United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 8, 2003
__________________________ Charles R. Fulbruge III
Clerk
No. 02-61037
__________________________
ROLAND ANDERSON,
Petitioner-Appellee,
versus
ROBERT L. JOHNSON, Commissioner,
Mississippi Department of Corrections
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
___________________________________________________
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
WIENER, Circuit Judge:
Respondent-Appellant Robert L. Johnson, Commissioner of the
Mississippi Department of Corrections (“State”) appeals the
district court’s grant of § 2254 habeas relief to Petitioner-
Appellee Roland Anderson (“Anderson”). We affirm.
I. FACTS AND PROCEEDINGS
This petition for writ of habeas corpus stems from Roland
Anderson’s 1997 burglary conviction in the Circuit Court of Hinds
County, Mississippi. Anderson was charged and convicted in
connection with the attempted kidnapping and shooting of Dorothy
Brister, a Mississippi bail bondsman and confidential informant for
the Jackson Police Department and the Drug Enforcement Agency
(“DEA”). On May 26, 1992, one day before Brister was scheduled to
testify against a suspected drug dealer, an individual posing as a
police officer arrived at her home. The imposter flashed a silver
badge and Brister’s twelve-year old daughter, Fredrika, opened the
door for him. The imposter informed Brister that he was taking her
into protective custody. Although Brister was suspicious, the
imposter eventually coerced her into her rental car outside; when
Brister attempted to flee, the imposter shot her once in the neck.
Brister’s live-in boyfriend, Arthur Gray, witnessed the attack and
attempted, unsuccessfully, to apprehend the assailant. Brister
remains partially paralyzed in her left hand as a result of the
attack.
Although law enforcement officials showed Brister several
photographs, she was unable to identify her attacker. Three years
later, in July of 1997, while posting a bond at the Hinds County
Detention Center, Brister overheard the voices of three men and
suspected that one was the perpetrator. When she looked up, she
immediately recognized Roland Anderson as her assailant. Anderson
was arrested and charged with aggravated assault, impersonating a
police officer, and burglary of an occupied dwelling with intent to
kidnap. Both Brister and her daughter, Fredrika, identified
Anderson in a photo line-up prior to trial; investigators did not
ask Arthur Gray to identify Anderson.
Anderson was first tried in February 1997. The jury was
2
unable to reach a verdict, and the judge declared a mistrial.
After a second trial in April 1997, the jury returned a verdict of
guilty on all three charges. Two of the three charges
(impersonating a police officer and assault) were dismissed post-
trial as barred by the statute of limitations. Anderson was
sentenced, as a habitual offender, to fifteen years in prison on
the remaining burglary charge.
Anderson timely appealed his conviction, asserting four errors
(1) constitutional and statutory speedy trial violations; (2)
improper admission of evidence of other crimes; (3) a verdict
against the weight of the evidence; and (4) improper sentencing as
a habitual offender. In September 1999, the Mississippi Court of
Appeals affirmed his conviction in a written opinion.1 Anderson
did not pursue discretionary review in the Mississippi Supreme
Court.
In September 2000, Anderson filed, pro se, a petition for
post-conviction relief in the Mississippi Supreme Court. Between
his original state habeas petition and a supplemental brief,
Anderson asserted a total of nine grounds for relief, including (1)
ineffective assistance of counsel on appeal; (2) ineffective
assistance of counsel at trial; (3) improper admission of evidence
of other crimes; (4) evidence of “new material facts not previously
presented”; (5) insufficient evidence to support a conviction; (6)
1
Anderson v. State, 749 So. 2d 283 (Miss. Ct. App. 1999).
3
improper exclusion of evidence relating to the truth and veracity
of a confidential informant; and (7) cumulative error. In February
2001, the Mississippi Supreme Court denied Anderson’s petition and
issued a one-page order concluding that “the issues Anderson raised
on direct appeal are without merit, and appellate counsel was not
ineffective under Strickland v. Washington, 466 U.S. 668 (1984),
for not raising these issues.” The court further held that “the
Application for Leave to Proceed in the Trial Court is not well
taken and should be denied.”
