Pondexter v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
September 16, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
__________________

No. 02-41543

__________________

WILLIE EARL PONDEXTER, JR,
Petitioner-Appellee,

v.

DOUG DRETKE, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellant.

______________________________________________

Appeal from the United States District Court for the
Eastern District of Texas
______________________________________________

Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Petitioner Willie Earl Pondexter, Jr., (Pondexter) was convicted of capital murder in Texas

and sentenced to death. After exhausting his remedies in state court, Pondexter filed a petition for

federal habeas corpus in district court. In an unpublished opinion, the district court granted relief

with respect to the claim that trial counsel rendered ineffective assistance by failing to consult with

and offer the testimony of a pathologist during the guilt-innocence phase of trial. The Director
appeals from this judgment. Concluding that the district court failed to afford proper deference to

the state court's decision, we hold that the state court did not unreasonably apply clearly established

federal law and vacate the judgment of the district court and remand for further proceedings not

inconsistent with this opinion.

I. BACKGROUND1

On the night of October 28, 1993, Ricky Bell, James Bell, Deon Williams, and Pondexter met

at an apartment and discussed robbing "an old lady." Following this discussion, the group walked

to a corner store, and then to Martha Lennox's house where they checked to see what kind of car she

owned. The group then walked to a trailer park, and then to a friend's house. Once there, they met

with James Henderson.2 Pondexter borrowed a car and all five drove to Annona to buy beer and go

to a club. During the drive to and from Annona, the five talked about robbing “the old lady,” and

about “crips and bloods and stuff.” Specifically, they discussed which crip “had the heart” to do what

they were planning to do to “the old lady.” On the way to the victim's house, the group stopped at

a store where they talked about which crip had the heart to knock out a man who happened to be

getting gas. Although Williams and Henderson did get out of the car, no harm was actually done to

the man. The group drove to the victim's house, but parked the car a few blocks away. On their first

attempt to enter the house, they were scared away by the sight of a patrolling police car. Four of the

five ran back to the car, but James Bell ran in another direction and was not seen by the rest of the

1
The facts of the offense are taken in large part verbatim from the opinion of the Texas
Court of Criminal Appeals on Pondexter’s direct appeal. Pondexter v. State, 942 S.W.2d 577,
579-80 (Tex.Crim.App. 1996).
2
Henderson was tried separately prior to Pondexter’s trial and convicted of the capital
murder of Martha Lennox and sentenced to death.

2
group again that night. Pondexter, Henderson, Williams, and Ricky Bell went back to the victim's

house where Pondexter kicked in the front door. All four proceeded up the stairs and into the

bedroom where the victim was sitting on her bed.

Once all four were in the bedroom, Williams took the seven dollars that was in the victim’s

coin purse. Immediately thereafter, Henderson shot the victim in the head and handed the gun to

Pondexter. Pondexter also shot the victim in the head, stating “that’s how you smoke a bitch.” The

four drove to Dallas and were arrested in the victim’s car.

During the guilt-innocence phase of trial, Dr. Guileyardo, the Chief Medical Examiner for

Dallas County, testified that he performed the autopsy on the victim. He testified that she had been

shot twice and that the cause of death was “gunshot wounds to the head.” One bullet entered

“through the [left] side of her skull, it went into her mouth, it went through her tongue, it went down

and struck her jawbone on the right side and shattered that jawbone on the right side and then the

bullet came out beneath her right ear. . . .” Another bullet entered through the forehead and “went

all the way through the brain and came out the back of her head.” Although Dr. Guileyardo could

not determine the order of the gunshots, he concluded that the one that shattered her jawbone was

fired from a closer range than the other shot. He opined that “[b]oth of these [wounds] are killing

wounds. Both could be fatal wounds. Either one of these [wounds] could have killed her.” When

asked whether it could be determined if Martha Lennox was dead at the time either wound was

inflicted, Dr. Guileyardo testified that the gunpowder stippling marks on both gunshot wounds were

red and had the appearance of inflammation, indicating a vital reaction, not a postmortem reaction.

