West v. Secretary for the Department of Corrections

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 23, 2005
No. 04-16243 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 03-61616-CV-FAM

DERRICK WEST,

Petitioner-Appellant,

versus

SECRETARY FOR THE DEPARTMENT
OF CORRECTIONS,
James V. Crosby, Secretary,
Respondent-Appellee.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 23, 2005)

Before CARNES, HULL and WILSON, Circuit Judges

PER CURIAM:

Derrick West, a Florida prisoner serving a life sentence for carjacking and
robbery with a firearm, appeals the district court’s dismissal of his petition for

habeas corpus, brought pursuant to 28 U.S.C. § 2254. We affirm.

On May 24, 1998, Donnell Lewis stood outside of a pawnshop and waited

for his friends, Anthony Hicks and Corey McCutcheon, to redeem a bracelet that

Hicks previously had pawned. While waiting, Lewis met Derrick West and David

Spells and agreed to give them a ride in his car. When Hicks and McCutcheon

came out of the pawnshop, all five men got into the car together. After they drove

away from the pawnshop, West pointed a gun at Lewis and ordered him to drive to

a nearby park. At the park, West and Spells robbed Hicks of his jewelry and two

beepers and robbed Lewis of his wallet and car keys. Then West and Spells drove

away in Lewis’ car.

Several days later, West attempted to pawn Hicks’ bracelet at the same

pawnshop where Hicks had previously pawned it. Jeff Kellychian, the

pawnbroker, recognized the bracelet, refused service, and ordered West out of the

store.

Lewis’ car was recovered and fingerprinted. One of the fingerprints

matched David Spells’. On June 1, 1998, West was in the company of Spells when

both were arrested on unrelated charges. Lewis positively identified West in a

2
photo array, and the state charged West with armed carjacking and armed robbery.

At trial, West was found guilty of one count of carjacking with a firearm of

Lewis and two counts of robbery with a firearm of Lewis and Hicks. (He was

acquitted of robbery with a firearm of McCutcheon.) In July 1999, West was

sentenced to three concurrent life terms as a habitual offender and as a prison

releasee reoffender.

In 2003, West filed a 28 U.S.C. § 2254 petition for a writ of habeas corpus.

In his petition, West raised five claims:

1. His right to a fair trial was violated when the trial court overruled his
objection to a detective’s comment during cross-examination that the
detective had met West in the “stockade.”

2. Trial counsel was ineffective in failing to call victim Donnell Lewis as
a defense witness at trial.

3. Trial counsel was ineffective in failing to call West’s girlfriend,
Shernette Thomas, as an alibi witness at trial.

4. Trial counsel was ineffective in failing to fully impeach state witness
Jeff Kellychian.

5. Trial counsel was ineffective in failing to challenge as racially
discriminatory the state’s peremptory strike of juror Manheimer.

The district court dismissed West’s petition. The court determined, among

other things, that the decision not to call Lewis as a defense witness was reasonable

because no competent evidence established that Lewis was available to testify or

3
that his testimony would have been favorable to the defense.

The court also concluded that defense counsel’s failure to raise a Batson v.

Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), challenge to the striking of

prospective juror William Manheimer, who is African American, did not constitute

ineffective assistance of counsel. The court found that a race-neutral reason

existed for the prosecution’s decision to strike Manheimer and that defense counsel

made a tactical decision not to object to the strike on Batson grounds.

The district court’s dismissal order stated that if West chose to appeal the

decision, the court would issue a certificate of appealability only on the issue of

counsel’s alleged ineffectiveness in failing to call on of the victims, Lewis, as a

witness. Despite this comment in the order dismissing his petition, when West

filed an application for a certificate of appealability on all of the issues, the district

court issued a general order granting West’s application. The general order did not

limit West’s appeal to the issue of failing to call Lewis as a witness.

A court issuing a COA must “indicate which specific issue or issues,” if any,

warrant a COA. 28 U.S.C. § 2253(c)(3). This Court has held that when a district

court fails to enumerate specific issues for appeal, we have discretion to “either

remand to the district court with instructions to enumerate the issues, or we may

rule which issues raised by the petitioner warrant a COA.” Putnam v. Head, 268

4
F.3d 1223, 1227–28 (11th Cir. 2001). “The district court’s failure to enumerate

issues for appellate review does not deprive us of jurisdiction.” Id.

To avoid delaying resolution of this appeal and for the sake of efficiency, we

construe the order granting a COA to cover both of the issues that West raises in

his brief. Those two issues are whether counsel rendered ineffective assistance of

counsel: (1) by failing to call one of the victims, Lewis, as a defense witness at

trial, and (2) by failing to challenge as racially discriminatory the state’s

peremptory strike of juror Manheimer. West argues that an evidentiary hearing

should have been held on both issues.

II.

