IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-60101
ELROY EARL SAYRE,
Petitioner-Appellant,
versus
JAMES V. ANDERSON, SUPERINTENDENT, MISSISSIPPI STATE
PENITENTIARY; MICHAEL C. MOORE,
Respondents-Appellees.
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No. 97-60239
ELROY EARL SAYRE,
Petitioner-Appellant,
versus
MICHAEL MOORE, ATTORNEY GENERAL OF THE STATE OF
MISSISSIPPI; JAMES V. ANDERSON, SUPERINTENDENT,
MISSISSIPPI STATE PENITENTIARY,
Respondents-Appellees.
Appeals from the United States District Court
for the Southern District of Mississippi
January 12, 2001
Before GARWOOD, HIGGINBOTHAM, and STEWART, Circuit Judges.
GARWOOD, Circuit Judge:
Petitioner-appellant Elroy Earl Sayre (Sayre) appeals the
district court’s denial of habeas corpus relief as to his
Mississippi distribution of a controlled substance conviction.
Sayre contends that: (1) trial counsel’s failure to call certain
alibi witnesses constituted ineffective assistance of counsel and
(2) trial counsel’s refusal to allow him to take the stand deprived
him of his right to testify. We affirm the district court’s denial
of relief.
Facts and Proceedings Below
Sayre is currently serving a twenty year sentence in the
Central Mississippi Correctional Facility at Pearl, Mississippi
imposed in respect to his August 1986 conviction for the September
1984 distribution of a controlled substance. The evidence at
Sayre’s trial reflected the following.
On September 18, 1984, an undercover employee of the
Mississippi Bureau of Narcotics, David Jackson, visited Sayre at
his trailer in Jackson County, Mississippi, requesting one-half
pound of marihuana. Because Sayre did not then possess one-half
pound of marihuana, the two agreed to meet at another of Sayre’s
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trailers to consummate the deal.
Agent Jackson met Sayre at his second trailer the next
morning, ready to purchase the half-pound of marihuana. Sayre
obtained a bag of marihuana from a patch of overgrown grass in his
backyard, providing the same to Agent Jackson in exchange for $475.
During both of Agent Jackson’s encounters with Sayre, he wore
a body microphone. Thus, Jackson’s conversations with Sayre were
overheard by two other agents–Dean Shepard and Jay Eubanks.
Unfortunately, the tape recording of the first conversation was
inaudible. The state did not attempt to record the second
conversation. All three agents testified at trial.
Allison Smith, a drug analyst at the State Crime Laboratory,
identified the substance Agent Jackson purchased from Sayre as
marihuana. Lonnie Arinder, a fingerprint examiner at the
Mississippi Crime Lab, identified as Sayre’s five fingerprints
taken from the bag containing the marihuana. Smith and Arinder
testified at trial.
On August 27, 1986, Sayre was tried by jury, convicted of
distribution of a controlled substance, sentenced to serve twenty
years in the custody of the Mississippi Department of Corrections
and ordered to pay a $30,000 fine.
On direct appeal, Sayre was represented by the same attorney
as at trial and advanced two points of error: (1) the trial court’s
failure to sustain his motion to quash the jury panel and declare
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a mistrial (during voir dire a juror stated that she thought drug
use was wrong) and (2) the trial court’s failure to sustain his
objection to the testimony of Dean Shepard and subsequent refusal
to grant a mistrial on this basis. On December 9, 1987, the
Mississippi Supreme Court affirmed Sayre’s conviction. Sayre v.
State, 515 So.2d 1238 (Miss. 1987).
On December 28, 1992, Sayre filed an application for leave to
file a motion for post conviction relief. In his motion for post-
conviction collateral relief, Sayre alleged ineffective assistance
of counsel at trial and on direct appeal. Sayre complained of: (1)
counsel’s failure to call certain defense witnesses, (2) counsel’s
refusal to permit him to testify and (3) counsel’s failure to
“prosecute an adequate and effective [direct] appeal.” Sayre
complained of violations of the Fifth, Sixth and Fourteenth
Amendments of the United States Constitution. On June 21, 1994,
the Supreme Court of Mississippi, pursuant to MISS. CODE ANN. § 99-
39-21(1),1 denied Sayre’s motion for post-conviction collateral
relief.
