returned. An argument erupted, and Zimmerman and Weber attacked Hooks with a knife, stabbing him 31 times and killing him.

Zimmerman was subsequently arrested, and while incarcerated wrote several letters to the prosecutor, some admitting that he had stabbed Hooks for money.

Shortly after the murder, Zimmerman was treated for a stab wound in his arm. These admissions were also corroborated by the testimony of accomplice Gonzales, who witnessed the attack.

George Andre Weber was found guilty of murder and sentenced to 85 years in prison.

Gonzales pleaded guilty to robbery and in exchange for her testimony was sentenced to 10 years probation.

The Associated Press reported that before Zimmerman was sent to death row, he wrote the trial judge at his trial a letter graphically describing how he was going to kill him. Zimmerman also attempted an escape from Death Row in 1992.

Citations:

Zimmerman v. Dretke, 124 S.Ct. 925 (2003) (Cert. Denied).
Zimmerman v. Texas, 115 S.Ct. 586 (1994) (Cert. Denied).
Zimmerman v. State, 881 S.W.2d 360 (Tex.Crim.App., Jun 01, 1994).
Zimmerman v. State, 860 S.W.2d 89 (Tex.Crim.App., Apr 07, 1993).

Final Meal:

Double meat cheeseburger with lettuce, tomato, onions, salad dressing and ketchup, half a plate of french fries almost burnt with ketchup, four half pints of milk, one piece of chocolate cake with lots of frosting.

Final Words:

"Yes. Connie, Nanny, Bea, Kathy and Richard - I love you all and I thank you all very much for supporting me with your love. In the name of Jesus, I am sorry for the pain I caused you all. I am sorry. Gilbert didn't deserve to die and I want you all to know I am sorry. I pray that the good Lord will give you all peace. Okay.”

ClarkProsecutor.org

Texas Attorney General

Media Advisory

Tuesday, January 13, 2004

Kevin Lee Zimmerman Scheduled To Be Executed

AUSTIN - Texas Attorney General Greg Abbott offers the following information on 42-year-old Kevin Lee Zimmerman, who is scheduled to be executed after 6 p.m. on Wednesday, January 21, 2004.

FACTS OF THE CRIME

On October 23, 1987, Kevin Lee Zimmerman, George Weber, and Kay Gonzales, arrived at a Motel 6 in Beaumont, Texas.

While at the motel, they met the victim, 33-year-old Leslie Gilbert Hooks, Jr., who was also staying at the motel. After having drinks with the group, Hooks suggested that they all go to the fair. All four people returned to the motel after going to the fair.

After some time, Gonzales went to the bathroom in Zimmerman's motel room and heard a struggle ensuing in the nearby bedroom.

In that bedroom, Zimmerman and Weber, armed with knives, had attacked Hooks. The two men stabbed Hooks 31 times, after which Zimmerman took Hook's wallet and gave it to Weber.

Then, Zimmerman, Weber, and Gonzales, left in their car to take Zimmerman to a hospital, where he received treatment for a knife wound.

Zimmerman was subsequently arrested and placed in jail. While in jail, Zimmerman wrote numerous letters to Weber and to the district attorney.

At trial, the State introduced many pieces of correspondence which Zimmerman had written and signed. In one of these letters to the district attorney, Zimmerman wrote that he had decided to kill Hooks for his money. Zimmerman also stated in the letter that he was accidentally stabbed in the arm while killing Hooks.

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 [Hooks] in his shoulder." Gonzales then went into the bathroom and came back out, only to see both Zimmerman and Weber stabbing Hooks, who was yelling "Don't kill me."

PROCEDURAL HISTORY

In June 1990, a Jefferson County jury convicted Zimmerman of capital murder and assessed punishment of death. On April 7, 1993, the Texas Court of Criminal Appeals affirmed Zimmerman's conviction and sentence.

In October 1993, the U.S. Supreme Court granted certiorari review, vacated the judgment, and remanded the case for further consideration in light of Johnson v. Texas, 509 U.S. 350 (1993). On remand, the Texas court again affirmed the conviction and sentence. Certiorari review and Zimmerman's request for rehearing were both denied by the Supreme Court.

In September 1995, Zimmerman filed a writ of habeas corpus petition in federal district court, which dismissed it without prejudice for failure to exhaust state remedies. Zimmerman then filed a state habeas petition which was denied by the Court of Criminal Appeals on March 17, 1999.

In November 1999, Zimmerman filed his second habeas corpus petition in federal district court, and collateral relief was ultimately denied on February 14, 2001. However, the court granted, in part, Zimmerman's subsequent application for a certificate of appealability (COA)on three claims on April 24, 2001.

In an August 2001 appeal, Zimmerman filed his brief addressing the three COA issues along with a motion asking the 5th U.S. Circuit Court of Appeals to expand the issues on which COA was granted. The court granted Zimmerman's request to cover an additional issue on August 1, 2002.

Following further briefing by both parties, the appeals court affirmed the district court's denial of habeas corpus relief on May 28, 2003. Zimmerman sought rehearing, which was denied on July 2, 2003. On July 10, 2003, a Jefferson County state district court judge set Zimmerman's execution for Wednesday December 10, 2003.

On September 30, 2003, Zimmerman petitioned the U.S.Supreme Court for certiorari review of the Fifth Circuit's denial of COA as to his second issue, and the Fifth Circuit's denial of habeas relief as to the others. This petition is still pending.

PRIOR CRIMINAL HISTORY

The evidence admitted during the punishment phase and derived from Zimmerman's penitentiary packet showed the following arrests:

September 1979 for two separate charges of endangering people through reckless operation of a motor vehicle.

January 28, 1980, in Louisiana for theft and forgery.

August 8, 1980, in Louisiana for possession of marijuana.

September 1980 for battery of a juvenile.

January 18, 1981, for unauthorized use of a motor vehicle.

October 1982 for criminal trespassing, carrying a concealed weapon (a knife), disturbing the peace, and threatening to do bodily injury to an elderly neighbor. woman;

January 24, 1983, for aggravated battery for stabbing a man who refused to turn over his car keys to enable Zimmerman to steal his car, as well as fleeing from officers, resisting an officer, and battery on a police officer.

August 30, 1985, in Louisiana for auto theft, resisting arrest, and possession of cocaine.

November 11, 1985, in Louisiana for possession of cocaine.

ProDeathPenalty.com

On October 23, 1987, Kevin Lee Zimmerman, George Weber, and Kay Gonzales, arrived at a Motel 6 in Beaumont, Texas.

While at the motel, they met the victim, 33-year-old Leslie Gilbert Hooks, Jr., a resident of Suisan City, California who was also staying at the motel. After having drinks with the group, Hooks suggested that they all go to the fair.

All four people returned to the motel after going to the fair. After some time, Gonzales went to the bathroom in Zimmerman's motel room and heard a struggle ensuing in the nearby bedroom.

In that bedroom, Zimmerman and Weber, armed with knives, had attacked Hooks. The two men stabbed Hooks 31 times, after which Zimmerman took Hook's wallet and gave it to Weber. Then, Zimmerman, Weber, and Gonzales, left in their car to take Zimmerman to a hospital, where he received treatment for a knife wound.

Zimmerman was subsequently arrested and placed in jail. Leslie's body was found the next morning by a hotel maid. While in jail, Zimmerman wrote numerous letters to Weber and to the district attorney.

At trial, the State introduced many pieces of correspondence which Zimmerman had written and signed. In one of these letters to the district attorney, Zimmerman wrote that he had decided to kill Hooks for his money.

Zimmerman also stated in the letter that he was accidentally stabbed in the arm while killing Hooks. 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 [Hooks] in his shoulder." Gonzales then went into the bathroom and came back out, only to see both Zimmerman and Weber stabbing Hooks, who was yelling "Don't kill me."

Zimmerman had been arrested many times including: September 1979 for two separate charges of endangering people through reckless operation of a motor vehicle; January 28, 1980, in Louisiana for theft and forgery; August 8, 1980, in Louisiana for possession of marijuana; September 1980 for battery of a juvenile; January 18, 1981, for unauthorized use of a motor vehicle; October 1982 for criminal trespassing, carrying a concealed weapon (a knife), disturbing the peace, and threatening to do bodily injury to an elderly neighbor woman; January 24, 1983, for aggravated battery for stabbing a man who refused to turn over his car keys to enable Zimmerman to steal his car, as well as fleeing from officers, resisting an officer, and battery on a police officer; August 30, 1985, in Louisiana for auto theft, resisting arrest, and possession of cocaine; November 11, 1985, in Louisiana for possession of cocaine.

