Cousins v. Green

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-8374

WILLIAM HARVEY COUSINS,

Petitioner – Appellant,

v.

KATHLEEN S. GREEN, Warden; DOUGLAS F. GANSLER, Attorney
General of Maryland,

Respondents – Appellees.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:06-cv-01053-CCB)

Argued: January 25, 2011 Decided: March 16, 2011

Before KING, AGEE, and DAVIS, Circuit Judges.

Affirmed by unpublished opinion. Judge King wrote the opinion,
in which Judge Agee and Judge Davis joined.

ARGUED: Katie Serfas, WAKE FOREST UNIVERSITY, School of Law,
Appellate Advocacy Clinic, Winston-Salem, North Carolina, for
Appellant. Mary Ann Rapp Ince, OFFICE OF THE ATTORNEY GENERAL
OF MARYLAND, Baltimore, Maryland, for Appellees. ON BRIEF: John
J. Korzen, Director, Megan Elizabeth Bode, Eleanor Rhoades
Trefzger, WAKE FOREST UNIVERSITY, School of Law, Appellate
Advocacy Clinic, Winston-Salem, North Carolina, for Appellant.
Douglas F. Gansler, Attorney General of Maryland, Baltimore,
Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.

2
KING, Circuit Judge:

William Harvey Cousins, a Maryland prisoner, appeals from

the district court’s denial of his 28 U.S.C. § 2254 habeas

corpus petition, in which he asserts that a violation of his

Sixth Amendment right to the effective assistance of counsel

undermines his Maryland convictions. See Cousins v. Green, No.

1:06-cv-01053 (D. Md. Oct. 10, 2008) (the “Federal Opinion”). 1

More specifically, as spelled out in our certificate of

appealability (the “COA”), Cousins maintains that his “trial

counsel provided ineffective assistance by failing to adequately

investigate and discover an exculpatory witness” (the

“Ineffective Assistance Claim,” or the “Claim”). For the

reasons explained below, we reject the Ineffective Assistance

Claim and affirm the district court.

I.

A.

In August 1996, Cousins was tried in the Circuit Court for

Prince George’s County, Maryland, on charges of first-degree

murder and use of a handgun in the commission of a crime of

violence, arising from the December 22, 1995 shooting death of

1
The unpublished Federal Opinion is found at J.A. 1113-29.
(Citations herein to “J.A. ___” refer to the contents of the
Joint Appendix filed by the parties in this appeal.)

3
Steven Moeller. The prosecution’s theory was that Cousins had

been involved in a traffic dispute with Moeller, threatened to

kill him, and followed up on the death threat by shooting

Moeller a few days later. Lacking eyewitness testimony, the

prosecution relied heavily at trial on two witnesses who said

that Cousins had confessed to Moeller’s shooting: Ebony

Coleman, a former friend of Cousins; and Betty Mills, who was

Coleman’s aunt. The defense theory was that Coleman himself was

the likely shooter, and that Cousins was the “victim of a cover-

up designed to exonerate one person and implicate another.” Br.

of Appellant 3. In defending Cousins, his lawyer called three

witnesses, including Cousins himself. The jury convicted

Cousins on both charges — murder (albeit in the second degree)

and use of a handgun in the commission of a crime of violence.

On September 13, 1996, Cousins was sentenced to thirty years on

the murder conviction, plus a consecutive term of twenty years

on the handgun conviction.

B.

After his sentencing, Cousins appealed to the Court of

Special Appeals of Maryland, raising several issues that are

unrelated to the Ineffective Assistance Claim. Cousins’s

convictions and sentence were affirmed on appeal, see Cousins v.

State, No. 1425 (Md. Ct. Spec. App. May 19, 1997), and the Court

of Appeals of Maryland thereafter denied certiorari, see Cousins

4
v. State, 697 A.2d 913 (Md. 1997). Cousins then filed two state

habeas corpus petitions — on December 18, 1997, and October 30,

1998 — both of which were withdrawn without prejudice. In his

aborted state habeas petitions, Cousins presented multiple

ineffective assistance claims that were also unrelated to the

Claim before us today.

On March 5, 2002, Cousins, proceeding pro se, filed another

petition for state habeas corpus relief in the Circuit Court for

Prince George’s County, for the first time raising the

Ineffective Assistance Claim that underlies this appeal.

