UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 95-20635
___________________________
ANTHONY RAY WESTLEY,
Petitioner-Appellant,
VERSUS
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
___________________________________________________
Appeal from the United States District Court
for the Southern District of Texas, Houston Division
____________________________________________________
May 13, 1996
Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.
DAVIS, Circuit Judge:
Anthony Ray Westley, convicted of murder and sentenced to
death by a Texas state court, appeals from the district court's
denial of his petition for a writ of habeas corpus. For the
reasons discussed below, we affirm.
I.
On Friday, April 13, 1984, Debra Young (Young) was working in
Eileen's Bait and Tackle, owned by Chester Frank Hall (Hall) and
his wife, Eileen. At approximately 1:45 pm, Anthony Ray Westley
(Westley), John Dale Henry (Henry), and Walter Dunbar (Dunbar)
entered the store. Hall had just walked out to go home. According
to Young, Westley went up to her at the counter and asked for
fishing worms. While she was preparing the bait, Westley grabbed
her and stuck a gun in her face. Young started screaming and
Westley threatened her: "Shut up, or I will kill you." He then
demanded money and struck her in the chest, knocking her against
the wall. Young opened the cash register and Westley ordered her
to lie down behind the counter. Westley grabbed the money and then
noticed a pistol case and money bag behind the counter, both empty.
He patted Young's pockets for the gun and demanded the rest of the
money. Young said her boss had taken it. Westley then told Young
to turn her face to the wall and put a gun in her back. At that
point, the bell on the front door rang as Hall entered the shop.
Westley stood, fired a shot toward the door, and ran out from
behind the counter. Young testified that Westley fired the first
shot, but then she heard a rapid succession of gunshots from both
large and small caliber pistols, including Hall's small derringer.
Young rose to a crouching position and peered over the counter.
She saw Hall running toward the store's office with Westley and
Henry in pursuit. Westley caught Hall before he reached the office
and a struggle ensued. Young testified that Westley repeatedly hit
Hall's head against a concrete fish tank. She also heard three to
five more gunshots, none of which sounded like Hall's gun. Then
she heard a final shot from the direction of Westley and Hall who
were still scuffling and saw both men jerk.
Westley then ran from the store followed by Henry, who was
wounded. Dunbar had been shot and was dying on the floor. Hall
rose to his feet, came toward Young, collapsed and died. The next
2
day, April 14, 1984, Young positively identified Westley at a line-
up as the assailant who had threatened her and fought with Hall.
Officers from the Harris County Sheriff's Office arrived
shortly after the shooting. Two guns were found at the scene--a
.25 caliber automatic by Dunbar's body and a five shot .22 caliber
derringer by Hall's. Also, two .38 caliber slugs were recovered
from the floor of the shop. During the investigation of the crime
scene, three women--Sefaneze Henry, Martha Walker, and Chrischilla
Cousan--arrived to view Dunbar, the assailant who had been killed.
Sometime later, officers discovered that Dunbar lived at the same
address as these three women. After questioning these women again,
the police believed the other two robbers to be Westley and Henry.
At 9:50 a.m. on April 14, 1984, Westley, accompanied by his
father, turned himself in to the police. Westley gave a written
confession in which he admitted carrying a .22 caliber cowboy-style
pistol and participating in the aggravated robbery. He also stated
that Henry carried a .38 caliber pistol and was the one who
threatened Young during the robbery. This statement was admitted
as evidence at Westley's trial after a hearing in which the court
found that it was given voluntarily.
The State also produced two witnesses at trial who saw two men
run from the bait shop and flee in the getaway car. This car was
eventually found a few miles from the residence of Walter Dunbar.
Inside the car, police found two rolls of pennies believed to have
been taken from the office of the bait shop.
A security guard and nurse at Northeast Memorial Hospital
identified Westley and Henry as the two men who came to the
3
emergency room at about 2:00 p.m. on April 13, 1984, for treatment
of Henry's gunshot wound.
The medical examiner testified that Hall died from a gunshot
wound that had been fired within six inches of the victim. At
Westley's trial, C. E. Anderson, the state firearms examiner,
testified that the fatal bullet was a .22 caliber long rifle,
which could not be traced to either gun found at the scene. The
firearms carried by Westley and Henry were never recovered.
Anderson identified State's Exhibit No. 17, a picture of a cowboy-
style handgun, as a long-barrel Ruger .22 caliber. Young and other
witnesses identified the pistol depicted in this exhibit as similar
to the type of gun Westley carried. On cross-examination, Anderson
admitted that larger caliber handguns from the side looked like
Exhibit 17 and that only an outside chance existed that this Ruger-
style gun fired the fatal bullet. But Anderson maintained that
other manufacturers made this style .22 from which the fatal round
could have been fired.
Chrischilla Cousan, Henry's fifteen-year-old niece who lived
in the same house as Westley, testified that she had seen Westley,
Henry, and Dunbar talking on the morning of the robbery. She also
saw Westley carrying a large, black pistol similar to Exhibit 17.
Bertha Cousan, Henry's sister and another resident of the house,
saw Westley carrying a dark, long-barreled pistol which looked like
Exhibit 17. She also overheard Westley the night after the robbery
relate that he had "wasted this white man," that Henry had been
shot, and that Dunbar had died at the bait and tackle shop.
4
Both Westley and Henry were indicted for capital murder, but
were tried separately. At Henry's trial, which was concluded on
January 24, 1985, three months prior to Westley's trial, the State
dropped the murder charge and Henry was convicted of aggravated
robbery.
Westley was tried and convicted of capital murder on May 10,
1985. At the punishment phase of his trial, the State introduced
evidence of two similar extraneous offenses. On May 29, 1982,
Westley tried to rob the owner of a jewelry store. The owner
testified that Westley pointed the gun at his head and pulled the
trigger, but the gun did not fire. Westley pulled the trigger a
second time shooting the owner in the chest and then fled. On
April 3, 1984, Westley and one accomplice robbed a real estate
office. Three victims testified and identified Westley. Two of
the witnesses also stated Westley had carried a large, black
pistol.
In addition, the State introduced Westley's conviction of
burglary after a guilty plea on February 2, 1978. He was given
probation which was revoked when he committed a second burglary the
day after his guilty plea.
Westley called five witnesses to testify that he was a fun
person and had a good reputation for being peaceful and law-
abiding. Three of the witnesses emphasized that Westley had grown
up in a poor neighborhood. His father, Ellis Miller, testified
that Westley was sorry for what he had done. None of the five were
aware of his two burglary convictions.
5
On May 14, 1985, after the jury affirmatively answered the
required special issues set out in Art. 37.071(b), V.A.C.C.P.,1
Westley was sentenced to death. The Texas Court of Criminal
Appeals affirmed the conviction and sentence; certiorari was denied
by the Supreme Court. Westley v. State, 754 S.W.2d 224 (Tex. Cr.
App. 1988), cert. denied, 492 U.S. 911, 109 S.Ct. 3229 (1989).