UPDATE: Kevin Lee Zimmerman, from Lafayette Parish, was sentenced to death for a robbery-slaying in Beaumont 16 years ago. But Zimmerman received a reprieve from the U.S. Supreme Court 20 minutes before he could have been put to death Wednesday evening. "I'm disappointed," Zimmerman told Texas Department of Criminal Justice spokeswoman Michelle Lyons after he was told he would continue to live. "I was ready to go."

In a brief order, Justice Antonin Scalia stopped Zimmerman's punishment pending an additional order from him or the court. A couple hours earlier, the 5th U.S. Circuit Court of Appeals had rejected the suit that sought a halt to the use of pancuronium bromide - a drug that paralyzes muscles and is one of the 3 chemicals used in the procedure. According to attorneys for Zimmerman, the drug contributed to pain that amounted to an unconstitutional cruel and unusual punishment for the inmate.

The legal action echoed a Tennessee death row inmate's suit, now on appeal, that cites an American Veterinary Medical Association condemnation of the drug. The lethal cocktail of pancuronium bromide; sodium thiopental, a barbiturate; and potassium chloride, which causes cardiac arrest, has been used in Texas since the state became the 1st in the nation in 1982 to adopt lethal injection as its execution method. "I'm obviously pleased," said Jim Marcus, executive director of the Texas Defenders Service, a legal group that represents death row inmates. "It's an important case and it deserves consideration.

What this case boiled down to is whether death-sentenced inmates will have access to federal courts to raise civil rights violations." Marcus said while the court order did not specify why the execution was delayed, he can only assume the court wants more time to consider his lawsuit, which asks for inmate access to the courts to raise such civil rights challenges. "The court has that question under consideration in another case," Marcus said. "We sought a stay pending the outcome of that case."

Zimmerman, 42, was condemned for the 1987 fatal stabbing and robbery of Leslie Hooks Jr., 33, a Louisiana oilfield worker staying at a Beaumont motel. Hooks had been stabbed 31 times. In 1992, Zimmerman and 2 other inmates tried to escape from death row by sawing their way through a recreation yard fence. The break was thwarted when a guard opened fire on them.

UPDATE: Kevin Lee Zimmerman got a new execution date for a 1987 fatal stabbing and robbery at a Beaumont motel after a divided U.S. Supreme Court lifted a last-minute stay Monday that spared his life less than a week ago. Zimmerman, 42, of Lafayette Parish, La., was scheduled to die Dec. 10 for robbing Leslie Gilbert Hooks, Jr., 33, of Silsbee, and stabbing him 31 times. On Monday, Criminal District Judge Charles Carver set a new execution date of Jan. 21.

"From my point of view, I believe the man deserves to get exactly what my daddy did," said Kasheena Hooks, 19, of Fred, in a telephone interview. "The man knew his consequences when he did what he did, so now he needs to pay."

Zimmerman's execution was halted 20 minutes before it could have been carried out when Justice Antonin Scalia issued a temporary stay to give the high court more time to consider Zimmerman's case. Attorneys for Zimmerman and other Texas death row inmates argued that the use of pancuronium bromide - a drug that paralyzes muscles - in executions is cruel and unusual punishment.

On Monday, the court decided 5-4 to vacate the temporary stay. The court's four more liberal members - Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen Breyer - objected.

The 4 said that the Zimmerman case should not be decided until the court rules next year in a separate case. The case involves an Alabama death row inmate who claims execution by lethal injection would be unconstitutionally cruel because of his medical condition, collapsed veins, according to The Associated Press. Texas, the 1st state to execute condemned inmates by injection, uses a combination of 3 drugs: pancuronium bromide, the barbiturate sodium thiopental and potassium chloride, which causes cardiac arrest.

Zimmerman had said last Wednesday that he was disappointed by Scalia's stay. "I was ready to go," Zimmerman said, according to Associated Press reports. Zimmerman was one of three people charged in connection with Hooks' death. George Andre Weber was found guilty of murder and sentenced to 85 years in prison. He remains in state custody. Kaye Ellen Gonzales pleaded guilty to robbery in exchange for her testimony and was sentenced to 10 years probation.

Hooks, a construction worker, had just returned from a job in California and met the 3 people at a Beaumont motel. He was killed after they all returned from the South Texas State Fair.

Kasheena Hooks said she, her brother and her sister have few memories of their father because they were so young when he died. Her last memory of him is a Christmas gathering when she was 3. "I remember sitting in his lap, and we was playing pattycake, and I remember he told me that he loved me, and we opened the presents together," she said. Their last family portrait was taken that day, she said. "Every Christmas is hard. Every holiday's hard. Every birthday's hard. Every day's hard," she said.

No More Disappointments for Zimmerman: He's Executed

TheDeathHouse.com

January 21, 2004

HUNTSVILLE, Tex. - A man who admitted to participating in the robbery and fatal stabbing of an oil field worker in 1987 was executed Wednesday night after apologizing to the victim's family. Kevin Zimmerman, 42, was put to death by lethal injection at the prison here. He was the third condemned killer executed in Texas in 2004. Another execution is scheduled next week.

When Zimmerman's first scheduled execution was halted by a court in December 2003, Zimmerman said he was "disappointed" and "I was ready to go."

However, on Wednesday night, Zimmerman wasn't disappointed. He wanted to executed, and was. Michelle Lyons, spokeswoman for the Texas Deparatment of Criminal Justice, said she talked to Zimmerman in the afternoon before his execution and she got the feeling he wanted to die.

As he lay on the execution gurney seconds from death, Zimmerman, with strong emotion in his voice, apologized to the victim's family and said the man he stabbed to death, Leslie Gilbert Hooks, "didn't deserve to die." "In the name of Jesus, I'm so sorry for the pain I caused y'all, Zimmerman told the witnesses, including members of Hooks' family, who had come to watch him die. "Gilbert (the victim) didn't deserve to die. I want you to known. I'm sorry."

With that the lethal dose of chemicals began at 6:09 p.m. and Zimmerman was pronounced dead at 6:19 p.m. Zimmerman had spent his last hours with his spiritual advisors and requested a last meal that included a double meat cheesburger, almost-burned french fires, chocolate cake and milk, Lyons stated.

Drug Issue Rejected

Zimmerman's Dec. 10 execution was stopped by a court to review whether the use of a drug during executions - pancuronium bromide, which paralyzes muscles - was cruel and unusual punishment by causing suffering. But the U.S. Supreme Court, as it has done in similar cases, voted 5-4 to lift the stay of execution on Zimmerman. In the lethal injection process in Texas, three drugs are used to kill the condemned prisoner.

One drug puts the condemned prisoner to sleep; the next, pancuronium bromide, paralyzes muscles; the third stops the condemned killer's heart. Zimmerman was disappointed that Texas didn't kill him on December 10. "I was ready to go," Zimmerman told a spokeswoman for the Texas Department of Criminal Justice. "The stay only means 18 more months of this crap."

Threat Drawn In Blood

The Associated Press reported that before Zimmerman was sent to death row, he wrote the judge at his trial a letter graphically describing how he was going to kill him. The AP reported that the letter contained a hand drawn picture of Zimmerman holding an ax. Zimmerman used his own blood to draw the picture, the AP quoted the judge in the trial as saying.

Zimmerman was sent to death row for the October 1987 murder of Hooks, 33, in a Motel 6. Hooks was stabbed to death. Zimmerman was arrested after he went to a hospital for treatment of knife wounds.

Tries Escape From Death Row

Zimmerman and another man, George Weber were involved in the murder. The AP reported that Hooks, Weber, a woman and the victim had met at a fair and went back to the motel. The woman later testified that she saw Weber and Zimmerman stab Hooks. Weber received 91 years in prison.

The AP also reported that in 1992, Zimmerman and two other condemned killers tried to escape death row by "sawing their way through a recreation yard fence."

Texas Execution Information Center by David Carson

Txexecutions.org

Kevin Lee Zimmerman, 42, was executed by lethal injection on 21 January 2004 in Huntsville, Texas for the murder and robbery of a 33-year-old man.

On 23 October 1987, Zimmerman, then 26, arrived at a Beaumont motel with George Weber, 22, and Kaye Gonzales, 28. At the motel, they met Leslie Gilbert Hooks. Hooks had some drinks with the group, then they went together to the fair. After the fair, they returned to the motel. There, in Hooks' room, Zimmerman and Weber began stabbing Hooks. Zimmerman took Hooks' wallet and gave it to Weber. Next, Zimmerman, Weber, and Gonzales went to a hospital, where Zimmerman received treatment for a knife wound. Hooks died from 31 stab wounds.

Zimmerman was subsequently arrested and jailed. While in jail, he wrote numerous letters to Weber and to the district attorney. In these letters, Zimmerman admitted to killing and robbing Hooks and mentioned being stabbed in the arm while killing him.

