Day v. Quarterman

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
April 27, 2009

No. 07-40699 Charles R. Fulbruge III
Clerk

DENISE ANN DAY

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 Eastern District of Texas

Before SMITH, SOUTHWICK, Circuit Judges and RODRIGUEZ 1 , District
Judge.
RODRIGUEZ, District Judge.
Denise Ann Day, the Petitioner-Appellant, appeals a district court order
that dismissed her habeas corpus application filed pursuant to 28 U.S.C. § 2254.
Day was convicted in Texas state court on three counts of injury to a child in
violation of Texas Penal Code § 22.04(a)(1). Following an unsuccessful appeal
of the convictions and the denial of a state court habeas petition, Day filed her
federal writ petition, arguing in part that her trial counsel rendered ineffective

1
District Judge of the Western District of Texas, sitting by designation.
 No. 07-40699

assistance by failing to examine adequately the prosecution’s medical evidence
prior to trial, failing to cross-examine adequately the State’s medical experts,
and failing to obtain a defense medical expert to challenge the State’s medical
expert testimony. The district court dismissed the petition. Day contends on
appeal that the district court’s ruling with respect to her ineffective assistance
claim was erroneous because the district court failed to consider properly this
Court’s holding in Draughon v. Dretke, 427 F.3d 286 (5th Cir. 2005). Finding no
reversible error, we affirm.
I.
A. The Trial Proceedings 2
On January 22, 1999, Day was convicted in Texas state court on three
counts of injury to a child in violation of Texas Penal Code § 22.04(a)(1). The
evidence presented at trial showed that during the relevant time-frame, Day
provided daycare for children, including the victims, Nathan Taylor and Emma
Russell. Tina Taylor, Nathan’s mother, testified that Nathan was born in
January 1997 and that she left Nathan in Day’s daycare periodically between
April 7, 1997 and May 22, 1997. Between May 14 and May 22, Mrs. Taylor
observed that Nathan was displaying “fussy” behavior, that Nathan could not
put weight on his right leg, and eventually, that Nathan would scream and cry
whenever he was moved. After multiple visits to a pediatrician and a visit to a
pediatric orthopedic surgeon, the surgeon determined that Nathan's leg was
fractured and immediately performed surgery to repair the fracture. Nathan
spent three weeks in a full body cast. Nathan’s mother, father, and half-sister

2
The account of the trial proceedings provided herein was copied, with limited revision,
from the account of the trial proceedings provided in the state intermediate appellate court’s
opinion denying Day’s direct appeal. See Day v. State, Nos. 05-99-00368-CR, 05-99-00369-CR,
05-99-00370-CR, 2001 WL 1674224, at *1-6 (Tex. App.—Dallas, Jan. 4, 2002, pet. ref’d).

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each testified that nothing had happened to Nathan in their presence that would
account for the fracture.
Mrs. Taylor called Day to find out what had caused the break. Day did not
offer an explanation at first but later told Mrs. Taylor that a toddler whom she
called “Big Nathan” had fallen on Nathan's leg. At the request of the police,
Mrs. Taylor allowed them to record a subsequent phone call she made to Day.
In the call, Day again said that Big Nathan had fallen on Nathan.
Kris Russell, Emma’s mother, testified that Day cared for her two
children, Fes and Emma. Emma was born on February 19, 1997, and Day began
looking after Emma in April of 1997. After seeing Emma vomit repeatedly
during May and June of 1997, Mrs. Russell decided to take Emma to a doctor.
Dr. Mosier examined Emma, discovered that Emma had an “enlarged head,”
concluded Emma had gastrointestinitis, and sent Emma home. Day continued
to care for Emma, yet Emma’s condition continued to decline, so Mrs. Russell
took Emma to a hospital emergency room and subsequently to a pediatrician.
Although Emma was tested for meningitis, those who examined Emma
concluded that Emma was merely suffering from a virus.
Mrs. Russell again left Emma and Fes in Day’s care on Monday, June 23.
While at work, Mrs. Russell received a message from Day telling her that Emma
was being “fussy” and that Fes had pushed Emma out of a swing and possibly
injured Emma's leg. Mrs. Russell would later notice that Emma would not
“stand” on her lap and that Emma's legs “looked a little bit bent.” Emma’s
parents took Emma back to the emergency room, where a doctor discovered
Emma had two broken femurs. Emma was placed in traction to straighten her
femurs. Over the next week, Emma underwent a number of tests, received two
bilateral subdural taps to relieve the swelling in her head, and had a subdural
shunt surgically implanted in her head to drain fluid. After Emma was removed
from traction, she was placed in a body cast for two weeks. The shunt was

