Revised March 25, 2002
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 00-21009
ALONZO EVANS,
Petitioner-Appellee,
VERSUS
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
March 8, 2002
Before DeMOSS, GARWOOD, and DENNIS, Circuit Judges.
DeMOSS, Circuit Judge:
Petitioner-Appellee, Alonzo Evans (Evans), is serving a 30-
year prison sentence following his conviction in state court for
aggravated robbery, which was enhanced by two prior convictions.
Evans filed a habeas corpus petition under the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254, in
which he claimed his trial counsel was ineffective. The
Respondent-Appellant, Gary L. Johnson, Director of the Texas
Department of Criminal Justice, Institutional Division, moved for
summary judgment on behalf of the State of Texas (State). The
district court denied respondent’s motion for summary judgment and
granted Evans' habeas corpus petition. Respondent appeals the
district court's ruling. The district court's judgment is reversed
and rendered.
I. BACKGROUND
On March 15, 1996, Rolly Itoge (Itoge) and a female friend
were approaching the door to his upstairs apartment around
midnight, when Evans put a gun to the left side of Itoge's head and
demanded his money. Itoge told Evans that he was not going to give
him any money, so Evans shot him in the back. While fighting back,
Itoge was shot once more. After a struggle, Evans decided to give
up and runway.
Wallace McNary (McNary), Itoge's neighbor, heard the gunshots
and looked through the peephole of his apartment door. McNary
called the police and waited with Itoge until the police and an
ambulance arrived. Itoge described his attacker as tall, fair-
complected and wearing a colored, striped shirt. Itoge also said
his attacker had an eye patch over one eye, and that Itoge had
pulled the patch off during the struggle. McNary also described
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Evans to police and later identified him when the police brought
him back to the scene.
Evans was discovered by police walking in a nearby field
shortly after the shooting. According to police, Evans attempted
to avoid detection and did not stop until the officers actually
drew their weapons. He had taken off his shirt, which had blood on
it, and tucked it into his pants. Evans was sweating heavily and
had fresh scratch marks on his face and neck. In addition, he had
an eye patch with a broken strap in his pants pocket.
Evans was found guilty of the crime of aggravated robbery with
a deadly weapon by a jury of his peers in the 263rd District Court
of Harris County, Texas. On March 26, 1997, the trial judge
sentenced Evans to a 30-year term of imprisonment in the Texas
Department of Criminal Justice, Institutional Division. Evans
filed a direct appeal in the Court of Appeals for the Fourteenth
District of Texas at Houston, claiming that the evidence was
insufficient to support a conviction for aggravated robbery, and
that the trial judge made impermissible comments during voir dire
that were so prejudicial that they undermined the fairness of the
trial. The transcript reflects that the trial judge made the
following remarks to the venire during the voir dire:
My attitude basically is jury service is not
so much volunteer work as it is a duty. You know
as citizens of this State, there's no longer a
draft for the United States.
There's really not a lot required of you
besides all of us to pay our taxes. This is one of
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the few duties requested and demanded to make sure
we all have a safe society.
If you go back to work in the next couple of
days–where were you yesterday?
Well, I had jury service.
Oh, I throw that stuff in the trash.
Well, besides the fact we're now having to
arrest about 10 percent of the panels that don't
show up. I'd say about 60 percent don't show up.
And they laugh at you and say: Oh, I don't
ever do that.
My attitude is you get what you put into it.
If you're not willing to come down and serve this
afternoon, you're going down to the local grocery
store.
Between the time you get to the store from the
car, somebody bops you on the head, takes your
purse or wallet, frankly, I don't think you have
much of a complaint.
I think if you're not willing to serve, you
ought to not have the right of too much to
complain. It also lets the other person do this.
I've got something better to do. And if everyone
felt that way, believe me I've seen hundreds of
excuses.
I go to the jury assembly room once a year.
We rotate in there once a year. I hear every
excuse in the book why I have something better to
do than serve on the jury.
Even in the courtroom I hear a hundred
different reasons why they cannot serve on the
jury.
Lot of those reasons are valid. Some of those
you question. Frankly, for everyone exercising an
excuse, no one would go to trial.
