UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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The unpublished Federal Opinion is found at J.A. 1113-29.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.
* * *
6
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.
9
§ 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).
12
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.”).
13
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.
16
IV.
Pursuant to the foregoing, we affirm the district court’s
denial of Cousins’s petition for § 2254 habeas corpus relief.
AFFIRMED
17