On October 12, 1989, Westley filed an application for writ of
habeas corpus in the state trial court. A special master was
appointed to conduct an evidentiary hearing. The master filed his
proposed findings of fact and conclusions of law, recommending that
Westley be granted relief. The trial court adopted the facts and
conclusions and also recommended Westley be granted habeas relief.
The Texas Court of Criminal Appeals summarily denied Westley's
application. Ex Parte Westley, No. 22,911-01 (Tex.Crim.App. May 6,
1992) (unpublished).
Westley then filed a petition for writ of habeas corpus in the
federal district court. Both Westley and the State moved for
summary judgment. The district court referred the case to a
magistrate who reviewed the state court findings and supporting
Article 37.071(b) then provided:
(b) On conclusion of the presentation of the evidence,
the court shall submit the following issues to the jury:
(1) whether the conduct of the defendant that caused
the death of the deceased was committed deliberately and
with the reasonable expectation that the death of the
deceased or another would result;
(2) whether there is a probability that the
defendant would commit criminal acts of violence that
would constitute a continuing threat to society; and
(3) if raised by the evidence, whether the conduct
of the defendant in killing the deceased was unreasonable
in response to the provocation, if any, by the deceased.
6
record and recommended Westley be granted habeas relief. The
district court, however, rejected the magistrate's recommendation
and entered summary judgment for the State denying habeas relief on
July 7, 1995. Westley filed a timely notice of appeal and the
district court issued a certificate of probable cause. He appeals
the district court's finding on two of his claims: ineffective
assistance of counsel and prosecutorial misconduct.
II.
Westley initially argues that he was denied his Sixth
Amendment right to effective counsel. The standard for evaluating
an ineffective assistance of counsel claim comes from Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). The habeas
petitioner has the burden to demonstrate both (1) that counsel's
performance was deficient and (2) that the errors are so
prejudicial as to "deprive the defendant of a fair trial, a trial
whose result is reliable." Id. at 687, 104 S.Ct. at 2063.
On the first prong, Strickland stated that "[j]udicial
scrutiny of counsel's performance must be highly deferential." Id.
at 689, 104 S.Ct. at 2065. "A fair assessment of attorney
performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances
of counsel's challenged conduct, and to evaluate the conduct from
counsel's perspective at the time." Id. The petitioner must
overcome "a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance." Id. "It is
not enough to show that some, or even most, defense lawyers would
have handled the case differently." Green v. Lynaugh, 868 F.2d
7
176, 178 (5th Cir.), cert. denied, 493 U.S. 831, 110 S.Ct. 102
(1989).
For the second prong, "[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. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome." Strickland. 466 U.S. at 694, 104 S.Ct.
at 2067. See also, Kyles v. Whitley, 115 S.Ct. 1555, 1566 (1995).
In Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838 (1993), the
Supreme Court further narrowed the prejudice inquiry. "[A]n
analysis focussing solely on mere outcome determination, without
attention to whether the result of the proceeding was fundamentally
unfair or unreliable, is defective." Armstead v. Scott, 37 F.3d
202, 206-07 (5th Cir. 1994), cert. denied, 115 S.Ct. 1709 (1995)
(citing Fretwell, 113 S.Ct. at 844). With this legal background
we now move to a consideration of Westley's specific claims of
ineffective counsel.
Westley contends that his counsels' conduct was professionally
unreasonable during three separate phases: the pretrial phase of
investigation and case development, the guilt/innocence phase, and
the punishment phase of his trial. In the pretrial phase,
appellant argues that counsel was deficient in failing to
adequately investigate the defense theory that Westley was not the
"triggerman"--the one who shot Hall. Westley contends his counsel
should have monitored the testimony and arguments presented at
Henry's trial and consulted an independent ballistics expert.
Westley concedes that "triggerman status" was not as prejudicial a
8
factor in the guilt/innocence phase of his trial. He agrees that
under Texas law the jury was entitled to find him guilty of capital
murder as a party to the offense which he admitted in his written
statement. Tex. Penal Code §§ 7.01, 7.02, 19.03. He also agrees
that the jury was entitled to recommend the death sentence for this
conviction. In order to assess a death penalty under the
Constitution, the state is only required to demonstrate "major
participation in the felony committed, combined with a reckless
indifference to human life." Tison v. Arizona, 481 U.S. 137, 158,
107 S.Ct. 1676, 1688 (1987). Appellant argues, however, that if he
could have cast sufficient doubt on his triggerman status at the
punishment phase, a reasonable probability exists that the jury in
considering the required special issues would have sentenced him to
life imprisonment, not death.
Strickland gives additional guidance on a failure to
investigate claim:
In any ineffectiveness case, a particular decision not to
investigate must be directly assessed for reasonableness
in all the circumstances, applying a heavy measure of
deference to counsel's judgment.
The reasonableness of counsel's actions may be
determined or substantially influenced by the defendant's
own statements or actions. Counsel's actions are usually
based, quite properly, on informed strategic choices made
by the defendant or on information supplied by the
defendant. . . . And when a defendant has given counsel
reason to believe that pursuing certain investigations
would be fruitless or even harmful, counsel's failure to
pursue those investigations may not later be challenged
as unreasonable.
Strickland, 466 U.S. at 691, 104 S.Ct. at 2066.
We must measure counsel's performance by the factual version
of the crime Westley had given counsel along with the other facts
the State was able to prove. Westley had given a written statement
9
to the police admitting that he carried a .22 caliber cowboy-style
pistol compatible with the gun that fired the fatal bullet.
Westley told his lead counsel that he carried a .22 caliber gun and
he had killed Hall. Westley told Miss Cousan that he had "wasted
this white man." According to the eyewitness, Ms. Young, Hall was
shot at close range while scuffling with Westley. On the other
hand, several witnesses living in the same house with Westley told
police that they had seen Westley with a larger caliber gun, a
.357, either before or after the robbery. Also Ms. Young told
police shortly after the robbery that she believed Westley was
carrying a large caliber gun. But at trial she identified the .22
caliber handgun in Exhibit 17 as similar in appearance to the
pistol Westley was carrying.
At the state habeas hearing, counsel testified that his
strategy was to save Westley's life by negating the "intent to
kill" element of capital murder and the "deliberateness" special
issue in the punishment phase. He wanted to convey that Westley
meant only to rob the store and that the robbery turned into a
confused shootout when Hall entered the bait shop and began
shooting. We do not find this strategy unreasonable in light of
all the evidence pointing to Westley as the shooter, especially his
own statements.
Westley points to the determination of the state habeas court
which held a hearing on Westley's ineffective assistance of counsel
claim and concluded that counsel was ineffective for failing to
attempt to demonstrate that Henry, rather than Wesley, was the
shooter. We agree with appellant that findings of basic, primary
10
or historical fact made by the state habeas court are entitled to
the deference mandated by 28 U.S.C. § 2254(d).2 But Strickland
makes it clear that determinations of ineffectiveness of counsel
are not factual findings of this nature which call for federal
court deference under § 2254(d).3
[A] state court conclusion that counsel rendered effective
assistance is not a finding of fact binding on the federal
court to the extent stated by 28 U.S.C. § 2254(d).
