United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 23, 2004
Charles R. Fulbruge III
Clerk
No. 03-11094
GARY STERLING,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
For the Northern District of Texas
(3:01-CV-0228)
Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM*:
Petitioner Gary Lynn Sterling was convicted of capital murder
in Texas and sentenced to death. Sterling filed a petition for
writ of habeas corpus in the United States District Court for the
Northern District of Texas pursuant to 28 U.S.C. § 2254. The
district court denied Sterling’s petition. The district court also
denied Sterling’s application for a certificate of appealability
*
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this opinion should not be published and is not precedent except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.
(“COA”). Sterling requested a COA from this Court pursuant to 28
U.S.C. § 2253(c)(2) on several issues. We granted Sterling a COA
as to his Strickland v. Washington, 466 U.S. 668 (1984),
ineffective assistance of counsel (“IAC”) claim based on his
counsel’s failure to question juror Victor Walther (“Walther”)
about racial bias during voir dire. For the following reasons, we
AFFIRM the judgment of the district court.
BACKGROUND
In February 1989 Sterling was convicted and sentenced to death
for the capital offense of murdering John W. Carthey in the course
of committing or attempting to commit robbery. On direct appeal in
1992, the Texas Court of Criminal Appeals affirmed Sterling’s
conviction and sentence; the Supreme Court of the United States
denied certiorari. In 1994 the district court dismissed Sterling’s
initial habeas corpus petition for failure to exhaust state court
remedies. This Court affirmed the dismissal of Sterling’s
unexhausted petition, but the Supreme Court granted certiorari,
vacated the judgment, and remanded for further proceedings. On
remand in 1995, this Court again affirmed the district court’s
dismissal of Sterling’s unexhausted petition.
In December 1996 Sterling filed his state habeas application.
After conducting an evidentiary hearing, the trial court entered
findings of fact and conclusions of law recommending the denial of
relief. As to the particular IAC issue Sterling currently appeals,
2
the trial court found: “Applicant’s trial counsel was not deficient
by reason of his failure to question juror Walther about racial
bias.” In 2001 the Court of Criminal Appeals adopted the trial
judge’s findings and conclusions and denied habeas relief. Later
that same year, Sterling filed a subsequent application for state
habeas relief, which the Texas Court of Criminal Appeals dismissed
as an abuse of the writ. In 2002 the Supreme Court denied
certiorari.
Sterling then filed his petition for a writ of habeas corpus
in district court, which the court denied after oral argument in
2003. As to the particular IAC issue Sterling currently appeals,
the district court found: “Considering the strategic nature of
Sterling’s counsel’s conduct, Dunn’s personal knowledge about, and
assessment of Walther, and Walther’s answers during voir dire
examination, the state habeas court did not unreasonably determine
that Sterling’s counsel was not ineffective for failing to inquire
of Walther about racial bias.” The district court also denied
Sterling’s motion to reconsider the judgment. Sterling then
noticed his appeal, and the district court denied his application
for COA. We granted Sterling a COA as to his Strickland claim of
IAC based on his counsel’s failure to question Walther about racial
bias during voir dire.
DISCUSSION
Sterling filed his § 2254 petition for a writ of habeas corpus
3
after the effective date of the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). In a habeas corpus appeal, this
Court reviews the district court’s findings of fact for clear error
and its conclusions of law de novo, applying the same standards to
the state court’s decision as did the district court. Busby v.
Dretke, 359 F.3d 708, 713 (5th Cir. 2004).
Under AEDPA, this Court may not grant relief on a claim the
state court has adjudicated on the merits “unless the adjudication
of the claim . . . 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.” 28 U.S.C. § 2254(d)-(d)(1) (2004). “A state court’s
decision is deemed ‘contrary to’ clearly established federal law if
it relies on legal rules that directly conflict with prior holdings
of the Supreme Court or if it reaches a different conclusion than
the Supreme Court on materially indistinguishable facts.” Busby,
359 F.3d at 713 (citing Williams v. Taylor, 529 U.S. 362, 405-06
(2000)). “A state court’s decision constitutes an unreasonable
application of clearly established federal law if it is objectively
unreasonable.” Pondexter v. Dretke, 346 F.3d 142, 146 (5th Cir.