1
MISS. CODE ANN. § 99-39-21(1):
“Failure by a prisoner to raise objections, defenses,
claims, questions, issues or errors either in fact or
law which were capable of determination at trial and/or
on direct appeal, regardless of whether such are based
on the laws and the Constitution of the state of
Mississippi or of the United States, shall constitute a
waiver thereof and shall be procedurally barred, but
the court may upon a showing of cause and actual
prejudice grant relief from the waiver.”
4
On August 23, 1994, Sayre filed a petition for writ of habeas
corpus under 28 U.S.C. § 2254 in the Southern District of
Mississippi, advancing claims similar to those barred by the
Mississippi Supreme Court. On August 10, 1995, the magistrate
judge filed a Report and Recommendation suggesting that the writ be
denied. Despite Sayre’s objections thereto, on January 23, 1996,
the district court adopted the magistrate judge’s report and
dismissed the petition with prejudice. Sayre filed his notice of
appeal February 13, 1996. The district court denied a certificate
of probable cause.
Thereafter, a judge of this Court granted Sayre’s request for
a certificate of probable cause. Sayre now argues two points: (1)
trial counsel’s failure to call certain alibi witnesses constituted
ineffective assistance of counsel and (2) trial counsel’s failure
to call Sayre deprived him of his right to testify in his own
defense. Sayre also contends that he is not procedurally barred
from raising these issues.
Discussion
I. Procedural Bar
When a state court declines to hear a prisoner’s federal
claims because the prisoner failed to fulfill a state procedural
requirement, federal habeas is generally barred if the state
procedural rule is independent and adequate to support the
judgment. Coleman v. Thompson, 111 S.Ct. 2546, 2553-54 (1991);
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Amos v. Scott, 61 F.3d 333, 338-39 (5th Cir. 1995). The procedural
default is not an adequate ground for denial of relief unless the
state supreme court applies the bar “strictly or regularly . . . to
the vast majority of similar claims.” Amos, 61 F.3d at 339.
Mississippi does not (or at least did not) usually apply section
99-39-21(1)’s procedural bar to ineffective assistance of trial
counsel claims when, as was the case with Sayre, the defendant was
represented by the same lawyer on direct appeal as at trial.
Martin v. Maxey, 98 F.3d 844 at 848 (5th Cir. 1996); Sones v.
Hargett, 61 F.3d 410, 416 n.9 (5th Cir. 1995) (citing Wiley v.
State, 517 So.2d 1373, 78 (Miss. 1987)). Because Mississippi does
not (or at least did not) strictly or regularly apply section 99-
39-21(1) to bar claims like Sayre’s, the state ground is not
adequate and Sayre’s claims are not barred.
II. Ineffective Assistance of Counsel
A. Failure to Call Defendant to Testify
Sayre complains that his lawyer’s failure to call him to the
stand, despite his repeated requests, effected a denial of his
right to testify on his own behalf. Sayre asserts that he never
agreed with counsel’s decision not to call him, that he “later
realized” he should have testified and that he never knowingly and
intelligently waived his right to testify.
A criminal defendant has the right to take the stand and
testify in his or her own defense. Rock v. Arkansas, 107 S.Ct.
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2704, 2708 (1987). Sayre contends only that his attorney
interfered with his right to testify, not that the state trial
court (or prosecutor) did so. In United States v. Brown, 217 F.3d
247, 258-59 (5th Cir. 2000), this Court recently held that the
“appropriate vehicle for such claims is a claim of ineffective
assistance of counsel.”2
In Strickland v. Washington, 104 S.Ct. 2052, 2064-68 (1984),
the Supreme Court held that a defendant claiming ineffective
assistance of counsel must show that: (1) trial counsel’s
performance was deficient and (2) the deficient performance
prejudiced the defense. Because ineffective assistance of counsel
is a mixed question of law and fact, this Court reviews the
district court’s denial of habeas relief de novo (although
crediting, if not clearly erroneous, the trail court’s express or
implied findings of discrete, historic facts). Crane v. Johnson,
178 F.3d 309, 312 (5th Cir. 1999).
1. Deficient Performance
Strickland review is highly deferential; Sayre must overcome
a strong presumption that counsel’s decision not to place him on
2
Brown also involved a claim by one defendant that the trial
court interfered with his right to testify by failing to require
a waiver on the record. Brown noted that in the habeas context,
the panel in United States v. Martinez, 181 F.3d 627, 628 (5th
Cir. 1999), declined to articulate what degree of substantiation
is required from a habeas petitioner claiming deprivation of the
right to testify. Brown, 217 F.3d at 258 & n.9. Because Sayre’s
petition only implicates his counsel’s actions, we need not
elaborate further on this point.