3
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removed eight months later. Emma’s mother and father each testified that
neither knew of anything that occurred in their presence that could have caused
Emma's injuries.
On June 24, at the request of police, Mrs. Russell called Day twice. The
phone conversations were recorded. In the first conversation, Day stated she
saw Fes push a swing seat, causing Emma to fall from the seat onto her own
legs.
Marie Brown testified she was a case manager for the Texas Department
of Protective and Regulatory Services, Child Protective Services Division. She
investigated Day and the allegation that Day caused Nathan's injuries. Day
gave Brown different stories on different occasions, telling her Nathan's injuries
were caused when a child bumped him out of a swing and onto the floor, when
Big Nathan fell on him, or when he was in a walker.
Richie Rhyans, a child-care investigator for the Child Care Licensing
Division of the Texas Department of Protective and Regulatory Services also
investigated Nathan’s injuries. She testified that Day told her that another
child had fallen on Nathan's leg, causing the injury. While working on Nathan's
case, Rhyans learned of Emma's injuries and began to investigate Emma's case
as well. Day told Rhyans that Mrs. Russell had warned Day that Fes would pick
on Emma. Day told Rhyans that on some unspecified date, Day was preparing
to change Emma's diaper when Fes “jerked” Emma out of a swing and caused
Emma to fall awkwardly on her legs.
Detective Michael Johnson testified that he arranged the taping of the
parents’ phone calls to Day and obtained two written statements from Day.
Johnson also tape recorded an interview he had with Day, admitted and played
for the jury, in which Day blamed Fes for Emma's injuries, contending Fes
pushed Emma from a swing. She also blamed Big Nathan’s fall for Nathan's

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injuries. Day also implied Mrs. Russell may have been responsible for Emma's
injuries.
The prosecution presented the testimony of five doctors, each qualified as
experts. Doctor Joel Leffler, a pediatric opthamologist, testified that he
examined Emma on June 26, 1997 and found hemorrhages throughout both of
her retinas and that her optic nerves were swollen due to cranial pressure.
Leffler testified that retinal hemorrhaging was “quite common with shaken baby
syndrome” and that Emma's hemorrhages were not very old. He also testified
that retinal hemorrhaging in infants had several causes, but Emma did not
display evidence of any cause other than shaken baby syndrome. Emma's
hemorrhages did not clear up until November 1998.
Doctor David Klamer, a musculoskeletal radiologist who examined x-rays
of Emma's legs and pelvis taken on June 23 and 24, 1997, testified that each of
Emma's femurs had an acute spiral fracture. Klamer stated that a spiral
fracture is caused by a twisting force, and would not be caused by a “direct fall.”
He described an acute fracture as a relatively recent fracture that does not show
signs of healing. Klamer testified that multiple fractures of the type Emma
suffered are considered indicative of child abuse.
Klamer also examined CAT scans of Emma's skull taken on June 25, 1997.
Klamer testified that one scan showed a very large subdural hemorrhage that
appeared to have been present several weeks to months before the scan was
taken. According to Klamer, Emma's hemorrhage was indicative of
“battered-child syndrome.” Klamer also testified another scan taken on the 25th
showed Emma had a fracture on the left side of her skull. Klamer stated that
“a considerable amount of force” was required to cause the kind of skull fracture
Emma suffered. Klamer said subsequent CAT scans showed Emma's subdural
hemorrhage slowly getting smaller.

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Dr. Christine Quatro, a pediatric orthopedic surgeon, testified that she
took x-rays of Nathan's leg on May 23, 1997 and discovered a “short spiral
fracture” in Nathan's right femur. Quatro testified that the break appeared to
be healing, which indicated to Quatro that the fracture occurred seven to ten
days before the x-ray was taken. Quatro opined that Nathan's fracture was
caused by someone turning Nathan’s right foot or ankle towards his left foot
while holding his body still. She testified that a four-month-old baby, the age
Nathan was at the time of his injury, would not be able to cause a femoral spiral
fracture on his own, nor could the fracture be caused by “bouncing” in a walker.
Quatro testified that a four-month-old child has bones that are “very
plastic,” meaning they have some “give” and, as a result, require considerable
force to actually break. She testified that spiral fractures of the femur are rare
for children less than a year old because they are not yet walking on their own
and do not have sufficient body weight to generate the force needed to cause a
spiral fracture. When a child's femur breaks, the child will “immediately scream
and cry,” and there may be a snapping or a popping noise.
Quatro conceded that a thirty-five-pound child 3 falling onto a
four-month-old child could cause a spiral fracture of the femur, but thought that
such an occurrence was unlikely. Quatro believed that such an incident would
probably cause a transverse fracture, or a “clean break,” rather than a spiral
fracture. Quatro also examined x-rays taken of Nathan on May 15, one of which
showed a fracture in his right leg. However, that fracture was not displaced, and
the fracture shown in the May 23 x-ray was a displaced fracture. Quatro
testified that a child falling on an already-broken leg could cause the fracture to
displace. Moving a leg to change a diaper could also cause the displacement.