2003). “In order for a federal court to find a state court's
application of [Supreme Court] precedent ‘unreasonable,’ the state
court’s decision must have been more than incorrect or erroneous.”
Wiggins v. Smith, 539 U.S. 510, 520 (2003). We presume the state
4
court’s findings of fact are correct, and the petitioner bears the
burden of rebutting this presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1).
Whether the state court’s decision was contrary to, or involved an
unreasonable application of, clearly established law.
In order to establish a Sixth Amendment IAC violation, a
petitioner must prove both (1) that counsel rendered deficient
performance and (2) that counsel’s actions resulted in actual
prejudice. Strickland, 466 U.S. at 687-88, 691-92; Moore v.
Johnson, 194 F.3d 586, 591 (5th Cir. 1999). “Unless a defendant
makes both showings [under Strickland], it cannot be said that the
conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.” 466 U.S. at
687.
It is well settled that “a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.”
Strickland, 466 U.S. at 689 (internal quotation marks and citation
omitted). “A fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's perspective at
the time.” Id. It is the petitioner who must overcome the
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presumption that defense counsel’s performance fell within the
broad range of reasonable professional assistance. Riley v.
Cockrell, 339 F.3d 308, 315 (5th Cir. 2003).
Even if counsel's performance is found deficient, the
petitioner must still demonstrate that such deficiency rendered the
verdicts unfair or unreliable. Id. (citing Lockhart v. Fretwell,
506 U.S. 364, 369 (1993)). For a petitioner to meet the prejudice
prong of Strickland “requires showing that counsel's errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.” 466 U.S. at 687.
Sterling is African-American; and Walther, who sat on
Sterling’s capital murder jury, is Caucasian. Sterling maintains
that Walther is racist as to African-Americans and that his
prejudiced views link race with criminal behavior. Sterling bases
this contention on a post-trial affidavit where Walther referenced
the criminal behavior of “some nig**rs who live a couple of blocks
over.” At the state habeas hearing, Walther testified that he
likely used that term at the time of Sterling’s trial. Sterling
argues that one of his defense counsel, Robert Dunn, was familiar
with Walther’s attitude toward African-Americans because he had
known Walther since his youth. Thus, Sterling asserts Dunn was
ineffective in that he did not question Walther during voir dire
about his racial bias and its effect on his ability to serve
impartially as a juror.
6
Sterling makes his IAC argument based on Turner v. Murray, 476
U.S. 28 (1986), Wiggins, and ABA Guideline 10.10.2(A) and (B).
Sterling argues that Dunn failed to adequately prepare for,
investigate, and question the possibility of racial bias in
potential jurors in Sterling’s trial. Sterling maintains that
Dunn’s asserted strategic reasons for accepting Walther cannot
justify Dunn’s refusal to inquire into the effect of Walther’s
racial views on his suitability as a juror in Sterling’s case.
Dunn’s alleged reasons were that he felt Walther was a fair man and
he thought Walther’s previous contacts with him would help
Sterling. Sterling argues that any perceived advantage to Sterling
stemming from Walther’s previous relationship with Dunn may have
been overwhelmed by a much larger disadvantage to Sterling stemming
from Walther’s racist views. If Dunn had investigated further into
Walther’s racial attitudes, Dunn could have assessed whether the
balance came out in Sterling’s favor.
Sterling also contends that Dunn’s proferred reasoning that
jurors do not answer questions about racial bias honestly is
overbroad and cannot be reconciled with the basic assumptions and
duties of counsel under the jury system. Moreover, Walther’s racist
views cannot be downplayed by the state. Thus, Sterling argues the
state court’s conclusion that trial counsel’s decision not to
examine Walther on racial issues despite his knowledge of Walther’s
racial bias did not constitute deficient performance was an
7
unreasonable application of clearly established federal law.