A vital reaction occurs when the skin is injured, and the wound is red because of the blood flowing

through the skin. Dr. Guileyardo further testified that if a dead person’s skin is injured, the wound

3
is “sort of a yellow, dry appearance, because there is no blood flow going through the skin.” Thus,

based on the appearance of the wounds, Dr. Guileyardo believed that the victim was alive at the time

of each gunshot. On cross-examination, Dr. Guileyardo admitted that it was possible to survive the

face wound and that his autopsy report did not report any hemorrhaging from the wound caused by

the bullet that entered her face.

During closing argument at the guilt-innocence phase, Pondexter’s counsel first argued that

Williams, the accomplice who testified that Pondexter fired the second shot into the victim, was not

credible. Instead, counsel argued that Rhoda Briley’s testimony that Pondexter participated in the

burglary/robbery but did not shoot the victim was more credible. Counsel argued that Williams was

biased because he was a convicted felon who had participated in this crime and received a deal for

his testimony. Unlike Williams, Briley was not charged with the instant crime. In the alternative,

defense counsel argued that if the jury believed Williams’s testimony, the jury should find that the

victim had instantly died from the first shot and thus Pondexter’s shot did not kill her, absolving him

of any responsibility for her death.3

The jury found Pondexter guilty of capital murder. Tex. Penal Code § 19.03. After the

punishment phase of the trial, the jury affirmatively answered the special issues set forth in Article

37.071(b) of the Texas Code of Criminal Procedure, and the trial court sentenced Pondexter to death.

The Texas Court of Criminal Appeals affirmed the conviction and sentence. Pondexter v. State, 942

S.W.2d 577 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 825, 118 S.Ct. 85 (1997).

Pondexter filed a state habeas petition challenging his conviction and death sentence. After

3
Inexplicably, the jury was not instructed with respect to the Texas law of parties,
although, it appears such an instruction would have been available to the State.

4
conducting an evidentiary hearing, the state trial court entered findings of fact and conclusions of law

recommending that relief be denied. The Court of Criminal Appeals adopted the findings of fact and

conclusions of law and denied relief. Ex parte Pondexter, No. 39,706-01 (Tex.Crim.App. Jan. 27,

1999). Thereafter, Pondexter filed the instant federal habeas petition raising twenty claims. The

district court granted relief concluding t hat trial counsel’s failure to consult with and offer the

testimony of a pathologist deprived Pondexter of the effective assistance of counsel.4 The Director

now appeals.

II. STANDARD OF REVIEW

Pursuant to the federal habeas statute, as amended by the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d), we defer to a state court’s adjudication of a

petitioner’s claims on the merits unless the state court’s decision was: (1) “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.” A state court’s decision

is deemed contrary to clearly established federal law if it reaches a legal conclusion in direct conflict

with a prior decision of the Supreme Court or if it reaches a different conclusion than the Supreme

Court based on materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495,

1519-20 (2000). A state court’s decision constitutes an unreasonable application of clearly

established federal law if it is objectively unreasonable. Id. at 1521. Addit ionally, pursuant to

section 2254(e)(1), state court findings of fact are presumed to be correct, and the petitioner has the

4
Because the District Court granted habeas relief on Pondexter’s first claim, it did not
address Pondexter’s remaining claims and dismissed them as moot.

5
burden of rebutting the presumption of correctness by clear and convincing evidence. See Valdez v.

Cockrell, 274 F.3d 941, 947 (5th Cir. 2001).

