Draughon v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
September 30, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 04-70043

MARTIN ALLEN DRAUGHON,

Petitioner – Appellee-Cross-Appellant,

versus

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

Respondent - Appellant-Cross-Appellee.

Appeal from the United States District Court
For the Southern District of Texas, Houston

Before JOLLY, HIGGINBOTHAM, and SMITH, Circuit Judges.

Patrick E. Higginbotham, Circuit Judge:

A jury in Harris County, Texas, convicted Martin Allen

Draughon of murdering Armando Guerrero during a robbery and

sentenced him to death. The Texas Court of Criminal Appeals

affirmed the conviction and sentence.1 The state trial court filed

findings of fact and conclusions of law denying habeas relief which

were in turn adopted by the Court of Criminal Appeals in an

1
Draughon v. State, 831 S.W.2d 331 (Tex. Crim. App. 1992), cert denied 509
U.S. 926 (1993).
unpublished order in 2001.2 Draughon filed his federal petition in

2002, and the federal district court entered the judgment now

before us on September 20, 2004.3

In its opinion, the district court held that Draughon’s

counsel provided ineffective assistance at both the guilt and

sentencing phases of his trial, and that the state court’s contrary

decision was an unreasonable application of settled federal law. It

ordered the State of Texas to either release him or try him again.

Draughon’s convictions stemmed from his robbery of a restaurant.

As he fled the scene of the crime, he shot and killed a pursuing

bystander. He denied any intent to harm, insisting that he had

been attempting to fire over the heads of his pursuers. The State

offered testimony that the fatal shot that struck Guerrero in the

chest was fired at close range, approximately ten steps away. The

court found that defense counsel failed Draughon in not obtaining

expert forensic examination of the path of the fatal shot; that

such an effort could have provided the jury with evidence that the

fatal bullet had bounced off the pavement in front of the victim

and was fired some distance away.

2
Draughon v. Dretke, No. H-02-1679 (S.D. Tex. Sept. 20, 2004) (unpublished
order).

3
Ex parte Draughon, No. 27,511-02 (Tex. Crim. App. May 9, 2001)
(unpublished).

2
 The State filed a timely notice of appeal. In turn, Draughon

seeks a certificate of appealabilty on a Penry claim should this

court reverse.

I

On November 22, 1986, Draughon attempted to rob a Long John

Silver’s restaurant in Houston, Texas. Hubbard Eugene Taylor, the

assistant manager, closed the restaurant at approximately 11:00

p.m. As he finished closing up, Taylor saw two relatives of his

cashier gesturing to him through the window. Taylor and two

employees went outside. A man wearing a stocking mask pointed a

gun at them and said, “This is a stick up. Get back inside.” The

four complied. The robber told Taylor to “[g]et that alarm in the

back. I know it’s in the back.” Taylor went to open the safe.

The safe had a delay mechanism that required Taylor to wait ten

minutes after entering the combination for a green light to come

on, signifying that the safe could be opened. While Taylor waited,

the robber approached him and asked, “[w]here is that green light?”

While still waiting for the green light, Taylor heard some noise

coming from the front of the restaurant. He later learned that the

noise was caused by several people banging on the doors and

windows. The robber then went to the back of the restaurant.

Taylor heard the alarm go off and saw the robber leaving through

3
the back door. Restaurant employee Susan Cuellar later identified

Draughon as the robber.

Ricardo Guerrero lived near the restaurant. As he drove up to

his apartment shortly before midnight on November 22, 1986, he saw

Eva Cuellar running, crying and screaming for help. Guerrero

followed Ms. Cuellar to the back of the restaurant. Attracted by

her pleas for help, others also followed. Guerrero saw the back

door of the restaurant open and a man run through it. The man ran

into the parking lot and turned around. Guerrero heard a shot,

threw himself to the ground, and heard several more shots. He also

heard a truck. When Guerrero looked up, he saw the man jumping

into the bed of a moving truck. Guerrero testified at trial that

the man fired no additional shots after jumping onto the truck.