3
The record suggests “Big Nathan” weighed approximately thirty-five pounds.

6
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Quatro testified that skull fractures and bilateral fractures 4 are highly
indicative of child abuse. At trial, Quatro compared Nathan's x-rays and
Emma's x-rays and declared the leg fractures were “[v]ery similar.” Quatro
testified that the fractures shown in Emma's x-rays could not have been caused
by a child’s fall from a swing similar to the swing from which Day said Emma
fell. Quatro concluded that the children’s injuries were not caused by accident,
but were inflicted intentionally and knowingly.
Doctor David Owen, a pediatric neurologist, testified that he examined
Emma on June 25, 1997 and concluded that Emma was suffering from, among
other things, a subdural hemorrhage, “probably due to being shaken,” and a
skull fracture. Owen testified that shaking a child can cause small blood vessels
in the brain to “break and ooze blood” and that children are particularly
susceptible to injury from shaking. Subdural hemorrhages might cause brain
damage, cerebral palsy, mental retardation, seizures, and death. Owen stated
the skull fracture could have been caused by striking an object instead of
shaking. Owen also believed Emma's injuries were two-to-four weeks old at the
time he examined her. The pressure from the subdural hemorrhage caused the
plates of Emma's skull to grow abnormally, so she wore a “DC band” to correct
the shape of her skull. Owen testified Emma's injuries were consistent with
shaken baby syndrome, that they were not the result of an accident, and that he
had no explanation other than child abuse. Owen testified that a toddler would
not be able to inflict the injuries Emma suffered.
Doctor Frank McGehee testified that shaken baby syndrome occurs when
a baby's body is shaken back and forth, causing “a whiplash injury” to the head.
Symptoms of the syndrome include cranial bleeding and hemorrhages in the
back of the eye or retina. One of the effects of the syndrome is brain damage.

4
Bilateral fractures are those that occur on both sides of the body, such as when both
arms are broken.

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He examined Emma's medical records and concluded she had been intentionally
injured and had been shaken, most likely on June 11, 1997.
McGehee testified that pressure on a baby's brain will cause the baby to
vomit. McGehee also testified that a toddler does not have the strength to shake
a baby hard enough to cause the injuries associated with shaken baby syndrome.
He further testified that a baby is not capable of causing spiral fractures of its
own femurs, and the force required to cause those kinds of fractures is
equivalent to being hit by a car going twenty miles-per-hour. McGehee stated
that a fall from a swing onto carpet would not have caused Emma's skull
fracture and that Nathan's spiral fracture could not have happened from
anything he did in a walker or by a toddler falling on his leg.
The testimony of the State’s five medical experts thus tended to show that
the victims’ injuries were caused by intentional conduct and that the injuries
occurred during the time frame in which the victims may have been under Day’s
care. Day’s counsel declined to cross-examine Dr. Leffler and Dr. Owen. Day’s
counsel cross-examined Dr. Quatro extensively regarding alternative causes of
Nathan’s injuries and elicited testimony that called into question the date of
Nathan’s initial injury. Day’s attorneys elicited testimony from Dr. Kramer that
he was presuming abuse until shown evidence to the contrary, but they did not
challenge his medical conclusions. Similarly, Day’s counsel did not challenge Dr.
McGehee’s medical conclusions but elicited testimony from him that he was only
testifying that Emma’s injuries were intentionally inflicted, not that Day
specifically injured Emma.
In defense of Day, Day’s husband testified as to Day’s character as a “good
mom” and “a competent day care provider.” He testified her “ultimate” concern
was the welfare of the children she cared for. Day’s husband never saw Day hurt
or try to hurt any child under her care.