Kaye Gonzales testified that after the group returned from the fair, Zimmerman and Hooks began arguing about something that had happened at the fair. Suddenly, she testified, Zimmerman "picked up a knife and stabbed him in his shoulder." Gonzales testified that she then went into the bathroom, and when she came back out, both Zimmerman and Weber were stabbing Hooks, who was yelling, "Don't kill me."

Zimmerman had arrests in Louisiana for reckless driving, theft, forgery, possession of marijuana, battery, unauthorized use of a motor vehicle, criminal trespassing, carrying a concealed weapon, disturbing the peace, threatening bodily injury, resisting arrest, fleeing from officers, auto theft, and possession of cocaine. He had at least one three-year prison sentence, but information on dates of incarceration and release were not available for this report.

A jury convicted Zimmerman of capital murder in June 1990 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in April 1993. Zimmerman was originally scheduled to be executed in October 1993, but the U.S. Supreme Court issued a stay, vacated the guilty verdict, and remanded the case to the TCCA for further consideration. In June 1994, the TCCA affirmed the conviction and sentence again.

George Andre Weber was found guilty of murder and was sentenced to 85 years in prison. In 1995, he received an additional 6-year sentence for possession of a deadly weapon in prison. He remains in state custody as of this writing. Kaye Ellen Gonzales pleaded guilty to robbery in exchange for her testimony and was sentenced to 10 years' probation. She has had no other offenses.

In 1992, Zimmerman and two other death row prisoners were caught trying to saw their way through a recreation yard fence.

Zimmerman's second scheduled execution date came in December 2003. The U.S. Supreme Court, however, issued a stay again, in response to a lawsuit filed on behalf of Zimmerman and two other death row inmates. The lawsuit alleged that execution by lethal injection as practiced by the state of Texas constituted cruel and unusual punishment because one of the chemicals, pancuronium bromide, paralyzes the prisoner, preventing him from expressing pain.

When a prison official informed Zimmerman of the stay, he replied, I'm disappointed. I was ready to go. The stay only means 18 more months of this crap." Five days after issuing the stay, however, the Supreme Court decided not take Zimmerman's case, and his execution was rescheduled for January.

In the days leading up to his execution, Zimmerman complained about the final appeals process and the uncertainty of execution dates. His December stay, he wrote in a prepared statement, "was a spiritual and emotional drain." Nevertheless, Zimmerman allowed his lawyers to file appeals to attempt to halt his January execution.

"In the name of Jesus, I am so sorry for the pain I caused y'all," Zimmerman told his victim's family as he choked back tears, lying on the execution table. "I am sorry. Gilbert didn't deserve to die, and I want y'all to know I am sorry." Zimmerman prayed as the lethal injection was administered, stopping in mid-sentence as the drugs began to take effect. He was pronounced dead at 6:19 p.m.

Acadiana man faces execution

The Lafayette Daily Advertiser

January 20, 2004

LAFAYETTE — On Wednesday, a Lafayette Parish man in a Texas prison is scheduled to be lethally injected with the same controversial drug that temporarily halted his original execution date last year.

Kevin Lee Zimmerman, 42, of Lafayette Parish was scheduled to be executed Dec. 10, 2003, for the fatal stabbing and robbery of a California man inside a Beaumont, Texas, motel.

That day, his final meal request of fried chicken and pork chops, french fries, scrambled eggs, a bottle of ketchup, lemon meringue pie or chocolate cake and a half-pint of milk was prepared.

His family and friends traveled to Huntsville, Texas, for his final hours. Reportedly 20 minutes before he was scheduled to die, the U.S. Supreme Court stepped in, issuing a stay of execution in light of a lawsuit that challenged the use of a drug used to execute Texas prisoners. The stay came after the U.S. 5th Circuit Court of Appeals refused to rule on the lawsuit.

Zimmerman and another Texas death row inmate were listed on the lawsuit that called the use of pancuronium bromide — a drug that paralyzes muscles — cruel and unusual punishment. In Texas, the drug is part of the lethal cocktail of sodium thiopental, a barbiturate, and potassium chloride, which causes cardiac arrest, that the state uses to execute prisoners.

Zimmerman heard the news as he waited in a holding cell and told a Texas Department of Criminal Justice spokeswoman that he was “disappointed.” “I was ready to go,” he told spokeswoman Michelle Lyons. “The stay only means 18 more months of this crap.”

But Zimmerman didn’t have to wait that long. Five days after the stay, the Supreme Court lifted it in a 5-4 vote and a state district judge set a new execution date for Jan. 21. The other death row inmate, Billy Frank Vickers, 58, was given a new date of Jan. 28. He is on death row for fatally shooting a North Texas grocery store owner during a robbery attempt 11 years ago.

In October 1987, Zimmerman was convicted of the stabbing death of Leslie Gilbert Hooks Jr., 33, of California. Hooks reportedly was stabbed more than 30 times. His body was found inside a room at a Motel 6 in Beaumont, Texas. Evidence found at the scene pointed to Zimmerman, who was 26 at the time.

Texas Executes Third Inmate This Month

Reuter News

January 21, 2004

HUNTSVILLE, Texas (Reuters) - A man who murdered an oilfield worker in a 1987 robbery was put to death on Wednesday in the third execution this month in Texas.

A sobbing Kevin Zimmerman, 42, apologized for the crime as he received a lethal injection while strapped to a gurney in the Texas death chamber. "In the name of Jesus, I am so sorry for the pain I caused you all," he told execution witnesses while choking back tears. "Gilbert didn't deserve to die and I want you all to know I am sorry."

Zimmerman came within 20 minutes of execution last month before his attorneys won a stay on grounds that lethal injection, the favored manner of execution in the United States, is cruel and unusual punishment. They argued that the recipient is paralyzed by the injection and unable to describe the pain they suffer before death. The stay was overturned and a new execution date set when the U.S. Supreme Court rejected the appeal.

Zimmerman was condemned for killing oilfield worker Leslie Gilbert Hooks in a Beaumont, Texas motel on Oct. 23, 1987. He confessed to stabbing Hooks 31 times so he could get his wallet. He was the 316th person to be put to death in Texas since the state resumed capital punishment in 1982 after the U.S. Supreme Court lifted a national ban on executions. Twelve more executions are already scheduled this year in Texas, which is the nation's leader in capital punishment.

For his final meal, Zimmerman requested a cheeseburger, French fries with ketchup, four half pints of milk and chocolate cake.

National Coalition to Abolish the Death Penalty

Kevin Zimmerman (TX)

Dec. 21, 6:00 PM EST

The state of Texas is scheduled to execute Kevin Zimmerman, a white man, Dec 10 for the 1987 stabbing of Leslie Gilbert Hooks, Jr. in Jefferson County. Mr. Zimmerman has severe mental health issues; including paranoid personality disorder, trauma due to a skull fracture, an IQ that is close to mental retardation, and a history of child abuse, neglect and abandonment. Because Mr. Zimmerman did not receive adequate representation at trial, several key issues were never raised at trial.

One element that was never heard by the jury is Mr. Zimmerman’s mental health in conjunction with a self-defense claim. There was no investigation into the background of the victim, Mr. Hooks; however he was an extremely dangerous man. He was uncontrollably violent when intoxicated (as he was the night of his death) and had a history of instigating fights with strangers and loved ones. He once beat and kicked his pregnant wife so badly that she miscarried.

The history of the victim is relevant to the case: Mr. Hooks purportedly antagonized Mr. Zimmerman who “snapped” in self-defense. Mr. Zimmerman was so mentally ill that MMPI diagnostic tests indicated that he was incompetent to stand trial. However, his defense counsel never pursued this and Mr. Zimmerman was tried and found guilty. His defense counsel never requested Mr. Zimmerman’s mental health records.

In Pate v. Robinson, the U.S. Supreme Court held that Robinson was constitutionally entitled to a hearing on the issue of his competence to stand trial. After finding that there was sufficient evidence to support the need for a competency hearing, “The court’s failure to make such an inquiry thus deprived Robinson of his constitutional right to a fair trial.”

When the Supreme Court outlawed the execution of the mentally retarded in Atkins v. Virginia, Mr. Zimmerman’s lawyers appealed his case on those grounds. However, the state of Texas operates on an IQ only system. If the defendants IQ falls below 70 they are retarded, if the IQ is above 70 they are eligible for death. This does not take into account, however, the head injuries and psychological traumas that Mr. Zimmerman has suffered that prevent him from operating at a functional level.

Mr. Zimmerman should not be executed. There are questions as to whether this is even a capital case, issues surrounding mental illness and mental retardation, and gross inefficiency of counsel. It is a fact that the poor and the mentally ill are the majority on death row. Please contact Gov. Perry and urge him to commute Mr. Zimmerman’s sentence.