After the truck left, Guerrero stood up and saw his cousin, Armando

Guerrero, lying on the ground with a bullet wound in his chest.

Several of the men in the parking lot drove Armando to an emergency

room, where he died.

Eva Cuellar, the mother of the restaurant cashier, was the key

witness. She was standing near Armando when he was shot. She

testified that she lived across the street from the Long John

Silver’s where her daughter Susan worked. With the late hour she

became apprehensive about her daughter as the restaurant was

preparing to close. Accompanied by her young son Eddie and armed

with a knife, she walked to the restaurant and peered into the

window. All appeared well at the time and she started back to the

4
family home, leaving Eddie at the restaurant to accompany his

sister home at closing. Not satisfied, she returned and this time

saw that a man had drawn a stocking over his face and was holding

a gun on the workers, including her daughter, Susan, and her son,

Eddie. It was then that she fled down the street securing the help

of some men who were having a beer in front of their homes. They

returned to the restaurant and Armando suggested he and Ms. Cuellar

go to the rear of the building and catch the robber if he fled out

the back door. As they arrived at the rear Draughon suddenly burst

through the door in a run. Ms. Cuellar testified that Draughon

took about ten running steps after leaving the restaurant, and

began shooting. She saw the “fire” from the pistol and Armando

fall, holding his chest. According to her testimony, Draughon

fired three to six times before jumping into the back of a waiting

truck which was pulling away. The pursuers were not armed except

for the knife Ms. Cuellar had earlier procured. Thinking that

Draughon had harmed her children, she chased the fleeing Draughon,

throwing her knife at him in frustration and without effect.

Norene Smith, a nurse working in the emergency room when

Armando was brought in, described the medical staff’s unsuccessful

efforts to resuscitate him. Smith explained that the bullet struck

Guerrero’s heart, leaving a great deal of blood in the chest

cavity. Dr. Aurelio Espinola, a forensic pathologist, testified

that the gunshot wound caused the death.

5
 Following his arrest, Draughon was tried for capital murder.

The parties agree that the following summary of evidence found by

the federal district court is accurate:

Draughon testified on his own behalf during the
punishment phase of trial . . . . Draughon explained the
events that led to the shooting. Kenneth Gafford had
formerly worked for the Long John Silver’s and knew how
the restaurant was set up and how the safe and alarm
system worked. His information led to the planned
robbery. Draughon testified that he saw a crowd forming
outside the restaurant during the attempted robbery,
became nervous, and ran out the back door toward the
pickup truck where Gafford was waiting to drive away.
The pickup was parked near the back of the restaurant.
As Draughon neared the truck, he turned and saw several
people chasing him. Draughon testified that he dove into
the back of the truck bed, leaned over the railing, and
fired four shots. He testified that he aimed over the
heads of the crowd and was only trying to scare people so
they would stop chasing him. Draughon did not know that
he shot Guerrero. Draughon offered no expert ballistics
testimony in his defense. Charles Anderson, Firearms
Examiner for the Houston Police Department, testified
that nothing on the bullet recovered from Guerrero’s body
showed that it had hit an object and ricocheted before
striking Guerrero.4

The district court also summarized the testimony offered by

Draughon during the evidentiary hearing in support of his claim

that counsel was ineffective for failing to present ballistics

evidence during trial:

Lucian Haag, a certified criminalist, testified at the
evidentiary hearing in this court.5 Haag has particular
training and expertise in firearms evidence and has

4
Draughon, No. H-02-1679, at 6-7 (internal citation omitted).
5
A criminalist is similar to a forensic examiner, but has broader training
and experience. Haag explained, for example, that a forensic examiner might work
in only one unit of a crime lab, whereas a criminalist will usually have worked
in all sections of the crime lab.

