UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-11403
DAVID OBIE DARBY,
Petitioner-Appellant,
VERSUS
GARY L. JOHNSON, Director, Texas Department of Criminal Justice,
Institutional Division,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
(4:97-CV-210-A)
March 9, 1999
Before DAVIS, STEWART and PARKER, Circuit Judges.
PER CURIAM:*
David Obie Darby (“Darby”), Texas prisoner #720989, appeals
the denial of his petition for writ of habeas corpus filed pursuant
to 28 U.S.C. § 2254. We affirm.
I. FACTS
Darby was convicted by a jury of indecency with a child and
*
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this opinion should not be published and is not precedent except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.
1
sentenced to 30 years of imprisonment by a Texas court. The
prosecutor adduced evidence at trial that Darby, using a false
name, posed as a professional photographer and molested a 13-year-
old girl during a photography session at her home. Darby's theory
of the case was that, although he adjusted the complainant's
clothing during the photography session, he had no sexual contact
with her. Darby's conviction was affirmed on direct appeal. See
Darby v. State, 922 S.W.2d 614 (Tex.App.-Fort Worth, 1996, pet.
ref'd). Darby requested and was denied habeas relief in Texas
state courts.
II. PROCEDURAL HISTORY AND STANDARD OF REVIEW
Darby filed his federal habeas application on March 31, 1997,
and therefore the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”) amendments to § 2254 apply to Darby's petition.
Pure questions of law are reviewed under the “contrary to“
standard; mixed questions of law and fact are reviewed under the
“unreasonable application” standard. Drinkard v. Johnson, 97 F.3d
751, 767-68 (5th Cir. 1996), overruled on other grounds by Lindh v.
Murphy, 521 U.S. 320 (1997). The application of law to facts is
“unreasonable” only when all reasonable jurists considering the
question would view the state court ruling as incorrect. Id. at
768-69. Habeas relief is thus appropriate only when “a state court
decision is so clearly incorrect that it would not be debatable
among reasonable jurists.” Id. at 769.
The district court denied habeas corpus relief and denied
Darby a certificate of appealability (“COA”). Darby sought a COA
2
from this court, contending, inter alia, that his trial counsel was
ineffective for failing to maintain his law license, failing to
investigate the case, failing to interview an eyewitness, and
failing to move for suppression of evidence. Darby also argues
that he was entitled to an evidentiary hearing on his claim of
prosecutorial misconduct. We granted Darby a COA as to these
issues.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
To obtain relief based upon ineffective assistance of counsel,
a defendant must demonstrate both that his counsel's performance
was deficient and that the deficient performance prejudiced the
defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984).
To demonstrate deficiency a defendant must show that “counsel made
errors so serious that counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment.” Id. To
demonstrate prejudice a defendant must show that his counsel's
errors were so serious that they rendered the proceedings unfair or
the result unreliable. See Lockhart v. Fretwell, 506 U.S. 364, 371
(1993).
A. Failure to maintain law license
We find no merit in Darby's contention that his counsel was
ineffective for failing to maintain his law license. Taking
judicial notice of the public records of the State Bar of Texas, we
note that trial counsel was fully licensed to practice law in Texas
courts at all times relevant to his representation of Darby in this
matter.
3
B. Lack of investigation; failure to interview witnesses
Darby asserts that his trial counsel failed to investigate the
case and failed to interview witnesses regarding Darby's defense.
To prevail on a failure-to-investigate claim, Darby must allege
with specificity what the investigation would have revealed and how
it would have benefitted him. See United States v. Green, 882 F.2d
999,1003 (5th Cir. 1989)(§ 2255 case). An ineffective assistance
of counsel claim based on speculation or conclusional rhetoric will
not warrant habeas relief. See Lincecum v. Collins, 958 F.2d 1271,
1279-80 (5th Cir. 1992).
Darby identifies only one witness, Tamara Young, whom trial
counsel failed to contact. To support this claim, Darby submitted
two letters and an affidavit from Edward T. Gersbach, who served as
the defense investigator prior to and during Darby's trial.
Gersbach states that he is not aware of defense counsel personally
interviewing witness Young prior to trial. However, Gersbach
interviewed Young on two occasions and the interviews were
recorded. During those interviews Young stated that she was
present at the complainant's house when a man, whose description
matched Darby's, was also present and “he never touched her [the
complainant].” Young also stated that she overheard complainant's
mother state that she was going to “get even” with Darby.
According to Gersbach, defense counsel was aware of the contents of
those tapes and made the decision to play the tapes for the
prosecutor prior to trial in an effort to persuade him to drop the
charges. Further, defense counsel called Young to testify for the
4
defense during trial.
We agree with the district court's conclusion that, under the
totality of circumstances, trial counsel was not ineffective in
failing to interview witnesses or investigate the case. See Lovett
v. State of Florida, 627 F.2d 706, 708 (5th Cir. 1980).
C. Failure to move for suppression of evidence
Darby asserts that counsel was ineffective for failing to file
a motion to suppress a magazine found during a search of Darby's
home which depicted adult females without clothes in sexually
suggestive poses. Having reviewed the briefs and the record, we
perceive no basis for suppressing the evidence. Trial counsel's
failure to assert a meritless motion cannot be grounds for a
finding of deficient performance. See Clark v. Collins, 19 F.3d
959, 966 (5th Cir. 1994).
IV. HEARING ON PROSECUTORIAL MISCONDUCT
Darby asserts that the prosecutor in this case intimidated
defense witness Tamara Young, preventing her from testifying that
Darby was innocent of the charged offense and that neither the
state nor the federal district court gave him a hearing to
determine the truth of this allegation. Under Rule 8 of § 2254
Rules, district courts are required to determine whether an
evidentiary hearing is necessary. “[A] hearing [is not] required
when the record is complete or the petitioner raises only legal
claims that can be resolved without the taking of additional
evidence.” Lavernia v. Lynaugh,845 F.2d 493, 501 (5th Cir. 1988).
Darby's claims regarding the prosecutor's contact with Young
5
were developed in affidavits submitted to the state trial court in
Darby's Motion for New Trial. In his direct appeal in state court,
Darby contended that the trial court abused its discretion by
denying Darby's motion for new trial without conducting a hearing.
The Texas appellate court reviewed the record and specifically
found that the allegations of the motion for new trial were
determinable by the trial court from the record, and held that the
trial court did not abuse its discretion in denying Darby's motion
for new trial without a hearing and overruled Darby's point of
error concerning the lack of hearing. See Darby v. State, 922
S.W.2d at 626.
The district court examined the allegations and affidavits in
the record and found that the prosecutor's contact with Young did
not violate Darby's constitutional rights. It was not error for
the district court to make that determination without conducting an
evidentiary hearing. See Wiley v. Puckett, 969 F.2d 86, 98 (5th
Cir. 1992)(A hearing is not necessary if the record is adequate to
dispose of the claim.)
V. CONCLUSION
Based on the foregoing, we AFFIRM the denial of Darby's
petition for writ of habeas corpus.
AFFIRMED.
6