Inmate who received reprieve last month executed

Longview News-Journal

AP -January 22, 2004

HUNTSVILLE (AP) — A contrite Kevin Lee Zimmerman was executed Wednesday for the 1987 robbery and murder of a Louisiana oilfield worker at a Beaumont motel. The execution occurred six weeks after he had made a similiar trip to the death house only to have his life spared within about 20 minutes of the scheduled execution.

After expressing love to relatives and friends, he looked at five members of victim Leslie Gilbert Hooks Jr.’s family and asked for their forgiveness. He was pronounced dead at 6:19 p.m.

“I really didn’t expect him to apologize, but I’m glad he did,” KaTreena Reed, 18, said after watching her father’s killer die.

Condemned inmate who received reprieve last month executed

Houston Chronicle

AP - January 21, 2004

HUNTSVILLE -- A contrite Kevin Lee Zimmerman was executed today for the 1987 robbery and murder of a Louisiana oilfield worker at a Beaumont motel. The execution occurred six weeks after he had made a similiar trip to the death house only to have his life spared within about 20 minutes of the scheduled execution.

After expressing love to relatives and friends, he looked at five members of victim Leslie Gilbert Hooks Jr.'s family and asked for their forgiveness. "In the name of Jesus, I'm so sorry for the pain I've caused y'all," he said, his voice choking as he tried to hold back sobs. "I'm sorry. Gilbert didn't deserve to die and I want you to know I'm sorry," he said. "I pray the good Lord will give y'all peace." After telling a warden he was ready, Zimmerman began praying and was stopped in mid-sentence by a gasp as the lethal drugs began taking effect. Ten minutes later, at 6:19 p.m., he was pronounced dead.

In a prepared statement, Zimmerman said his December ordeal "was a spiritual and emotional drain" and asked that "those who have the power to act" pass a law that bars setting execution dates until all appeals have been exhausted. "It is not fair for an inmate's life to be toyed with by the justice system," he said. "It is not fair nor is it responsible for the states to allow victim's families to be put through the same cruel stress again and again." He described himself as a born-again Christian who confessed his sins and repented.

Zimmerman, 42, from Lafayette Parish, La., was the third condemned inmate to die this year in Texas. Another lethal injection is set for next week, one of at least nine scheduled for the first quarter of the year in the nation's most active death penalty state. Zimmerman had expressed disappointment after a U.S. Supreme Court order Dec. 10 halted his punishment for the robbery and murder of the 33-year-old Louisiana oilfield worker who was stabbed 31 times. "I was ready to go," he said then, complaining the reprieve meant "18 more months of this crap."

Arriving Wednesday at the death house, his attitude remained much the same. "After 16 years, another stay is just more time," he said, saying he was not seeking a reprieve but wouldn't order attorneys to halt appeals because he was leaving it to "the will of God."

Inmate Executed Who Had Been Reprieved

Zimmerman Called Ordeal A Spiritual And Emotional Drain

Click2Houston.com

AP - January 21, 2004

HUNTSVILLE, Texas -- A contrite Kevin Lee Zimmerman was executed Wednesday for the 1987 robbery and murder of a Louisiana oilfield worker at a Beaumont motel. The execution occurred six weeks after he had made a similar trip to the death house only to have his life spared within about 20 minutes of the scheduled execution.

After expressing love to relatives and friends, he looked at five members of victim Leslie Gilbert Hooks Jr.'s family and asked for their forgiveness. "In the name of Jesus, I'm so sorry for the pain I've caused y'all," he said, his voice choking as he tried to hold back sobs. "I'm sorry. Gilbert didn't deserve to die and I want you to know I'm sorry," he said. "I pray the good Lord will give y'all peace." After telling a warden he was ready, Zimmerman began praying and was stopped in mid-sentence by a gasp as the lethal drugs began taking effect. Ten minutes later, at 6:19 p.m., he was pronounced dead.

In a prepared statement, Zimmerman said his December ordeal "was a spiritual and emotional drain" and asked that "those who have the power to act" pass a law that bars setting execution dates until all appeals have been exhausted. "It is not fair for an inmate's life to be toyed with by the justice system," he said. "It is not fair nor is it responsible for the states to allow victim's families to be put through the same cruel stress again and again." He described himself as a born-again Christian who confessed his sins and repented.

Zimmerman, 42, from Lafayette Parish, La., was the third condemned inmate to die this year in Texas. Another lethal injection is set for next week, one of at least nine scheduled for the first quarter of the year in the nation's most active death penalty state. Zimmerman had expressed disappointment after a U.S. Supreme Court order Dec. 10 halted his punishment for the robbery and murder of the 33-year-old Louisiana oilfield worker who was stabbed 31 times. "I was ready to go," he said then, complaining the reprieve meant "18 more months of this crap."

Arriving Wednesday at the death house, his attitude remained much the same. "After 16 years, another stay is just more time," he said, saying he was not seeking a reprieve but wouldn't order attorneys to halt appeals because he was leaving it to "the will of God."

Zimmerman's execution was stopped after lawyers filed suit contending the combination of drugs used in lethal injections contributes to unconstitutional pain and suffering.

The Supreme Court, however, five days later rejected an appeal in his case, clearing the way for state District Judge Charles Carver to quickly set a new death date. The same issue was included in another appeal in his case and the high court again ruled 5-4, rejecting the arguments in a ruling delivered about an hour before Zimmerman was scheduled to die.

The arguments regarding pain and suffering, raised similarly in an Alabama case to be reviewed by the Supreme Court, outraged the relatives of Hooks, who was slain after meeting Zimmerman and two other people, George Weber and Kay Gonzales, at the Beaumont Motel 6.

"In the words of my sister, her late husband was 'slaughtered like a hog' by this ruthless, cold-hearted murderer, so why should Kevin Zimmerman be denied feeling just a tiny fraction of the pain that Gilbert suffered?" Steven Shaver, whose sister was married to Hooks, said in a statement on behalf of the family before the execution. Zimmerman attracted attention when he went to a hospital for treatment of knife wounds and was arrested after authorities were called to the motel where a maid discovered Hooks' body.

In a letter to a district attorney, Zimmerman said he killed Hooks for the oilfield worker's money. Gonzales testified she saw Zimmerman and Weber stabbing Hooks as he pleaded for his life. Weber received 91 years in prison. Zimmerman got the death penalty. In another letter, this one to the judge at his trial, Zimmerman in detail threatened to kill the judge and included a drawing of himself holding an ax. "But the most shocking thing of all was that he drew the picture using his own blood as the ink," state District Judge Larry Gist recalled.

The letter was used against Zimmerman as evidence in the punishment phase of his trial in Jefferson County, where a jury took only 15 minutes to decide he should be condemned. In 1992, Zimmerman and two other condemned inmates tried to escape from death row by sawing their way through a recreation yard fence. The escape attempt was halted when a guard opened fire on them.

Zimmerman v. Johnson U.S. Supreme Court (12/15/03)

Cite as: 540 U. S. ____ (2003)

SUPREME COURT OF THE UNITED STATES

KEVIN L. ZIMMERMAN
v.
GARY JOHNSON, EXECUTIVE DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, ET AL.

ON APPLICATION FOR STAY
[December 15, 2003]

The application for stay of execution of sentence of death presented to J USTICE SCALIA and by him referred to the Court is denied. The temporary stay entered by JUSTICE SCALIA is vacated. JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join, dissenting.

Applicant has filed an action pursuant to Rev. Stat. §1979, 42 U. S. C. §1983, in the United States District Court for the Southern District of Texas in which he al- leges that Texas plans to put him to death by using a cruel and unusual method of execution. Applicant contends that the Texas Legislature has recently outlawed the use of the method for animal euthanasia because it is so ex- cruciatingly painful. Relying on Circuit precedent, the Court of Appeals for the Fifth Circuit affirmed the dis- missal of the action on the procedural ground that §1983 is not an appropriate vehicle for challenges to the method of execution; applicant should have proceeded by applying for a writ of habeas corpus. See Martinez v. Texas Court of Criminal Appeals, 292 F. 3d 417 (CA5), cert. denied, 535 U. S. 1091 (2002). The order did not question the merits of the underlying claim. Other Courts of Appeals disagree with the procedural ground of the decision, and we have granted certiorari to review that precise procedural issue in another case. Nelson v. Campbell, 540 U. S. ___ (2003).

STEVENS , J., dissenting - I would postpone review of this case until Nelson has been decided and stay applicant’s execution until that time. Accordingly, I respectfully dissent from the order vacating the stay of execution.

Zimmerman v. State, 881 S.W.2d 360 (Tex.Crim.App., Jun 01, 1994).

Court of Criminal Appeals of Texas, En Banc.

Kevin Lee ZIMMERMAN, Appellant, v. The STATE of Texas, Appellee.

No. 71106 June 1, 1994.