Can you imagine what it would be like to walk
around your street and everyone charged with a
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crime was out on bond? They were arrested 5 years
ago but never gone to trial because there are no
juries.
You've done a valuable service being down
here. We'll pass out your work excuses in a few
moments to excuse you for work today.
If you are picked for the jury, we'll give you
work excuses at the end for those of you selected.
The Court of Appeals for the Fourteenth District of Texas
affirmed Evans' conviction and sentence on May 20, 1999. The court
of appeals held that Evans failed to make a timely and specific
objection at the time the comments were made and, therefore, the
issues raised were procedurally barred by Texas' contemporaneous
objection rule. TEX. R. APP. P. 33.1. Evans did not file a
petition for discretionary review with the Texas Court of Criminal
Appeals.
On October 29, 1999, Evans filed a state application for writ
of habeas corpus. In his application, Evans argued that his trial
counsel was ineffective because he failed to object to the trial
judge's improper comments, failed to secure testimony of an
eyewitness, and failed to request an expert witness and analysis of
blood found at the crime scene and on Evans' shirt. The Court of
Criminal Appeals denied Evans' application without written order on
January 12, 2000.
Evans then filed a timely federal petition for writ of habeas
corpus under 28 U.S.C. § 2254 on February 4, 2000. In his
petition, Evans asserted the same issues that he had in his state
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habeas corpus application. The State moved for summary judgment,
which was denied. Instead, the district court conditionally
granted Evans' federal application for writ of habeas corpus. In
addressing Evans' petition, the district court presented its
assertions as follows: “(1) the trial judge's comments made to the
venire during voir dire denied [Evans] his Sixth and Fourteenth
Amendment rights to a fair and impartial trial; and (2) he was
provided with ineffective assistance of counsel in violation of the
Sixth and Fourteenth Amendments.” Thus, the district court, sua
sponte, raised the claim that the trial judge's comments during
voir dire violated Evan's Sixth and Fourteenth Amendment rights to
due process. The State now appeals the district court's order
granting Evans' petition for a writ of habeas corpus.
II. STANDARD OF REVIEW
This Court reviews the district court's findings of fact for
clear error, but decides issues of law de novo. Clark v. Scott, 70
F.3d 386, 388 (5th Cir. 1995). Notably, the petition for habeas
relief before this Court is governed by the heightened standard of
review provided by AEDPA. AEDPA applies to this action because the
petition was filed after the effective date of the act, which was
April 24, 1996. AEDPA embodies the principles of federalism,
comity, and finality of judgments. Montoya v. Johnson, 226 F.3d
399, 404 (5th Cir. 2000), cert. denied, 121 S. Ct. 2220 (2001). As
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a result, “AEDPA substantially restricts the scope of federal
review of state criminal court proceedings.” Id. Furthermore,
AEDPA instructs:
An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted with
respect to any claim that was adjudicated on the
merits in State court proceedings unless the
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 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). Therefore, neither the district court nor
this Court may grant a writ of habeas corpus based solely on a
finding of error by a state court. Rather, a writ may be granted
only if a state court “arrives at a conclusion opposite to that
reached by [the Supreme Court] on a question of law or if the state
court decides a case differently than [the Supreme Court] has on a
set of materially indistinguishable facts.” Williams v. Taylor,
529 U.S. 362, 413 (2000). Without such a direct conflict, a writ
will be granted only if the state court “identifies the correct
governing legal principle from [the Supreme Court's] decisions but
unreasonably applies that principle to the facts of the prisoner's
case.” Id.; Montoya, 226 F.3d at 404.
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III. DISCUSSION
We have before us three issues: (1) whether the district
court improperly raised, sua sponte, the issue that the state trial
judge's comments during voir dire violated Evan's Sixth and
Fourteenth Amendment rights to due process; (2) whether the
district court erred when it granted relief on Evans' claim of
ineffective assistance of counsel, when counsel failed to object to
the state trial judge's comments during voir dire; and (3) whether
the district court erred when it granted relief on Evans' claim
that he was denied effective assistance of counsel, when counsel
failed to perform scientific tests on certain evidence presented at
trial, and to secure the testimony of an alleged eyewitness and an
expert witness.