Ineffectiveness is not a question of "basic, primary, or
historical fac[t]." Rather, like the question whether
multiple representation in a particular case gave rise to a
conflict of interest, it is a mixed question of law and fact.
Although state court findings of fact made in the course of
deciding an ineffectiveness claim are subject to the deference
requirement of § 2254(d), . . . both the performance and
The state argued to the district court that the state habeas
court findings were not entitled to deference because the Texas
Court of Criminal Appeals had denied relief. The state relied on
Micheaux v. Collins, 944 F.2d 231 (5th Cir. 1991) (en banc), cert.
denied, 502 U.S. 115, 112 S.Ct. 1226 (1992), in which we held that
the lower court proposed findings of fact were not entitled to
deference under § 2254(d) when denial of relief by the state
appellate court was inconsistent with the factual findings of the
lower court. However, the state does not repeat that argument to
us, but seems to agree with appellant that Craker v. Procunier, 756
F.2d 1212 (5th Cir. 1985), controls our case. In its denial of
relief to Westley, the Texas Court of Criminal Appeals did not
reject the factual findings of the lower court. Also, its denial
was not inconsistent with the factual findings because the
appellate court could have found that the facts did not warrant
relief based on the appropriate legal standards. Thus, the factual
findings of the state habeas court are entitled to deference under
the reasoning of Craker. Id. at 1213-14.
Like Judge DeMoss, we have no quarrel with the state trial
court's true findings of fact. But Strickland requires us to
exercise our own judgment on whether, under these facts, counsel's
assistance was effective. The state court's conclusions in this
respect are entitled to no deference. The dissent lists six areas
where he accepts the trial court's conclusions that counsel
rendered ineffective assistance. In five of those areas, we have
explained our conclusions. Westley does not seek reversal on his
ineffective assistance of counsel claim for counsel's failure to
make a Batson objection to the state's preemptory challenges.
Because the dissent does not join issue with our explanations and
reasons for our conclusions, no further explanation is called for.
11
prejudice components of the ineffectiveness inquiry are mixed
questions of law and fact.
Strickland, 466 U.S. at 698, 104 S.Ct. at 2070 (citations omitted).
See also Motley v. Collins, 18 F.3d 1223, 1226 (5th Cir.), cert.
denied, 115 S.Ct. 418 (1994); Black v. Collins, 962 F.2d 394, 401
(5th Cir.), cert. denied, 504 U.S. 992, 112 S.Ct. 2983 (1992);
Mattheson v. King, 751 F.2d 1432, 1438 (5th Cir. 1985), cert.
denied, 475 U.S. 1138, 106 S.Ct. 1798 (1986).4
We now consider the individual acts of counsel alleged to be
deficient. First, Westley alleges that the failure to monitor
Henry's aggravated robbery trial or even request a transcript was
professionally unreasonable and prejudicial. If counsel had
monitored Henry's trial, he would have been alerted to evidence
suggesting Henry, not Westley, was the triggerman. The state
habeas court commented on a number of facets of Henry's trial that
could have been beneficial to Westley:
*The prosecutor (different from Westley's prosecutor) in both
opening and closing arguments alluded to the possibility that
Westley possessed a .357 that fired the two .38 bullets.
*Young testified that she had prior experience and familiarity
with guns and believed Westley carried a large caliber gun because
The appellant relies on language in Loyd v. Whitley, 977 F.2d
149, 157 (5th Cir. 1992), cert. denied, 508 U.S. 911, 113 S.Ct.
2343 (1993), for the proposition that a federal court should give
deference to a state court finding that a trial strategy is
unreasonable. We agree that the language in Loyd is confusing and
equivocal but it is clear from the opinion that the court gave
deference only to the findings of historical fact made by the state
court. The Loyd court made an independent determination on the
reasonableness of counsel's conduct.
12
his gun was large, made a big boom sound and produced fire out of
the barrel when fired.
*Alton Harris, a Harris County Sheriff's Deputy, testified
that immediately after the robbery, Young told him that Westley's
gun looked like a .357, similar to the .357 that Harris carried.
*Ronnie Phillips, a Harris County Sheriff's Detective, also
testified that Young told him that she thought Westley carried a
.357.
*C. E. Anderson, the state firearms expert, was asked in
Henry's trial what caliber gun could the picture (Exhibit 17 in
Westley's trial) represent. He answered that the gun pictured
could be a .22, .38, or .357. He also testified that a .38 made
more noise when shot.
We are persuaded that counsel was deficient in not at least
reviewing the transcripts of Henry's trial. A reasonable counsel
would have reviewed the testimony of Ms. Young and other witnesses
who would eventually testify against his client.
We conclude, however, that the deficiency did not operate to
Westley's prejudice at his trial. The prosecution argued in
Henry's trial at one point that Westley likely had two guns and
probably shot Hall. At another point she argued that the evidence
was inconclusive on whether Westley or Henry carried the .22 that
shot Hall. Substantially the same exculpatory evidence that
Westley carried a .38 caliber was produced in Westley's trial. On
cross-examination, Young repeated her testimony about the size and
sound of the gun and her belief it was a .357 and admitted telling
13
the police immediately after the robbery that she thought Westley
had carried a .357.
Detective Phillips testified and was cross-examined in
Westley's trial concerning the circumstances of Westley's written
statement to the police. However, Phillips was not questioned
regarding Young's statement either by the prosecution or defense.
Officer Harris did not testify at Westley's trial. But, as
mentioned above, Young's statements to the police concerning the
caliber of Westley's gun were elicited from Young on cross-
examination.
The state's ballistic expert, Mr. Anderson, testified on
direct in Westley's trial that Exhibit 17 depicted a .22 caliber
Ruger-like weapon. Exhibit 17 was identified by Young and both
Chrischilla and Bertha Cousan as similar to the gun Westley had.
On cross-examination, Anderson did admit that larger caliber
firearms looked like Exhibit 17 from the side view. Westley's
counsel elicited testimony from both Bertha and Chrischilla Cousan
based on their prior statements to police on the caliber of gun
that Westley usually carried, a .357. But, both witnesses
identified Exhibit 17 as similar to Westley's gun and admitted to
knowing little about guns.
Thus, counsel was able to elicit most of the same testimony
the State produced at Henry's trial. We are therefore persuaded
that any benefit to Westley from counsel's full use of the Henry
record would have been minimal. We do not believe this marginal
benefit was sufficient to undermine confidence in the jury's
verdict. We believe that the jury would have still found that
14
Westley fired the fatal shot in light of Ms. Young's eyewitness
testimony and Westley's own statements that he had carried a .22
caliber cowboy-style gun and had "wasted this white man."