Defendant was convicted in the Criminal District Court, Jefferson County, Larry Gist, J., of capital murder, and he appealed. The Court of Criminal Appeals, 860 S.W.2d 89, affirmed. On petition for writ of certiorari, the United States Supreme Court, U.S. , 114 S.Ct. 374, 126 L.Ed.2d 324, vacated and remanded. On remand, the Court of Criminal Appeals, Campbell, J., held that: (1) special additional instruction concerning defendant's youth was not warranted in penalty phase of capital murder trial for defendant who was 25 years old at time he committed murder, and (2) defendant's allegedly mitigating evidence did not require additional special instruction, especially absent showing that such evidence tended to excuse or explain murder at issue. Affirmed. Clinton, J., dissented. Maloney, J., concurred in the result.

OPINION ON REMAND FROM THE UNITED STATES SUPREME COURT

CAMPBELL, Judge.
On original submission, we affirmed the judgment of the trial court in this case. Zimmerman v. State, 860 S.W.2d 89 (Tex.Crim.App.1993). The United States Supreme Court subsequently granted appellant's petition for writ of certiorari, vacated our judgment, and remanded this case for further consideration in light of Johnson v. Texas, 509 U.S. 350, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993). We will again affirm.

Zimmerman v. State, 860 S.W.2d 89 (Tex.Crim.App., Apr 07, 1993).

Court of Criminal Appeals of Texas, En Banc.

Kevin Lee ZIMMERMAN, Appellant, v. The STATE of Texas, Appellee.

No. 71106 April 7, 1993. Rehearing Denied June 9, 1993.

Defendant was convicted in the Criminal District Court, Jefferson County, Larry Gist, J., of capital murder, and he appealed. The Court of Criminal Appeals, Campbell, J., held that: (1) evidence was sufficient to support conviction; (2) defendant failed to preserve error stemming from trial court's refusal to grant defendant's challenges for cause of two venire members; (3) trial court did not abuse its discretion in granting state's challenge for cause of venire members who stated that they did not believe in capital punishment; (4) trial court properly sustained state's objection to defense counsel's explanation of presumption of innocence to member of venire; (5) letters were properly authenticated; (6) instruction on definition of deliberate was not erroneous; and (7) defendant was not entitled to additional instruction regarding mitigating evidence. Affirmed. Baird, J., filed concurring opinion in which Miller, J., joined. Overstreet and Maloney, JJ., concurred in result. Clinton, J., dissented.

After a trial held in May 1990, a Jefferson County jury found appellant, Kevin Lee Zimmerman, guilty of the October 23, 1987, capital slaying of L__ G__ H__ (hereinafter "the decedent"). The aggravating element of the murder was provided by appellant's commission of it while in the course of also committing robbery. [FN1] See Tex.Penal Code § 19.03(a)(2). At the punishment phase, the jury answered affirmatively the punishment issues set forth in Article 37.071(b) of the Texas Code of Criminal Procedure, [FN2] and appellant was sentenced to death. Direct appeal to this Court was then automatic under Article 37.071(h). [FN3] We will affirm.

* * *

In point of error eight, appellant argues that the evidence at trial was insufficient to sustain his conviction. Appellant does not contest the sufficiency of the evidence to prove that a murder occurred. Appellant does, however, contend that the evidence is insufficient to prove that the killing of the decedent occurred in the course of the commission of a robbery.

The State presented twelve witnesses and numerous pieces of physical evidence during the trial's guilt-innocence phase to prove appellant's guilt. Appellant presented three witnesses. Viewed in the light most favorable to the jury's verdict, the testimony adduced at trial established the following:

Appellant, George Weber, and Kay Gonzales, arrived at a Motel 6 in Beaumont on October 23, 1987. While at the motel, they met the decedent, who also was staying at the motel. After having some drinks, the decedent suggested that they all go to the fair.

After returning from the fair, all four people returned to appellant's room. After a short time, the decedent and Kay Gonzales went to the decedent's room, and the decedent paid Gonzales to have sexual intercourse. Then, the decedent and Gonzales returned to the room where appellant and Weber were.

After some time, Gonzales went to the bathroom and heard a struggle ensuing in the nearby bedroom. In that room, appellant and Weber, armed with knives, attacked the decedent. After the two men stabbed the decedent 31 times, appellant took the decedent's wallet and gave it to Weber. Then, appellant, Weber, and Gonzales, left in their car to try and get appellant to a hospital. While the car broke down after only a short time, appellant did finally reach the hospital, where he received treatment for a knife wound.

Appellant was subsequently arrested and placed in jail. While in jail, appellant wrote numerous letters to Weber and to the district attorney. At trial, the State introduced many pieces of correspondence which appellant had written and signed. In one of these letters to the district attorney, appellant wrote that:

Mr. H__ [the decedent] never stabbed me and we never got into a fight. Mr. H__ had 4 or 5 hundred dolars (sic) on him and we were drinking so I decided to kill him and take his fucking money. When we got back to the room Mr. H__ did not leave because I took out my knife and opened it and started stabbing him an in the course of me stabbing him I accidentally got stabed (sic) 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 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 G__ [the decedent] bought some jewlry (sic) 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, appellant and the decedent were arguing about an incident that had occurred at the fair. Suddenly, appellant "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 appellant 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 the decedent stopped moving, appellant "went to get his tickets--wallet out of his pockets."

Appellant argues that this testimony proves "that the only taking of property described by this witness occurred AFTER the conclusion of the alleged murder, and not as a part and parcel thereof." Appellant also argues, based upon other testimony from Gonzales, that there was no robbery.

On cross-examination, Gonzales admitted that in exchange for her testimony, she pled guilty to second degree robbery. She stated, however, that she had in fact committed no robbery. According to appellant, "[t]he only conclusion to be drawn is that despite the fact that [Gonzales] pled guilty to robbery, her trial testimony indicated that there was in fact no robbery."

Also, appellant argues that Weber's testimony that the decedent started the altercation, that appellant and Weber were acting in self-defense, and that there was no robbery, proves that the evidence was insufficient to support the conviction. In response, the State argues that the evidence was sufficient to show that appellant murdered the decedent in the course of committing a robbery because "[t]he mere fact that the wallet was not taken until after Weber and Appellant had finally succeeded in subduing the victim by stabbing him until he was dead does not mean that the killing was not in the course of committing a robbery."

To prove this offense, the State was required to show that appellant killed the decedent, and that prior to, or during the murder, appellant had the requisite intent to obtain or maintain control of the decedent's property. See Tex.Penal Code §§ 19.03(a)(2), 29.02, and 31.03. After reviewing the evidence in the light most favorable to the verdict, we conclude that appellant's arguments are without merit.

Concerning Gonzales' testimony, the fact that she pled guilty to a robbery that she claims she did not commit does not mean that no robbery occurred. At most, this testimony means only that she did not rob the decedent. It does not mean that appellant and Weber did not rob him.

Concerning Weber's testimony, which appellant's letter contradicts, the jurors were free to assign it as much or as little credibility as they desired. Moreover, appellant's letter contradicts his argument that the robbery was not "part and parcel of" the murder. In his letter, appellant specifically stated that he "decided to kill [the decedent] and take his fucking money."

Finally, even if the facts showed that appellant robbed the decedent's body after he had already died, that would not be dispositive. If the State introduces evidence from which the jury could rationally conclude that appellant formed the intent to obtain or maintain control of the victim's property either before or during the commission of the murder, then the State "has proven that a murder occurred in the course of robbery, although the element of appropriation occurred after the murder." Nelson v. State, 848 S.W.2d 126, 132 (Tex.Cr.App.1992), rehearing denied, January 20, 1993. Since the jury could rationally conclude from the evidence that appellant had formed the requisite intent, we overrule appellant's point of error eight.

* * * *

The judgment of the trial court is AFFIRMED.

KEVIN LEE ZIMMERMAN, Petitioner-Appellant,
v.
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION, Respondent-Appellee.

Docket number: 01-40591

Federal Circuits, 5th Cir.

August 2, 2002

Appeal from the United States District Court for the Eastern District of Texas (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 t o death, requests from this Court a Certificate of Appealability (COA) pursuant to 28 U.S.C. § 2253(c)(2). Zimmerman raises the following arguments: defense counselÂ’s alleged conflict of interest; the attorney’s failure to investigate Zimmerman’s mental health and the victim’s background; the StateÂ’s failu re t o disclose exculpatory evidence; admission of unadjudicated extraneous evidence (and lack of notice thereof); and inadequate jury instructions with respect to the special issues. Finding t hat Zimmerman has made a substantial showing of the denial of a constitutional right with respect to his claim of ineffective assistance based on counsel’s failure to investigate whether he was competent to stand trial, we GRANT a COA. With respect t o t he remaining claims, we DENY a COA.

