REVISED DECEMBER 10, 2008
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
December 9, 2008
No. 05-20350 Charles R. Fulbruge III
Clerk
NANON McKEWN WILLIAMS
Petitioner-Appellant
v.
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION
Respondent-Appellee
Appeal from the United States District Court
for the Southern District of Texas
Before JOLLY, BARKSDALE, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
Nanon Williams appeals the denial of his habeas petition under 28 U.S.C.
§ 2254 (2006), following his capital murder conviction in Texas state court. For
the reasons set forth below, we REVERSE and REMAND to the district court for
a full evidentiary hearing on the ineffective assistance of counsel claims on
which the Certificate of Appealability was granted.
No. 05-20350
I. FACTUAL BACKGROUND
A. The Murder Trial
In 1995, a jury convicted Williams of capital murder and sentenced him
to death.1 The facts underlying Williams’s conviction are disputed, but we can
discern a basic outline of those facts from the state court record. On May 13,
1992, Williams, his friend Vaal Guevara, and Guevara’s friend Elaine Winn,
went to Adonius Collier’s apartment to arrange a drug transaction. Collier, his
friend Ammade Rasul, and Rasul’s girlfriend, Stephanie Anderson, met with
Williams, Guevara, and Winn. They agreed to complete the transaction at a
nearby park. The participants all went to the park in several vehicles. The
Government alleged at trial that Williams carried a .25-caliber pistol and a
shotgun hidden in his clothing while Guevara carried a .22-caliber pistol. Upon
arriving at the park, Williams, Guevara, Rasul, and Collier went into the woods
to conduct the drug transaction. The remaining participants stayed in the cars.
During the course of the drug transaction, gunfire erupted. Rasul testified
that Williams shot him once in the face with the pistol and that he suffered a
bullet wound in the foot as he ran toward the parking lot. Forensic testimony
proffered at trial linked the bullet from Rasul’s foot to Williams’s .25-caliber
pistol. Rasul and Anderson sought medical attention for Rasul’s injuries, and
Anderson reported the shooting to a Houston police officer. Thereafter, the
police investigated the park and found Collier’s dead body. Collier had suffered
a shotgun wound to the head. The medical examiners who performed Collier’s
autopsy recovered some shotgun pellets from Collier’s cranial cavity and a spent
and mutilated bullet, which was marked as “EB-1.”2 Winn, Anderson, and
1
Following the United States Supreme Court’s decision in Roper v. Simmons, 543 U.S.
551 (2005), the district court commuted Williams’s sentence to life in prison because he was
under the age of eighteen at the time of the instant offense. See id. at 574-75.
2
Although the cranial x-ray did not reveal “EB-1,” it apparently came from Collier’s
head.
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No. 05-20350
another person, identified at trial only as “Xavier,” were present at the park, but
the only potential eyewitnesses to the shooting were Collier (the deceased),
Rasul, Guevara, and Williams. Williams did not testify. Thus, the only
eyewitness testimony at trial came from Rasul and Guevara.
Rasul testified that after Williams shot him, he ran. While running, Rasul
heard more shots including, apparently, the shot to his foot. Because Rasul ran
before Collier was shot, while Guevara stayed behind, Guevera’s story and its
credibility were very important. Guevara initially testified that he did not fire
his gun at all. Later, Guevara testified that he fired his gun in the direction of
Collier but did not strike him. Guevara then testified that he ran after Rasul.
He stated that he never actually saw Williams shoot Collier, but he heard
shotgun fire and saw Collier’s feet twitching. Guevara also said that he heard
Williams say “no more witnesses” before hearing the shotgun fire.
The “objective” evidence in the case consisted of expert testimony about
the ammunition recovered from Collier’s head and the cause of Collier’s death.
The assistant medical examiner for Harris County, Dr. Brown, performed the
autopsy. Dr. Brown testified that the shotgun pellets killed Collier and that
Collier was still alive when shot with the shotgun. He based this conclusion on
the fact that there was a red margin around Collier’s bullet wound. According
to Dr. Brown, this red margin indicated blood pressure at the time the wound
was inflicted. Dr. Brown did not find any evidence of “EB-1” during the autopsy
and could not account for its presence, but he admitted that Collier could have
been shot with a bullet before the shotgun blast and that the shotgun blast could
have then obliterated evidence of a prior bullet wound.