In May 2001, Anderson filed a petition for writ of habeas
corpus in the United States District Court for the Southern
District of Mississippi. In the petition, Anderson asserted five
claims: (1) ineffective assistance of counsel on appeal; (2)
ineffective assistance of counsel at trial, “where counsel failed
to pursue an adequate investigation of the case and evidence”; (3)
violation of his right to a speedy trial; (4) improper admission of
evidence of prior bad acts; and (5) ineffective assistance of
counsel at trial relating to sentencing as a habitual offender. In
support of his petition, Anderson submitted the affidavit of
Brister’s boyfriend, Arthur Gray, one of two adult eyewitnesses to
the crime. Gray attested that “Roland Anderson was nowhere around
the scene of this shooting” and that “he would have testified on
Mr. Anderson[‘s] behalf in his April 1997 trial if his attorney
would have allowed him.”
The case was referred to a magistrate judge, who appointed
4
counsel to represent Anderson and, over the State’s objection, set
the matter for an evidentiary hearing. After the hearing, the
magistrate judge issued a report recommending that Anderson’s writ
be granted and that he be retried or released within 120 days
following entry of final judgment. The magistrate judge concluded
that two of Anderson’s five claims were meritorious (1) the alleged
ineffective assistance of trial counsel for failure to investigate,
interview, and call eyewitness Arthur Gray and (2) the alleged
ineffectiveness of appellate counsel for failure to investigate and
raise the Gray issue on appeal and for failure to assert the
ineffectiveness of trial counsel on direct appeal.
In a detailed report and recommendation, the magistrate judge
held that both trial and appellate counsel were ineffective under
Strickland and that the Mississippi Supreme Court’s finding to the
contrary constituted an unreasonable application of established
federal law. The magistrate judge briefly addressed the State’s
claim that the petition was procedurally barred for failure to
exhaust state remedies, finding that “our analysis should suffice
to establish cause for any procedural default” and that “[t]he
requisite ‘prejudice’ has been discussed throughout this report and
recommendation.”
After de novo review and consideration of the State’s
objections, the district judge adopted the recommendation of the
magistrate judge in its entirety and entered a final judgment
directing the State to retry Anderson within 120 days or dismiss
5
the charges against him. The State timely appealed. We stayed the
district court’s order pending appeal and heard oral argument on an
expedited basis.
II. ANALYSIS
A. Exhaustion of State Remedies
1. Standard of Review
Whether a federal habeas petitioner has exhausted state
remedies is a question of law reviewed de novo.2
2. Discussion
The threshold issue that we must consider is whether
Anderson’s claims are procedurally barred because he has failed to
exhaust available state remedies. The State acknowledges that
Anderson had included in his state post-conviction petition the
same ineffective assistance claims presented in the federal
petition and that Anderson identified both the Strickland standard
and non-testifying eyewitness Arthur Gray by name. The State
contends, however, that Anderson is procedurally barred from
raising this claim in a federal habeas action because he did not
substantiate the “conclusory allegations” raised in his state
petition with the affidavit of Arthur Gray.
28 U.S.C. § 2254(b)(1) requires that federal habeas
petitioners fully exhaust remedies available in state court before
2
Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001);
Stevens v. Delaware Corr. Ctr., 295 F.3d 361, 368 (3d Cir. 2002).
6
proceeding in federal court.3 This longstanding exhaustion
requirement is not jurisdictional, but “reflects a policy of
federal-state comity...designed to give the State an initial
opportunity to pass upon and correct alleged violations of its
prisoners’ federal rights.”4
To satisfy the exhaustion requirement, “a habeas petitioner
must have fairly presented the substance of his claim to the state
courts.”5 This requirement is not satisfied if the petitioner
presents new legal theories or factual claims in his federal habeas
petition.6 We have consistently held that a “petitioner fails to
exhaust state remedies when he presents material additional
evidentiary support to the federal court that was not presented to
3
Section 2254(b)(1) provides in pertinent part:
An application for a writ of habeas corpus on behalf of
a person in custody pursuant to the judgment of a State
court shall not be granted unless it appears that—
(A) the applicant has exhausted the remedies
available in the courts of the State; or
(B)(i) there is an absence of available State
corrective process; or
(ii) circumstances exist that render such
process ineffective to protect the rights of
the applicant.
4
Wilder, 274 F.3d at 260 (quoting Picard v. Connor, 404 U.S.
270, 275 (1971)) (emphasis omitted).
5
Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997) (citing
Picard v. Connor, 404 U.S. 270, 275-76 (1971)).
6
Id. (citing Anderson v. Harless, 459 U.S. 4, 6-7 (1982)).