A. The trial judge's comments during voir dire.
Evans argued in his direct appeal in the Fourteenth Court of
Appeals of Texas that the state trial judge's comments during voir
dire violated his right to a fair trial under the Sixth and
Fourteenth Amendment. When the Fourteenth Court of Appeals
addressed the issue, it concluded that Evans was procedurally
barred from raising the issue because he had failed to make a
contemporaneous objection. When Evans filed his state application
for a writ of habeas corpus, he did not raise the issue again.
However, the district court, sua sponte, raised the claim
after Evans petitioned the court for a federal writ of habeas
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corpus. On this issue, the district court found:
[T]he trial judge's comments crossed the line that
separates a trial judge's role from that of a
prosecutor. The judge injected himself into the
adversarial process by suggesting that the
defendant on trial will be back on the streets
ready to '[bop] you [venire] on the head take [sic]
your purse or wallet' if you do not take this jury
service seriously. Moreover, people whose attitude
is wrong about jury service, gets what they
deserve–people on the streets who have been charged
with crimes but never tried.
The State contends that, because the issue was not raised in Evans'
state application for a writ of habeas corpus, the issue is both
procedurally barred and unexhausted. Therefore, the State argues
that the district court should not have raised the issue, sua
sponte, when addressing Evans' federal petition. For the reasons
stated below, we disagree with the State's argument that the
district court could not raise the issue sua sponte. Nevertheless,
we also disagree with the district court's conclusion that Evans'
Sixth and Fourteenth Amendment rights were violated.
First, it is well established that a claim is exhausted if “it
is clear that [the habeas petitioner's] claims are now procedurally
barred under [state] law.” Gray v. Netherlands, 518 U.S. 152, 161
(1996); Horsley v. Johnson, 197 F.3d 134, 137 (5th Cir. 1999).
Second, we recognize that:
In all cases in which a state prisoner has
defaulted his federal claims in state court
pursuant to an independent and adequate state
procedural rule, federal habeas review of the
claims is barred unless the prisoner can
demonstrate cause for the default and actual
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prejudice as a result of the alleged violation of
federal law, or demonstrate that failure to
consider the claims will result in a fundamental
miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991). Even though the
district court's order did not expressly address the
contemporaneous objection rule, implicit in its order is the cause
and prejudice analysis that is required to overcome the rule. The
district court found that the state trial judge's comments
“threatened” and “poisoned” the trial process. Again,
consideration of the issue as related to the ineffective assistance
of counsel was not improper.
However, we cannot reach the same conclusion as the district
court. We find that the trial judge's comments during voir dire do
not necessitate reversal. We have held:
[O]ur role is to determine whether the judge's
behavior was so prejudicial that it denied the
defendant a fair, as opposed to a perfect, trial.
To rise to the level of a constitutional error,
the...judge's actions, viewed as a whole, must
amount to an intervention that could have led the
jury to a predisposition of guilt by improperly
confusing the functions of judge and prosecutor.
The judge's intervention in the proceedings must be
quantitatively and qualitatively substantial to
meet this test.
United States v. Bermea, 30 F.3d 1539, 1569 (5th Cir. 1994)
(citations omitted). Therefore, our review of this issue must
focus on matters such as the context of the remarks, to whom the
remarks were directed, the number and nature of the remarks, and
the presence of curative instructions. United States v. Munoz, 150
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F.3d 401, 414 (5th Cir. 1998).
The comments at issue in this case were made to members of the
venire. The judge's comments, taken as a whole, make it clear that
his intent was to express his belief that the venire members had a
duty as citizens to serve on a jury, and that they would have no
complaint about being the victim of a violent crime if they avoided
jury service. The comments had nothing to do with the case about
to be tried before those who were chosen to serve as jurors. And,
as the district court noted, “it is unlikely that the jury was
aware of the judge's attitude about the defendant's case, in
particular, and persons charged with crimes, in general. . . .
[T]he trial judge did not mention the petitioner by name or the
specifics of his accused crime.” While the trial judge's comments
were undesirable, we do not believe the trial judge's comments
reached a level of prejudice that would have denied Evans a fair
trial.