III. EFFECTIVE ASSISTANCE OF COUNSEL

The only issue before us is whether the district court erred in granting federal habeas relief

based upon Pondexter’s claim of ineffective assistance of counsel. The Supreme Court has recently

reaffirmed the familiar two-prong test for ineffective assistance of counsel:

First, the defendant must show that counsel’s performance was deficient. This requires
showing that counsel made errors so serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that
the deficient performance prejudiced the defense. This requires showing that counsel’s errors
were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

(Terry ) Williams v. Taylor, 120 S.Ct. 1495, 1511 (2000) (quoting Strickland v. Washington, 466

U.S. 668, 687, 104 S.Ct. 2052 (1984)). To demonstrate that counsel was ineffective, a petitioner

must establish that counsel’s representation fell below an objective standard of reasonableness. See

id. To show prejudice, he must show that there is a reasonable probability that, but for co unsel’s

error, the result of the proceeding would have been different. See id. at 1511-12.

Here, the district court held that trial counsel rendered ineffective assistance based upon the

failure to call a pathologist to testify during the guilt-innocence phase of trial in support of

Pondexter’s alternative defensive theory.5 Pondexter’s alternative theory of defense at trial was that,

because the first gunshot fired by codefendant James Henderson into the victim’s brain would have

instantly killed her, the shot he fired seconds later into her face was not culpably lethal.6 More

5
Pondexter’s primary defensive theory was that although he participated in the
burglary/robbery, he did not shoot Martha Lennox.
6
On appeal before us, Pondexter argues that the record does not establish the amount of
time that elapsed between the two gunshots. It could have been minutes, according to Pondexter.

6
specifically, Pondexter now argues that the district court properly granted habeas relief based on his

claim that had counsel called a pathologist to testify that the victim was dead at the time he shot her,

there is a reasonable probability that the jury would not have found him guilty of killing the victim.

In support of his theory, he relies upon the testimony of Dr. Stephen Bolesta, a pathologist he called

to testify as an expert witness at the state habeas evidentiary hearing.

The Director contends that the district court’s judgment does not accord the state court’s

decision the substantial deference mandated by AEDPA. The Director argues that the district

court erred in rejecting the state court’s credibility determinations and substituting its own views of

the credibility of witnesses, i.e., the two pathologists, Dr. Guileyardo, the pathologist who performed

the autopsy on the victim and t estified at trial, and Dr. Bolesta, the pathologist who testified as

Pondexter’s expert witness during the state habeas evidentiary hearing. Thus, the Director asserts

the district court erred in concluding that trial counsel performed deficiently and that such deficient

performance resulted in the required prejudice.

We agree that the district court failed to afford the factual findings of the state court proper

deference. Because we conclude that Pondexter failed to show he was prejudiced by counsel’s failure

to call a pathologist, we do not address the deficiency prong of Strickland. Assuming arguendo that

the state court’s conclusion is erroneous, we are convinced that the district court erred in finding

unreasonable the state court’s conclusion that counsel did not render ineffective assistance with

respect to this particular claim.

Although in his trial testimony Williams does not estimate the time that elapsed between shots, the
description he provided of the murder indicates that Pondexter fired within seconds of Henderson.
There is no basis to infer that minutes elapsed between the shots. Moreover, the district court
stated in its opinion that it was undisputed that the shot to the face was within a few seconds of
the shot to the brain.

7
 We begin by explaining that Pondexter’s claim of ineffective assistance of counsel involves

only the alternative theory of defense, not the primary defensive theory.7 Pondexter’s primary

defensive theory was that although he participated in the burglary/robbery and was present during the

murder, he did not shoot the victim. Instead, his codefendant James Henderson fired both shots.

Thus, he argued that the jury should not finding him guilty of murder, only of the lesser offense.

Although codefendant Deon Williams testified that Pondexter fired the second shot, there was

evidence to support Pondexter’s primary defensive theory that Henderson fired both shots into the

victim. Rhoda Briley, Pondexter’s girlfriend at the time of the offense, testified that after the murder

Pondexter admitted to her that he had stolen from the victim but he did not shoot the victim. Indeed,

defense counsel argued to the jury t hat “by far and away the more credible story . . . was told by

Rhoda Briley that [Pondexter] didn’t shoot anyone.” The undisputed evidence was that Pondexter

handed the murder weapon to James Henderson as they entered the victim’s home (prior to the first

shot), and the weapon was seized by the police from Henderson when he was arrested the next

morning in Dallas, giving counsel a basis for arguing that Henderson, not Pondexter, possessed the

weapon for the entire relevant time period. Additionally, during closing argument, defense counsel

emphasized to the jury that Pondexter’s fingerprints were not found on the murder weapon.