The other expert was a Houston police department criminalist, Robert
Baldwin, who specifically testified that the “EB-1” bullet came from a .25-caliber
pistol like the one witnesses claimed Williams had carried and not from a .22-
caliber pistol like the one Guevara admitted to carrying. Baldwin admitted that
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No. 05-20350
he failed to test fire the pistols, but testified unequivocally that his analysis was
correct.
Williams’s trial counsel, Loretta Muldrow, never sought an independent
ballistics test or an independent autopsy or examination of the pathology report.
Even after learning that Baldwin had not test fired the pistols in his
examination of the ballistics evidence, Muldrow still did not request a
continuance to have an independent expert further examine this evidence.
Consequently, Baldwin’s unrebutted testimony buttressed and gave credibility
to Guevara’s testimony that he was not Collier’s killer. Indeed, throughout the
State’s case, notably in closing argument, the prosecutor made much of the fact
that the jury did not need to decide which shot killed Collier because the
objective evidence showed that all shots came from firearms attributable to
Williams, not to Guevara.
B. The State Habeas Proceeding
On direct appeal, Williams’s conviction and sentence were affirmed. In
connection with the habeas proceedings, the state trial court ordered the release
of Guevara’s .22-caliber pistol and the ballistics evidence. Before turning that
evidence over, the Harris County District Attorney’s Office retested the ballistics
evidence. In so doing, it determined that “EB-1” had, in fact, been fired by
Guevara’s .22-caliber pistol in direct contradiction to Baldwin’s trial testimony.
Williams used this information as a foundation for several claims in his habeas
proceeding. Because the Certificate of Appealability was granted only on the
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No. 05-20350
ineffective assistance of counsel claims,3 we focus on the evidence only as it
relates to those issues.
In the state habeas proceeding, Williams presented Baldwin’s recantation
of his trial testimony. Baldwin admitted that the “EB-1” bullet came from
Guevara’s gun. To complement Baldwin’s recantation, Williams also presented
an affidavit from Ronald Singer, Chief Criminologist with the Tarrant County
Medical Examiner’s Office, whom Williams retained to independently test the
ballistics evidence. Singer opined that Collier had suffered two wounds to the
head, one inflicted by a .22-caliber weapon and one inflicted by a shotgun.
According to Singer, the shotgun wound could have obliterated the smaller
wound if the smaller wound had been inflicted first. Singer further stated that
the bullet recovered from Rasul’s foot had not been fired from the same weapon
as “EB-1.” He opined that, even in its damaged state, “EB-1” and the .25-caliber
bullet taken from Rasul’s foot were easily distinguishable, particularly with the
aid of a comparison microscope. Singer believed that a competent examiner
should have had no problem discerning the difference and that Baldwin’s trial
testimony “at best demonstrates extreme carelessness on his part and at worst
calls into question his expertise.” In addition to Baldwin’s recantation and
Singer’s testimony, Williams presented affidavits from two jurors stating that
they would have voted differently had they known of the correct ballistics
evidence.
Williams also submitted an affidavit from Dr. Andrew Krouse, Deputy
Chief Medical Examiner in Tarrant County, whom he hired to examine the
3
The district court considered this case a close question. Thus, while the court denied
relief, it granted the Certificate of Appealability on those “Strickland claims based on the true
caliber of EB-1,” specifically, “Petitioner’s ineffective-assistance claims involving trial counsel’s
failure to obtain independent testing of Guevara’s .22-caliber handgun, counsel’s failure to
secure independent forensic testing of evidence, and failure to secure the assistance of a
pathologist, as well as Petitioner’s Strickland claim based on cumulative error.” We denied
Appellant’s request that additional grounds be included in the Certificate of Appealability.
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No. 05-20350
autopsy evidence and trial testimony. Dr. Krouse indicated that the pistol
wound (from Guevara’s gun) alone carried a high probability of fatality for
Collier. He disagreed with Dr. Brown’s trial testimony about the significance of
the red margin around Collier’s bullet wound. Dr. Krouse testified that it was
impossible to state with certainty the order in which the two firearm wounds
were inflicted or that the shotgun wound was the cause of death. While Dr.
Krouse believed that both wounds should have been listed as causes of death, he
also believed that there was a likelihood that “EB-1”was the cause of Collier’s
death.
Finally, Williams submitted trial counsel Muldrow’s affidavit indicating
that she should have sought funding for independent experts, particularly a
ballistics expert. She opined that had she done so, she would have found a
“winning” defense.