I. BACKGROUND

Zimmerman, George Weber, and Kay Gonzales, arrived at a Motel 6 in Beaumont on October 23, 1987. 1 While at the motel, they met the victim, Leslie Gilbert Hooks, who also was staying at the motel. After having some drinks, Ho o ks 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 t o HooksÂ’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 We ber and t o the district attorney. At trial, the State introduced many pieces of 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 hun dred do l[l]ars on 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 be cause I took out my knife and opened it and started stabbing him an in the course of me stabbing him I accidentall y got stab[b]ed in my arm. After he was dead and I robbedI 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 ro ad 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 w as 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 t hat 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 f o und 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. Z immerman 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). Z immerman v. Texas, 510 U.S. 938 , 114 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. Z immerman 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 co urt 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 courtÂ’s findings and [its] own review.” Zimmerman then filed the instant petition, which the district court denied. The district court grant ed Zimmerman a COA with respect to three issues: cumulative error based on ineffective assistance of counsel; excusing a juror for cause; and improper prosecutorial argument. Zimmerman filed a brief before this Court on the merits of those issues. He also filed t he inst ant motion for a COA. We have suspended briefing pending a ruling on the instant motion for COA.

II. STANDARD OF REVIEW

Zimmerman filed the instant section 2254 application for habeas relief after the April 24, 1996 effective dat e of the Antiterrorism and Effective Death Penalty Act (AEDPA). His application is therefore subject to the AEDPA. L indh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 2068 (1997).

Under the AEDPA, a pet it ioner must obtain a COA. 28 U.S.C. § 2253(c)(2). A COA will be granted only if the petitioner makes § 2253(c)(2). To make such a showing, a petitioner “must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” B arefoot v. Estelle , 463 U.S. 880, 893 n.4, 103 S.Ct. 3383, 3394 n.4 (1983) (citation and internal quotati on marks omitted).

Any doubt regarding whether to grant a COA is resolved in favor of the petitioner, and the severity of the penalty may be considered in making this determination. Fuller v. Johnson , 114 F.3d 491, 495 (5th Cir. 1997).

To determine w het her a COA should be granted, we must be mindful of the deferential scheme set forth in the AEDPA. Hill v. Johnson, 210 F.3d 481, 484-85 (5th Cir. 2000). Pursuant to 28 U.S.C. § 2254(d), we defer to a state court’s adjudication of 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 with a prior decision of the Supreme Court or if it reaches a different c onclusion 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 unreasonable 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.

III. ANALYSIS

A. CONFLICT OF INTEREST

Zimmerman argues that his counsel had a conflict of interest in violation of the Sixth Amendment. As a general rule, to prevail on a claim of ineffective assistance of counsel, a petitioner must show: (1) that his counsel§ 2254(d). See Clark v. Johnson , 202 F.3d 760, 764 (5th Cir.2000). The state habeas court ruled that no conflict of interest existed. 5 The federal district court found that “Barlow had a conflict of interest, because he represe nt ed Zimmerman’s co-defendant Weber.” We will assume for purposes of analyzing this issue that Barlow’s representation of both Zimmerman and Weber prior to trial constituted a conflict of interest. We must now reach the question of whether this conflict adversely affected counsel’s performance. In support of his assertion of adverse effect, Zimmerman points to counsel’s inaction during the nearly three months of representation. We have explained that “when a petitioner’s claim is premised solely upon what a conflicted lawyer failed to do on his or her behalf, the petitioner must generally establish adverse effect by demonstrating that there was some plausible alternative defense strategy that could have been pursued, but was not, because of the . . . conflict.” Perillo , 205 F.3d at 80 7. As t he dist rict court recognized, counsel withdrew almost two years prior to trial and Zimmerman has not s ho wn that the inactivity was responsible for any failure on the part of trial counsel to pursue any plausible defenses. Zimmerman nevertheless argues that counselÂ’s conflict and inaction during the period in question “were likely directly responsible for the frustrating delays ex perienced by Zimmerman, which led to the statements and letters which elevated the charges to capital murder.” Zimmerman is referring to the letters he wrote to the district attorney admitting that he killed the victim for his money. At the time he wrote the letter, he had been indicted on the charge of murder. Subsequent to the letter, Zimmerman was indicted on the charge of capital murder.

According to Zimmerman, this was the most important consequence of the conflict. We do not believe Zimmerman’s own actions constitute prejudice because “the focus is upon whether the . . . conflict burdening counselÂ’s performance had an actua l and adverse effect o n counsel’s performance .” P erillo, 205 F.3d at 806 (emphasis added). Thus, Zimmerman’s actions are not the proper focus when determining whether there has been an adverse effect on counsel’s performance.

We conclude that Zimmerman has failed to demonstrate the requisite adverse effect and deny a COA as to Zimmerman’s conflict of interest claim regarding counselÂ’s representation prior to trial.

Finally, Zimmerman argues that the “more egregious instance of an actual conflict” occurred when Barlow was appointed as appellate counsel for both Zimmerman and Weber. 6 With respect to codefendant Weber’s direct appeal in state court, counsel argued that Zimmerman coerced Weber’s testimony at Zimmerman’s trial. Weber v. State, 829 S.W.2d 394 (Tex.App.–Beaumont 1992). This prior testimony was admitted against Weber at h is trial. We will assume that a conflict of interest existed on direct appeal and now turn to adverse effect. Zimmerman contends that because counsel argued that Zimmerman coerced Weber’s testimony, “[t]his prevent ed [co unsel] from emphasizing the truth of Weber’s testimony in Zimmerman’s appeal for a claim of insufficiency of t he evidence for a capital murder conviction.” Zimmerman did not raise this argument in the conflict of interest section o f his 222-page federal habeas petition. He did make this assertion (though not as fully) in a footnote in the factual background section. We have doubt s whether this adequately apprised the district court of ZimmermanÂ’s argument. In any event, we will assume that the argument was sufficiently raised.

Co nt rary to Zimmerman’s assertions, counsel did rely upon Weber’s testimony as Zimmerman’s appellate counsel. On direct appeal, the Court of Criminal Appeals’ opinion provides that Zimmerman “argues t hat Weber’s testimony that the decedent started the altercation, that [Zimmerman] and Weber were acting in self defense and that th ere was no robbery, proves the evidence was insufficient to support the conviction.” Zimmerman v. State , 860 S.W.2d 89, 93 (Tex.Crim.App. 1993) (fo o t note omitted). Under these circumstances, we do not believe that Zimmerman has shown an adverse effect on counselÂ’s performance. We therefore deny ZimmermanÂ’s request for a COA.

B. INEFFECTIVE ASSISTANCE

1. Failure to investigate background of victim.

Zimmerman argues that trial counsel, Lind a C. Cansler, rendered ineffective assistance by failing to investigate the background of the victim in order to support his claim of self defense. As set forth above, Zimmerman must show: (1) that his counsel’s performance was deficient in that it fell below an objective standard of reasonableness; and (2) a reasonable probability that, but for counsel's deficient performance, the result of the trial would have been different. Strickland , 466 U.S. at 689-94, 104 S.Ct. at 2065-67. Zimmerman asserts counsel should have discovered that the victim had a history of criminal violence, including bat t ering at least two of his wives, and a pattern of violent aggression against strangers when drinking alcohol. Such evidence he argues would have served to support his theory of self defense. Even if we assume that counsel’s failure to investigate the victim’s tendency toward violence constituted deficient performance, Zimmerman has not shown Strickland prejudice. As the state court found, the victim received over thirty stab wounds (some inflict ed upon the victim’s back) compared to the one wound Zimmerman received. We agree with the district courtÂ’s conclusion that evidence of the vict imÂ’s past violence would have been “outweighed by the July 26, 1988 letter from Zimmerman to the district attorney,” which provided as follows: I was gonna try to buck this Capit[a]l Murder charge on a self-defense issue, but because of the fact that I know I am a dangerous threat to myself and the free world, I’m going to tell the truth because I have to be stop[p]ed. Mr. Hooks never stabbed me and we never got into a fight. Mr. Hooks had 4 or 5 hundred dol[l]ars on him and we were drinking so I decided to kill him and take his f—ing money . I took out my knife and opened it an d st art ed stabbing him an[d] in the course of me stabbing [him] I accidentally got stab[b]ed in my arm. After he was dead and I robbed – I rolle d him over took the money out of his front pocket and took his wallet . . .

We likewise agree with the district court’s conclusion that because “Zimmerman’s admissions in his letter were significant ly more probative on this issue than the evidence of HooksÂ’s propensity for violence . . . there is not a reasonable probability that, had the jury been presented with evidence of the vict imÂ’s propensity for violence, the result in either the guilt-innocence phase or the punishment phase of the trial.” We therefore deny a COA with respect to this issue.