We now turn to the district court’s opinion. The district court concluded its analysis by

opining that: “Dr. Bolesta was a qualified expert, and his opinion that Ms. Lennox died

instantaneously from the wound through her brain appears just as plausible on its face as Dr.

7
Contrary to Pondexter’s argument, counsel did not build his “entire case around” the
alternative defensive theory that the victim was deceased when he fired the shot. As set forth in
the text of the opinion, the instant claim of ineffective assistance of counsel does not involve his
primary defense theory that he fired no shots.

8
Guileyardo’s opinion that the brain wound, while fatal, was not instantaneously so.”8 The district

court then opined that the state court correctly denied Pondexter’s actual innocence claim, but “did

not directly address the issue of the relative plausibility of the contrary expert opinions.” The district

court further opined that the state court did not issue any findings of fact that “establish that one

expert’s opinion was more or less plausible than the other’s. Accordingly, the Court concludes that

it was unreasonable for the State court to find that there was not a reasonable probability that at least

one juror would have voted ‘not guilty’ had Dr. Bolesta testified.”

In other words, the district court’s opinion is based upon the following analysis: the state

court’s failure to make certain, explicit findings of fact rendered unreasonable the state court’s

conclusion that Pondexter had failed to demonstrate that, had counsel presented Dr. Bolesta’s

testimony during trial, there is a reasonable probability of a different outcome. As set forth below,

we believe that the state court’s factual findings with respect to the experts’ opinions are sufficient

to sustain the state court’s conclusion. Here, the bottom line is that the state court’s denial of relief

indicated that presentation of Dr. Bolesta’s testimony would not have resulted in a reasonable

probability of a different outcome. Even assuming that the state court failed to express certain factual

findings that necessarily underlie its conclusion that Pondexter failed to demonstrate prejudice, a

presumption of correctness would apply “to those unarticulated findings which are necessary to the

state court’s conclusions of mixed law and fact.” Valdez, 274 F.3d at 948 n. 11. Addit ionally,

although the district court initially set forth the correct prejudice query, the district court also stated

that to demonstrate Strickland prejudice, Pondexter “only [has] to establish that Dr. Bolesta’s and

8
Clearly, in light of state court findings of fact which are set forth below, this
“plausibility” finding was not within the district court’s province to make, even prior to AEDPA.

9
Dr. Guileyardo’s opinions about the cause of Ms. Lennox’s death were more or less equally

plausible.” Of course, to satisfy the prejudice prong Pondexter had to demonstrate that, had counsel

presented Dr. Bolesta’s testimony during trial, there is a reasonable probability of a different outcome.

We have explained that a reasonable probability “means a probability sufficient to undermine

confidence in the outcome.” Neal, 286 F.3d at 241. Assuming arguendo the district court’s

interpretation or phrasing of the Strickland prejudice standard is correct, we are convinced that the

district court failed to properly defer to the state court’s findings of fact in making its prejudice

determination.

As this Court has explained, “[i]t seems clear to us that a federal habeas court is authorized

by Section 2254(d) to review only a state court's ‘decision,’ and not the written opinion explaining

that decision.” Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc). “[W]e conclude that

our focus on the ‘unreasonable application’ test under Section 2254(d) should be on the ultimate legal

conclusion that the state court reached and not on whether the state court considered and discussed

every angle of the evidence. The latter approach appears unduly formalistic considering that the

federal habeas court has the full record before it and is competent to determine whether Strickland

has been unreasonably applied to the case before it.” Id.