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the stand was sound trial strategy. Id. at 2065-66. This Sayre
cannot do.
Mississippi points out that Sayre was represented by the same
counsel at a prior trial involving another sale of marihuana to
Agent Jackson.3 At that earlier trial, Sayre raised the defense of
entrapment and testified on his own behalf. Sayre v. Mississippi,
533 So.2d 464, 466 (Miss. 1988). On cross-examination, Sayre
admitted to dealing in marihuana since August of 1984. Id. Sayre
went on to explain that he was forced to traffic in marihuana
because the only other way he could support his family was to rob
a bank. Had Sayre taken the stand in the August 1986 trial,
Mississippi would not have been able to question him about his
predisposition to sell marihuana because he was not asserting the
defense of entrapment as to the offense then on trial. However,
Mississippi is correct that Sayre’s testimony in the earlier trial
was highly prejudicial to him. We conclude that a reasonable
attorney, considering Sayre’s prior performance on the stand, could
have decided that the potential risks of Sayre testifying
outweighed the potential benefits.
2. Prejudice
3
On July 31, 1985, Sayre was tried and convicted of
distribution of a controlled substance on October 4, 1984.
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Strickland’s prejudice element requires Sayre to 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, 104 S.Ct. at
2068.
Because counsel’s performance was not deficient, it is not
necessary to consider whether the challenged decision undermines
confidence in the outcome of Sayre’s second trial. However, we
observe that Sayre’s self-serving conclusory statement that his
testimony would have resulted in an acquittal, standing alone,
falls far short of satisfying Strickland’s prejudice element.
Neither here nor below has Sayre alleged anything further. Sayre
fails, as he did below, to explain what his testimony would have
been. Thus, we have no idea how this testimony could have made a
different outcome reasonably probable. Considering the
overwhelming evidence of Sayre’s guilt, we cannot conceive of
anything Sayre could have said that would have provided any
reasonable possibility of a different outcome. The testimony of
Agent Jackson was unimpeached and the plastic bag containing the
marihuana was covered with five of Sayre’s fingerprints.
B. Failure to Call Other Witnesses
Sayre opines that counsel was ineffective for failing to call
favorable witnesses “that could have given testimony that he
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[Sayre] was not at the alleged crime scene . . . .” Sayre does
not, and did not below, identify any of the favorable witnesses or
otherwise suggest what they would have testified to (e.g., there is
no indication of where they would have said Sayre was at the time
of the offense), but he does state that one witness had been
threatened by the district attorney.
We note that:
“Complaints of uncalled witnesses are not favored in
federal habeas corpus review because allegations of what
a witness would have testified are largely speculative.
[Citation omitted.] Where the only evidence of a missing
witnesses’ testimony is from the defendant, this Court
views claims of ineffective assistance with great
caution.”
Lockhart v. McCotter, 782 F.2d 1275, 1282 (5th Cir. 1986). See also
Marler v. Blackburn, 777 F.2d 1007, 1010 (5th Cir. 1985); Murray v.
Maggio, 736 F.2d 279, 282 (5th Cir. 1984); United States v.
Cockrell, 720 F.2d 1423, 1427 (5th Cir. 1983); Buckelew v. United
States, 575 F.2d 515, 521 (5th Cir. 1978).
1. Deficient Performance
Sayre does not, and did not below, explain what his counsel
was (or should have been) aware of at the time of trial that should
have caused him to call these unidentified witnesses or why the
favorable witnesses (whoever they are) were not called. A
prisoner’s bald conclusory assertion that supposed “alibi”
witnesses were not called does not serve to “overcome the strong
presumption that his counsel’s actions were reasonable.” Marler,
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777 F.2d at 1010.
2. Prejudice
Sayre has never provided any court with affidavits (or similar
matter) from any of the unidentified favorable witnesses suggesting
what they would have testified to. It is clear that Sayre’s
conclusory speculation about the effect of the unidentified
favorable witness’ testimony falls far short of the prima facie
showing of prejudice necessary for the evidentiary hearing Sayre
requests. Cockrell, 720 F.2d at 1427.
Conclusion
We conclude that Sayre was not deprived of effective
assistance of counsel. The decision of the district court denying
Sayre’s section 2254 petition is AFFIRMED.
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