2. Failure to investigate Zimmerman’s mental health.

Zimmerman argues that counsel rendered ineffective assistance by failing to investigate his mental health. He asserts evidence of his mental healt h problems should have been presented as mitigating evidence during the punishment phase of his trial. 7 While riding his bicycle as a child, Zimmerman had an accident during which he hit his head on a culvert and lost consciousness. As a result of this accident, a met allic plate was inserted in his skull. Zimmerman argues that if counsel had interviewed his family, she would have learned that after the head injury he began to suffer “mental problems.” Zimmerman admits that counsel interviewed his mother regarding his injury and that his mother testified at trial regarding the accident and the subsequent surgery. However, he argues that testimony should have been presented regarding the effect of the injury on his behavior. According to Zimmerman, “[p]rior to his bicycle injury, his behavior was normal and appropriate. It was only after the frontal lobe injury that he became violent.” Zimmerman faults counsel for failing to interview his father, Bobby Zimmerman. During the state habeas proceedings, counsel explained that she did leave messages for Zimmerman’s father, but he never returned her call. He also faults counsel for failing to interview his aunt, Jonell Smith, regarding his mental health after the accident. His aunt noticed “subtle changes from when the plate was placed in his head.” His aunt also knew that Zimmerman had an abnormal EEG as a child but counsel failed to obtain his records. Once again, we will assume arguendo that counsel rendered deficient performance by failing to investigate evidence regarding Zimmerman’s mental health problems subsequent to his head injury.

Zimmerman argues that the quality of this mitigating evidence is such that had it been presented to the jury, there is a reasonable probability of a different outcom e. As previously indicated, counsel did introduce to the jury evidence of Zimmerman’s head injury and the subsequent surgery in which a met allic plate was positioned in his skull. The jury did not learn of his violent tendencies that appeared after the injury. As the district co urt recognized, this evidence constitutes the classic double-edged sword. 8 More specifically, 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. 199 4). Furt her, in light of ZimmermanÂ’s admission in the letter to the district attorney that he decided to kill the victim to take the cash, t he mit igat ing value of this evidence would have been diminished. Under these circumstances, we conclude that Zimmerman has not shown that, had this evidence been before the jury, there is a reasonable probability of a different outcome. See Callins v. Collins , 998 F.2d 269, 278 (5th Cir. 1993) (rejecting ineffective assistance of counsel claim based on failure to investigate mitigating evidence because the evidence “cuts both ways” did not establish prejudice). We deny a COA as to this issue.

3. Failure to evaluate Zimmerman’s competency.

Zimmerman also contends that counsel rendered ineffective assistance by failing to have him evaluated for compete ncy t o st and 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.” I d. (citations and internal quotation marks omitted). To prevail on an ineffective assis t ance 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. I d. at 595. Zimmerman argues that counsel was aware that “something was not quite right about Zimmerman.” In support of his assertion that counsel should have obtained a competency evaluation, Zimmerman relies on the results of an Minnesota Multiphasic Personality Inventory-2 (MMPI) evaluation completed three weeks prior to trial and l etters he wrote to the tri al court and the prosecutor containing threats and a demand to be charged with capital murder. 9 As set forth by the district court, the MMPI-2 profile provided as follows: Although the profile is probably valid, it may reflect some exaggeration of symptoms. The client appears to be quite confused and disorganized, and is experiencing severe personality deterioration.

His MMPI-2 profile also reflects an active florid psychotic process, which includes a loss of contact with reality, inappropriate effect, and erratic, possibly assaultive behavior . . . . In an interview, he is likely to be circumstantial, tangential, and disorganized. It is unlikely that he could contribute to his own defense at a legal hearing, since his behavior is inappropriate and his thoughts are illogical . 10 (emphasis added).

The results indicating that it was unlikely Zimmerman could contribute to his defense render the question of deficient performance, under the standard for granting a COA, adequate to deserve en c ouragement further. C f. Bouchillon , 907 F.2d at 597 (explaining that counselÂ’s lack of investigation after notice of past institutionalization constituted deficient performance).

As previously indicated, to meet the prejudice prong of Strickland and prevail on the merits, Zimmerman must show that h ad counsel investigated his competence to stand trial, “there was a reasonable probability that he was in fact incompetent.” Theriot v. Whitley , 18 F.3d 311, 314 (5th Cir. 1994). A reasonable probability is a lesser burden of proof t han the preponderance standard.

Bouchillon , 907 F.2d at 595. Although the MMPI results, “suicidal” letters, and head injury may not ultimately demonstrate a reasonable probability that he was incompetent to stand trial, we believe Zimmerman has demonstrated that this question is “adequate to deserve encouragement further.” Barefoot , 463 U.S. at 893 n.4, 103 S.Ct. at 3394 n.4 (citation and internal quotati on marks omitted).

We therefore grant a COA with respect to this claim.

C. BRADY CLAIM

Zimmerman next argues that the State failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963). The State has a duty to disclose evidence favorable to the accused that is material to guilt or punishment. See Brady v. Maryland, 373 U.S. at 86-87, 83 S.Ct. at 1195-96. To establish this due process violation, an accused must show that the State withheld evidence, that the evidence was favorable, and that the evidence was material to the defense. L ittle v. Johnso n , 162 F.3d 855, 861 (5th Cir. 1998). In assessing Brady materiality “[t]he question is not whether the defendant would more likely than not h a ve received a different verdict with the evidence, but whether in it s absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” K yles v. Whitley , 514 U.S. 419, 115 S.Ct. 1555, 1566 (1995). “ ‘reasonable probability’ of a different result is accordingly shown when the [State’s] evidentiary suppression ‘undermines confidence in the outcome of the trial.” Id. Zimmerman first complains of evidence with respect to the victim’s background. Specifically, he asserts that the State failed to disclose the victimÂ’s prior conviction for simple battery, evidence of the victim’s wife-beating, and his tendency toward violence when drinking alcohol. In support of this claim, he relies on an affidavit executed by the victim’s wife, Janet Hooks, which provides that she “believe[s]” she informed the detective handling the instant murder case “about Gilbert beating me in Louisiana . . . .” 11 Zimmerman also asserts that the victim’s wife had a restraining order against him. The standard f or mat eriality under Brady is "identical to" the standard for prejudice under Strickland . Johnson v. Scott , 68 F.3d 106, 109-10 (5th Cir.1995). Because failure to investigate and present evidence of the victim’s violent past was not prejudicial under Strickland as discussed above, it is not material under Brady. Zimmerman also co mplains that the State withheld from the defense the cab driver’s statements with respect to whether the vict im, Hooks, had cash the night of the murder. He relies upon the cab driverÂ’s affidavit obtained by the police prior to trial. In the affidavit, the driver stated that Hooks was very intoxicated. The affidavit further provided that after the cab driver informed the group the charge was four dollars, Hooks and the woman both “acted like they were going to pay” but instead Zimmerman paid him. Zimmerman contends that this evidence indicates that the victim had no money, thus negating the robbery element of the capital crim e. Initially, we note that although Hooks did not pay the driver, the driver did not state that Hooks had no money but rather that Zimmerman actually paid.

Further, in his motion, Zimmerman acknowledges that, after the cab ride, Hooks paid Gonzal es twenty dollars he retrieved from his front pocket. Most telling, in Zimmerman’s letter he admitted that he knew that “Hooks had four or five hundred dollars on him.” Under these circumstances, we do not believe that Zimmerman has shown that the cab driverÂ’s statement was material to the defense.

We conclude that Zimmerman has not made a substantial showing of the denial of a constitutional right. Thus, he is not entitled to a COA with respect to his Brady claim.

F. ADMISSION OF UNADJUDICATED OR EXTRANEOUS CONDUCT

Zimmerman contends that his due process rights were violated by the admission of (and lack of notice of) unadjudicated extraneous evidence. He challenges the admission of allegations of prior criminal misconduct and testimony from a police officer that amounted to “propensity for violence” evidence. The state habeas court held that the claim was procedurally barred because there was no objection at the time the evidence was of fered. In denying federal habeas relief, the district court likewise found that the claim was procedurally barred.

Zimmerman challenged the procedural bar in the district court but fails to do so in his motion for COA, thereby abandoning this challenge. H obbs v. Blackbu rn , 752 F.2d 1079, 1082 (5th Cir. 1985). Even if we reached this issue, it would afford Zimmerman no relief.

Our review of a district court’s determination of a procedural bar is de novo. Johnson v. Cain, 215 F.3d 489, 494 (5th Cir. 2000). The state habeas court expressly found the claim procedurally barred for failure to object to the evidence, and this Court has “held that the Texas contemporaneous objection rule is strictly or regular ly applied evenhandedly to the vast majority of similar claims, and is therefore an adequate procedural bar.” Corwin v. Johnson , 150 F.3d 467, 473 (5th Cir. 1998). The district court therefore properly found the claim procedurally barred.