Here, as in Neal, “[t]he precise question, then, is whether the [state] court's ultimate

conclusion--that there was no prejudice and, consequently, no ineffective assistance of counsel under

the Strickland test--is objectively unreasonable.” Neal v. Puckett, 286 F.3d at 246. “The statute

compels federal courts to review for reasonableness the state court's ultimate decision, not every jot

of its reasoning.” Santellan v. Cockrell, 271 F.3d 190, 193 (5th Cir. 2001).

As set forth previously, pursuant to section 2254(e)(1), state court findings of fact are

10
presumed to be correct, and the petitioner has the burden of rebutting the presumption of correctness

by clear and convincing evidence. See Valdez, 274 F.3d at 947. The district court expressly

recognized this standard of review.9 However, as discussed below, the district court’s parsing of the

state habeas court’s findings does not conform to the spirit or the letter of AEDPA’s deferential

standards.

The state habeas court expressly made a factual finding that Pondexter’s expert witness, Dr.

Bolesta, was less credible than the state’s medical examiner who testified at trial, Dr. Guileyardo.

State court finding of fact number 18 provides as follows: “Based on [Dr.] Bolesta’s affidavit and

in-court testimony, the court finds that the testimony of Dr. E. Stephen Bolesta is less credible than

the in-court testimony of Dr. Guileyardo.” (emphasis added). The district court expressly recognized

that this finding is a credibility determination. Nonetheless, the district court, assuming arguendo

that the credibility determination was fairly supported by the record, opined that the finding “does not

9
After setting forth this standard of review, the district court, citing Marshall v.
Lonberger, 459 U.S. 422, 432 (1983), stated that “[f]acts are rebutted by clear and convincing
evidence if they lack even fair support in the record.” Op. at 14. Lonberger addressed an
exception to the presumption of correctness afforded state factual findings in the pre-AEDPA
federal habeas statute, 28 U.S.C. § 2254(d)(8). Pursuant to then-effective § 2254(d)(8), an
exception to the presumption of correctness existed when a state court’s factual determination
was not fairly supported by the record. This Court has indicated that AEDPA requires
“increased deference to state court factfindings.” Graham v. Johnson, 168 F.3d 762, 784 n. 16
(5th Cir. 1999); accord Gachot v. Stalder, 298 F.3d 414, 418 (5th Cir. 2002) (“AEDPA only
strengthens the stricture imposing a strong requirement of deference for a state court's findings of
fact.”). Likewise, the Eleventh Circuit has noted that, after AEDPA, the federal habeas statute
“not only retains the presumption of correctness but also adds that the petitioner has ‘the burden
of rebutting the presumption of correctness by clear and convincing evidence.’” Fugate v. Head,
261 F.3d 1206, 1215 n. 11 (11th Cir. 2001) (quoting § 2254(e)(1)). In sum, it is not clear to us
that simply determining whether the state court’s finding is fairly supported by the record is
sufficient to overcome the presumption of correctness afforded by AEDPA. Nonetheless, because
we are persuaded that the district court erred in not affording proper deference to the factual
findings under either formulation, we need not determine whether the district court’s formulation
was a proper interpretation of AEDPA.

11
by itself establish that Dr. Bolesta’s and Dr. Guileyardo’s opinions as to the cause of Ms. L ennox’s

death are more or less equally plausible.” Op. at 30 (emphasis added). The district court clearly did

not perceive the words “plausible” and “credible” to be synonyms. However, in the context of

determining whether a state court’s finding should be presumed correct under AEDPA, this Court

apparently used the terms plausible and credible as synonyms. See Ladd v. Cockrell, 311 F.3d 349,

356 (5th Cir. 2002). Also, Merriam-Webster’s online thesaurus lists the words credible and plausible

as synonyms.10 In any event, although we recognize that the two words do not have identical

definitions, in light of the deference to be afforded the state court’s finding with respect to the

credibility of the expert witnesses and the lack of evidence to rebut the instant finding, we do not

believe the district court afforded proper weight to it in making the prejudice determination.11

State court finding of fact number 20 provides that:

Even assuming Dr. Bolesta’s hypothesis as to the order (and persons who fired) the shots is
correct, Dr. Bolesta admitted that the victim “could have” or “might have” been alive at the
time the seco nd shot was fired. Dr. Bolesta agreed that the victim’s heart could have still
been beating when the second shot was fired and that no doctor would have declared her dead
when her heart was still beating.