6
published several papers on firearms evidence. Haag
testified that Draughon’s counsel asked him to try to
determine whether the fatal bullet could have hit a
surface or object and ricocheted before striking
Guerrero; to assess the distance from which the bullet
was fired; to evaluate the quality of police
investigation into Guerrero’s death; and to opine on the
work a ballistics expert could have done at the time of
Draughon’s trial. Haag testified that there were
criminalists doing such work at the time of Draughon’s
trial.

Haag tested a Raven .25 pistol with a magazine and a
single live round of ammunition and examined a fired
bullet. Haag examined the rifling characteristics
against those on the fired bullet, which was retrieved
from Armando Guerrero’s body. Haag noted damage to the
fired bullet in the ogive area – the narrower part of the
bullet that does not come into contact with the gun
barrel. He observed heavy striations over the length of
the bullet. Haag testified that the damage was caused by
the bullet impacting a flat, unyielding, abrasive
surface. Haag concluded that this damage occurred after
the rifling marks were made, meaning that the striations
occurred after the gun discharged the bullet. Haag
concluded that this damage was a consequence of the
bullet ricocheting off a hard, flat, unyielding surface,
such as concrete or asphalt. Haag also concluded that
the bullet had struck this hard, flat surface at a low
angle, estimating it to be five degrees or less, and
deflected or ricocheted off this surface before striking
Guerrero. Haag opined that this damage would be obvious
to any competent firearms examiner.

Haag also examined the bullet under a scanning electron
microscope (“SEM”). He explained that the SEM gives an
examiner greater depth of field and a better view of any
particles transferred to the bullet from a ricochet
surface. Haag found many grains of mineral materials
embedded in the bullet. Specifically, he found grains of
quartz and silicon dioxide, which he identified as sand.
He also found grains containing silicon, aluminum, and
calcium. Sand is found in concrete, and silicon,
aluminum, and calcium are found in stones, asphalt, or
concrete. Haag testified that the presence of the
particles support the conclusion that the bullet hit and
ricocheted off an abrasive surface before striking
Guerrero.

7
 Haag also studied the report of the autopsy performed on
Armando Guerrero and testified that autopsy findings were
consistent with the findings of ricochet damage to the
bullet. The autopsy report stated that the bullet
entered Guerrero’s body pointing up and to the side. The
bullet traveled between two ribs, grazed the heart and
stopped inside the chest cavity, penetrating only a few
inches into Guerrero’s body. Haag testified that a
bullet entering soft tissue will ordinarily penetrate ten
to twelve inches. If the bullet has ricocheted, however,
it will “tumble” rather than going [sic] straight, and
will not penetrate as deeply as it would with a direct
shot. A “tumbling” bullet will also cause an asymmetric
abrasion rim on the entrance wound, which was found on
Guerrero’s body. Haag ran tests on ordnance gelatin and
other tissue stimulant to confirm these conclusions.

Haag also calculated the approximate distance between
Draughon and Guerrero when Draughon fired the gun. Haag
estimated that the bullet struck an object or surface6 at
approximately a five degree angle and ricocheted. Haag
based the estimate on the condition of, and markings on,
the bullet. When a bullet strikes the ground at a five-
degree angle, it ricochets from the ground at an angle of
one to two degrees. The autopsy report stated that the
bullet struck Guerrero at a point on his body
approximately forty-seven inches above the ground. Based
on these figures, Haag calculated the distance the bullet
traveled before striking the ground or object from which
it ricocheted and the distance the bullet traveled after
striking the ricochet surface but before hitting
Guerrero. Haag estimated that Draughon stood from thirty
to one hundred yards from Guerrero when he fired the gun.
Haag could not be more precise about the distance from
which Guerrero was shot because the evidence conflicted
as to whether Draughon was on the ground or on the truck
bed when he fired the gun. In addition, Haag had no
information as to whether Guerrero was standing straight
up or stooping when he was shot. As a result, Haag could
only provide estimates of the impact and departure angles
of the bullet.7