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Day also testified, denying that she harmed Nathan or Emma or knowing
how they got hurt. She testified that she noticed “something was seriously
wrong” with Emma when Mrs. Russell dropped off Emma on June 23. She
discussed Emma's condition with Mrs. Russell, who assured Day that Emma had
been diagnosed with meningitis. Day testified that on that day she was
preparing to change Emma's outfit while Emma was in a swing and Fes “was
standing right around the swing area.” Day turned her back to gather the items
she needed to change Emma, and when she turned back around, Emma was
“lying on the floor.” Fes had his hand on the swing and had apparently pulled
it back, causing Emma's fall. Emma's legs were bent underneath her, but she
did not fuss or cry.
B. The State Habeas Corpus Proceeding
After an unsuccessful direct appeal, Day filed a state habeas petition in
which she alleged that her trial counsel rendered ineffective assistance during
the guilt/innocence phase by failing to review much of the State’s medical
evidence prior to trial, failing to cross-examine some of the State’s medical
experts, and failing to secure the assistance of a medical expert for the defense.5
In support of her petition, Day pointed to comments made by her lead
attorney before trial that he had not reviewed all available records.
Approximately one month prior to trial, the State filed medical records it
intended to rely upon in prosecuting Day. One week before trial, the district
court clerk delivered copies of the medical records to Day’s counsel. On the same
day, Day’s lead attorney filed a hand-written motion to continue, explaining that
he would need more time to review the voluminous records, to investigate the

5
Day also alleged that her counsel was ineffective for failing to strike a juror who said
he could not consider a probated sentence and that the State failed to disclose exculpatory
evidence. She did not raise these issues in her COA motion or in her appellate brief and
therefore has waived them. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999).

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State’s medical evidence, and to secure a medical expert. Day’s counsel did not
explain why he did not take the opportunity to review the records in the clerk’s
office before the clerk delivered copies of the records to him. The State’s attorney
responded that she had made the records available in her office for the preceding
six months but that Day’s counsel never sought the records directly from her.
The trial court denied the continuance. On the first day of trial, Day’s counsel
stated that he still had not reviewed many of the medical records received from
the State the previous week.
The district court that initially reviewed Day’s petition ordered Day’s trial
counsel to file affidavits addressing whether, and to what extent, they reviewed
and prepared for the State’s medical evidence. Day’s lead trial attorney passed
away shortly after Day’s trial and before the state habeas proceedings. Co-
counsel representing Day at trial submitted an affidavit in which he testified
that Day’s trial counsel read the medical records prior to trial but sought the
continuance to try “to slow the train down.” He did not explain why they failed
to secure a medical expert to assist in Day’s defense.
Day submitted to the state habeas court the affidavit of Dr. John Galaznik.
Galaznik, a certified pediatrician, testified in the affidavit that he reviewed the
State’s testifying medical experts’ testimony and the X-ray and CT scan reports
but did not review the actual studies or photographs of the patients. Galaznik
concluded that: (1) clear evidence existed within the medical record that Emma’s
head injury and central nervous system (“CNS”) pathology occurred before
Emma was placed in Day’s care; (2) Dr. Owen, who testified that Emma’s CNS
pathology was two-to-four weeks old when he diagnosed it, was aware of
evidence that the pathology was present more than seven weeks before it was
diagnosed; (3) Dr. McGehee, who testified that Emma was “fine” until June 11,
1997 when she suffered injuries that exhibited shaken baby syndrome, failed to
take note of evidence that proved that Emma’s CNS symptoms were well

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established by May 5, 1997; (4) Emma’s head injury was caused either by her
parents’ abuse or perinatal trauma; (5) many contradictions existed within the
State’s evidence that cast doubt as to the validity of the State’s shaken baby
hypothesis and Dr. McGehee’s theory regarding the cause of Emma’s head
injury; and (6) clear medical disagreement existed that would cast doubt upon
the State’s theory that Nathan’s and Emma’s femoral fractures were not caused
by accidental forces.
The state district court made findings of fact and conclusions of law,
including: the facts stated in trial counsel’s affidavit were true; trial counsel
reviewed the medical records and were prepared for the State’s medical evidence
at trial; the failure to contest “the majority” of the medical conclusions of the
State’s experts was the result of reasonable trial strategy by Day’s counsel; it
was reasonable not to call a defense expert to contest the State’s medical
evidence in light of the defense strategy that identity of the perpetrator was the
primary issue and the jurors would likely find the State’s doctor’s testimony
credible; trial counsel provided representation within the standards of
reasonableness established by professional norms; and the result of the
proceeding would not have differed even if trial counsel adopted a different cross-
examination strategy of the State’s medical experts. The Texas Court of
Criminal Appeals adopted the findings and conclusions and denied relief without
opinion.
C. The Federal District Court Habeas Corpus Proceeding
Day subsequently filed a federal writ petition asserting the same grounds
for relief as sought in her state application and again submitting Galaznik’s
affidavit. The federal district court referred Day’s petition to a magistrate judge
for findings of fact, conclusions of law, and recommendations for the disposition
of the case. The Magistrate Judge recommended that the ineffective assistance
claim be dismissed because:

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[Day’s] contention that an expert would have provided favorable
testimony was speculative and insufficient to demonstrate that
there was a reasonable probability that the result would have been
different if an expert had been hired to testify at trial.
Furthermore, Dr. Galaznik did not state that he was available and
willing to testify at [Day’s] trial. See id. [citing Alexander v.
McCotter, 775 F.2d 595, 602 (5th Cir. 1985)]. As a result, [Day] has
not shown she suffered prejudice because counsel did not call a
medical expert to testify. Additionally, [Day] has failed to
demonstrate a reasonable probability that the result of the trial
would have been different, but for counsel’s unprofessional error in
not reading all of the medical records and in failing to cross examine
the State’s experts. She has not show[n] that counsel’s performance
was deficient or that she was prejudiced.
Day objected to the Magistrate Judge’s report and recommendation,
contending that her case was “materially indistinguishable” from the facts
presented in Draughon v. Dretke, 427 F.3d 286 (5th Cir. 2005), a capital habeas
appeal in which a panel of this Court affirmed a district court’s determination
that a state court unreasonably applied Strickland v. Washington, 466 U.S. 668
(1984), to a claim of ineffective assistance of counsel. The district court declined
to consider Draughon, stating merely that “the standards for death penalty cases
are not applicable to this non-death penalty case.” The district court then
adopted the Magistrate Judge’s recommendations and dismissed the petition.
II.
In a federal habeas corpus appeal, the district court’s findings of fact are
reviewed for clear error and the district court’s conclusions of law are reviewed
de novo. Gomez v. Quarterman, 529 F.3d 322, 327 (5th Cir.), cert. denied, 129 S.
Ct. 628 (2008). When a federal habeas petitioner’s claim has been adjudicated
on the merits in a state court proceeding, a federal court may only grant habeas
relief if the state court’s adjudication of the claim either (1) resulted in a decision
that was contrary to, or involved an unreasonable application of, clearly
established federal law as determined by the United States Supreme Court, or

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(2) resulted in a decision that was based on an unreasonable interpretation of
the facts in light of evidence presented in the state court proceeding. 28 U.S.C.
§ 2254(d); Gomez, 529 F.3d at 327. A state court’s decision is contrary to clearly
established Supreme Court precedent if it applies a rule that contradicts the
governing law set forth in Supreme Court precedent or if it confronts a set of
facts that are materially indistinguishable from a Supreme Court decision and
arrives at a different result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A
state court unreasonably applies clearly established federal law if it identifies
the correct governing principle but unreasonably applies that principle to the
facts of the case. Brown v. Payton, 544 U.S. 133, 141 (2005). The question is not
whether a federal court believes the state court’s determination was incorrect
but whether that determination was unreasonable – a substantially higher
threshold. Schriro v. Landrigan, 550 U.S. 465, 473 (2007). Further, the federal
habeas court must defer to the state court’s factual findings unless the petitioner
rebuts those findings with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Because Day presents claims of ineffective assistance of counsel, the
district court’s task was to analyze the state court habeas decision in light of
Strickland v. Washington, 466 U.S. 668 (1984). Strickland established a two-
prong test for deciding ineffective assistance claims, under which the petitioner
must show that trial counsel’s performance was deficient and that the deficient
performance prejudiced the defendant. Id. at 687. Counsel’s performance is
deficient where it falls short of reasonable performance under prevailing
professional norms. Id. at 688. The standard requires the reviewing court to
give great deference to counsel’s performance, strongly presuming counsel
exercised reasonable professional judgment. Id. at 690. In order to prove
prejudice, “[t]he defendant must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 695. The petitioner must “affirmatively prove,” not just

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allege, prejudice. Id. at 693. If the petitioner fails to prove the prejudice
component, the court need not address the question of counsel’s performance.
Id. at 697.
III.
Day’s issue on appeal is whether the district court erred when it declined
to apply Draughon v. Dretke to her case, concluding that Draughon applies only
to death penalty cases.6 The district court’s determination that Draughon’s
precedential value is limited to capital habeas cases is a conclusion of law,
reviewed de novo by this Court. Gomez, 529 F.3d at 327.
Draughon was a capital habeas appeal in which a panel of this Court
affirmed a district court’s determination that a state court unreasonably applied
Strickland to Draughon’s ineffective assistance of counsel claim. Draughon was
convicted for murder as a result of a shooting that occurred during an attempted
robbery. The evidence at trial showed that Draughon fired a number of bullets
as he attempted to escape a crowd that had gathered in the parking lot of a
restaurant while he was attempting to rob the establishment. One of the bullets
struck and killed one of the gatherers. Draughon contended at trial that he was
merely attempting to fire shots into the air to scare away his pursuers and that
he did not intend to kill anyone. To controvert Draughon’s theory, the State
presented a ballistics expert who testified that nothing on the bullet recovered
from the victim showed that it hit an object and ricocheted before striking the
victim. Thus, the State argued – and the jury apparently agreed – that
Draughon intended to fire directly at the victim. Draughon’s counsel did not
present ballistics evidence during trial or obtain a ballistics expert to assist in
the defense.