The district court recognized that this finding “is fairly supported by the record” but opined that it

10
http://www.m-w.com
11
In his brief, the Director admits that the state court was not necessarily responsible for
resolving the dispute between the experts. As this Court has explained, in addressing the
prejudice prong of a claim of ineffective assistance based on counsel’s failure to present expert
testimony at trial, it is the court’s task “to see what evidence might have been adduced and to
gauge any prejudice resulting from trial counsel’s failure to present it. [Nonetheless,] [t]he
rejection of the evidence is relevant because it casts doubt on its persuasiveness and hence its
force before the jury.” Belyeu v. Scott, 67 F.3d 535, 542 (5th Cir. 1995). In Belyeu, we were
referring to the task of the federal district court. Here, we are addressing the task of the state
habeas court. Nevertheless, because both courts are conducting the same analysis, the reasoning
in Belyeu appears applicable to the instant case.

12
only demonstrated that Dr. Bolesta did not find Dr. Guileyardo’s testimony “implausible.” According

to the district court, this finding did “not establish Dr. Guileyardo’s and Dr. Bolesta’s opinions as to

the cause of Ms. Lennox’s death are not more or less equally plausible.” Although the district court

did not accord much, if any, weight to this finding, Dr. Bolesta’s admission that it is possible that the

victim was alive at the time of Pondexter’s shot certainly has relevance to the prejudice inquiry in that

it weighs in favor of finding no prejudice.

State court finding of fact number 21 provides as follows:

[T]he court finds that Dr. Bolesta’s definition of the “peri-mortem” state, and [his testimony]
as to the presence or absence of red “stippling” or powder tattooing, still does not prove that
the victim was dead at the time of the second shot. The court believes that Dr. Guileyardo’s
explanation, based upon studies conducted by Dr. Vincent DeMaio, that powder tattooing
is an antemort em (prior to death) phenomenon, is correct. Dr. Bolesta cited no study or
authoritative treatise, other than his own theory that red stipple marks could be caused by
powder residue striking the skin of a dead person.

With respect to this State court finding, the district court acknowledged that the fact that Dr.

Guileyardo’s premise, unlike Dr. Bolesta’s premise, was supported by a treatise “is a valid grounds

[sic] for finding Dr. Guileyardo’s opinion as to the cause of Ms. Lennox’s death more credible than

Dr. Bo lesta’s opinion.” The district court further stated that all of finding of fact number 21 was

supported by the record except the statement that Dr. Bolesta cited no study or authoritative treatise

other than his own theory with respect to the red stipple marks. The district court believed that Dr.

Bolesta’s testimony that another pathologist, Dr. Charles Hirsch, “was of the same line” as his

opinion qualified as other scientific authority. Op. at 34. We are not of the view that Dr. Bolesta’s

hearsay testimony regarding another pathologist’s opinion rebutted with clear and convincing

evidence the state court’s finding that Bolesta cited no study or authoritative treatise in support of

his own theory.

13
 State court finding of fact number 22 reads as follows:

The court further finds that Dr. Guileyardo’s explanation as to the absence of blood in the
victim’s lungs due to the swelling of the victim’s tongue, the swelling of the victim’s mouth
and the loss of control of the victim’s mandible caused by its fragmentation, is persuasive
evidence that the second shot (assuming that the second shot which struck the victim was
through the jaw and tongue) contributed to the death of the victim. The court believes that
the shot to the jaw virtually eliminated any chance of survival that the victim might have had.