7
the state court.”7
Although exhaustion inquiries are fact-specific, as a general
rule “dismissal is not required when evidence presented for the
first time in a habeas proceeding supplements, but does not
fundamentally alter, the claim presented to the state courts.”8
Courts have explained that “although a habeas petitioner will be
allowed to present ‘bits of evidence’ to a federal court that were
not presented to the state court,” evidence that “places the claims
in a significantly different legal posture must first be presented
to the state courts.”9
We have been called on to apply this familiar (though somewhat
nebulous) standard on several occasions. In Graham v. Johnson,10
we rejected, for failure to exhaust, a petitioner’s attempt to
present —— for the first time in federal habeas proceedings ——
“significant evidentiary support” not previously submitted to the
state court. The “new” evidence at issue in Graham, offered in
7
Graham v. Johnson, 94 F.3d 958, 968 (5th Cir. 1996)
(emphasis added).
8
Caballero v. Keane, 42 F.3d 738, 741 (2d Cir. 1994)(citing
Vasquez v. Hillery, 474 U.S. 254, 260 (1986))(emphasis added); see
also 2 RANDY HERTZ & JAMES S. LIEBMAN, FEDERAL HABEAS CORPUS PRACTICE &
PROCEDURE § 23.3c, at 982 (4th ed. 2001)(“The controlling standard
seems to be that the petitioner exhausts the factual basis of the
claim as long as she did not either ‘fundamentally alter the legal
claim already considered by the state courts’ or ‘attempt[] to
expedite federal review by deliberately withholding essential facts
from the state courts.’”).
9
Demarest v. Price, 130 F.3d 922, 932 (10th Cir. 1997).
10
94 F.3d 958 (5th Cir. 1996).
8
support of the petitioner’s claims of ineffective assistance of
counsel and actual innocence, included affidavits of several
eyewitnesses and alibis, a police report, two psychologist reports,
and a firearms report.11 After considering these nine “new”
exhibits, we concluded that, because the petitioner had “presented
significant evidentiary support...that was never presented to the
state courts” he had not exhausted his state remedies and dismissal
of his federal habeas petition was warranted.12
In Dowthitt v. Johnson,13 however, we concluded that two
supplemental affidavits, submitted for the first time in support of
a federal habeas petition, did not render the petitioner’s claims
unexhausted. In Dowthitt, the petitioner asserted, inter alia, a
claim of ineffective assistance of counsel founded largely on his
attorney’s failure to present mental-illness evidence during the
penalty phase of his trial. In federal habeas proceedings,
Dowthitt introduced the affidavits of two mental health experts in
support of his claims. Even though the affidavits had not been
presented to the state court, we concluded that because the
petitioner “had presented to the state habeas court his assertions
of mental illness,” the “affidavits add[ed] little to those
11
Id. at 965.
12
Id. at 969.
13
230 F.3d 733 (5th Cir. 2000).
9
claims”14 and did not warrant dismissal for failure to exhaust state
remedies.
In this regard we deem instructive the Seventh Circuit’s
analysis in Boyko v. Parke,15 a case that presented exhaustion
issues strikingly similar to those presented by this case. In
Boyko, the petitioner had consistently asserted that his trial
counsel was ineffective in failing to consider and raise particular
defenses, including the fact that he was suffering from post
traumatic stress disorder (“PTSD”).16 After the state court denied
his petition, Boyko pursued federal habeas relief, again urging
ineffective assistance of counsel. In the federal proceedings,
however, he attempted to introduce “new” evidence —— the transcript
of a juvenile hearing that ostensibly would have alerted an
effective attorney to the potential PTSD defense.17
The Seventh Circuit concluded that Boyko had exhausted his
state remedies “even though [he] did not base his arguments in the
state court on trial counsel’s failure to obtain the transcript.”18
The appellate court emphasized that the petitioner was not seeking
to “present a ground of ineffectiveness that is entirely
14
Id. at 746.
15
259 F.3d 781 (7th Cir. 2001).
16
Id. at 784.
17
Id. at 787.
18
Id. at 789.
10
independent of the grounds presented in the state courts” and that
Boyko had argued consistently that his counsel was ineffective in
failing to pursue a PTSD defense.19 The transcript, the court
reasoned, did “not change the substance of these arguments” but
“merely supplies an additional piece of evidence that counsel would
have found had he pursued” the relevant theories.20
In this case, Anderson’s claims are unquestionably in a
comparatively “stronger evidentiary posture” than they were in
state court.21 Nevertheless, several facts militate in favor of
exhaustion in this admittedly close case. First, the portion of
Anderson’s state post-conviction brief dedicated to ineffective
assistance is remarkably detailed in both fact and law. 22 Citing
Strickland, Anderson argued to the state court that he was “denied
effective assistance of counsel where counsel failed to pursue an
adequate investigation of [the] case and evidence against
petitioner.” Anderson further explained that “counsel has a duty
19
Id.