B. Ineffective assistance of counsel claims.
To establish constitutionally ineffective assistance of
counsel, the petitioner must demonstrate that counsel's performance
was deficient because it fell below an objective standard of
reasonableness and was prejudicial. Strickland v. Washington, 466
U.S. 668, 687 (1984). Furthermore, in order to show prejudice, a
petitioner must demonstrate that counsel's error was “so serious as
to deprive the defendant of a fair trial, a trial whose result is
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reliable.” Id. In determining the merits of this issue, we “must
indulge a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance.” Id. at 689.
i. Counsel's failure to object to the trial judge's
comments.
The district court granted habeas relief on the claim that
counsel was ineffective for failing to object to the trial judge's
comments to the venire. The district court determined that the
“trial judge's comments were so prejudicial as to chill the
adversarial process, denying the trial counsel a platform from
which an objection could be made that would not further prejudice
the petitioner's trial.” Nevertheless, the court concluded that
because counsel did not object, “counsel's performance was both
deficient and prejudicial.” We disagree with the district court's
conclusion.
In his petition for writ of habeas corpus, Evans simply argued
that counsel's failure to object could not have fallen within the
“wide range of reasonable professional assistance” called for under
Strickland. Evans has not convincingly argued that his counsel's
failure to object to the trial judge's comments directed at the
venire was so prejudicial as to produce a result that was
unreliable. Given that we have found that the trial judge's
comments were not prejudicial enough to rise to the level of a
constitutional violation, it would be futile to conclude that
counsel was ineffective for not objecting to the same comments.
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ii. Counsel's failure to perform scientific tests on certain
evidence presented at trial, and to secure the testimony
of an alleged eyewitness and an expert witness.
Evans, in his habeas petition, asserted that his counsel
contributed to the jury's verdict of guilt because he failed: (1)
to request an analysis of the blood that was on his shirt when he
was arrested; (2) to call an expert witness to testify about the
blood testing; and (3) to call Itoge's female friend as an
eyewitness. First, although Evans did not provide affidavits from
the alleged eyewitness or indicate what testimony the eyewitness
would give, the district court “presume[d] that the testimony would
be favorable to the petitioner.” However, complaints of uncalled
witnesses are not favored in federal habeas corpus review because
allegations of what the witness would have testified are largely
speculative. Sayre v. Anderson, 238 F.3d 631, 635-36 (5th Cir.
2001). The district court engaged in this type of speculation.
Therefore, we cannot conclude that counsel's failure to call the
alleged eyewitness was ineffective assistance. In addition, “for
[Evans] to demonstrate the requisite Strickland prejudice, [he]
must show not only that [the] testimony would have been favorable,
but also that the witness would have testified at trial.”
Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985). Evans
has not done this.
Second, the district court found to be meritorious Evans'
claims that counsel was ineffective for failing to call a
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scientific expert to testify, and for failing to order scientific
testing on Evans' bloody shirt. The district court found that
counsel requested funds for testing but that the tests were not
part of the record. The district court then presumed that the
tests either were not conducted or were not compelling.
Regardless, the district court concluded that counsel was
ineffective.
However, Evans did not present any evidence or allegations
concerning what the expert would have stated, or what results the
scientific tests would have yielded. Again, Evans' unsupported
claims regarding the uncalled expert witness are speculative and
disfavored by this Court as grounds for demonstrating ineffective
assistance of counsel. Sayre, 238 F.3d at 635-36. Furthermore,
Evans must be able to show “a reasonable probability that, but for
counsel's failure to request an expert, the jury would have had a
reasonable doubt concerning his guilt.” Earhart v. Johnson, 132
F.3d 1062, 1068 (5th Cir. 1998). Evans, however, cannot accomplish
this task. There was never any question regarding whose blood was
on Evans' shirt. After being arrested, Evans stated that the blood
on his shirt was his own. At trial, counsel argued that the small
amount of blood on the shirt was Evans', and the State never
contradicted that assertion. Therefore, there would have been
nothing to gain from the testing of the blood or the calling of an
expert witness. Therefore, we cannot conclude that Evans' counsel
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deprived him of a fair trial.
CONCLUSION
For the foregoing reasons, we hold that Evans was not deprived
of effective assistance of counsel. The decision of the district
court granting Evans' § 2254 petition is reversed and rendered.
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