The district court found that the last sentence was not “fairly supported” by the record

because “[b]oth Dr. Guileyardo and Dr. Bolesta testified that Ms. Lennox had absolutely no chance

whatsoever of surviving the brain wound.” After reading the record, it is unclear whether Dr.

Guileyardo unequivocally testified that the victim had no chance of surviving the brain wound. Dr.

Guileyardo did testify at trial that the brain wound “is usually a fatal wound, but we don’t know when

it’s going to be fatal.” (emphasis added). Dr. Guileyardo further testified that it can be fatal “almost

instantaneously” or “on the other hand, we see people who survive days with this type of wound.”

Indeed, when defense counsel specifically asked Dr. Guileyardo whether he had any doubt that the

brain wound would have caused the victim’s death, Dr. Guileyardo did not answer that question but

responded that both wounds had the potential to kill a person. Similarly, at the state evidentiary

hearing, Dr. Guileyardo testified that “I think it took both [wounds] in this particular case for her to

die right at that time.” Even assuming arguendo that the district court’s interpretation of Dr.

Guileyardo’s testimony–the victim had no chance of surviving the brain wound–is correct, we do not

believe that is particularly relevant. Here, the material question is not whether Martha Lennox would

have ultimately survived the brain wound but whether she survived long enough after the first gunshot

for the second shot to contribute to her death. The thrust of the above state court finding is that the

wound to the face contributed to the victim’s death. Pondexter has not rebutted this finding with

14
clear and convincing evidence.

During its discussion of the above factual finding, the district court next recognized that Dr.

Bolesta admitted that if Ms. Lennox was alive after the first gunshot, the second shot could have

contributed to Ms. Lennox’s death. We note that Dr. Bolesta’s admission lends support to the state

court’s conclusion of no prejudice.

State court finding of fact number 23 provides that:

Because Dr. Bolesta could not eliminate the possibility that the victim’s mandible [as a result
of the second gunshot] did, in fact, contribute to the victim’s skull fractures by slamming into
the base of the victim’s skull, Pondexter has not shown that [Dr.] Guileyardo’s testimony was
not believable. In fact, given that Dr. Guileyardo conducted the autopsy his testimony is more
believable than that of Dr. Bolesta.

The district court acknowledged that the first sentence of the above finding is supported by

the record. The district court next opined that the fact that Dr. Guileyardo performed the autopsy

of the victim could be a reason to credit his testimony over the testimony of Dr. Bolesta.

Nonetheless, the district court refused to so credit the testimony because “[w]hen Dr. Guileyardo

testified, he never stated that he remembered the autopsy itself; he testified from reviewing his report,

just as Dr. Bolesta did.” This quote from the district court is a prime example of its failure to accord

the state court findings the deference mandated by AEDPA. The fact that Dr. Guileyardo performed

the actual autopsy clearly supported the state court’s decision to credit his opinion over that of Dr.

Bolesta regardless of whether Dr. Guileyardo expressly testified that he remembered performing the

actual autopsy.

State court finding of fact number 30 provides that “Based on the greater weight of the

evidence in this proceeding, the court finds that the victim was alive at the time both shots were fired

into the victim and that each shot contributed to her death.” The district court discerned that this

15
finding is fairly supported by the record and that the state court was free to find Dr. Guileyardo’s

opinion more credible than Dr. Bolesta’s opinion. Without further discussion, the district court

opined that “this finding does not establish that the two expert opinions were not more or less equally

plausible.” Again, we do not believe that the district court afforded this very important factual finding

proper weight in making the prejudice determination.12

State court finding of fact number 38 provides that: “Dr. Bolesta’s affidavit and evidentiary

hearing testimony . . . admit that both wounds were capable of causing the death of the victim.” The

district court “adopt[ed] it.” Op at 16. This admission by Pondexter’s expert witness certainly

weighs in favor of finding no prejudice.

