Smith v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 12, 2005

Charles R. Fulbruge III
Clerk
No. 04-10770

QUINTON BLANE SMITH,

Petitioner-Appellee,

versus

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

Respondent-Appellant.

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Appeal from the United States District Court
for the Northern District of Texas
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Before GARWOOD, GARZA and BENAVIDES, Circuit Judges.

FORTUNATO P. BENAVIDES, Circuit Judge:

The State challenges the U.S. District Court’s grant of

Quinton Blane Smith’s petition for a writ of habeas corpus. For

the following reasons, we affirm the ruling of the district

court.

I. FACTUAL BACKGROUND

On January 21, 1996, petitioner Quinton Blane Smith and his

friend Robert Ritterbush were sitting in a parked truck in front

of Smith’s house in Garland, Texas. A mutual friend, Michael

Powell, arrived at the house around 2:30 a.m., accompanied by a

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fourth individual, Michael Williams. Powell parked his vehicle

behind Ritterbush’s, exited, and walked over to the driver’s side

where Ritterbush was seated. He confronted Ritterbush about a

statement Ritterbush made to police, implicating Powell in the

theft of some firearms. At some point, Williams walked toward

the passenger side of the truck where Smith sat. During the

verbal altercation, Powell, high on marijuana and alcohol,

punched Ritterbush several times. Ritterbush responded by

hitting Powell in the face with an unloaded handgun. Powell

wrested the gun from Ritterbush and the two began fighting in the

street. Smith exited the truck and went inside his house to

retrieve his firearm. Williams fled the scene after Smith

allegedly threatened to shoot him if Powell shot Ritterbush.

Smith reemerged from his house armed, ordered Ritterbush and

Powell to stop fighting, and told Powell to leave the area. The

fight promptly stopped. According to Ritterbush and Smith,

Powell walked toward Smith quickly and began threatening him.

Once Powell was approximately six or seven feet away, Smith

raised his gun. Powell continued to approach and Smith fired at

him. The shot killed Powell by striking him in the head. The

medical examiner determined that the bullet was fired from a

distance of at least three feet.

Smith was indicted for murder on February 9, 1996. He pled

not guilty. During the trial, Smith argued that he had acted in

self-defense by shooting Powell. In order to establish this

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defense, Smith testified about Powell’s long history of violence.

He talked about how Powell often got into fights and relayed

violent episodes involving Powell he heard others describe.

Although Smith identified four witnesses who could corroborate

his stories and testify to Powell’s violent nature, defense

counsel, Melvyn Carson Bruder, failed to call any of them. The

fact that no one corroborated Smith’s stories about Powell was

highlighted by the prosecuting attorney during closing argument.

The jury subsequently convicted Smith of murder on November 5,

1996. The court sentenced him to forty-five years in prison.

II. PROCEDURAL HISTORY

On direct appeal, the Texas Fifth Court of Appeals affirmed

Smith’s conviction. The Texas Court of Criminal Appeals rejected

subsequent appeals. On April 12, 2002, Smith filed an

application for a writ of habeas corpus in state court. After an

evidentiary hearing, the trial court rejected the application.

The Texas Court of Criminal Appeals adopted these findings and

dismissed Smith’s application without issuing a written opinion.

Smith subsequently filed a petition for a writ of habeas corpus

in the U.S. District Court for the Northern District of Texas.

The federal magistrate judge recommended that Smith’s petition be

granted due to ineffective assistance of counsel at trial. The

district court adopted the magistrate judge’s recommendation and

conditionally granted the petition. The State appeals this

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ruling.

III. LEGAL STANDARDS

“In reviewing a ruling on the merits of a habeas claim, the

district court’s findings of fact are reviewed for clear error;

its conclusions of law, de novo.” Schaetzle v. Cockrell, 343

F.3d 440, 443 (5th Cir. 2003). The Antiterrorism and Effective

Death Penalty Act of 1996, 28 U.S.C. § 2254, supplies the proper

standards for reviewing the state court ruling. See Jones v.

Dretke, 375 F.3d 352, 353-54 (5th Cir. 2004). As to legal

issues, the statute provides that the habeas corpus petition

should not be granted unless the state court’s adjudication

“resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.” 28 U.S.C.

§ 2254(d)(1). “The state court’s application of the law must be

‘unreasonable’ in addition to being merely ‘incorrect.’”