Appellant also contends that counsel was deficient in failing
to consult an independent ballistics expert. The petitioner's
ballistics expert at the state habeas hearing testified that a
defense ballistics expert could have testified to a number of
helpful conclusions:
*Westley, "almost obviously," carried a .38 based on the
testimony of Young concerning the appearance, sound and firing
characteristics of Westley's gun.
*The .22 Ruger handgun pictured in Exhibit 17 from a side view
could not be distinguished from a .38 or .357.
*The Ruger pistol depicted in Exhibit 17 could not have fired
the fatal bullet based on the bullet markings and that the bullet
could not have been fired from any cowboy-style .22 commonly found
in the Houston area.
*The trajectory of the .38 slugs were compatible with the
location Westley was said to be standing.
Significantly, the expert's opinion on the caliber gun Westley
carried was almost entirely based on Young's testimony, even over
Westley's own statement that he carried a .22. We agree with the
district court who stated, "such credibility determination, even by
an expert, is not based on the physical, scientific evidence."
In light of counsel's difficulty in attacking his own client's
statements and the equivocal nature of the evidence counsel would
have been required to rely on to do so, we do not find unreasonable
15
his decision not to hire a ballistics expert to pursue this
defense.
Appellant next argues that, at the guilt/innocence phase of
the trial, counsel was deficient in failing to make a timely
objection to the admission of victim impact testimony and argument
and in failing to effectively combat Westley's written statement.
Appellant alleges that the prosecution improperly elicited from
Debra Young and from Hall's widow testimony about the impact of
Hall's death and the robbery. The testimony from Debra Young
concerned her state of mind during the robbery. Counsel explained
that he did not object to the testimony about Young's fears because
he believed this testimony was admissible.
Young's testimony served to establish an element of the
underlying element of aggravated robbery; i.e., intentionally or
knowingly threatening or placing another in fear of imminent bodily
injury or death. Tex. Penal Code § 29.02(a)(2). Because admission
of evidence of a victim's fear is admissible under Texas law when
it is relevant to an underlying element, an objection would have
been futile. Winkfield v. State, 792 S.W. 2d 727, 732 (Tex. App.--
Corpus Christi, 1990). Thus we do not find counsel deficient in
failing to object to this testimony.
Eileen Hall testified concerning Mr. Hall's community
volunteer service and other good deeds. The prosecutor also
alluded to Hall's good deeds during the closing argument of the
guilt/innocence phase and additionally alluded to the impact of his
death on his family during the closing argument in the punishment
phase. Counsel did not object or file a pre-trial motion in limine
16
to prevent the introduction of victim impact evidence. At the time
of Westley's trial, victim impact testimony was inadmissible in
both phases of the trial as being irrelevant. Vela v. Estelle, 708
F.2d 954 (5th Cir. 1983), cert. denied, 464 U.S. 1053, 104 S.Ct.
736 (1984). The deficiency prong of Strickland is judged by
counsel's conduct under the law existing at the time of the
conduct. Fretwell, 506 U.S. at 372, 113 S.Ct. at 844. Thus we
find counsel deficient in failing to object to the victim impact
testimony and argument that concerned Hall's family.
Even if Mrs. Hall's testimony of Mr. Hall's community
activities and good human qualities and the prosecutor's arguments
amount to victim impact testimony, Westley is unable to show
prejudice under current law. To satisfy the prejudice prong, the
appellant must prove that counsel's deficiency rendered the "result
of the trial unreliable or the proceeding fundamentally unfair."
Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. However, in
Fretwell the Supreme Court stated: "Unreliability or unfairness
does not result if the ineffectiveness of counsel does not deprive
the defendant of any substantive or procedural right to which the
law entitles him." 506 U.S. at 372, 113 S.Ct. at 844. A habeas
petitioner is not entitled to the benefit of the retroactivity rule
announced in Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060,
1074 (1989). Thus prejudice in this context is measured by current
law and not by the law as it existed at the time of the alleged
error. Fretwell, 506 U.S. at 372-73, 113 S.Ct. at 844; see also,
Wilkerson v. Whitley, 28 F.3d 498 (5th Cir. 1994), cert. denied,
115 S.Ct. 740 (1995). Since both federal and Texas courts now
17
allow victim impact testimony to be admitted in the punishment
phase of a trial as being relevant to moral culpability or
blameworthiness, Westley is unable to show prejudice in the
punishment phase by this evidence. Payne v. Tennessee, 501 U.S.
808, 827, 111 S.Ct. 2597, 2609 (1991); Smith v. State, No. 71,794,
1996 WL 73433 (Tex. Cr. App. Feb. 21, 1996); Ford v. State, No.
71,760, 1996 WL 71517 (Tex. Cr. App. Feb. 21, 1996).
Moreover, in light of the overwhelming evidence of Westley's
guilt, we are convinced that this evidence had no effect on the
verdict.
Westley next argues that his counsel should have developed a
strategy to defuse his written admission that he was armed with a
.22. During the state habeas hearing, petitioner's legal expert
stated that an effective counsel would have argued that Westley
switched places with Henry in his statement. At the time of his
statement, Westley did not know that Hall was shot with a .22.
Westley, the expert argued, thought he had shot Hall with his .38
and so switched guns and conduct with Henry when relating the
robbery events.
Counsel did object to the admission of the statement on the
grounds of coercion and denial of assistance of counsel. The state
court held a hearing out of the presence of the jury and found the
statement was given voluntarily with the proper warnings. Since
Westley had been heard by another witness to say that he had shot
Hall and had told his lead counsel that he shot Hall while carrying
a .22, we do not find counsel deficient in failing to attack the
substance of the statement.
18
Finally, Westley argues that during the punishment phase of
the trial, his counsel was deficient in failing to timely request
an anti-parties charge and in engaging in an improper defense
argument. Appellant argues that because a law of the parties
charge was given during the guilt/innocence phase, his counsel
should have timely requested an anti-parties charge at the
punishment phase. His counsel requested an anti-parties charge but
the request was not timely and the court denied it.
In Nichols v. Scott, 69 F.3d 1255, 1268 (5th Cir. 1995), this
court found that with the three special issues Texas law focusses
the jury on the individual conduct of the defendant. We concluded
that this structure of the punishment phase reasonably led the jury
to assume the law of the parties was not applicable during this
phase. Thus we agree with the state habeas court and the district
court that appellant is unable to show prejudice from a failure to
request an anti-parties charge during the punishment phase.
Appellant also argues that his counsel made an improper
closing argument by bolstering the character of the victim Hall, by
using profanity in describing the unpleasantness of a robbery, and
by relating a story of visiting Westley's neighborhood.