6
Based on his review of the crime scene, Haag concluded that the ricochet
surface was most likely the ground, but he did not definitely rule out the
possibility that the bullet ricocheted off another surface, such as a wall.
7
Draughon, No. H-02-1679, at 19-22 (internal citations omitted) (emphasis
in original). The district court misreads Haag’s testimony regarding the
distance the bullet traveled before striking the victim. While admitting that

8
 II

Our question is whether the adjudication of the claim by the

State court “‘(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.’”8

The Supreme Court has explained that a state court decision is

“contrary” to established federal law if the state court “applies

a rule that contradicts the governing law set forth in [the

Court’s] cases,” or confronts facts that are “materially

indistinguishable” from a relevant Supreme Court precedent, yet

reaches an opposite result.9 Alternatively, a state court

“unreasonably applies” clearly established federal law if it

correctly identifies the governing precedent but unreasonably

applies it to the facts of a particular case.10

certain factors may affect the distance the bullet traveled, Haag gave
conservative estimates based on the likely position of Draughon and the victim
when the shooting occurred. He testified that the distance from Draughon to the
point of ricochet ranged from fifteen to twenty yards, while the distance from
the point of ricochet to the victim could range from thirty to thirty-seven
yards.

8
Riddle v. Cockrell, 288 F.3d 713, 716 (5th Cir.) (quoting 28 U.S.C.
§2254(d)(1)-(2)), cert. denied 537 U.S. 953 (2002).

9
(Terry) Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see Hernandez
v. Johnson, 248 F.3d 344, 346 (5th Cir. 2001).
10
(Terry) Williams, 529 U.S. at 407-09; Hernandez, 248 F.3d at 346.

9
 A federal habeas court’s inquiry into unreasonableness should

be objective rather than subjective, and a court should not issue

the writ simply because that court concludes in its independent

judgment that the relevant state court decision applied clearly

established federal law erroneously or incorrectly.11 Rather,

federal habeas relief is only merited where the state court

decision is both “incorrect and objectively unreasonable.”12

Finally, in “evaluating the district court’s resolution of the

merits of issues presented to it, we review the district court’s

findings of fact for clear error and its conclusions of law de

novo.”13

The state court rejection of Draughon’s claim that his counsel

was ineffective in failing to obtain forensic examination of the

path of the fatal bullet is measured by the two-prong test of

Strickland v. Washington14--the objective reasonableness of the

decision to not pursue forensic examination and its prejudicial

effect.15 The first inquiry asks whether counsel’s performance

“fell below an objective standard of reasonableness” as measured by

11
(Terry) Williams, 529 U.S. at 409-11; Tucker v. Johnson, 242 F.3d 617,
620 (5th Cir. 2001).
12
Morrow v. Dretke, 367 F.3d 309, 313 (5th Cir. 2004).

13
Nixon v. Epps, 405 F.3d 318, 322 (5th Cir. 2005).
14
466 U.S. 668 (1984).
15
Id. at 687.

10
“prevailing professional norms.”16 The second inquiry asks whether

“there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.”17 We conduct these inquiries

against the overarching principle of a strong presumption that an

alleged deficiency “falls within the wide range of reasonable

professional assistance,”18 and ultimately through the prism of

AEDPA. In our analysis we do not attempt to place the events of

trial into two separate airtight containers of the first and second

prongs of Strickland. The facts that demonstrate a reasonable

probability of a different outcome but for counsel’s decisions can

cast light on their reasonableness.

