IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-40043
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TONY LEE WALKER,
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 Eastern District of Texas
USDC No. 99-CV-148
_________________________________________________________________
August 7, 2001
Before JOLLY, DAVIS, and STEWART, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:*
Tony Lee Walker was convicted of the capital murder of
Virginia Simmons, an elderly Texas woman. Walker contends that he
is entitled to federal habeas corpus relief because he received
ineffective assistance of counsel at trial. Walker contends that
during closing arguments his attorney (along with the prosecuting
*
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this opinion should not be published and is not precedent except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.
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attorney) made incorrect and misleading statements regarding the
meaning of “reasonable doubt.” In state habeas proceedings, the
Texas Court of Criminal Appeals denied relief because Walker had
failed to show that he was prejudiced by his attorney’s
performance. In federal habeas proceedings, the district court
concluded that the Texas court’s decision was neither contrary to
nor an unreasonable application of federal law as determined by the
United States Supreme Court in Strickland v. Washington, 466 U.S.
668 (1984). We affirm.
I
Bo and Virginia Simmons, an elderly couple, were found dead in
their home in Daingerfield, Texas, in May 1992. Both had been
severely beaten, and Mrs. Simmons had been sexually assaulted.
The police questioned Tony Lee Walker, who had been seen on
the Simmonses’ property the night of the murders. After two hours
of interrogation, Walker confessed that he, acting alone, had raped
Mrs. Simmons and murdered both victims.
In June 1992, a grand jury indicted Walker for the capital
murder of Virginia Simmons in the course of committing or
attempting to commit aggravated sexual assault. In spite of his
earlier confession, Walker pleaded not guilty.
The case went to trial in November 1993. As would be
expected, the State introduced Walker’s confession. The State also
introduced DNA evidence indicating that Virginia Simmons’s blood
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was found on Walker’s clothes and that Walker’s hair and bodily
fluids were found on Virginia Simmons’s body.
Walker took the witness stand and recanted his earlier
confession. He testified that he had consumed large quantities of
alcohol and crack cocaine on the night of the murder and that he
went to the Simmonses’ house with two companions, Curtis Traylor
and Patrick Franklin, who had also been seen in the vicinity of the
Simmonses’ house on the evening of the murder. Walker testified
that he had indeed raped Mrs. Simmons, but Traylor and Franklin had
murdered the couple while he sat in another room of the house.
Walker insisted that he neither participated in the killings nor
had knowledge of his companions’ intent to murder the Simmonses.
The jury convicted Walker of capital murder and, following a
punishment hearing, sentenced him to death. The Texas Court of
Criminal Appeals affirmed Walker’s conviction and sentence in
October 1996. The United States Supreme Court denied Walker’s
petition for a writ of certiorari in October 1997.
Walker then filed an application for a writ of habeas corpus,
which the state trial court recommended be denied. In 1998, the
Texas Court of Criminal Appeals denied relief, even though it
rejected several of the trial court’s findings of fact and
conclusions of law. The state court decided, inter alia, that
Walker’s attorney’s explanation of “reasonable doubt” during
closing arguments did not constitute ineffective assistance of
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counsel.
In 1999, Walker filed a federal habeas petition raising eight
claims for relief. The district court granted summary judgment for
the State and denied Walker’s petition. The district court did,
however, grant a Certificate of Appealability on one ineffective
assistance of counsel claim.
II
The sole issue on appeal is whether Walker received
ineffective assistance of counsel because his trial attorney,
during closing arguments, misstated the law regarding “reasonable
doubt” and further failed to object to a similar misstatement by
the prosecuting attorney.
A
To establish an ineffective assistance of counsel claim,
Walker must show that his counsel’s performance was deficient and
that the deficient performance prejudiced his defense. Strickland
v. Washington, 466 U.S. 668, 687-88 (1984). We will assume (as the
state court did) that Walker’s attorney’s performance in this one
respect fell below an objective standard of reasonableness as
measured by professional norms. We focus, then, on Strickland’s
prejudice prong. To establish prejudice, Walker must show that
there is at least “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” Id. at 694.
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B
Walker’s claim is based on several statements made during
closing arguments in the guilt phase of the trial. The prosecuting
attorney, in the course of explaining the instruction on the lesser
included offense of murder, referred three times to the jury’s
decision as a “group decision.” Walker’s attorney did not object.
Then, Walker’s attorney presented his closing argument to the jury
and said much the same thing: “It’s not if a few of you think you
have a reasonable doubt about that. If as a group you have a
reasonable doubt and you can’t convict on that grounds, you move
down to the next question.”
The Texas Court of Criminal Appeals evidently assumed that the
attorneys’ statements were confusing and that Walker’s attorney’s
performance could be considered “deficient” under the first prong
of Strickland. The state court emphasized, however, that (1)
potential jurors were informed during voir dire about the need for
a unanimous verdict; (2) Walker’s attorney stressed the importance
of “individual decision-making” several times during his closing
argument; and, most importantly, (3) the trial court clearly and
correctly instructed the jury on the issue of reasonable doubt and
the need for a unanimous verdict. In the light of these facts, the
state court concluded that Walker had failed to show how he had
been prejudiced by the attorneys’ misstatements. The state court
decided, in other words, that there was no reasonable probability
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that the result would have been different if Walker’s attorney had
objected to the prosecutor’s misstatements and had more clearly
articulated the law himself.
C
Under the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), Walker is entitled to federal habeas corpus relief only
if the Texas court’s adjudication of his 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 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.
28 U.S.C. § 2254(d)(1) and (2); see also Williams v. Taylor, 529
U.S. 362 (2000).
First, Walker contends that the state court’s factual
determination that “during voir dire, potential jurors were
educated about the necessity of a unanimous verdict” is
unreasonable. Walker admits that the jurors were informed about
the burden of proof (reasonable doubt) and the need for a unanimous
verdict. But Walker points to one juror who said, in response to
a question during voir dire, that a jury is morally permitted to
sentence a defendant to death “if the majority and everybody
decides that fate.” Additionally, Walker has uncovered two
references (one during voir dire and the other in closing argument)
to the jury being a “body” and a “group.” These isolated
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statements fall far short of proving that the state court’s factual
determination -- that potential jurors were informed of the need
for a unanimous verdict -- was unreasonable.
Second, Walker contends that the state court unreasonably
applied the Strickland prejudice prong to the facts of his case.
As noted above, the dispositive question is whether there is a
reasonable probability that Walker would have been acquitted of
capital murder if his attorney’s performance had not been
deficient. Given the informative voir dire instructions, the
attorneys’ comments on the need for a unanimous verdict, and
especially the trial court’s unmistakably clear instructions, we
cannot say that the state court’s determination of fact -- that the
jury was not misled by the attorneys’ inarticulate exposition of
reasonable doubt and lesser-included offenses -- was objectively
unreasonable. Furthermore, viewing the attorneys’ misstatements in
the context of the entire trial, we conclude that the state court
was not objectively unreasonable to conclude that there is no
reasonable probability that Walker’s attorney’s performance
affected the outcome of the trial.
III
Because the decision of the Texas Court of Criminal Appeals
involves neither an unreasonable determination of the facts nor an
unreasonable application of federal law, Walker’s petition for a
writ of habeas corpus has no merit. The judgment of the district
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court is therefore
A F F I R M E D .
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