Counsel testified in the state habeas hearing that his
strategy was to attack the special issues of deliberateness and
provocation. He argued that Hall would aggressively defend his
possessions because he worked so hard to achieve them.5 He wanted
Counsel argued:
Let me move on to Special Issue No. 3. It asks whether
the provocation, if you so find - and first, you've got
to find provocation. You know, it's hard to work for
19
the jury to believe that Hall had sufficient provocation to engage
in a shootout with the robbers. He stressed that Westley went into
the bait shop only to rob, not to kill, and was provoked into
shooting by Hall and his derringer.6
The story of counsel's visit to the Westley's old neighborhood
was to gain sympathy for Westley and his circumstances.7 Counsel
wanted the jury to realize that Westley was only 24 years old and
came from a rough background with little hope. Counsel also made
something and have somebody take it. It's hard. It's hard. Frank
Hall had worked. He had three jobs. I don't remember doing that
since law school, but I have worked three jobs and I know what
three jobs can do to you to try to get something. I can sense the
anger of Frank Hall when people were trying to take away his
property, and his response was to try and take command of the
situation with a small gun. He emptied it.
Remarks by Westley's counsel on the unpleasantness of a
robbery:
Robbers go in with guns. Robbers talk bad. The people
who do robberies aren't nice people. They're not your
next-door neighbors. We're talking about people who walk
in and talk bad and threaten other people. It's not
nice. It's not pleasant, but it happens every day in
Harris County, Texas. That's what we're talking about is
robbers. They rob, and they took the money and they
left. Every one of those robbers left. They didn't harm
anybody. I know you can't erase the scars of a robbery.
You can't erase the memory of a gun pointed in your nose
or to your head and someone telling you, "Give me you
money, motherfucker." You can't do that. No one can
help you erase that memory. It will remain in your mind.
Counsel related:
The first place I went to was the bottom in Fifth Ward,
to the corner where an old nightclub used to be. I went
out there and I saw all the Anthony Westleys that I knew
hanging around the corner. They stayed there on the
corner drinking wine, excuse the expression, talking
shit, because that's what we did. They're all still
there. They're all there.
20
a comment that he would not say Westley would rehabilitate himself,
only Westley could decide that.8
Given the State's evidence of the other armed robberies and
burglaries, counsel was limited in what he could argue and still
retain credibility with the jury. Although the language used was
rough and blunt, counsel's consistent strategy at trial was that
Hall was shot during an unexpected shootout and Westley had no
intent to kill. Counsel pointed out that Westley ran from the
store when Hall was still standing without shooting him again.
We agree with the statements of the district court:
Counsel's argument clearly falls within the ambit of
reasonable trial strategy. Talking realistically about the
background and resulting criminal path of Westley might well
be a more effective appeal to the jury's compassion than
painting an obviously untrue, rosy, sentimental picture that
would be totally unconvincing. Counsel wished to emphasize
that this man came from the ghetto, from the poverty of the
Fifth Ward, and had no chance in life, unlike more fortunate
individuals. Counsel's plea is only for an opportunity, life
in prison rather than death, to see if Petitioner could become
a better person if allowed to live.
Counsel stated:
Let's go to Anthony Westley's prior criminal record.
He's been to the penitentiary for burglary, three years
one time and five years another. We went at the same
time. They gave him probation and he messed up. He
simply messed up. He didn't know what he was supposed to
do. He's not a model citizen. He blew it himself. He
was given a chance. He was given a chance to remain free in
society among you, and he blew it. It ain't your fault. It ain't
my fault. It's his fault. He went one time for three years for
burglary and five years for burglary of a habitation. He went to
the penitentiary and served his time. He has been punished for
that. On the basis of those two extraneous offenses, they want you
to say that he will be a continuing threat to society forever and
ever. I would not insult your intelligence by telling you that
Anthony Westley will rehabilitate himself. I don't know that.
Only he knows whether he can or will. I'm not going to assume that
responsibility, but if he's dead he doesn't have a chance to. He's
twenty four years of age. I think he deserves that opportunity.
21
Thus we do not find counsel's performance deficient in his
closing statements at the punishment phase.
III.
Appellant argues that the State was guilty of prosecutorial
misconduct both for Brady violations and for presenting false and
misleading evidence.
The suppression by the prosecution of material evidence
favorable to the accused violates due process. Brady v. Maryland,
373 U.S. 83, 83 S.Ct. 1194 (1963). To prevail on a Brady claim,
petitioner must prove that (1) the prosecution suppressed or
withheld evidence (2) which was favorable to the defense and (3)
material to either guilt or punishment. Edmond v. Collins, 8 F.3d
290, 293 (5th Cir. 1993). Materiality requires the petitioner to
demonstrate that "there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different." United States v. Bagley,
473 U.S. 667, 682, 105 S.Ct. 3375, 3383 (1985). In Kyles, the
Supreme Court stated that a reasonable probability is shown when
the non-disclosure "could reasonably be taken to put the whole case
in such a different light as to undermine confidence in the jury
verdict." 115 S.Ct. at 1566.
Appellant alleges that the prosecution did not give counsel a
copy of a supplemental offense report.9 Between Henry's and
This report states in the relevant part:
After observing the weapon display for approximately 8
seconds, she immediately picked out the 22 cal. revolver
with the long barrel, and stated this one is just like the one he
used. I asked her if she was sure, and she replied "yes". Miss
Eubanks was asked if she knew the type and caliber of weapon that
22
Westley's trials, Young came to the district attorney's office to
identify Westley's gun from a photo array of different gun styles.
She identified a picture of a cowboy-style gun. This picture
became Exhibit 17. She also gave a statement that she still
believed Westley carried a .357. The state habeas court found that
counsel was not provided with this report. Counsel, however,
testified that the prosecution granted him access to Westley's file
and it might have been in there.
We accept the finding by the state habeas court that the
report was suppressed and contained evidence favorable to the
defense. Nevertheless we find this report was not material because
it does not contain any significant new evidence.10 The same
exculpatory statements relative to the type of gun Westley carried
was available to the defense from Young's statements she gave the
police officers after the robbery. This information was elicited
from Young during Westley's trial and in fact Young's testimony
during trial is even more exculpatory than the report.11
she had just identified as the weapon used by the Defendant
Westley. She stated it is a large caliber weapon, either a 38 or
357 caliber. She knew it was larger than a 22 caliber.
A state court finding on materiality in a prosecutorial
misconduct allegation is not entitled to deference by a federal
court under § 2254(d) because such finding is on a mixed question
of law and fact. Wilson v. Whitley, 28 F.3d 433, 437 (5th Cir.
1994), cert. denied, 115 S.Ct. 754 (1995) (quoting Davis v. Heyd,
479 F.2d 446, 451 (5th Cir. 1973)).
The following testimony was given by Young on cross-
examination:
Q. I'll show you now what's been admitted in evidence as
State's No. 17. Does that look like the gun that Westley
had on April 13th?
A. It looks like it.
Q. As a matter of fact, the gun he had was a real big gun,
23
Appellant also contends that the prosecution committed a Brady
violation in failing to disclose to defense counsel the
inconsistent testimony from Henry's trial. In Williams v. Scott,
35 F.3d 159, 163 (5th Cir. 1994), cert. denied, 115 S.Ct. 959
(1995), the court found that a Brady violation does not arise if
the defendant, using reasonable diligence, could have obtained the
information. Because the transcript of Henry's trial was readily
available, we find no Brady violation.