The state trial court granted an evidentiary hearing. Singer testified
consistently with his affidavit. Muldrow indicated that she had viewed the
theory that some one else shot Collier and killed him as a viable defense, but one
unsupported by evidence at trial. She admitted that her decision not to seek
independent ballistics evidence was not a strategic one, but rather one based on
the faulty assumption that the state had done an adequate job. Muldrow
conceded that, even with accurate ballistics evidence, she would have had to
account for the shotgun blast and the evidence placing the shotgun in Williams’s
hand.4 Nonetheless, she considered her conduct deficient.
4
By the time of the habeas proceeding, “Xavier” had been located. His testimony at the
habeas proceeding was consistent with the theory that Collier was alive at the time he was
shot by the shotgun, presumably wielded by Williams. However, because Xavier was not a
witness at the trial at which Williams was convicted and because the jury never heard Xavier’s
testimony, this evidence is irrelevant to the question determinative of an ineffective assistance
of counsel claim in a habeas case – whether there is a reasonable probability that the outcome
of the trial would have been different if counsel had performed effectively. See Little v.
Johnson, 162 F.3d 855, 860-61 (5th Cir. 1998).
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No. 05-20350
After the first evidentiary hearing, the original trial judge left the bench.
A second evidentiary hearing was held before the new judge in which
substantially the same testimony was presented except that Muldrow did not
testify again.
The state trial court entered findings of fact and conclusions of law
recommending that habeas relief be granted only on the claim that counsel was
ineffective in failing to retain a firearms expert to show that “EB-1” came from
Guevara’s gun. In reaching this conclusion, the trial court specifically found that
“EB-1” came from Collier’s head and was fired from Guevara’s gun. The trial
court simultaneously found that Williams had not demonstrated that “EB-1”
inflicted the fatal wound or that Collier was already dead when Williams shot
him with the shotgun. Instead, the trial court found that Collier was alive when
Williams shot him with the shotgun. As a result, the trial court recommended
denial of Williams’s claim of actual innocence.
On the ineffective assistance claims, however, the trial court found that
proper ballistics testing would have caused counsel to seek out independent
pathological testimony on the possibility that “EB-1,” not the shotgun, caused
Collier’s death. This evidence, in turn, would have changed the type and
strength of cross-examination of Guevara, the jury’s ultimate assessment of
Guevara’s credibility, and much of the prosecution’s closing argument. The trial
court further determined that the jury would have heard and possibly credited
Krouse’s testimony that Collier was dead before the shotgun blast. The trial
court concluded that, but for counsel’s deficiencies, the jury would have been
presented with favorable and arguably exculpatory evidence and might have
found Williams guilty of a lesser offense. Accordingly, there was a reasonable
probability of a different result sufficient enough to satisfy the prejudice prong
of Strickland v. Washington, 466 U.S. 668, 695 (1984).
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No. 05-20350
Despite the trial court’s recommendation, the Texas Court of Criminal
Appeals denied habeas relief on all grounds. The appellate court entered a two-
page order denying relief. The court offered no explanation or analysis to
support its decision other than the following:
Evidentiary hearings were held and the trial judge entered findings
of fact and conclusions of law as to the allegations raised. In those
findings and conclusions the trial court has recommended relief be
granted due to ineffective assistance of counsel. However, we do not
believe, based on our review of the record presented, that some of
the crucial fact findings and the recommendation based, at least in
part, on them, are supported by the evidence presented at the
evidentiary hearing.
Accordingly, after a review of the record with respect to the
allegations made by Applicant, and with due consideration of the
recommendation made by the trial court, the relief sought is denied.
C. The Federal Habeas Proceeding
Following the decision of the Texas Court of Criminal Appeals, Williams
filed a § 2254 petition in the United States District Court for the Southern
District of Texas. Among other claims, Williams raised a claim of ineffective
assistance of counsel based on trial counsel’s failure to obtain independent
ballistics evidence and the testimony of an independent pathologist. Williams
also asserted that the cumulative effect of trial counsel’s ineffectiveness and the
falseness of suppressed evidence undermined confidence in the jury verdict. The
district court determined that it should not conduct an evidentiary hearing.
Instead, it granted summary judgment to the state on all claims relating to
Williams’s conviction.5
With respect to the ineffective assistance of counsel claims relevant here,
the district court faced the difficult issue of how to handle the Texas Court of
Criminal Appeals’s decision regarding the state habeas court’s factual findings.