20
Id.; see also Stevens v. Delaware Corr. Ctr., 295 F.3d 361,
370 (3d Cir. 2002) (concluding that petitioner’s submission of
affidavits in support of failure to investigate claim did not
render claims unexhausted because the “new” evidence “presented no
new facts but rather merely recite[d] facts already submitted to
state courts”).
21
Joyner v. King, 786 F.2d 1317, 1320 (5th Cir. 1986).
22
Exhaustion requires only that the federal claim has been
fairly presented to the state’s highest court before a petitioner
pursues federal relief, either via direct appeal or state post-
conviction proceedings. Orman v. Cain, 228 F.3d 616, 620 (5th Cir.
2000).
11
to interview potential witnesses and to make an independent
investigation of the facts and circumstances of the case...Arthur
Gray, who was the boyfriend of Ms. Dorothy McKee [Brister] at the
time she was shot was eyewitness [sic] and could have identified
the shooter.” Significantly, in his state petition, Anderson
stated unequivocally that “[i]f Mr. Anderson’s trial counsel had
interviewed and subp[oenaed] him to trial, Mr. Gray would have
identified the petitioner as not the person that he...know as the
shooter [sic].”
Anderson has argued diligently that his attorneys were
constitutionally ineffective in failing to investigate and
interview Arthur Gray. He has consistently asserted that if Gray
had been interviewed and called to testify at trial, he would have
exonerated Anderson. The “new” evidence (Gray’s affidavit) does
not “fundamentally alter” Anderson’s state claim; it merely
confirms what he has been asserting all along. In light of all
this, we conclude that the affidavit of Gray is a “supplement” to
the record presented to the state court, but does not “place the
claims in a significantly different legal posture.”23 As such, we
hold as a matter of law that Anderson’s claims were exhausted in
state court.24
23
Demarest, 130 F.3d at 932.
24
This result is not meant to overrule our holdings in Joyner
v. King, 786 F.2d 1317, 1320 (5th Cir. 1986); Brown v. Estelle, 701
F.2d 494, 496 (5th Cir. 1983); and Hart v. Estelle, 634 F.2d 987,
988 (5th Cir. 1981). First, as these decisions were issued prior to
12
In reaching this conclusion, we note also that Anderson did
not “attempt[] to expedite federal review by deliberately
withholding essential facts from the state courts.”25 On the
contrary, as noted by the magistrate judge, any failure to develop
the facts in support of his petition was not the result of his lack
of diligence; “the constitutional violation itself prevented the
discovery of Gray’s testimony,” and there is no evidence that
Anderson intentionally withheld this evidence until he reached a
more receptive forum. Furthermore, if the state court had held an
evidentiary hearing, Gray’s exculpatory testimony likely would have
been elicited, as it was in the federal proceedings. Accordingly,
we agree with the district court’s determination that Anderson has
exhausted his available state remedies, so we proceed to address
the merits of his federal habeas petition.26
(or soon after and without reference to) the Supreme Court’s
decision in Vasquez v. Hillery, they are of limited relevance here.
In Vasquez, the Court explained that supplemental evidence that
does not “fundamentally alter the legal claim already considered by
the state courts” does not “require that the [habeas petitioner] be
remitted to state court for consideration of that evidence.”
Vasquez, 474 U.S. at 622. Second, we emphasize that whether
evidence “fundamentally alters” or merely “supplements” the state
petition is an inquiry that is, by necessity, case and fact
specific.
25
Vasquez, 474 U.S. at 260; see also 2 HERTZ & LIEBMAN § 23.3c,
at 982 n.57 (explaining that “[i]n general, the courts apply the
‘factual similarity’ requirement in a less stringent manner when
the ‘new’ facts at issue were discovered during federal proceedings
and were not easily discoverable before then”).