West contends that it was ineffective assistance for his trial counsel not to

call Lewis, who could not unequivocally identify West as the perpetrator of the

crimes. Lewis had identified West in a photo lineup, but in a deposition taken six

months prior to trial, Lewis stated that he was not one hundred percent certain

about his identification. At a suppression hearing the week before trial, Lewis

testified that he was not able to identify the carjackers and that a detective had

pressured him to pick West in the lineup. Lewis said he could not identify West,

who was seated at the defense table.

West argues that his counsel’s failure to call Lewis as a defense witness

5
amounted to ineffective assistance because: (1) Lewis was certain in his

suppression hearing that West was not one of the perpetrators; and (2) if his

testimony on this matter had been presented, it would have discredited the

identifications of other prosecution witnesses because Lewis had the longest

contact with the robbers and was in a better position to identify them. West argues

that had Lewis testified at trial, Lewis would have explained, as he did in his

deposition, that his initial identification of West was the result of pressure from a

detective.

When a federal court evaluates a state court’s decision under 28 U.S.C. §

2254(d), a writ of habeas corpus should not be granted unless the state court

decision “is ‘contrary to’ or is an ‘unreasonable application of’ ‘clearly

established’ Supreme Court precedent.” Hall v. Head, 310 F.3d 683, 690 (11th

Cir. 2002) (quoting Williams v. Taylor, 529 U.S. 362, 391, 120 S. Ct. 1495, 1512

(2000)). A “district court’s determination of whether the state court decision was

reasonable—and thus whether counsel’s performance passed constitutional

muster—is subject to de novo review.” Hall, 310 F.3d at 690.

To demonstrate ineffective assistance of counsel, a prisoner “must show that

counsel’s performance was deficient” and that “the deficient performance

prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

6
2052, 2064 (1984). To prove a deficient performance, the prisoner must show that

counsel made errors so serious “that counsel’s representation fell below an

objective standard of reasonableness.” Chandler v. United States, 218 F.3d 1305,

1312 (11th Cir. 2000). Judicial scrutiny of counsel’s performance is highly

deferential, and there is a strong presumption that counsel’s conduct fell within the

range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S. Ct.

at 2065.

The prejudice component of the Strickland test for ineffective assistance of

counsel requires a defendant to “show that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. A reasonable

probability is one sufficient to undermine confidence in the outcome. Id. at

693–94, 104 S. Ct. at 2067–68. It is not enough for the defendant to show that the

error had some conceivable effect on the outcome of the proceeding. Id.

The district court did not err in denying West relief on his ineffective

assistance of counsel claim relating to the failure to call Lewis as a defense

witness. See United States v. Guerra, 628 F.2d 410, 413 (5th Cir. 1980)

(“Complaints concerning uncalled witnesses impose a heavy showing since the

presentation of testimonial evidence is a matter of trial strategy and often

7
allegations of what a witness would have testified to are largely speculative”).

The state presented other evidence sufficient to support the identification of

West. Eyewitness testimony by Hicks, who was also a victim, positively identified

West as the perpetrator. Kellychian, the pawnbroker, testified that West attempted

to pawn a bracelet that Kellychian knew belonged to Hicks. Not only that, but

testimony from Lewis that he could not identify West as the perpetrator of the

crimes would have been subject to impeachment with his earlier identification of

West in the lineup. Instead of calling Lewis as a defense witness, West’s counsel

argued in closing that the prosecution’s failure to call Lewis as a witness meant

that the prosecution had not carried its burden of proof. Accordingly, the state

court’s decision that West has failed to establish a reasonable probability of a

different result if counsel had called Lewis as a witness is not contrary to, or an

unreasonable application of, the federal law clearly established in Strickland, 466

U.S. at 694, 104 S. Ct. at 2068.

III.

West also claims that his trial counsel was ineffective because he did not

raise a Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), objection to the

peremptory challenge of prospective juror William Manheimer. During voir dire,

the prosecution moved to strike Manheimer, who is African American, after

8
Manheimer stated that he had been arrested on two occasions for felony drug

possession and that the prosecutors in his cases were “storm troopers.”

Manheimer’s statements during voir dire about his prior arrests and his

feelings toward the prosecution in those cases establish that the state had a valid,

race-neutral reason for its challenge. See Miller-El v. Cockrell, 537 U.S. 322, 351,

123 S. Ct. 1029, 1047 (2003) (finding prospective juror’s brother’s convictions for

drug offenses a race-neutral reason for striking that juror); United States v. Alston,

895 F.2d 1362, 1367 (11th Cir. 1990) (classifying prior involvement with drug

offenses as race-neutral).

Therefore, West failed to establish either that his counsel performed

ineffectively in failing to object, Chandler v. Moore, 240 F.3d 907, 917 (11th Cir.

2001) (counsel is not ineffective for failing to raise a non-meritorious objection), or

that there is a reasonable probability of a different result if counsel had objected. It

follows that the state court decision to that effect is neither contrary to nor an

unreasonable application of the federal law clearly established in the Strickland

decision.

As our disposition of these claims indicates, the district court did not abuse

its discretion in failing to hold an evidentiary hearing on these two claims.

AFFIRMED.