III

Draughon attempted to develop his ineffective assistance claim

before the state habeas court, but was denied access to the

ballistics evidence despite affidavits from the chief and deputy

medical examiners of Bexar County expressing their view that

forensic examination was necessary because the limited evidence

that was available raised the possibility of a ricochet. The state

habeas court did not hold an evidentiary hearing and adopted the

16
Id. at 688.
17
Id. at 694.
18
Id. at 689.

11
State’s proposed findings of fact and conclusions of law, including

a ruling that “[c]ounsel cannot be held ineffective based on

possibly differing expert opinions concerning the trajectory of the

bullet.”19 The Texas Court of Criminal Appeals by per curiam order

denied relief based “upon the trial court’s findings and

conclusions and our own review.”20

The federal district court conducted a full evidentiary

hearing and entered her findings in a comprehensive memorandum

opinion.21 The crux of her holding was that the evidence offered

by Haag should have been presented in the state trial. The court

found that had this evidence been adduced at trial, it would have

directly confronted the state’s core theory that Draughon turned

and shot Armando in the chest from a distance of about ten running

steps, a deliberate act that defies Draughon’s claim that he did

not intend to kill and was firing over the heads of his pursuers.

The federal district court ultimately concluded that the state

habeas court’s rejection of the Strickland claim was an

unreasonable application of federal law.

A

19
Ex parte Draughon, No. 463658-A, at 28 (338th Dist. Ct., Harris County,
Tex. Jun. 28, 2000) (unpublished) (findings of fact and conclusions of law).
20
Ex parte Draughon, No. 27,511-02.
21
Since Draughon did not “fail” to develop the factual basis of his claim
in state court the federal hearing was not barred by 28 U.S.C. 2254 (e)(2)

12
 We turn first to the performance prong of the Strickland test.

There is little question that Haag presented a strong case that the

fatal bullet struck the pavement in front of the victim and was

fired at a much greater distance than the ten or so running steps

estimated by Eva Cuellar. The importance of this testimony cannot

be overstated. Competent counsel would have been keenly aware of

its importance and what would follow without it, the prejudice to

Draughon. Predictably, the skilled prosecutor made the distance

between the shooter and the victim the central theme of her

argument at Draughon’s trial that he intended to kill, and that he

should receive the death penalty. For example, she argued:

but that first shot, that first shot was intentional and
it was so quick that all Armando had time to do was to
duck slightly. It happened so quick the man couldn’t
defend himself. He was just standing there. The man shot
him like, just like men shoot a bird or animal . . . .
And indeed didn’t it turn out to be a perfect shot? A
shot right through the heart.

This suggestion that the distance between victim and shooter

was small rests largely on the testimony of Eva Cuellar. Her

admirable traits of hard work, devotion to her children and simple

sincerity made her a compelling witness. It was here that the

absence of a counter-theory of greater distance supported by

forensic evidence took its toll as it left her testimony largely

unchallenged, relinquishing openings for questioning the accuracy

of her testimony. And there were obvious opportunities lost.

First, she was not a detached passerby but a participant in the

13
fast unfolding events. Moreover, she was an extremely agitated

observer. When Draughon burst suddenly through the back door, Ms.

Cuellar was under the impression that he had harmed her two

children. Her focus was on apprehending Draughon or exacting some

revenge. She was the only witness who did not duck. Rather, she

was so angry that, disregarding risk to herself, she chased after

him and, in frustration, flung a knife in the direction of his

fleeing figure.

There was yet another significant lost opportunity. Ms.

Cuellar had been in the United States for twenty-five years. She

had no formal education and could not read or write in English or

Spanish. Her lack of formal education made communication with

counsel difficult, as a reading of the transcript makes plain. The

trial testimony supporting the “ten running steps”-theory bears

direct quotation:

Q: Now, when the man came running out and he shot, how
many steps or how far did he go before he shot?

A: I don’t know, some eight feet, nine feet; I don’t
know.

Q: Past Armando, I’m sorry, past the man you were
standing by?

A: Yes.

Q: Are we talking about eight or nine feet rulers or
are we talking about eight or nine running steps?

A: Well, as I no (sic) nothing about that I believe
it’s about or nine steps or a little more. I don’t
know.

14
 Q: About ten steps maybe?

A: Yes.

Q: Just approximately?

A: Perhaps.

Q: And then after he went about nine steps or so,
running steps, then what did the robber do?

A: He turned and shot.