State court finding of fact number 39 provides that:

[M]uch of the testimony provided by Dr. Bolesta, while critical of Dr. Guileyardo’s
conclusions on what “could have” happened, see 20 SF 161, does not substantially differ from
many of the admissions given by Dr. Guileyardo on cross examination. See e.g. 20 SF 171
(bullet which entered brain stopped breathing and brain activity); 20 SF 174 (no way to
separate out which bullet fractured skull); 20 SF 176-77 (very little blood in her mouth).

12
Relatedly, the Director contends that the district court impermissibly substituted its
interpretation of Texas law of concurrent causation with respect to state court conclusion of law
number 41, which provides as follows: “Because both shots were sufficient to cause the death of
the victim, Pondexter cannot show that he was not responsible for the capital murder. Tex. Penal
Code § 6.04(a).” Section 6.04(a) provides that “[a] person is criminally responsible if the result
would not have occurred but for his conduct, operating either alone or concurrently with another
cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of
the actor clearly sufficient.” The district court ruled that the state court’s conclusion of number
41 was based upon an incorrect application of state law. According to the district court, the state
court incorrectly concluded that because each wound could have caused the victim’s death, the
wound inflicted by Pondexter did cause her death. Contrary to the district court’s opinion, state
court conclusion of law number 41 is not based upon the finding that each wound alone could
have caused the victim’s death; instead, the conclusion is based on the previously quoted state
court finding of fact that “the victim was alive at the time both shots were fired into the victim and
that each shot contributed to her death.” Thus, the district court erred in holding that conclusion
of law number 41 is based upon an incorrect application of state law.

16
 The district court found that most of finding of fact 39 was fairly supported by the record.

However, it did disagree that Dr. Bolesta’s testimony was consistent with Dr. Guileyardo’s admission

on cross-examination that there was no way to separate out which bullet fractured Ms. Lennox’s

skull. The court below found that this part of the finding lacked support in the record because

although Dr. Bolesta testified that it was possible that a jaw wound could cause a fracture in the base

of the skull, Dr. Bolesta was never asked which gunshot actually caused the fracture in the base of

the skull. Here again, we believe the district court was failing to accord proper deference to the fact

finding. As indicated, the state court’s factual finding was not that Dr. Bolesta testified that it was

impossible to determine which bullet caused the fracture. Instead, the state court found that Dr.

Bolesta’s testimony was “not substantially differ[ent]” from certain admissions made by Dr.

Guileyardo during cross-examination. Pondexter did not rebut this finding with clear and convincing

evidence. This finding is perhaps the most significant of all the factual findings in that if Dr. Bolesta’s

testimony is not substantially different from admissions made by Dr. Guileyardo during cross-

examination, then such a finding leads almost inexorably to finding no prejudice.

In conclusion, we find that Pondexter has not shown a probability sufficient to undermine our

confidence in the outcome of his trial in view of the ineffective assistance claim relating solely to

Pondexter’s alternative, more inculpatory defensive theory, Pondexter’s apparent belief that the

victim was alive as he shot her,13 and most importantly, the following unrebutted state court factual

findings: (1) that Dr. Guileyardo’s testimony was more credible and, unlike Dr. Bolesta’s testimony,

supported by scientific authority; (2) that Dr. Bolesta’s testimony does not substantially differ from

13
As previously set forth, Pondexter shot the victim and stated “that’s how you smoke a
bitch.”

17
certain key admissions Dr. Guileyardo made during cross-examination; and (3) that Dr. Bolesta’s

affidavit and evidentiary hearing testimony concede that both wounds were capable of causing the

death of the victim. See Johnson v. Scott, 68 F.3d 106, 111 (5th Cir. 1995) (“Although [the

petitioner’s] experts may have been able to weaken some of the state’s evidence, there is not a

reasonable probability that their testimony would have given jurors a reasonable doubt respecting

guilt.”). Applying the deferential AEDPA standard, we hold that the state court's conclusion was

not contrary to, or an unreasonable application of, established federal law.

For the above reasons, the district court’s judgment is vacated and remanded for further

proceedings.

VACATED and REMANDED.

18