Cousins maintained that his lawyer was constitutionally

ineffective in failing to investigate and secure the testimony

of an exculpatory eyewitness, William Smoot. The state habeas

court appointed counsel for Cousins, who subsequently filed two

supplemental habeas petitions. 2 The state court then conducted

an evidentiary hearing on the Ineffective Assistance Claim,

beginning on September 20, 2004, when it heard from two

witnesses: Cousins and his trial lawyer. After those

proceedings, the court continued the evidentiary hearing for

2
In his various state habeas petitions, Cousins asserted at
least four ineffective assistance claims, and also contended
that the prosecution’s failure to disclose an exculpatory police
report violated Brady v. Maryland, 373 U.S. 83 (1963).

5
several months until Smoot, who was incarcerated, could appear

and testify.

On March 7, 2005, Smoot testified before the state habeas

court, asserting that, at the time of Moeller’s shooting, Smoot

was on his way to visit a friend, Ruth Wingate, who lived two

doors from the Moeller murder scene. While exiting his vehicle,

Smoot “heard some gunshots” and saw “somebody leaning out the

window.” J.A. 1009. That “somebody” was Ebony Coleman, one of

the key prosecution witnesses against Cousins, and the person on

whom the defense had sought to blame the Moeller murder. Id. at

1011. Smoot did not report what he saw to the police or anyone

else, but instead fled the scene before seeing or speaking to

Wingate.

In the state habeas court’s evidentiary hearing, Smoot

offered the following testimony concerning whether Wingate knew

that he was near her home when the Moeller shooting occurred:

Q [Direct]: But she knew you were there when it
happened based on your understanding?

A: Yes.

* * *

Q [Cross]: So when the shooting occurred Ms.
Wingate didn’t know that you were outside; is that
correct?

A: Right.

* * *

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 Q [Redirect]: You testified on direct that Ruth
Wingate did know you were there the night of the
shooting?

A: She knew, she knew — she should have known that I
was outside at the door because I was on my way to her
house, I was at her house. She knew I was coming to
her house.

* * *

THE COURT: But did she know you were actually
there?

A: She didn’t know I was actually there at the time
that incident occurred.

Q: But later she did find out that you were there?

A: Correct.

J.A. 1017-21. According to Smoot, at “some point after the

shooting,” he spoke with his friend Wingate, but failed to tell

her what he had seen near her home on the occasion of Moeller’s

murder. Id. at 1019. Indeed, Smoot never specified when or how

Wingate had “later” discovered that he was near her home when

Moeller was shot.

In May 2005, two months after its evidentiary hearing, the

state habeas court — applying Strickland v. Washington, 466 U.S.

668 (1984) (recognizing that ineffective assistance entails

deficient performance and resulting prejudice) — rejected the

Ineffective Assistance Claim, concluding that “there was no way

for trial counsel to have discovered [Smoot] even after doing a

reasonable investigation.” State v. Cousins, No. 96-091X, slip

7
op. at 4 (Md. Cir. Ct. May 11, 2005) (the “State Opinion”). 3

Ultimately, according to the State Opinion, “there was no way

that trial counsel could have independently known of Mr. Smoot

because he never came forward to the police nor did he tell

anyone what he witnessed.” Id. Thus, without reaching the

question of whether Cousins’s lawyer had performed deficiently,

the state court denied the Claim for failure to show prejudice.

On June 10, 2005, Cousins filed an application in the Court

of Special Appeals of Maryland for leave to appeal the state

habeas court’s rejection of the Ineffective Assistance Claim.

That application for appeal was denied on October 26, 2005. On

February 2, 2006, the Court of Special Appeals also denied a

motion for reconsideration of its denial of an appeal.

C.

On April 26, 2006, Cousins, again proceeding pro se, filed

his 28 U.S.C. § 2254 petition in the District of Maryland. His

petition presented three constitutional contentions, including

the assertion that his trial counsel was “ineffective for

failing to investigate and subpoena a witness who saw another

individual commit the murder.” J.A. 7 (emphasis omitted). 4 By

3
The State Opinion is found at J.A. 1072-82.
4
The two other claims presented in Cousins’s § 2254
petition were that the prosecution violated Cousins’s Brady
rights, and that Cousins’s lawyer was constitutionally
(Continued)
8
the Federal Opinion of October 10, 2008, the district court

denied Cousins’s § 2254 petition in all respects. In disposing

of the Ineffective Assistance Claim, the court explained that,

“[g]iven the witness testimony provided at the post-conviction

hearing, the state court’s determination that counsel could not

have independently known of Mr. Smoot is reasonable and well-

supported in the record.” Federal Opinion 12.

Cousins thereafter timely noticed this appeal, and, on May

5, 2009, we awarded the COA on the Ineffective Assistance Claim.