5
As noted above, the district court commuted Williams’s sentence to life in prison under
Roper v. Simmons, 543 U.S. 551, 574-75 (2005).
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No. 05-20350
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), deference
must be given to factual findings of the state court in the absence of clear and
convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1). Because the
ineffective assistance of counsel claims were adjudicated in state court, the
district court, as well as our court, must defer to the state court’s resolution
unless its determination was “contrary to” or an “unreasonable application of”
clearly established federal law as determined by the United States Supreme
Court. § 2254(d); see also Hill v. Johnson, 210 F.3d 481, 485 (2000). A state
court decision is contrary to clearly established federal law if it “applies a rule
that contradicts the governing law set forth in [Supreme Court] cases,” Williams
v. Taylor, 529 U.S. 362, 405 (2000), or “if the state court confronts a set of facts
that are materially indistinguishable from a decision of [the Supreme Court] and
nevertheless arrives at a result different from [the Court’s] precedent.” Id. at
406. A state court decision involves an unreasonable application of clearly
established federal law if the state court “correctly identifies the governing legal
rule but applies it unreasonably to the facts of a particular prisoner’s case . . . .”
Id. at 407-08.
Because the Texas Court of Criminal Appeals failed to specify which of the
state trial court’s factual findings it rejected, the district court diligently and
conscientiously attempted to discern on its own which factual findings survived
and which did not. The district court, in a very thorough and deliberate opinion,
ultimately concluded that only the factual findings inconsistent with the denial
of habeas relief – the state trial court’s findings regarding the prejudicial effect
of counsel’s alleged errors – would be disregarded. It concluded that the
remaining trial court factual findings were entitled to deference and denied
habeas relief. This appeal followed.
II. DISCUSSION
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No. 05-20350
On appeal, Williams challenges the district court’s approach because the
Texas Court of Criminal Appeals did not explain which facts it accepted and
which it rejected. He contends that the district court erroneously substituted its
own judgment, guessing which facts were accepted and rejected, and incorrectly
applied a presumption of correctness to the facts it determined were accepted.
A presumption of correctness applies to explicit findings of fact and to
“those unarticulated findings which are necessary to the state court’s conclusions
of mixed law and fact.” Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir.
2001). A trial court’s factual findings are entitled to a presumption of
correctness even if the state appellate court reached a different legal conclusion
when applying the law to those facts. Sumner v. Mata, 449 U.S. 539, 546-47
(1981); Craker v. Procunier, 756 F.2d 1212, 1213-14 (5th Cir. 1985). On the
other hand, a state habeas trial court’s factual findings do not survive review by
the Texas Court of Criminal Appeals where they were neither adopted nor
incorporated into the appellate court’s peremptory denial of relief, but instead
were directly inconsistent with the appellate court’s decision. Micheaux v.
Collins, 944 F.2d 231, 232 (5th Cir. 1991) (en banc). In Micheaux, this Court
held that, in such a circumstance, the presumption of correctness did not attach
to the state habeas trial court’s findings and the federal district court correctly
conducted a de novo hearing on the petitioner’s claims. Id.; see also Singleton v.
Johnson, 178 F.3d 381, 384-85 (5th Cir. 1999) (concluding that when the state
habeas trial court recommends that relief be granted in part and denied in part
but the Texas Court of Criminal Appeals denies relief without a written order,
there are no factual findings to which the presumption of correctness attaches,
requiring the federal district court to conduct a de novo evidentiary hearing).
Given the Texas Court of Criminal Appeals’s decision, it would be pure
speculation for this court or the district court to determine which facts the Texas
Court of Criminal Appeals concluded were and were not supported by the
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No. 05-20350
evidence. Accordingly, we conclude that this case is analogous to Micheaux and
Singleton, not Craker, such that no factual findings survive to which we can give
deference. As a result, the district court must conduct a de novo hearing of
Williams’s ineffective assistance of counsel claims premised on trial counsel’s
failings with respect to the ballistics and pathological evidence, as well as
Williams’s cumulative error point.
III. CONCLUSION
We REVERSE the trial court’s grant of summary judgment to the State
on the question of Williams’s conviction, and REMAND for a full de novo
evidentiary hearing of Williams’s ineffective assistance of counsel claims on
which the Certificate of Appealability was granted.
E. GRADY JOLLY, Circuit Judge, dissenting:
I respectfully dissent. I would affirm the denial of habeas relief essentially
for the reasons so carefully stated in the extensive opinion of the conscientious
district judge.
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