Finally, appellant argues that the prosecution presented false
and misleading testimony that violated his due process rights. To
prevail on this due process claim, the petitioner must show that
(1) the testimony was false, (2) the testimony was material to the
verdict, and (3) the prosecutor knew or believed the testimony to
be false. United States v. Blackburn, 9 F.3d 353, 357 (5th Cir.
1993), cert. denied, 115 S.Ct. 102 (1994). False evidence is
"material" only "if there is any reasonable likelihood that the
false testimony could have affected the jury's verdict."
Kirkpatrick v. Whitley, 992 F.2d 491, 497 (5th Cir. 1993) (quoting
United States v. Bagley, 473 U.S. 667, 669 n. 9, 105 S.Ct. 3375,
3382 n.9 (1985).
Appellant contends that the prosecution introduced misleading
evidence at trial in the testimony relating to Exhibit 17. Exhibit
17 was identified by Anderson, the ballistics expert, as a side
wasn't it?
A. It was a big gun.
Q. Do you recall telling the police officers, ma'am, that
you thought it was a .357 magnum?
A. Yes, I remember telling them that.
Q. It looked that big to you?
A. It did. It looked bigger. It looked like a cannon.
24
view of a .22 caliber handgun. Appellant argues that because a .38
and .357 caliber look similar to Exhibit 17 from the side, this was
misleading testimony. The prosecution used this picture to
discredit the witnesses who stated they saw Westley with a .357
handgun by gaining admissions from those witnesses that the pistol
depicted in Exhibit 17 was the type gun Westley carried. Counsel
on cross-examination of Anderson elicited testimony that in fact
larger caliber pistols did look similar to Exhibit 17.
Even if we are bound by the state habeas court's determination
that the State's use of Exhibit 17 was misleading,12 the claim fails
because the testimony related to this exhibit was not material
given Anderson's admissions on cross-examination and given
Westley's own statement that he carried a .22.
IV.
Finally, appellant alleges a violation of his due process
right by cumulative error. In Derden v. McNeel, 978 F.2d 1453,
1454 (5th Cir. 1992), cert. denied, 113 S.Ct. 2928 (1993), the en
banc court recognized an independent claim based on cumulative
error only where "(1) the individual errors involved matters of
constitutional dimensions rather than mere violations of state law;
(2) the errors were not procedurally defaulted for habeas purposes;
and (3) the errors 'so infected the entire trial that the resulting
conviction violates due process.'" Id., quoting Cupp v. Naughten,
414 U.S. 141, 147, 94 S.Ct. 396, 400 (1973). Meritless claims or
See, May v. Collins, 955 F.2d 299, 315 (5th Cir.), cert.
denied, 504 U.S. 901, 112 S.Ct. 1925 (1992).
25
claims that are not prejudicial cannot be cumulated, regardless of
the total number raised. Derden, 978 at 1461.
Applying this standard to today's case, we find no violation
of Westley's due process based on cumulative error.
V.
For the reasons discussed above, we affirm the district
court's denial of appellant's habeas petition.
AFFIRMED.
DeMOSS, Circuit Judge, dissenting:
I am unable to join my colleagues in the majority and write to
express my dissent.
The person who is in the best position to evaluate and make a
judgment regarding the sufficiency of appointed counsel's conduct
during a state death penalty trial is the state district judge
before whom that case is being tried. That is especially true in
this case where the state district judge who tried the case
originally did not appoint the counsel to represent Westley and he
could truly and impartially assess the conduct of appointed
counsel. When Westley filed his first state habeas corpus
proceeding, the state trial judge appointed a special master to
conduct a hearing and take evidence, pro and con, on the issue of
sufficiency of trial counsel. The special master heard evidence
from numerous witnesses and wrote a comprehensive report to the
state trial judge recommending that the writ of habeas corpus be
granted because of numerous instances of inadequate, insufficient
and incompetent performance on the part of appointed counsel. The
26
state trial judge adopted the special master's report, made
extensive findings of fact, and forwarded a recommendation to the
Texas Court of Criminal Appeals that habeas corpus be granted for
the reasons stated in that report. The Texas Court of Criminal
Appeals summarily denied the petition for habeas corpus, without
conducting any further hearing of any kind; without making any new
or additional findings of fact; without defining which of the
factfindings, if any, in the state trial judge's report were
"clearly erroneous"; and without defining any errors of law which
may have been in the state trial judge's report. Under these
circumstances, my reading of Sumner v. Mata, 449 U.S. 539, 101 S.
Ct. 764, 66 L.Ed.2d 722 (1981) (the interest in federalism
recognized by Congress in enacting § 2254(d) requires deference by
federal courts to factual determinations of all state courts); and
Craker v. Procunier, 756 F.2d 1212 (5th Cir. 1985) (the state trial
court in this case clearly satisfies the requirements of Sumner;
its factual findings are thus entitled to a presumption of
correctness), leads me to conclude that in this federal habeas
corpus proceeding, the federal court must give deference to those
factual findings.
The voluminous findings of fact by the special master at the
state habeas hearing (which were adopted by the state trial judge
who actually tried the original criminal case against Westley) lead
the state special master to recommend and the state trial judge to
adopt the following conclusions as to the ineffectiveness of
appointed counsel for Westley:
1. Ineffective assistance of counsel for
counsel's failure to object to the state's use of
peremptory challenges to exclude black venire
members (4-14);
2. Ineffective assistance of counsel for
counsel's failure to obtain critical portions of
the statement of facts from the codefendant's trial
and to consult an independent ballistics expert
(14-24);
3. Ineffective assistance of counsel for
counsel's failure to object to the state's use of
victim impact evidence at trial and final argument
(24-35);
4. Ineffective assistance of counsel due to
counsel's final argument during the punishment
stage of the trial (44-47);
5. Ineffective assistance of counsel for
counsel's failure to formulate a sound trial
strategy for defusing Westley's admission that []he
was armed with a .22 caliber weapon during the
robbery and murder (52-56); and
6. Ineffective assistance of counsel for
counsel's failure to become familiar with the
critical legal issues involved in 2-5, above, so as
to preserve them for appellate review (47-52).
Upon filing of this federal habeas petition, the federal
magistrate to whom Westley's petition was referred reviewed all of
the state records and came to virtually the same set of conclusions
as to ineffectiveness of counsel, and recommended to the federal
district judge that habeas corpus be granted. In a comprehensive
memorandum and order, the federal district judge rejected the
magistrate's recommendation and granted the state's motion for
summary judgment denying the writ of habeas corpus. Neither the
federal magistrate nor the United States district judge held any
further evidentiary hearings; each simply reviewed the record
established in the evidentiary hearing for the state habeas corpus
petition. I am unable to join my colleagues in affirming the
district court's judgment for the following reasons.