When defense counsel asked Ms. Cuellar to point out locations

on a diagram, the prosecutor asked to take the witness on voir dire

and, out of the presence of the jury, properly disclosed to the

court:

I think that Eva is very honest about what she does and
doesn’t understand and I certainly don’t want to
embarrass her, but, I don’t think she feels embarrassed
but I tried to show her a diagram, Your honor, and she
simply told me over and over she just couldn’t understand
it but she can explain from the pictures, but she can’t
understand the diagram.

When defense counsel showed Ms. Cuellar a diagram she replied, “I

don’t understand that thing at all, not at all. You can tell me a

thousand times about that thing. I just don’t understand.” Counsel

then moved to photographs which she was able understand.

The absence of the evidence outlined by Haag left Draughon as

the sole source of evidence available to contradict the accuracy of

Ms. Cuellar’s testimony. Reasonable counsel would have known the

high price Draughon would pay for taking the stand to tell his

version of the shooting. And he did not testify until the

punishment phase, leaving his contention that he was innocent of

15
capital murder without footing. Then, when he did take the stand,

the prosecutor ridiculed as ludicrous Draughon’s testimony that he

fired from the back of the truck, telling the jury: “We know that

all the scientific evidence agrees with the things [Guerrero and

Eva Cuellar] have been telling us . . . . There is absolutely no

physical evidence to support his version of the facts. I would

submit to you that you are going to have to answer number 1 yes

because deep down all twelve of you believe Eva and believe Ricardo

. . . .” Moreover, the prosecution had a murder victim who had

placed himself in harm’s way in an effort to assist Ms. Cuellar and

the victims of the robbery in progress.

The State answers that counsel made a strategic decision not

to seek forensic evidence regarding the ricochet. Relatedly, the

State urges that such evidence would have undermined the defensive

theory that Draughon was attempting to fire over the heads of the

pursuers. Pointing to Draughon’s testimony that he did not fire

until after he had jumped into the back of the getaway truck, and

was being jostled by the truck as he fired four shots in an effort

to slow the pursuit, the State counters that if Draughon were in

the truck he would have had no reason to fire any shots given that

he had effectively made his escape. Moreover, the State observes

that the jury could have concluded that Draughon intended to kill

from his firing four to six times in disregard for life after the

threat of pursuit had ended.

16
 Although Draughon’s state trial counsel filed a total of three

affidavits, they did not assert that they made a “strategic

decision” not to develop forensics. They offered little more than

conclusory assertions beyond reciting that they had visited the

murder scene and searched for shell casings and bullet strikes.

Contrary to the State’s contention that the ricochet theory came

later, defense counsel were well aware that the trajectory of the

bullet could be critical, and examined members of the venire about

it. Specifically, they posed hypotheticals to explain to the

venire that if a warning shot fired into the rafters ricochets and

kills, “under the law, that is not capital murder.” The state

concedes, as it must, that counsels’ investigation did not include

forensic assistance or other examination of the ballistics or

trajectory of the fatal shot. Rather, it urges that counsel

reached a strategic decision not to “retain an expert to

investigate and offer an opinion regarding the distance and

direction from which Draughon fired the fatal shot.”

The difficulty with these contentions is that they do not

confront the reality that the failure to investigate the forensics

of the fatal bullet deprived Draughon of a substantial argument,

and set up an unchallenged factual predicate for the State’s main

argument that Draughon intended to kill. It left little with which

to persuade the jury that Ms. Cuellar’s statement of distance was

faulty. As we have observed, Draughon became the sole source of

evidence available to counter the prosecution’s theory. In these

17
observations we look at what might have been, not to judge the

performance of trial counsel by failures of strategic decisions

reasonable when made, but to meaningfully examine whether counsels’

failure to investigate was based on a “reasonable decision” that

made such an investigation “unnecessary.”22

To those familiar with the evidence in the case, the

centrality of distance from shooter to victim is plain. The

prosecutor in the case expressed concern that the State was not

preparing to challenged the testimony of Haag. She expressed the

view that such a challenge was essential because evidence of a

ricochet “would have been very important evidence;” that if such

evidence were true, failure to present the evidence could have

constituted ineffective assistance. Her views were prescient. On

this record we have no hesitation in concluding that the state

court unreasonably applied settled federal law, the first element

of Strickland. In this conclusion we have traveled much of the

distance toward a conclusion that Strickland’s second prong was

also unreasonable rejected. We repair to many of the same facts

with our focus upon the factually interrelated question of

prejudice.

