IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-30468
(Summary Calendar)
CLYDE D. RICHARD,
Petitioner-Appellant,
versus
BURL CAIN, Warden, Louisiana State Penitentiary,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Louisiana
(97-CV-784)
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January 17, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant Clyde D. Richard appeals the district
court’s denial of his 28 U.S.C. § 2254 application. That court
granted a certificate of appealability (COA) to Richard on the
issue whether his counsel was ineffective by allegedly failing to
(1) adequately communicate with Richard; (2) provide Richard with
copies of police reports that were in counsel’s possession; (3)
conduct a timely and adequate investigation; and, generally, (4)
present an adequate defense.
*
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that this opinion should not be published and is not precedent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.
Richard argues that the district court erred when it applied
the subjective “unreasonable application” standard enunciated in
Drinkard v. Johnson, 97 F.3d 751, 755 (5th Cir. 1996), which was
invalidated by the Supreme Court in Williams v. Taylor, 529 U.S.
362 (2000). Richard is correct in noting that we have recognized
that Williams requires an objective analysis of whether a state
court decision involves an unreasonable application of clearly
established federal law. See Moore v. Johnson, 225 F.3d 495, 500-
01 n.1 (5th Cir. 2000). He also notes correctly that the district
court’s determination of counsel’s effectiveness should be reviewed
by this court de novo, and that the district court’s factual
findings should be reviewed for clear error. And he is again
correct that the state court’s factual findings should not be
afforded the presumption of correctness under § 2254(e), although
not for the reasons advanced by Richard. We proceed accordingly.
Several of Richard’s claims and the facts supporting them, as
they were developed in his federal habeas proceeding, were not
raised in the state court proceedings, so the state court thus had
no opportunity to address them. Richard only briefly mentioned the
beard issue in the state court, with no supporting facts, and he
did not mention the Owens alibi issue at all. Neither did he
allege that counsel had failed to discuss the case with him
sufficiently nor that counsel had failed to show him the police
reports. Thus, the state court’s adjudication was not “on the
merits” of the claims as they have been presented and developed by
Richard in federal court. Consequently, the standards of § 2254(d)
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do not apply. Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000)
(“section 2254(d) applies only to issues that have been adjudicated
on the merits in state court.”). The district court’s factual
findings are reviewed for clear error, and its legal conclusions
are reviewed de novo. Burdine v. Johnson, 231 F.3d 950, 953 (5th
Cir. 2000)(pre-AEDPA case).
Richard argues that trial counsel was ineffective for failing
to communicate with him adequately. He contends that the district
court’s ruling does not address any part of his claim that counsel
met with him only one time prior to trial. He argues that this
failure to communicate resulted in trial counsel’s formulating a
weak alibi theory that placed Richard at work for the entire day
without ever leaving.
Richard’s position that the district court failed to address
this claim is erroneous. Assuming Richard’s trial testimony to be
true, the district court specifically found that Richard told his
attorney that he was at work at the time immediately preceding the
robbery. “Richard’s attorney apparently accepted his client’s
version of the events on the day in question and the version of
events given by the alibi witnesses. A decision not to investigate
further was reasonable under the circumstances.” The district
court found that trial counsel’s strategic decision to present this
alibi defense was reasonable and that counsel did not perform
unreasonably in failing to anticipate that his client had not been
truthful with him. The district court’s conclusion that counsel
was not ineffective in this respect is based on a finding that
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Richard was not completely truthful with his attorney about
Richard’s activities on the day of the robbery, not that counsel
was ineffective for failing to communicate adequately, hence the
conclusion that “the problem here would seem to be in the facts and
not in the representation.” The district court’s finding, based on
a credibility decision, is not clearly erroneous. See Moran v.
Blackburn, 781 F.2d 444, 445 (5th Cir. 1986) (district court’s
credibility decision after a federal habeas evidentiary hearing is
subject to review under the clearly erroneous standard.).
Richard argues that because of counsel’s failure to show him
the police reports, he was not aware that his facial hair was such
an important issue, and that he did not learn of its importance
until he received a copy of the police reports for the first time
during his post-conviction proceedings while at Angola. Richard
contends that had he known, he may have been able to alert counsel
to the existence of the photograph taken of him with a full beard
13 days after the robbery. Richard attempts to downplay the fact
that he was present in the courtroom when numerous witnesses
testified that he had no beard. He takes issue with the district
court’s finding that the inconsistencies in the various
descriptions of his facial hair seemed insignificant. He argues
that counsel “drummed up” an alibi defense with no investigation of
the identity issue.
The district court found that the inconsistencies in the
various witnesses’ descriptions of the exact amount of facial hair
Richard had seemed generally insignificant. The court stated that
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in the face of an unhesitating identification by the victim, it was
plausible that the attorney could have chosen not to question the
inconsistencies in the descriptions. The district court noted that
the “striking similarity between Richard’s appearance and the
victim’s description [was] demonstrated by the fact that Sparks
teased Richard about the similarity between his appearance and the
description in the newspaper.” The court stated that it was
apparently counsel’s strategy to rely on the alibi corroborated by
Richard’s co-workers.