28
a. I read the admonition of the Supreme Court, in Kyles
v. Whitley, ___ U.S. ___, 115 S. Ct. 1555, that "our duty to
search for constitutional error with painstaking care is never
more exacting than it is in a capital case" as meaning what it
says. In Kyles, the grounds for habeas corpus relief was that
the State of Louisiana had failed to disclose certain evidence
which would have cast doubt on the eyewitness identification
of Kyles as the murderer. The Louisiana trial court denied
habeas relief and the Louisiana State Supreme Court denied
discretionary review. In a federal habeas proceeding, the
United States district court denied relief and a panel of the
Fifth Circuit by a split vote affirmed the federal district
court. The Supreme Court granted certiorari and reversed. If
the Supreme Court's quoted admonition would apply in Kyles
where all four of the lower courts had concluded that habeas
relief should be denied, then surely we should heed it here in
Westley where the state trial judge made copious findings of
fact and conclusions of law supporting its determination that
habeas relief should be granted.
b. We have in this Westley case the non-typical
circumstance that the state trial court which conducted the
state habeas evidentiary hearing (a hearing in which ten live
witnesses testified and roughly 100 exhibits were introduced
and which generated a nine volume record consisting of 1,500
pages) made 230 separate findings of fact, exclusive of
conclusions of law, which clearly supported the six
conclusions of the state trial court supporting its ultimate
29
recommendation that habeas corpus should be granted to
Westley. The Texas Court of Criminal Appeals in a five-to-
four per curiam opinion simply denied the petition for habeas
corpus relief. As indicated earlier in this dissent, I
believe this circumstance is controlled by our Circuit's
decision in Craker, and it appears from footnotes 2 and 3 in
the majority opinion that the panel majority likewise
recognizes that all 230 of the factual findings by the state
trial court are entitled to deference under 28 U.S.C. 2254(d).
Upon filing of the federal habeas corpus proceeding, neither
the state nor Westley moved for any further evidentiary hearing and
each side filed their own motions for summary judgment. The issue
before the federal court, therefore, was, taking all 230 of the
factual findings made by the state trial court as being correct,
did those facts establish a constitutional claim of ineffective
counsel and/or prosecutorial misconduct which would entitle Westley
to the relief of habeas corpus. This is the approach adopted by
the federal magistrate who determined that some of Westley's claims
were not supported by these factual findings, but there were
sufficient claims of both ineffectiveness of counsel and
prosecutorial misconduct to justify an award of habeas corpus
relief.
The federal district judge, however, chose to go another
route. Reading Micheaux, 944 F.2d 231, as freeing her from any
obligation to show deference to the fact-findings of the state
habeas evidentiary hearing, suggesting that the use of a special
master to conduct the state habeas corpus evidentiary hearing
30
somehow "attenuated" the factfindings by the state trial judge and
finding that the magistrate did not sufficiently distinguish
between fact-findings and conclusions of law, the federal district
judge launched into a wholesale review of the state habeas corpus
record and the trial records of Westley and his co-defendant just
as if she had been presiding at the state habeas corpus evidentiary
hearing and ended up making credibility assessments, weighing
evidence and determining issues of both fact and law. In my view,
that course of conduct by the federal district judge was certainly
inconsistent with what we normally deem appropriate for summary
judgment proceedings and conduct which, in my view, renders the
deference requirement of § 2254(d) as hollow and meaningless.
I have read all 230 of the factfindings by the state trial
court from the habeas evidentiary hearing and deeming them correct,
my confidence in the jury verdict in Westley's criminal trial is
completely undermined. The fundamental purpose of the Great Writ
contemplated by §§ 2241 - 2254 of Title 28 is protection of the
individual from unconstitutional trials. When a state trial judge
who tried an individual defendant is later presented with a state
habeas corpus proceeding in which he makes factual findings which
leads him to the conclusion that this same defendant did not
receive the constitutional guarantee of a fair trial and the state
appellate court makes no attempt to articulate the reasons why the
state trial judge's factual determinations or legal conclusions
were wrong, then, in a subsequent federal habeas corpus hearing, we
should put the same burden on the state under Rule 2454(d) to prove
"by convincing evidence that the factual determination by the state
31
court was erroneous" as we would put on the petitioner if the state
trial court conducting the habeas corpus evidentiary hearing had
made findings of fact and conclusions of law denying the habeas
corpus petition.
In this Westley case, the state has come nowhere near making
such showing of error as to any of the factual determinations by
the state trial court. Accordingly, we should accept as correct
all of the factual determinations in this case by the state habeas
corpus hearing trial court and our task then becomes simply to
determine whether those factual findings support the claims for
habeas corpus relief. If the state court findings in this case do
not satisfy both the "ineffectiveness" and "prejudice" prongs of
Strickland, then in my view, there is no such animal as an
"ineffective counsel" and we should quit talking as if there is.
I have no hesitation in concluding that the state trial court
factual findings support the claims for habeas relief in this case
and I respectfully dissent from the conclusions of the majority to
the contrary.
No. 95-20635 WESTLEY V. COLLINS
DeMOSS, Circuit Judge, dissenting:
I am unable to join my colleagues in the majority and write to
express my dissent.
The person who is in the best position to evaluate and make a
judgment regarding the sufficiency of appointed counsel's conduct
opin\95-20635.dis
32
during a state death penalty trial is the state district judge
before whom that case is being tried. That is especially true in
this case where the state district judge who tried the case
originally did not appoint the counsel to represent Westley and he
could truly and impartially assess the conduct of appointed
counsel. When Westley filed his first state habeas corpus
proceeding, the state trial judge appointed a special master to
conduct a hearing and take evidence, pro and con, on the issue of
sufficiency of trial counsel. The special master heard evidence
from numerous witnesses and wrote a comprehensive report to the
state trial judge recommending that the writ of habeas corpus be
granted because of numerous instances of inadequate, insufficient
and incompetent performance on the part of appointed counsel. The
state trial judge adopted the special master's report, made
extensive findings of fact, and forwarded a recommendation to the
Texas Court of Criminal Appeals that habeas corpus be granted for
the reasons stated in that report. The Texas Court of Criminal
Appeals summarily denied the petition for habeas corpus, without
conducting any further hearing of any kind; without making any new
or additional findings of fact; without defining which of the
factfindings, if any, in the state trial judge's report were
"clearly erroneous"; and without defining any errors of law which
may have been in the state trial judge's report. Under these
circumstances, my reading of Sumner v. Mata, 449 U.S. 539, 101 S.
Ct. 764, 66 L.Ed.2d 722 (1981) (the interest in federalism
recognized by Congress in enacting § 2254(d) requires deference by
federal courts to factual determinations of all state courts); and
opin\95-20635.dis
Craker v. Procunier, 756 F.2d 1212 (5th Cir. 1985) (the state trial
court in this case clearly satisfies the requirements of Sumner;
its factual findings are thus entitled to a presumption of
correctness), leads me to conclude that in this federal habeas
corpus proceeding, the federal court must give deference to those
factual findings.
