Catalan v. Cockrell

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT
                      _____________________

                           No. 02-10373
                      _____________________

MOISES MONDRAGON CATALAN,
                                              Petitioner-Appellee,

                              versus

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,

                                              Respondent-Appellant.


          Appeal from the United States District Court
               for the Northern District of Texas

_________________________________________________________________
                        December 18, 2002
Before JOLLY, DUHÉ and WIENER, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

     Janie Cockrell (“Cockrell”) appeals the district court’s grant

of habeas relief to Moises Catalan (“Catalan”).    Cockrell argues

that the district court erred in adopting the magistrate judge’s

finding that Catalan’s trial counsel and initial appellate counsel

rendered ineffective assistance and in granting habeas relief

previously denied by the Texas courts.   We affirm the judgment of

the district court.

                                 I.

     Catalan and his brother Felipe were charged with aggravated

assault stemming from an altercation with members of the Navarro


                                 1
family, during which Felipe shot Robert Navarro.                     Catalan and

Felipe were jointly represented by Joe Montemayor (“Montemayor”)

until the day of trial, at which time the district court judge

became concerned that Montemayor’s representation of both Catalan

and Felipe presented a conflict of interest.                    Because of this

concern, the judge appointed Thomas Grett (“Grett”) to represent

Catalan.    Grett did not request the ten-day preparation period for

appointed counsel that is provided under Article 1.051(e) of the

Texas Code of Criminal Procedure.1                Instead he consulted with

Catalan and Montemayor for less than an hour before proceeding to

trial. He conducted no investigation and was apparently unaware of

facts and evidence helpful to Catalan’s defense. In conducting the

trial, Grett relied on the decisions of Montemayor.                   Because of

this reliance and his ignorance of the facts of the case, Grett did

not impeach the victim on cross examination with prior inconsistent

testimony   that   Catalan    was   a   mere      bystander    to   the   assault.

Catalan was subsequently convicted of aggravated assault.                      On

direct appeal, Catalan’s appellate counsel did not raise the issue

of   Grett’s   failure   to   request       the   ten-day     preparation   time.

Catalan did raise the issue in his state habeas petition.                     The

state court denied habeas relief without issuing a written opinion.

Catalan raised the issue in his federal habeas petition, which was


      1
       “An appointed counsel is entitled to 10 days to prepare for
a proceeding but may waive the preparation time with the consent of
the defendant in writing or on the record in open court.”

                                        2
referred to a magistrate judge.                  After conducting an evidentiary

hearing, the magistrate entered his findings which the district

court adopted.

                                            II.

      We review findings of fact for clear error and issues of law

de novo using the same standards as the district court.                          Barrientes

v. Johnson, 221 F.3d 741, 750 (5th Cir. 2000).                       The Antiterrorism

and Effective Death Penalty Act (“AEDPA”) provides that a federal

court may only grant habeas relief if the state court decision

under   review       “was      contrary     to     or     involved    an     unreasonable

application of clearly established federal law.”                             28 U.S.C. §

2254(d)(1).        The clearly established federal law that sets the

standard     for    ineffective      assistance           claims     is    Strickland    v.

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

                                          III.

      To   establish        ineffective      assistance          under     Strickland,   a

petitioner must show that his lawyer’s performance was deficient

and   that    the     deficient      performance           prejudiced      his    defense.

Applying     this    standard,      the   district         court     found    that   Grett

provided ineffective assistance by failing to request the ten-day

extension, failing to procure his client’s consent to the waiver of

the ten-day period, and relying solely on information provided to

him by Montemayor.

      For essentially the same reasons given by the magistrate judge

and   adopted       by   the     district        court,     we   agree     that    Grett’s

                                             3
performance was clearly deficient and prejudicial to Catalan.1

       However, the ultimate question is whether the district court

can grant relief in this case that was denied by the Texas courts.

AEDPA provides that a federal court may only grant habeas relief if

the state          court    decision   denying     relief        “was   contrary    to   or

involved an unreasonable application of clearly established federal

law.”        28 U.S.C. § 2254(d)(1).

       The Texas court did not refer to Strickland at all in denying

habeas relief.          This could be an indication that the court either

acted contrary to or misapplied clearly established federal law.

However, we have held that under the deferential standard of AEDPA,

we review only the state court’s decision, not its reasoning or

written opinion, to determine whether it is contrary to or a

misapplication         of    clearly    established        federal      law.      Neal   v.

Puckett, 286 F.3d 230, 246 (5th Cir. 2002)(en banc).                           “We have no

authority to grant habeas corpus relief simply because we conclude,

in   our         independent    judgment,       that   a    state       supreme    court’s

application of Strickland is erroneous or incorrect.”                          Id. at 236.

If the Texas court identified Strickland as the applicable federal

law in this case, we must determine whether the decision resulting

from       the     state    court’s    application      of       federal    law    was   an

unreasonable misapplication of the law.                    Id.


       1
       Because we find ineffective assistance with respect to
Grett, we do not reach the issue of appellate counsel’s
performance.

                                            4
       Assuming that the Texas court applied Strickland in denying

relief in this case, we find that its application of Strickland was

objectively unreasonable.1          Grett failed to request the ten days

provided by statute to prepare for trial; therefore, he was unaware

of and unable to introduce evidence in favor of Catalan.                 Most

importantly he relied entirely on the decisions of Montemayor, an

attorney with a clear conflict of interest who had been removed

from representing Catalan.          We agree with the district court that

“considering the conflicting evidence adduced at trial and the

complainant’s prior inconsistent statement that the jury never

heard, there can be no doubt the petitioner was prejudiced by the

deficient performance of his trial attorney.”           Grett’s failure to

prepare for trial, his reliance on conflicted counsel, and his

resulting failure to introduce evidence favorable to his client

presents such a clear case of deficient performance and prejudice

under Strickland that the Texas court’s denial of relief in this

case       was   an   objectively   unreasonable   application   of   clearly

established federal law.

       For the foregoing reasons, the judgment of the district court

granting habeas relief in this case is

                                                                 AFFIRMED.


       1
      Because there is no written opinion, we cannot be sure that
the Texas court was applying Strickland. However, the briefs of
the parties to the state court centered around the Strickland
analysis. We assume that the Texas court was aware of and applied
Strickland.

                                        5