Caldwell v. Johnson, 226 F.3d 367, 372 (5th Cir. 2000) (citing

Williams v. Taylor, 529 U.S. 362, 410 (2000)). “Stated simply, a

federal habeas court making the ‘unreasonable application’

inquiry should ask whether the state court’s application of

clearly established federal law was objectively unreasonable.”

Williams, 529 U.S. at 409.

When dealing with factual issues, the habeas petition should

not be granted unless the state court’s “decision . . . was based

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on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C. §

2254(d)(2). “[A] determination of a factual issue made by a

State court shall be presumed to be correct. The applicant shall

have the burden of rebutting the presumption of correctness by

clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see also

Patterson v. Dretke, 370 F.3d 480, 484 (5th Cir. 2004).

IV. DISCUSSION

Smith claims on collateral review that trial counsel’s

failure to call witnesses who could corroborate his statements

about Powell’s violent nature constituted ineffective assistance

of counsel in violation of the Sixth Amendment. To establish

ineffective assistance of counsel, Smith must show (1) defense

counsel’s performance was deficient and (2) this deficient

performance prejudiced the defense. Strickland v. Washington,

466 U.S. 668, 687 (1984).

A. Deficient Performance

We must find that Bruder, Smith’s trial counsel, “made

errors so serious that counsel was not functioning as the

‘counsel’ guaranteed . . . by the Sixth Amendment.” Id. The

Supreme Court instructs courts to look at the “norms of practice

as reflected in the American Bar Association Standards” and to

consider “all the circumstances” of a case. Id. at 688. While

“[j]udicial scrutiny of counsel’s performance must be highly

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deferential,” Smith can succeed if he shows “that counsel’s

representation fell below an objective standard of

reasonableness.” Id. at 688-89; see also Johnson v. Dretke, 394

F.3d 332, 337 (5th Cir. 2004). However, “[t]here is a ‘strong

presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.’” United States v. Webster,

392 F.3d 787, 793 (5th Cir. 2004) (quoting Strickland, 466 U.S.

at 689).

Texas courts have “recognized two theories for admitting

evidence of the deceased's character for violence: (1) to show

the defendant reasonably believed the force she used was

immediately necessary to protect herself from the deceased; and

(2) to show the deceased was the first aggressor.” Mozon v.

Texas, 991 S.W.2d 841, 845 (Tex. Crim. App. 1999); accord Torres

v. Texas, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). Naturally,

if such evidence is presented to show the reasonableness of

defendant’s apprehension of danger, the defendant must have had

some knowledge of the past violent behavior at the time of the

homicide. Lowe v. Texas, 612 S.W.2d 579, 581 (Tex. Crim. App.

1981). “If offered to show that the deceased was in fact the

aggressor, the witness must know, but the defendant need not have

knowledge of the violent acts at the time of the homicide.” Id.

Smith knew several individuals who could testify in court to

Powell’s violent nature. He informed Bruder that Steven

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Garretson, to whom Powell once bragged that he had killed someone

with a baseball bat, was willing to testify that Powell liked

starting fights and became particularly violent when intoxicated.

Garretson went to the courthouse during Smith’s trial but Bruder

never called him to testify. Smith also told his attorney about

Randel King who could confirm that Powell became violent when

under the influence of narcotics. Although Bruder issued a

subpoena for King, he never called him to testify. Finally,

Bruder had the names of two of Powell’s previous victims, Vernon

Cowan and Chris Harlow. Both worked as bouncers and were injured

by Powell when they tried to stop him from fighting with a woman

at a night club. Both were subpoenaed but Bruder called neither

to testify.

It appears that the reason Bruder failed to call these

individuals to testify is that he did not know their testimony

was admissible. In a sworn affidavit submitted to the state

habeas court, Bruder stated the following:

It was my belief at the time of Mr. Smith’s trial that
specific acts of misconduct by a victim in a murder case
were not admissible unless known to the accused, whether
known personally or through hearsay. Accordingly,
evidence relating to acts of misconduct by Michael Powell
not known to Mr. Smith was not offered by me under the
belief that such evidence could not properly be admitted
during the trial.

When asked about this matter at the state habeas hearing, though,

Bruder could not remember why he did not call the specific

witnesses. However, he did reiterate his belief that the issue

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of self-defense or defense of a third party did not “impact the

admissibility of evidence relating to the deceased’s acts of

misconduct unknown to the accused.” It appears that much of what

these witness were willing to state at trial was known to Smith;

anything that was not known to him personally could have been

used to show that Powell was the agressor in this situation.