The state asserts that both sides asked numerous questions
about Walther’s ability to be fair and impartial during voir dire,
especially in light of his prior representation by Dunn on several
occasions; Walther clearly indicated he could be fair to both
sides. Dunn testified at the state habeas hearing that despite any
potential prejudiced views, he considered Walther a “fair man” and
“probably a middle-of-the-road juror for Navarro County.” Dunn
also reasoned that because of his prior attorney-client
relationship with Walther, Walther’s presence on the jury would
enure to Sterling’s benefit. Both Dunn and his co-counsel on
Sterling’s defense, Kerri Anderson Donica (“Donica”), testified
that the decision that Walther would be a favorable juror was a
conscious and strategic trial tactic. Donica felt Dunn was very
pleased to have Walther on the jury because of their prior
relationship.
While Dunn did not question any potential jurors about racial
bias, he stated this decision rested on his belief that he very
seldom receives truthful answers. The state also points out that
Sterling has not established that Walther was racially prejudiced.
Walther testified at the state habeas hearing that “the color [of
a defendant] doesn’t make no difference” and that he felt the same
way at the time of Sterling’s trial and would have said so if
asked. Walther also stated he has some very close friends who are
8
African-American; using the term “nig**r” did not make him a
racist; and he did not consider himself to be a racist.
Moreover, in regard to the jury selection process, the state
notes that counsel’s actions during voir dire are considered to be
a matter of trial strategy. See Teague v. Scott, 60 F.3d 1167,
1172 (5th Cir. 1995). The state also contends that the state court
at the evidentiary hearing was in the best position to evaluate the
credibility and demeanor of Dunn and Walther. Thus, underlying the
state court’s factual finding of a lack of deficient performance
are credibility choices in favor of Dunn and Walther that must be
afforded a presumption of correctness. The state discounts
Sterling’s arguments based on Turner because the issue there was a
trial court’s failure to allow the defendant to question potential
jurors about racial prejudices in spite of a specific request by
the defendant. 476 U.S. at 30-31. However, the decision to make
such request or delve into such questioning is properly left to
defense counsel. Id. at 37 n.10. The state also argues that nothing
in Wiggins, which dealt with defense counsel’s duty to reasonably
investigate mitigating evidence for use in the punishment phase,
539 U.S. at 524-27, or the ABA Guideline on voir dire and jury
selection, establishes that Dunn’s stated reasons for not
questioning Walther about his racial views were objectively
unreasonable.
Therefore, the state maintains that the state court’s
9
conclusion that Dunn’s performance as Sterling’s defense counsel
was not deficient was not objectively unreasonable. The state also
asserts the district court correctly determined that considering
the strategic nature of Dunn’s conduct, Dunn’s personal knowledge
about and assessment of Walther, and Walther’s answers during voir
dire, the state habeas court was not unreasonable in its conclusion
that Dunn’s performance at voir dire did not amount to the
deficient performance required to show IAC.
Under the deferential scrutiny accorded to defense counsel’s
trial decisions under Strickland, we cannot say that the district
court clearly erred in its findings on deficiency or erred in its
legal conclusion that Sterling had not shown IAC. Here, Sterling
did not rebut the state court’s finding on deficiency with clear
and convincing evidence; Sterling did not show that Dunn’s decision
not to question Walther on his racial views fell outside the wide
range of reasonable strategic professional assistance. Sterling
did not overcome the presumption that Dunn’s challenged behavior
“might be considered sound trial strategy.” Strickland, 466 U.S.
at 689 (citation omitted). Therefore, Sterling has not sustained
his burden on the deficiency prong of Strickland. We thus agree
with the district court and find that the state court’s decision
regarding the lack of a deficiency in performance by Dunn was not
contrary to, and did not involve an unreasonable application of,
clearly established federal law.
10
Having sustained the state court’s and the district court’s
determination that Sterling failed to demonstrate deficiency under
Strickland, this Court need not reach the prejudice prong. See id.
at 697 (explaining that failure to demonstrate either prong in the
IAC analysis makes it unnecessary to examine the other).
CONCLUSION
Having carefully reviewed the record of this case and the
parties’ respective briefing, for the reasons set forth above, we
AFFIRM the judgment of the district court.
AFFIRMED.
11