We also appointed counsel to represent Cousins, and we possess

jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.

II.

We review de novo a district court’s denial of 28 U.S.C.

§ 2254 habeas corpus relief on the basis of a state court

record. See Bell v. Ozmint, 332 F.3d 229, 233 (4th Cir. 2003).

Pursuant to § 2254, however, “the scope of our review is highly

constrained.” Jackson v. Johnson, 523 F.3d 273, 276 (4th Cir.

2008). A state court’s factual determinations are presumed to

be correct, and a § 2254 applicant bears the burden of rebutting

this statutory presumption by “clear and convincing evidence.”

ineffective for failing to seek the exclusion of evidence of his
prior convictions.

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§ 2254(e)(1); see Tucker v. Ozmint, 350 F.3d 433, 439 (4th Cir.

2003). Section 2254 relief may only be awarded if the state

court’s adjudication of the claim “(1) resulted in a decision

that was contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the

Supreme Court,” 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.” § 2254(d).

III.

The theory underlying the Ineffective Assistance Claim is

simple: Under the circumstances, Cousins’s lawyer should have

conducted thorough interviews with persons who lived near the

scene of Moeller’s murder, and, had the lawyer done so, the

investigation would have revealed, through Ruth Wingate, that

William Smoot was present at the murder scene when the fatal

shots were fired. Moreover, having identified Smoot and secured

his trial testimony, the defense theory that it was Ebony

Coleman who had murdered Moeller would have been bolstered to

the point that Cousins would not have been convicted.

A.

As the state habeas court correctly recognized, the

Ineffective Assistance Claim is governed by the Supreme Court’s

seminal decision in Strickland v. Washington, 466 U.S. 668

10
(1984). The Strickland decision explained that a state prisoner

alleging constitutionally ineffective assistance must show (1)

deficient performance, i.e., “that counsel’s representation fell

below an objective standard of reasonableness,” 466 U.S. at 688,

plus (2) resulting prejudice, i.e., “that there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different,” id. at 694.

These two requirements — deficient performance plus prejudice —

are commonly referred to as Strickland’s “performance” and

“prejudice” prongs.

Although an ineffective assistance claim must satisfy both

of the Strickland prongs, the Supreme Court has recommended

that, when possible, the prejudice prong should be first

addressed. Indeed, Strickland itself explained that there is no

need “to address both components of the inquiry if the defendant

makes an insufficient showing on one.” 466 U.S. at 697. As

Justice O’Connor recognized,

a court need not determine whether counsel’s
performance was deficient before examining the
prejudice suffered by the defendant as a result of the
alleged deficiencies. The object of an
ineffectiveness claim is not to grade counsel’s
performance. If it is easier to dispose of an
ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be
so, that course should be followed.

Id. Here, the state habeas court disposed of the Ineffective

Assistance Claim in the procedural manner recommended by the

11
Strickland decision, first addressing the prejudice prong and

concluding that Cousins was unable to show prejudice. The state

habeas court then declined to assess the performance prong at

all. Accordingly, we begin our review of the Claim by assessing

Cousins’s contention on the prejudice prong of Strickland.

B.

In order to properly analyze the prejudice prong of an

ineffective assistance claim (without first assessing the

performance prong), a court must assume that the lawyer

performed deficiently. Next, the court must simply determine

whether the lawyer’s assumed deficiency had the potential of

influencing the outcome of the proceedings. Often, a habeas

petitioner alleges that his lawyer’s deficiency involved a

failure to introduce a critical piece of evidence, or a failure

to adduce critical testimony. In such a circumstance, the

prejudice analysis necessitates an assessment of the effect, if

any, the unintroduced evidence might have had on the verdict, in

light of the evidence actually presented. See, e.g., United

States v. Roane, 378 F.3d 382, 409 n.15 (4th Cir. 2004)

(examining credibility and weight of evidence to determine

whether failure to call potential witness affected outcome of

trial); Fisher v. Lee, 215 F.3d 438, 451 (4th Cir. 2000)

(assessing likely effect of testimony from potential witnesses

in light of other evidence).

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 Here, by contrast, the state habeas court never reached the

issue of how Smoot’s evidence would have been perceived by the

jury, because the State Opinion concluded that his testimony

would not have been available at trial even if Cousins’s lawyer

had conducted the comprehensive neighborhood investigation now

being suggested. Accordingly, we need only examine the factual

basis for that conclusion. And, if it is a well-founded

conclusion, Cousins is not entitled to § 2254 relief and our

review ends.