The voluminous findings of fact by the special master at the
state habeas hearing (which were adopted by the state trial judge
who actually tried the original criminal case against Westley) lead
the state special master to recommend and the state trial judge to
adopt the following conclusions as to the ineffectiveness of
appointed counsel for Westley:
1. Ineffective assistance of counsel for
counsel's failure to object to the state's use of
peremptory challenges to exclude black venire
members (4-14);
2. Ineffective assistance of counsel for
counsel's failure to obtain critical portions of
the statement of facts from the codefendant's trial
and to consult an independent ballistics expert
(14-24);
3. Ineffective assistance of counsel for
counsel's failure to object to the state's use of
victim impact evidence at trial and final argument
(24-35);
4. Ineffective assistance of counsel due to
counsel's final argument during the punishment
stage of the trial (44-47);
5. Ineffective assistance of counsel for
counsel's failure to formulate a sound trial
strategy for defusing Westley's admission that []he
was armed with a .22 caliber weapon during the
robbery and murder (52-56); and
6. Ineffective assistance of counsel for
counsel's failure to become familiar with the
opin\95-20635.dis
34
critical legal issues involved in 2-5, above, so as
to preserve them for appellate review (47-52).
Upon filing of this federal habeas petition, the federal
magistrate to whom Westley's petition was referred reviewed all of
the state records and came to virtually the same set of conclusions
as to ineffectiveness of counsel, and recommended to the federal
district judge that habeas corpus be granted. In a comprehensive
memorandum and order, the federal district judge rejected the
magistrate's recommendation and granted the state's motion for
summary judgment denying the writ of habeas corpus. Neither the
federal magistrate nor the United States district judge held any
further evidentiary hearings; each simply reviewed the record
established in the evidentiary hearing for the state habeas corpus
petition. I am unable to join my colleagues in affirming the
district court's judgment for the following reasons.
a. I read the admonition of the Supreme Court, in Kyles
v. Whitley, ___ U.S. ___, 115 S. Ct. 1555, that "our duty to
search for constitutional error with painstaking care is never
more exacting than it is in a capital case" as meaning what it
says. In Kyles, the grounds for habeas corpus relief was that
the State of Louisiana had failed to disclose certain evidence
which would have cast doubt on the eyewitness identification
of Kyles as the murderer. The Louisiana trial court denied
habeas relief and the Louisiana State Supreme Court denied
discretionary review. In a federal habeas proceeding, the
United States district court denied relief and a panel of the
Fifth Circuit by a split vote affirmed the federal district
opin\95-20635.dis
35
court. The Supreme Court granted certiorari and reversed. If
the Supreme Court's quoted admonition would apply in Kyles
where all four of the lower courts had concluded that habeas
relief should be denied, then surely we should heed it here in
Westley where the state trial judge made copious findings of
fact and conclusions of law supporting its determination that
habeas relief should be granted.
b. We have in this Westley case the non-typical
circumstance that the state trial court which conducted the
state habeas evidentiary hearing (a hearing in which ten live
witnesses testified and roughly 100 exhibits were introduced
and which generated a nine volume record consisting of 1,500
pages) made 230 separate findings of fact, exclusive of
conclusions of law, which clearly supported the six
conclusions of the state trial court supporting its ultimate
recommendation that habeas corpus should be granted to
Westley. The Texas Court of Criminal Appeals in a five-to-
four per curiam opinion simply denied the petition for habeas
corpus relief. As indicated earlier in this dissent, I
believe this circumstance is controlled by our Circuit's
decision in Craker, and it appears from footnotes 2 and 3 in
the majority opinion that the panel majority likewise
recognizes that all 230 of the factual findings by the state
trial court are entitled to deference under 28 U.S.C. 2254(d).
Upon filing of the federal habeas corpus proceeding, neither
the state nor Westley moved for any further evidentiary hearing and
each side filed their own motions for summary judgment. The issue
opin\95-20635.dis
36
before the federal court, therefore, was, taking all 230 of the
factual findings made by the state trial court as being correct,
did those facts establish a constitutional claim of ineffective
counsel and/or prosecutorial misconduct which would entitle Westley
to the relief of habeas corpus. This is the approach adopted by
the federal magistrate who determined that some of Westley's claims
were not supported by these factual findings, but there were
sufficient claims of both ineffectiveness of counsel and
prosecutorial misconduct to justify an award of habeas corpus
relief.
The federal district judge, however, chose to go another
route. Reading Micheaux, 944 F.2d 231, as freeing her from any
obligation to show deference to the fact-findings of the state
habeas evidentiary hearing, suggesting that the use of a special
master to conduct the state habeas corpus evidentiary hearing
somehow "attenuated" the factfindings by the state trial judge and
finding that the magistrate did not sufficiently distinguish
between fact-findings and conclusions of law, the federal district
judge launched into a wholesale review of the state habeas corpus
record and the trial records of Westley and his co-defendant just
as if she had been presiding at the state habeas corpus evidentiary
hearing and ended up making credibility assessments, weighing
evidence and determining issues of both fact and law. In my view,
that course of conduct by the federal district judge was certainly
inconsistent with what we normally deem appropriate for summary
judgment proceedings and conduct which, in my view, renders the
deference requirement of § 2254(d) as hollow and meaningless.
opin\95-20635.dis
37
I have read all 230 of the factfindings by the state trial
court from the habeas evidentiary hearing and deeming them correct,
my confidence in the jury verdict in Westley's criminal trial is
completely undermined. The fundamental purpose of the Great Writ
contemplated by §§ 2241 - 2254 of Title 28 is protection of the
individual from unconstitutional trials. When a state trial judge
who tried an individual defendant is later presented with a state
habeas corpus proceeding in which he makes factual findings which
leads him to the conclusion that this same defendant did not
receive the constitutional guarantee of a fair trial and the state
appellate court makes no attempt to articulate the reasons why the
state trial judge's factual determinations or legal conclusions
were wrong, then, in a subsequent federal habeas corpus hearing, we
should put the same burden on the state under Rule 2454(d) to prove
"by convincing evidence that the factual determination by the state
court was erroneous" as we would put on the petitioner if the state
trial court conducting the habeas corpus evidentiary hearing had
made findings of fact and conclusions of law denying the habeas
corpus petition.
In this Westley case, the state has come nowhere near making
such showing of error as to any of the factual determinations by
the state trial court. Accordingly, we should accept as correct
all of the factual determinations in this case by the state habeas
corpus hearing trial court and our task then becomes simply to
determine whether those factual findings support the claims for
habeas corpus relief. If the state court findings in this case do
not satisfy both the "ineffectiveness" and "prejudice" prongs of
opin\95-20635.dis
38
Strickland, then in my view, there is no such animal as an
"ineffective counsel" and we should quit talking as if there is.
I have no hesitation in concluding that the state trial court
factual findings support the claims for habeas relief in this case
and I respectfully dissent from the conclusions of the majority to
the contrary.
opin\95-20635.dis
39