6
The State does not argue that Draughon is confined to capital cases. Rather, the
State argues that the district court’s holding may be affirmed regardless of its treatment of
Draughon.

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During the subsequent federal habeas proceeding, Draughon presented a
ballistics expert who analyzed the bullet and concluded that the bullet displayed
characteristics that would suggest it had hit an object and ricocheted before
striking the victim. The federal district court determined – and this Court
agreed – that Draughon’s trial counsel rendered ineffective assistance by failing
to obtain expert forensic examination of the path of the fatal bullet fired from
petitioner’s gun. Trial counsel’s “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.”
Draughon, 427 F.3d at 296.
This Court did not explicitly limit Draughon’s applicability to capital
cases, and we can see no other grounds for so limiting Draughon. Day seeks to
apply Draughon’s reasoning—that the failure to challenge expert testimony with
a defense expert rendered counsel’s assistance ineffective because it deprived the
defendant of a substantial argument and set up an unchallenged factual
predicate for the State’s main argument—to the facts of her case. It is difficult
to understand how the principles announced in Draughon are or were intended
to apply only to capital cases.
To the contrary, this Court has frequently applied to non-capital cases
principles of general applicability announced in capital cases. For example, in
Williams v. Taylor, 529 U.S. 362 (2000), a federal habeas case arising from a
conviction that resulted in a death penalty sentence, the Supreme Court clarified
the law regarding proper review of habeas corpus attacks on state convictions.
This Court applies Williams to capital and non-capital cases alike. See, e.g.,
Young v. Dretke, 356 F.3d 616, 623-24 (5th Cir. 2004). Strickland v. Washington,
the case the district court applied in denying habeas relief, was itself a capital
habeas appeal. The district court’s limitation of Draughon’s applicability to
capital cases thus appears arbitrary, would contradict precedent in which

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generally applicable principles have been applied to capital and non-capital
cases alike, and would call into question the continued application to non-capital
cases general principles announced in capital cases.
IV.
The above notwithstanding, independent grounds exist in the record for
affirming the denial. See Scott v. Johnson, 227 F.3d 260, 262 (5th Cir. 2000)
(“[T]his Court may affirm the denial of habeas relief on any ground supported
by the record.”) (citation omitted).7
A.
Day contends that her trial counsel rendered ineffective assistance by
failing to call a medical expert to rebut the testimony of the State’s medical
experts. This claim is in many respects similar to Draughon’s. The State’s case
that Emma’s and Nathan’s injuries were caused within the time frame in which
the children were in Day’s care was premised largely on the State’s medical

7
Day contends that a holding that the district court erred by improperly limiting
precedent compels remand of the matter for the district court’s reconsideration. This is not
so where, as here, grounds exist in the record for affirming the habeas denial regardless of the
district court’s error. See Scott v. Johnson, 227 F.3d at 262.
In her reply brief, Day further contends that the State’s “assertion that the facts are
not comparable to Draughon cannot be adequately analyzed without further development of
the record.” To the extent Day seeks remand for further factual development of her claim, that
request must be denied. Requests for an evidentiary hearing are evaluated under 28 U.S.C.
§ 2254(e)(2). Murphy v. Johnson, 205 F.3d 809, 815 (5th Cir. 2000). Section 2254(e)(2)
provides:

If the applicant has failed to develop the factual bases of a claim in State court
proceedings, the court shall not hold an evidentiary hearing on the claim unless
the applicant shows that—(A) the claim relies on—(i) a new rule of
constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable; or (ii) a factual predicate that
could not have been previously discovered through the exercise of due diligence;
and (B) the facts underlying the claim would be sufficient to establish by clear
and convincing evidence that but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying offense.

Day has not attempted to make any of the required showings. Further, the record suggests
Day had an opportunity to develop the factual basis for her claim in state court.