Of course, in conducting our assessment of the Ineffective

Assistance Claim, we presume that the state habeas court’s

factual findings are correct, and we accord them great

deference. Indeed, to prevail on his Claim, Cousins is obliged

to “rebut[] the presumption of correctness by clear and

convincing evidence,” § 2254(e)(1), and then show that the state

court’s ruling “was based on an unreasonable determination of

the facts in light of the evidence presented” during the state

proceedings, § 2254(d)(2). See Winston v. Kelly, 592 F.3d 535,

555 (4th Cir. 2010) (“If a petitioner succeeds under

§ 2254(e)(1), he has merely proven that the state court finding

was incorrect. To satisfy § 2254(d)(2), the petitioner must

prove that the state court was not only incorrect, but

objectively unreasonable.”).

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 C.

Unfortunately for Cousins, the state habeas court provided

an unassailable factual basis for its ruling that Cousins had

failed to show prejudice: that “there was no way for trial

counsel to have discovered [Smoot] even after doing a reasonable

investigation,” and further, that “[t]here was no way that trial

counsel could have independently known of Mr. Smoot because he

never came forward to the police nor did he tell anyone else

what he had witnessed.” State Opinion 4. Consistent with those

findings, Smoot testified in the state court’s evidentiary

hearing that, despite claiming to have been an eyewitness to the

Moeller shooting, he had never provided his story to the

authorities. In fact, until much later, Smoot did not advise

anyone about the events that he had witnessed. Immediately

after witnessing the Moeller murder, according to Smoot, he got

into his vehicle and fled the scene.

As a result, the Ineffective Assistance Claim rests on a

tenuous theory: that a thorough investigation in the

neighborhood of the murder scene would have uncovered Wingate,

who in turn would have identified her friend Smoot as an

exculpatory witness. The viability of this theory hinges on

whether the state court record supports the proposition that

Wingate knew that Smoot was outside her door when Moeller was

14
shot, and that she would have advised Cousins’s lawyer of that

fact.

Importantly, Wingate has never testified in any of these

proceedings — either in Cousins’s trial or during the state

habeas court’s evidentiary hearing. Accordingly, there is

nothing in the record from Wingate concerning her knowledge of

Smoot’s whereabouts at the time of the Moeller murder. Rather,

we have only Smoot’s testimony concerning his belief of what

Wingate knew, or what she ought to have known. In the state

court’s evidentiary hearing, Smoot initially testified that it

was his “understanding” that Wingate knew he was outside her

door when Moeller was shot. J.A. 1017. On cross-examination,

however, he confirmed that “when the shooting occurred Ms.

Wingate didn’t know that [he was] outside.” Id. at 1019.

Pressed further on the point, Smoot equivocated, asserting only

that Wingate “should have known” he was outside her door because

he was on his way to her house. Id. at 1021. Smoot eventually

said that Wingate only “later” found out that he had been

outside her door when Moeller was shot, and yet failed to ever

specify when or how Wingate had acquired such knowledge. Id.

As a result, Smoot’s evidence is far from compelling and, absent

15
a more concrete showing of Wingate’s knowledge, the state habeas

court was presented with speculation only. 5

In these circumstances, we are unable to disturb the state

habeas court’s factual finding that a reasonable investigation

would not have revealed Smoot’s purported eyewitness testimony.

Thus, we are also unable to disagree with the legal conclusion

to which that finding gives rise: even if Cousins’s lawyer

performed deficiently, his performance did not prejudice the

outcome of the trial. 6 Accordingly, the Ineffective Assistance

Claim was properly rejected by the district court, and we must

affirm.

5
Notably, Smoot testified that he eventually had a
conversation with Wingate about the Moeller shooting, during
which Smoot failed to inform Wingate that he had seen the
shooting occur. See J.A. 1019. If this evidence is accurate,
Wingate would have had no reason to suggest Smoot as an
eyewitness to Moeller’s shooting, even if she had been
questioned by Cousins’s lawyer.
6
In concluding that Cousins failed to make a showing of
prejudice sufficient to satisfy Strickland, the state habeas
court also found — as an alternative basis for its rejection of
the Ineffective Assistance Claim — that even if Smoot had been
discovered prior to trial, he “would not have come to court” and
“would not have testified truthfully.” State Opinion 4.
Because the state habeas court’s finding that the lawyer could
not have discovered Smoot was a sufficient basis for its
prejudice ruling, we need not address the court’s alternative
basis for that determination.

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 IV.

Pursuant to the foregoing, we affirm the district court’s

denial of Cousins’s petition for § 2254 habeas corpus relief.

AFFIRMED

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