Moreover, we have held that challenges to the admission of unadjudicated extraneous offenses during the punishment phase based on the Eighth Amendment, due process, and equal protection are barred by Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060 (1989). S ee also Gray v. Netherland, 518 U.S. 152, 116 S.Ct. 2074, 2083-84 (1996) (holding that petitioner’s due process claim based on lack of notice of evidence of unadjudicated offenses at the punishment phase would require the adoption of a new rule). Zimmerman is not entitled to a COA with respect to this issue.

G. INADEQUATE JURY INSTRUCTIONS AT SENTENCING

Zimmerman argues that the jury was given inadequate instructions at the penalty phase of his trial. More specifically, Zimmerman argues that the trial court’s refusal to define the term “deliberately” in the first special issue, along with the “Texas Court of Criminal Appeals’ longstanding refusal to impose any limit ing construction[,] created an arbitrary sentencing procedure” that failed to rationally channel the sentencerÂ’s discretion. However, we have repeatedly rejected the argument that the failure to define the terms in the first two special issues (including “deliberately”) renders the instructions impermissibly vague. W oods v. Johnson , 75 F.3d 1017, 1034 (5th Cir. 1996) (citing Milton v. Procunier , 744 F.2d 1091, 1095-96 (5th Cir.1984); Thompson v. Lynaugh , 821 F.2d 1054, 1060 (5th Cir. 1987); J ames v. Collins , 987 F.2d 1116, 1120 (5th Ci r. 1993); Nethery v. Collins , 993 F.2d 1154, 1162 (5th Cir. 1993)). Nonetheless, Zimmerman asse rt s t hat the Supreme CourtÂ’s recent analysis in P enry v. Johnson, 121 S.Ct. 1910 (2001) (“ Penry II ”) “has significance for this claim.” We find Penry II inapposite to the case at bar. The claim in Penry II was that the punishment phase instructions “did not provide the jury with a vehicle for expressing its reasoned moral response to the mitigating evidence of Penry’s mental retardati on and childhood abuse.” 121 S.Ct. at 1920. The Supreme Court observed that its prior opinion in Penry I 12 provided guidance with respect to rectifying the error in the jury instructions. 121 S.Ct. at 1923. Specifically, the Court explained that “our concerns would have been alleviated by a jury instruction defining the term ‘deliberately’ in t he first special issue ‘in a way that would clearly direct the jury to consider fully PenryÂ’s mitigating evidence as it bears on his perso nal culpability.’” Id. (quoting Penry I, 492 U.S. at 323, 109 S.Ct. 2934). As such, Penry’s claim was based upon the Supreme Court’s command that the sentencer must be permitted to consider and give effect to any constitutionally relevant mitigating evidence. 13 In contrast, Zimmerman’s argument involves another command found in the Supreme CourtÂ’s eight h amendment jurisprudence, i .e., a sentencer’s discretion to impose death must be properly directed and limit ed so as to minimize the risk of arbitrary and capricious action. See, e.g., Gregg v. Georgia , 428 U.S. 153, 187-89, 96 S.Ct. 2909, 2931-32 (1976) (opinio n of Justices Stewart, POWELL, and STEVENS, JJ.); Furman v. Georgia , 408 U.S. 238, 92 S.Ct. 2726 (1972) (per curiam). Accordingly, Penry II does not apply to Zimmerman’s claim, and we are bound by our previous decisions rejecting the claim that the failure to define terms in the special issues renders the instructions impermissibly vague. Zimmerman is not entitled to a COA with respect to this claim.

We GRANT Zimmerman’s request for a COA only with respect to his claim of ineffective assistance based on counselÂ’s failure to investigate whether he was competent to stand tri al . We DENY a COA with respect to the remaining claims.

The suspension of briefing is lift ed and the Clerk is directed to issue a new briefing schedule t o allow Zimmerman to file a brief with respect to the claim of ineffective assistance based on counsel’s failure to investigate whether he was competent to stand trial and to allow the Director to respond to that claim and to respond to the claims that the district court granted a COA.

*****

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 The state court record indicates that Barlow “will ask to be released due to conflict” on that date

3 In his federal habeas petition, Zimmerman makes no reference to the state trial courtÂ’s failure to make any inquiry regarding potential conflict. The only possible reference we discern is in his reply to the State’s motion for summary judgment. In that pleading, in the context of arguing that he ha d shown an adverse effect on counsel’s performance, Zimmerman quoted the following language from a Fifth Circuit case: “trial courts can play an important role in situations inherently rife with conflic t by ascertaining whether the defendant understands the consequences of the potential conflict and nonetheless wants to continue with the present lawyer.” Perillo v. Johnson, 205 F.3d 775, 806 n. 13 (5th Cir. 2000). However, Zimmerman quoted that language in support of his argument that there are institutional reasons for requiring a lesser showing of prejudice in conflict of interest cases. Under these circumstances, we do not believe the district court was adequately apprised of the argument that the trial court failed to make an inquiry regarding counselÂ’s potential conflict of interest

4 The district court denied the claim of conflict of interest, opining in part as follows: If an attorne y simultaneously represents conflicting interests, and because of the conflict some plausible defense strategy or tactic which might have been pursued was not, then the conflict “adversely affected t he lawyerÂ’s performance” and relief must be granted, even in the absence of evidence that petitioner was prejudiced by the adverse performance. Beathard v. Johnson , 177 F.3d 340, 346 (5th Ci r. 1999). Here, however, Barlow withdrew as counsel nearly two years b efore Zimmerman went to trial, and BarlowÂ’s inactivity was no t responsible for Zimmerman’s later counsel’s failure to pursue any plausible defenses. For example, assuming a rguendo that a diminished mental capacity defense was plausible, Barlow’s inactivity during the time he represented both Zimmerman and Weber did not prevent Zimmer man’s subsequently appointed attorneys from pursuing a dimin ished capacity defense. Zimmerman’s allegations do not meet the requirements of Beathard. Beathard binds this court to find that the Texas Court of Criminal Appeals’ decision denying this subclaim was not clearly contrary to, or an unreasonable application of, clearly established federal law, as declared by the United States Supreme Court in Strickland

5 The state habeas trial court found that Zimmerman had not “shown or pleaded facts showing an actual conflict. A review of the record shows that no actual conflict existed.” The Texas Court of Criminal Appeals denied relief “[b]ased upon the trial courtÂ’s findings and [its] own review.”

6 We note that because Weber was convicted of the lesser offense of murder, his direct appeal was before the Court of Appeals in Beaumont, Texas, and Zimmerman’s direct appeal was before the Court of Criminal Appeals

7 Zimmerman’s motion for COA contains a section entitled: “ F ailure To Present the Mental Health Evidence In Conjunction with the Self-Defense Evidence. ” In that section he asserts that “as shown above, trial counsel failed to develop information that would have been directly relevant to Zimmerman’s mental state and to both phases of the trial.” However, Zimmerman does not specifically indicate how the evidence would have supported a theory of self defense at the guilt- innocence phase. Indeed, the principal argument contained within this section refers to Zimmerman obtaining a life sentence instead of a death sentence. Even assuming that he properly briefed the issue regarding the guilt-innocence phase in his COA, we do not believe he can show prejudice. As previously set forth, the victim received over thirty stab wounds compared to the one wound Zimmerman received. Moreover, Zimmerman admitted that he killed the victim for the money and that the victim did not start the fight

8 Before the district court, Zimmerman also contended that counsel should have offered the following testimony of Dr. Alan Childs: “Zimmerman is not and was not a vi ol ent predator who planned any act of vi o lence, but rather he was given to brief explosive rages during which both behavioral control and memory function were grossly disturbed.” He does not reurge this contention in his motion for a COA

9 In a footnote, Zimmerman asserts that he had written letters to his first lawyer indicating that he wanted a competency examination. He does not provide a record cite. The State responds that Zimmerman “has n e ver once provided copies of any of these alleged letters for any court to review to determine the actual nature of his ‘competency request.’” The district court provides that the record contains three such letters

10 The State asserts that the MMPI results are not included in the record on appeal but does not dispute the contents. The district court quoted the results in part.

11 We note that the victim’s wife “believe[s]” she told the detective that the victim beat her. It appears she was not certain. In any event, we will assume for purposes of this appeal that she did so inform the detective

12 Penry v. Lynaugh , 492 U.S. 302, 109 S.Ct. 2934 (1989). 13 E .g., Ed dings v. Oklahoma , 455 U.S. 104, 113-114, 102 S.Ct. 869, 876-877 (1982); Lockett v. Ohio , 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-2965 (1978).