26
We recognize that the Tenth and Fourth Circuits have arrived
at contrary results when confronted with somewhat analogous (but
distinguishable) facts. In Demarest v. Price, the habeas petitioner
13
B. Ineffective Assistance of Counsel
1. Standard of Review
In a habeas corpus appeal, we review findings of fact for
clear error and issues of law de novo using the same standards as
the district court.27 Because Anderson’s petition for habeas relief
was filed in 2001, the Anti-Terrorism and Effective Death Penalty
introduced, in support of his federal petition, the testimony of
several new witnesses as evidence of his contention that “more
thorough preparation by [trial counsel] would have uncovered
evidence that very significantly strengthened” his defense. 130
F.3d 922, 936 (10th Cir. 1997). The Tenth Circuit, reversing the
district court, held that because the new evidence “does not merely
supplement evidence in the state court record” but “is more like a
180 degree turn,” dismissal was warranted. We agree, as evidenced
by our holding in Graham, that substantial new evidence rising to
the level of a “180 degree turn” renders a claim unexhausted. In
Demarest, as in Graham, the petitioner sought to introduce new
factual allegations, including, for the first time, the names of
several exculpatory witnesses. In contrast, Anderson has
consistently identified one eyewitness, Arthur Gray, and seeks only
to supplement his petition with Gray’s affidavit. In Wise v.
Warden, Maryland Penitentiary, 839 F.2d 1030 (4th Cir. 1988), the
petitioner alleged, in both state and federal proceedings, that the
State had withheld critical exculpatory evidence — an immunity
agreement between a key prosecution witness and the State. In
support of his federal petition, however, the petitioner offered,
for the first time, the actual agreement, i.e., “direct proof” of
his claims. Id. at 1034. The Fourth Circuit concluded that “[t]he
new evidence significantly alter[ed] the posture of [his] claim”
and that the state court “must be given an opportunity to evaluate
the claim in its new posture and to make relevant findings of fact
to which the federal courts must in turn defer.” Id. We rejected
such a per se rule in Dowthitt, where some supplemental “proof” of
a claim was added in the federal proceedings, but the claim was
nevertheless considered exhausted. Today we abide by the Supreme
Court’s rule in Vasquez; Anderson has exhausted state remedies
because the supplemental evidence submitted in federal proceedings
does not “fundamentally alter” the claim previously presented to
the state court.
27
Catalan v. Cockrell, 315 F.3d 491, 492 (5th Cir. 2002).
14
Act (“AEDPA”) governs this appeal. Under the AEDPA, we cannot
grant habeas relief to a state prisoner “with respect to any claim
that was adjudicated on the merits in State court proceedings”
unless the state decision “was contrary to, or involved an
unreasonable application of, clearly established [f]ederal law.”28
The Supreme Court has recently offered direction for courts
assessing “unreasonable applications” of federal law. In Williams
v. Taylor,29 the Court instructed lower courts to ask whether “the
state court’s application of clearly established federal law was
objectively unreasonable.”30 The Court emphasized, and we have
since reiterated, the “critical distinction” between an
“unreasonable application” of federal law and an erroneous or
28
28 U.S.C. § 2254(d)(1). The statute provides in pertinent
part:
(d) An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a
State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim—
(1) 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; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
29
529 U.S. 362 (2000).
30
Id. at 409. The Court also explained that a state court
decision is “contrary to our clearly established precedent if the
state court applies a rule that contradicts the governing law set
forth in our cases” or “if the state court confronts a set of facts
that are materially indistinguishable from a decision of this Court
and nevertheless arrives at a result different from our precedent.”
Id. at 405-06 (emphasis added).
15
incorrect application of federal law.31 “[A] federal habeas court
may not issue the writ simply because the court concludes in its
independent judgment that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly...that
application must also be unreasonable.”32 In this circuit, a
federal habeas court reviews “only a state court’s ‘decision,’ and
not the written opinion explaining that decision.”33
2. Discussion
The “clearly established federal law” applicable to Anderson’s
claim is the familiar two-prong test of Strickland v. Washington.34
Under Strickland, Anderson must demonstrate both that his
attorney’s performance was deficient (“cause”) and that this
deficiency prejudiced his defense (“prejudice”). Anderson contends
that both his trial and appellate counsel were constitutionally
ineffective: trial counsel in failing to investigate, interview
eyewitnesses, and call exculpatory witness Arthur Gray to testify;
31
Neal v. Puckett, 286 F.3d 230, 236 (5th Cir. 2002) (en
banc).
32
Williams, 529 U.S. at 411.