Richard’s testimony at the evidentiary hearing on whether he
was aware of the importance of the facial hair issue is
contradictory. He alternates between testimony that (1) he did not
realize the importance of the beard issue, and (2) he told counsel
that he had always worn a beard and which witnesses could confirm
that fact. It is also important to note that although Richard
testified that he realized the importance of this issue when he
received copies of the police reports during his post-conviction
proceedings, he mentioned this issue only in passing in his 1992
state post-conviction application, and that it was not until 1996
and 1997 he procured affidavits from the alleged witnesses in
Cleveland who could testify about his beard.
The district court’s finding that the alleged inconsistencies
in the witnesses’ testimonies about the exact amount of Richard’s
facial hair were insignificant is not clearly erroneous. See Jones
v. Cain, 227 F.3d 228, 230-31 and n.9 (5th Cir. 2000) (discrepancy
between description of perpetrator as 5'10" tall and with no scars,
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and defendant’s description of himself as 5'6" with two facial
scars approached inanity). As the district court correctly
concluded, in the face of the testimony by Sparks that he teased
Richard about the striking similarity between Richard’s appearance
and the victim’s description in the newspaper, and the victim’s
unhesitating identification, it was a plausible strategy for trial
counsel to focus on the alibi defense rather than any minor
discrepancies in the description.
Richard further argues that trial counsel failed to conduct an
adequate investigation, urging that a more thorough investigation
would have revealed the fact that Richard stuttered. He contends
that counsel failed to investigate and discover the best available
alibi witness, Lucious Owens. He argues that inadequate
investigation led counsel to use weak and damaging alibi testimony;
that he has always claimed an alibi in Owens; that the district
court ignored Owens’s full testimony; and that its findings are
clearly erroneous.
Assuming Richard’s trial testimony to be true, the district
court noted that Richard told his attorney that he was at work at
the time immediately prior to the robbery. “Richard’s attorney
apparently accepted his client’s version of the events on the day
in question and the version of events given by the alibi witnesses.
A decision not to investigate further was reasonable under the
circumstances.” The district court found that trial counsel’s
strategic decision to present this alibi defense was reasonable,
that counsel did not perform unreasonably in failing to anticipate
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that his client had not been truthful with him, and that there was
no reason to believe that there could be another alibi in Lucious
Owens in light of Richard’s representations. “It would also appear
that the defendant is now trying, years after the fact, to put
together a new alibi which he failed to bring forth initially and
which is contrary to his original statements to counsel and to the
jury.”
Richard never mentioned Owens’s alleged alibi testimony in his
state post-conviction application. By Richard’s own testimony,
Ballard dropped him off at a fish market, then another friend
picked him up and took him to Owens’s house. If Richard was with
Sparks and Ballard at 7:00 p.m., he would have arrived at Owens’s
house significantly later than the time needed to establish an
alibi for the time of the robbery. Owens’s deposition testimony
put Richard at his house between 6:00 and 7:00 p.m., which
contradicts the trial testimony. Owens testified in his deposition
about Richard’s selling him an air tank, a fact that Richard never
testified to at trial. If the jury rejected the alibi testimony of
Sparks and Ballard that Richard was with them at the exact time of
the robbery, why would Owens’s testimony to the effect that Richard
came to his house some time later (assuming that he would have
testified at trial consistently with Richard’s testimony) impress
the jury as being any more believable?
Regarding the stutter defense, counsel testified in his
deposition that he had known Richard for quite some time, knew that
he stuttered a little bit but had never known Richard’s speech to
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be that much of a problem, and knew that Richard had always spoken
straight with him. The best evidence of Richard’s stutter would be
during his own testimony at trial. The jury could determine for
itself if Richard stuttered so badly that the victim should have
mentioned it in her description. Counsel cannot be considered
ineffective for failing to investigate and call witnesses to
testify about the stutter.
Richard further argues that the district court ignored the
fact that counsel committed a very serious error in opening the
door to Richard’s misdemeanor record. Richard is correct that the
district court failed to address the issue of the admission of the
misdemeanor convictions after Johnson opened the door. The
magistrate judge’s second report also fails to address this issue.
Richard never objected to the magistrate judge’s report and in fact
urged the district court to adopt it. Richard’s application for a
certificate of appealability did not request a COA on this issue,
and the district court’s grant of a COA did not include it. Thus,
we do not have jurisdiction to consider this issue for which a COA
was not granted. See Whitehead v. Johnson, 157 F.3d 384, 387-88
(5th Cir. 1998)(lack of a ruling on a COA in the district court on
an issue causes this court to be without jurisdiction to consider
it).
Richard has not demonstrated deficient performance or
prejudice. Strickland v. Washington, 466 U.S. 668, 687-94 (1984).
The two claims to which he attributes the most importance, one
grounded in the question of the beard and the other in Owens’s
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alibi, appear to be defenses of recent fabrication. The district
court’s denial of habeas relief is AFFIRMED.
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