B

Answering the question of prejudice as measured by Strickland

and filtered through our narrowing-prism of the reasonableness of

22
Wiggins v. Smith, 539 U.S. 510, 521 (2003).

18
its application by the state court warrants additional examination

of events at trial. On doing so, we agree with the judgment of the

federal district court that the state court rejection of Draughon’s

habeas petition cannot be reasonably defended on the basis that

there was no reasonable probability of a different result had

counsel obtained the forensic testimony.

The prosecution offered the jury a portrait of a ruthless and

cruel individual engaged in a reckless spree of robbing Long John

Silver’s restaurants. The prosecution offered the jury evidence

that the police caught Draughon as he fled a robbery of another

Long John Silver’s restaurant, much like the robbery resulting in

the death of Armando Guerrero. In both cases, Draughon brandished

a gun as he fled. In the second robbery, the arresting officer

stopped Draughon only by shooting at him, thinking Draughon was

about to fire at him over his shoulder as he ran from the

restaurant. The police bullet missed Draughon, but caused him to

surrender.

It bears emphasis that the absence of forensic evidence

facilitated the State’s deft portrait of a violent young man.

Without the forensic testimony, only Draughon could counter the

State’s short-distance-to-victim thesis. When he took the stand in

the punishment phase, he paid dearly for it. The prosecutor on

cross-examination marched him through the details of his rape of

one of his robbery victims, a restaurant worker, details the

prosecutor in deference to the victim had not elicited from her in

19
her earlier testimony. The prosecutor forced Draughon to relate

how he took a knife and cut the skirt and underclothing from the

rape victim in a sadistic manner, had sex with her, and violated

her with a broom handle. Pressed on cross-examination to explain

the “why” of his conduct, Draughon had no explanation, implying at

one point that the sex was consensual.

This was important evidence, but it does not counter

Draughon’s claim of a reasonable probability of a different outcome

had he had at trial the forensic evidence developed in federal

habeas. While this evidence of Draughon’s serial robberies, the

rape, and his arrest supported the State’s argument for a “yes”

answer to the question of future dangerousness in the punishment

phase, it does not soften the impact of counsel’s failure on the

determination of guilt.

The State urges that the federal district court went awry in

its application of Strickland by failing to examine the case within

the frame of trial preparation and execution. The State is on

solid ground in pointing to risks inherent in the retrospective

examination of what should have been done aided by knowledge of how

it all played out. This risk, coupled with the deference to the

adjudication by the State courts required by Congress and general

principles of comity and federalism, demands that federal courts

be sensitive to unwittingly harsh judgments of choices made by

lawyers in the heat of trial--choices that were not so clear at the

20
time as they often become with hindsight. This said, we are

persuaded that the district court’s judgment granting relief must

be affirmed for essentially those reasons stated by that court.

IV

The State does not oppose the grant of a certificate of

appealabilty on Draughon’s claim that the jury could not give effect

to his evidence of abuse as a child and “dysfunctional upbringing”

in violation of Penry v. Lynaugh.23 We grant the certificate but

conclude that under controlling precedent it is lacking in merit.

The jury could have given it effect under the future dangerousness

special issue. It was admitted at trial and subjected to no screens

such as “constitutional relevance.”

V

For the foregoing reasons, the judgment of the district court

granting relief is AFFIRMED.

23
492 U.S. 302 (1989); see Smith v. Texas, 125 S. Ct. 400 (2004); Tennard
v. Dretke, 124 S. Ct. 2562 (2004).

21