There is no question that Bruder’s decision constitutes

grievous legal error that seriously disadvantaged his client.

Bruder argued at trial that Smith was innocent because he acted

in self-defense; yet, as an attorney, Bruder failed to achieve a

rudimentary understanding of the well-settled law of self-defense

in Texas. By doing so, he neglected the central issue in his

client’s case.1 Failing to introduce evidence because of a

misapprehension of the law is a classic example of deficiency of

counsel. See, e.g., Williams v. Taylor, 529 U.S. 362, 395 (2000)

(noting, when finding deficiency of counsel, that petitioner’s

lawyers “failed to conduct an investigation that would have

uncovered extensive records graphically describing Williams’

nightmarish childhood, not because of any strategic calculation

but because they incorrectly thought that state law barred access

to such records”). Compare Martinez v. Dretke, 404 F.3d 878,

887-90 (5th Cir. 2005). This misunderstanding could have been

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Bruder also failed to introduce into evidence arrest
reports showing that Powell was charged with assault and public
intoxication.

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corrected with minimal legal research.

The state district court made the following factual finding

and conclusion of law with regard to this issue: “[T]his Court

finds that Applicant was represented by an attorney who exercised

all of the skill and expertise which one could reasonably expect

of an attorney and that Applicant was in no way denied his right

to effective assistance of counsel at trial.” We have great

difficultly comprehending how any court faced with the facts of

this case could make such a statement.

There is no question that the state court was objectively

unreasonable in finding that trial counsel’s performance was not

deficient.

B. Prejudice

The State argues that Bruder’s error, even if it were so

severe as to implicate Strickland, did not sufficiently prejudice

Smith’s case for the district court to grant habeas relief.

Clearly, not having testimony strengthening a belief that Powell

was the first agressor or that Smith reasonably feared for his

life prejudiced Smith in this case. However, the Supreme Court

teaches that “[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; accord

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United States v. Grammas, 376 F.3d 433, 436 (5th Cir. 2004).

When applying this test, we assume that the trial court and jury

followed the law and we weigh the error in light of “the totality

of the evidence before the judge or jury.” Strickland, 466 U.S.

at 695. In other words, we must determine the extent to which

Bruder’s errors hurt Smith.

Smith’s only plausible defense was that he acted in self-

defense. He testified to Powell’s violent, aggressive behavior

on the night in question and to his own apprehension of mortal

danger during the conflict. Without corroboration, though, these

statements were easily discounted by the prosecuting attorney:

And honestly, you’ve heard a lot of unsubstantiated trash
about Michael Powell. And I ask you, just take it with
a grain of salt from where it comes from and the motives
of the person who told you all that. That’s something
you’ve got to factor in. And if Michael Powell is so bad
then where are all these people to tell us what a bad
person he is. So you have to accept - -

[Objection overruled]

So, I mean, if all of these people are saying bad things
about Michael Powell and can prove it, then bring the
witnesses in. Show us. You have to take what Quinton
Smith said about Michael Powell with a grain of salt.

In his final closing argument, the prosecutor also said:

And what’s the easiest thing to do here? Let’s go in the
courtroom and let’s trash this man [Powell]. Let’s throw
out all the innuendo, and he was in a fight, and an
unprovoked attack on a female. Let’s trash the victim.
Let’s get the attention away from our guy and let’s trash
this guy.

. . .

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 I mean, you know, I don’t know how you bite someone’s arm
unless it’s wrapped around your neck. You know, maybe
Michael was involved in a fight. We never heard from
this guy. But if this is our felony assault where we
ended up in the hospital then I guess you-all can just
use your common sense on that. That’s a joke.

We believe there exists a reasonable probability that the

jury would not have convicted Smith if it had heard the

corroborative testimony Bruder failed to present. This testimony

would have lent credibility to Smith’s claims of fearing for his

life and to his description of Powell’s aggressive behavior

toward him immediately before the homicide. Without the

testimony, his entire line of defense was easily discounted and

disparaged by the prosecuting attorney. Failure to present the

readily available testimony bearing on both the violence of

Powell and Smith’s reasonable apprehension of danger seriously

undermines our faith in the outcome of the state court

proceeding.2 We find that an objectively reasonable court could

not conclude otherwise.

V. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

grant of the writ of habeas corpus.

2
While the State focuses its appeal on the second prong of
the Strickland standard, it advances no specific argument or
rationale in support of the proposition that even if the state
court’s conclusions were erroneous, they were nonetheless
objectively reasonable.

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