33
Neal, 286 F.3d at 246 (explaining that “our focus should be
on the ultimate legal conclusion that the state court reached and
not on whether the state court considered and discussed every angle
of the evidence.”). Compare Lindh v. Murphy, 96 F.3d 856, 871 (7th
Cir. 1996) (en banc).
34
466 U.S. 668 (1984); Neal, 286 F.3d at 235 (“It is past
question that the rule set forth in Strickland qualifies as
‘clearly established [f]ederal law, as determined by the Supreme
Court of the United States.”)(quoting Williams, 529 U.S. at 391).
16
appellate counsel in failing to uncover and argue both trial
counsel’s errors and Arthur Gray’s exculpatory testimony.
a. Cause
To establish a threshold deficient performance, Anderson must
first demonstrate that “counsel’s representation fell below an
objective standard of reasonableness.”35 Courts “judge the
reasonableness of counsel’s challenged conduct on the facts of the
particular case, viewed as of the time of counsel’s conduct.”36 In
Strickland, the Court specifically addressed so-called “failure to
investigate” claims, explaining that “strategic choices made after
thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable.”37 The Court further
explained, however, that “strategic choices made after less than
complete investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on
investigation.”38 In short, “counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes
35
Strickland, 466 U.S. at 688.
36
Id. at 690.
37
Id.
38
Id. at 691. The Supreme Court recently clarified these
familiar standards in Wiggins v. Smith, No. 02-311, 2003 WL
21467222, at *8(U.S. June 26, 2003) (explaining that in Strickland
“we defined the deference owed such strategic judgments in terms of
the adequacy of the investigations supporting those judgments” and
emphasizing that the court’s focus in failure to investigate claims
is “whether the investigation supporting counsel’s decision . . .
was itself reasonable”).
17
particular investigations unnecessary.”39
Guided by Strickland, we have held that counsel’s failure to
interview eyewitnesses to a charged crime constitutes
“constitutionally deficient representation.”40 In Bryant v. Scott,
the defense attorney failed to interview two eyewitnesses and
“restricted his pretrial investigation to discussions with [the
defendant], review of the indictment against [the defendant], and
examination of the prosecutor’s file.”41 We concluded that
“information relevant to [the] defense might have been obtained
through better pretrial investigation of the eyewitnesses, and a
reasonable lawyer would have made some effort to investigate the
eyewitnesses’ testimony.”42
Notably, in Bryant, we expressly rejected the notion that
“vigorous” cross-examination of eyewitnesses at trial can “cure”
counsel’s failure to interview the witnesses before trial. We
pointed to the obvious fact that effective cross-examination “does
not necessarily indicate that a reasonable lawyer, viewing the
trial ex ante, would have regarded an interview of the eyewitnesses
39
Id. (emphasis added).
40
Bryant v. Scott, 28 F.3d 1411, 1418 (5th Cir. 1994).
41
Id.
42
Id.; see also Thomas v. Lockhart, 738 F.2d 304, 308 (8th
Cir. 1984) (finding ineffective assistance where counsel’s
“investigation of the case consisted of reviewing the investigative
file of the prosecuting attorney” and holding that the
“investigation fell short of what a reasonably competent attorney
would have done”).
18
as unnecessary.”43 The panel also noted that even if cross-
examination was effective, “that is not to say it could not have
been improved by prior investigation.”44
Moreover, in Bryant, we squarely rejected the argument made by
the State here —— that a failure to interview witnesses is
excusable as “a strategic decision” if the witnesses would not have
been credible. Acknowledging that a lack of credibility might
support a strategic decision not to call a witness to testify at
trial, we explained that a witness’s character flaws cannot support
a failure to investigate. Without so much as contacting a witness,
much less speaking with him, counsel is “ill-equipped to assess his
credibility or persuasiveness as a witness.”45
Not surprisingly, other courts have also concluded that the
“failure to conduct any pretrial investigation generally
constitutes a clear instance of ineffectiveness.”46 Although they
remain mindful that “the range of reasonable professional judgments
is wide,” courts recognize that “[i]neffectiveness is generally
clear in the context of a complete failure to investigate because
43
Id. at 1419.
44
Id.
45
Id.; see also Wiggins, 2003 WL 21467222, at *10 (“[T]he
‘strategic decision’ the state courts and respondents all invoke to
justify counsel’s limited pursuit of mitigating evidence resembles
more a post-hoc rationalization of counsel’s conduct than an
accurate description of their deliberations prior to sentencing.”).
46
United States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989).