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expert testimony. Given counsel’s seeming failure to challenge the State’s
medical expert testimony, Day apparently had little more than her own
testimony to persuade the jury that the injuries were not caused during the time
frame that the children were in her care.
Nevertheless, Day fails to satisfy the prejudice showing required for
ineffective assistance claims based on counsel’s failure to call a witness. This
Court has repeatedly held that complaints of uncalled witnesses are not favored
in federal habeas corpus review because the presentation of testimonial evidence
is a matter of trial strategy and because allegations of what a witness would
have stated are largely speculative. Bray v. Quarterman, 265 F. App’x 296, 298
(5th Cir. 2008). Thus, to prevail on an ineffective assistance claim based on
counsel’s failure to call a witness, the petitioner must name the witness,
demonstrate that the witness was available to testify and would have done so,
set out the content of the witness’s proposed testimony, and show that the
testimony would have been favorable to a particular defense. Id. (citing
Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985)). We have required this
showing for claims regarding uncalled lay and expert witnesses alike. See, e.g.,
Evans v. Cockrell, 285 F.3d 370, 377-78 (5th Cir. 2002) (rejecting uncalled expert
witness claim where petitioner failed to present evidence of what a scientific
expert would have stated); U.S. v. Doublin, 54 F. App’x 410 (5th Cir. 2002).
Although Day presented Dr. Galaznik’s lengthy affidavit in which
Galaznik analyzes and rebuts much of the State’s medical expert testimony,
nowhere in the affidavit does Galaznik state that he was available to testify at
trial, that he would have done so, or that he would have testified in accord with
the opinions and conclusions he states in his affidavit. In fact, Day admits in her
reply brief that she “has not claimed trial counsel should have hired Dr.
Galaznik himself or someone whose views are similar to his. Instead,
throughout the proceedings in the State courts and the federal district court she

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has pointed to trial counsel’s neglect, not only to secure any defense expert, but
his failure to properly challenge the State’s experts via cross-examination.” Day
continues: “Had counsel investigated the case to any reasonable degree, the
inexactness of medicine and the differences of opinion among doctors entail that
he would easily have found something more than the perfunctory and peripheral
things he used to attempt to challenge the State’s conclusions.” Day’s uncalled
expert witness claim encounters the exact problem of speculation that the Fifth
Circuit seeks to avoid by requiring the prejudice showing set forth in Alexander
v. McCotter. Without making that showing, Day is asking the Court to take the
leap of faith that counsel “would have found something” that may have created
a different result at trial had counsel performed as Day proposes.
Day contends that this result improperly adds unnecessary elements to
Strickland’s prejudice analysis. In support, Day points to the Draughon opinion,
which did not analyze whether the petitioner’s ballistics expert was available to
testify at trial and would have testified favorably. But the issues of the expert’s
availability or willingness to testify favorably were not before the Draughon
panel. Moreover, Strickland itself requires this specific showing for uncalled
witness claims: “In order for the appellant to demonstrate the requisite
Strickland prejudice, the appellant must show not only that this testimony
would have been favorable, but also that the witness would have testified at
trial.” Alexander, 775 F.2d at 603 (citations omitted). Day’s contention that this
analysis adds unnecessary elements to Strickland’s prejudice analysis is thus
contrary to the Court’s prior holdings.
Moreover, even if Day’s trial counsel had presented an expert who testified
in accord with Galaznik’s opinions, there would still not be a reasonable
probability that the uncalled witness would have changed the jury’s conclusion
that the children were injured at a time when they were in Day’s care. The jury
heard ample evidence – including Day’s testimony and statements made by Day

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to other witnesses, some of which were recorded and played to the jury – that
Day believed the injuries were caused by accidents that occurred while the
children were in Day’s care. Nathan’s mother, Marie Brown, Richie Dean
Rhyans, and Detective Mike Johnson testified that Day explained to each of
them respectively that she thought Nathan’s injuries occurred or possibly
occurred when another heavier child in her care fell on Nathan’s legs. Referring
to the accident, she told Detective Johnson that “I’m pretty sure it happened
over here.” Similarly, Emma’s mother, Nathan’s mother, Rhyans, and Detective
Johnson testified that Day explained to each of them respectively that she
believed Emma’s injuries occurred when Emma’s brother pushed Emma out of
a swing. Day told Emma’s mother “If anybody’s going to get in trouble for this,
it’s going to be me because I–because they were in my care, and they were at the
day care.” Day told consistent stories at trial, although she expressed her lack
of certainty as to how the injuries occurred. Given the wealth of evidence that
Day herself believed the injuries resulted from accidents that occurred while the
children were in Day’s care, it is difficult to believe that expert testimony
questioning the experts’ conclusions regarding the time of injury would have
changed the result at trial. Indeed, such testimony may have called into
question Day’s candor and ultimately proved counter-effective. Thus, Day failed
to prove prejudice, and the district court did not err in its conclusion that the
state court did not unreasonably apply Strickland with respect to Day’s uncalled
witness claim.
B.
Day also contends that her defense counsel failed to challenge adequately
the testimony of the State’s medical experts through cross-examination. Again,
the district court concluded that Day failed to establish the prejudice element,
adopting the Magistrate Judge’s conclusion that Day “failed to demonstrate a
reasonable probability that the result of the trial would have been different, but

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for counsel’s unprofessional error in . . . failing to cross examine the State’s
experts.”
Day’s argument again suffers from speculation. As with her claim
regarding counsel’s failure to secure the assistance of a medical expert, Day
merely “point[s] to trial counsel’s neglect [in] his failure to properly challenge the
State’s experts via cross-examination” and speculates that “[h]ad counsel
investigated the case to any reasonable degree, the inexactness of medicine and
the differences of opinion among doctors entail that he would easily have found
something more than the perfunctory and peripheral things he used to attempt
to challenge the State’s conclusions.” Day does not offer a concrete explanation
of the testimony that alleged proper cross-examination would have elicited.
Although Day offered the affidavit of Dr. Galaznik, who opined that evidence
existed to challenge the State’s intentional conduct theory and the State’s
evidence that placed the time of the injuries at the time of Day’s care, Day
admits that she “has not claimed trial counsel should have hired Dr. Galaznik
himself or someone whose views are similar to his.” Day’s mere allegation of
inadequate performance during cross-examination is thus conclusory and does
not permit the Court to examine whether counsel’s failure prejudiced her. See
United States v. Irby, 103 F.3d 126 (5th Cir. 1996) (unpublished) (denying
ineffective assistance claim based on counsel’s failure “to adequately cross-
examine a number of government witnesses” because petitioner “fail[ed] to set
forth ... the possible impact of any additional cross-examination”); Lincecum v.
Collins, 958 F.2d 1271, 1279 (5th Cir. 1992) (denying habeas relief where
petitioner “offered nothing more than the conclusory allegations in his
pleadings” to support claim that counsel was ineffective for failing to investigate
and present evidence). Again, the Court must affirm the district court’s
conclusion that the state court did not unreasonably apply Strickland because
Day failed to prove prejudice under Strickland.

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C.
Finally, Day contends that her trial counsel was ineffective for failing to
review the State’s medical records prior to trial. The district court concluded
that Day failed to demonstrate the requisite prejudice with respect to this claim.
Trial counsel’s failure to review the prosecution’s file prior to trial can, in
certain circumstances, constitute performance that falls below the level of
reasonable performance. See, e.g., Rompilla v. Beard, 545 U.S. 374 (2005).
Nevertheless, the state habeas court specifically determined that Day’s counsel
adequately reviewed all of the State’s medical records, and a presumption of
correctness applies to the state court’s explicit findings of fact. 28 U.S.C. §
2254(e)(1); Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir. 2001). The
federal habeas court must defer to the state court’s factual findings unless the
petitioner rebuts those findings with clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1). Day did not (and does not now) attempt to rebut those factual
findings.8 The federal court must therefore presume that Day’s counsel
adequately reviewed all of the State’s medical records, precluding a finding that
Day’s counsel’s performance was deficient. Further, for the reasons stated
above, Day again fails to demonstrate that she was prejudiced by her counsel’s
alleged failure. Assuming Day’s counsel did fail to examine adequately the
State’s medical evidence, Day does not demonstrate what counsel would have
discovered by a review of the State’s file that was not found during counsel’s
preparations for the case. Nor does Day demonstrate a reasonable probability
that discovery of any such information would have altered the outcome at trial.

8
Day seeks remand in part for further factual development. Day does not contend that
the limited grounds for holding an evidentiary hearing in the federal habeas proceeding are
satisfied. See 28 U.S.C. § 2254(e)(2). Moreover, it is unlikely that Day would be able to satisfy
the requirements of section 2254(e)(2). Further, Day did not request remand for further
factual development until her reply brief. Day has therefore waived the argument. See
Linbrugger v. Abercia, 363 F.3d 537, 541 n.1 (5th Cir. 2004).

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Day’s claim of prejudice is thus inadequate as conclusory. See Miller v. Johnson,
200 F.3d 274, 282 (5th Cir. 2000); Anderson v. Collins, 18 F.3d 1208, 1220-21
(5th Cir. 1994). The state habeas court thus did not unreasonably apply
Strickland to Day’s claim that her counsel was ineffective for failing to review
the medical records.
V.
We AFFIRM the judgment of the district court.

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