19
counsel can hardly be said to have made a strategic choice against
pursuing a certain line of investigation when [he] has not yet
obtained the facts on which such a decision could be made.”47
Strickland simply “does not require...defer[ence] to decisions that
are uninformed by an adequate investigation into the controlling
facts and law.”48
In this case, Anderson has conclusively established that trial
counsel was deficient, i.e., that his “representation fell below an
objective standard of reasonableness.” During the evidentiary
hearing, Anderson’s trial counsel, who was disbarred in 1999,
explained the “reasons” underlying his decision not to interview
Arthur Gray: “There was nothing in the discovery that I was
provided from the police and from the D.A.’s office that gave me
any indication that he [Gray] would be a favorable witness to
Roland Anderson.” Counsel further explained that “ordinarily,”
once he was provided discovery from the District Attorney that
indicated a witness was “not favorable,” he would not independently
interview that witness. According to counsel, he “probably”
realized the week before trial that the State would not call Arthur
Gray to testify and attempted to highlight Gray’s absence to
Anderson’s advantage at trial.
We conclude that trial counsel’s admitted failure to
47
Id. (citing Strickland, 466 U.S. at 690-91).
48
United States v. Drones, 218 F.3d 496, 500 (5th Cir. 2000).
20
investigate under these circumstances rises to the level of a
constitutionally deficient performance. Counsel conceded that he
relied exclusively on the investigative work of the State and based
his own pretrial “investigation” on assumptions divined from a
review of the State’s files. Given the gravity of the charges, and
the fact that there were only two adult eyewitnesses to the crime,
it is evident that “a reasonable lawyer would have made some effort
to investigate the eyewitnesses’ testimony”49 and that trial
counsel’s representation was deficient.
The State’s attempts to characterize trial counsel’s
representation as “effective” are feckless. The State emphasizes
that (1) trial counsel did mount a defense, calling both Anderson’s
ex-wife and a wedding photographer to testify about his appearance
at the time of the crime; (2) counsel “vigorously cross-examined”
the State’s witnesses; (3) the decision not to interview Gray was
reasonable based on the State’s discovery, which indicated that
Gray’s description of the assailant matched that of Brister and her
daughter; (4) trial counsel effectively used the State’s decision
not to call Gray to Anderson’s “strategic” advantage; and (5) trial
counsel successfully moved, post-trial, for the dismissal of two
counts.
Each of these rationalizations misses the mark. The fact that
trial counsel was marginally successful in some respects does not
49
Bryant, 28 F.3d at 1418.
21
excuse his complete failure to investigate and prepare before
trial. More importantly, there is no evidence that counsel’s
decision to forego investigation was reasoned at all, and it is, in
our opinion, far from reasonable.50 Counsel’s failure to
investigate was not “part of a calculated trial strategy” but is
likely the result of either indolence or incompetence.51 Finally,
the State’s attempt to distinguish Bryant by emphasizing that the
overlooked eyewitnesses in that case were “the cornerstone of the
State’s case,” is feeble at best. In a claim grounded in failure
to interview, the “quality” and potential persuasiveness of the
eyewitness is largely immaterial; indeed, if trial counsel had
interviewed Gray, he might well have proven to be the “cornerstone”
of the defense.52
b. Prejudice
Under Strickland’s second prong, Anderson must establish
“prejudice” —— a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
50
Drones, 218 F.3d at 500 (citing Strickland, 466 U.S. at 690-
91).
51
Nealy v. Cabana, 764 F.2d 1173, 1178 (5th Cir. 1985); see
also Loyd v. Whitley, 977 F.2d 149, 158 (5th Cir. 1992) (explaining
that “[w]hether counsel’s omission served a strategic purpose is a
pivotal point in Strickland and its progeny” and that this “crucial
distinction between strategic judgment calls and plain omissions
has echoed in the judgments of this court”).
52
We agree with the magistrate judge’s observation that
“[w]hen the State confirmed it would not call Gray, this should
have been a ‘red flag’ alerting defense counsel that Gray may have
been useful to the defense.”
22
different.”53 A “reasonable probability” is “a probability
sufficient to undermine confidence in the outcome.”54 Under the
discrete facts of this case, we conclude that Anderson has met this
“substantial burden.”
At trial, the State’s case rested primarily on the eyewitness
testimony of the victim and her daughter. The victim’s
identification was based on her fortuitous encounter with Anderson
some three years after the crime; the daughter was a child when she
witnessed the incident three years earlier. The record reflects
that no other eyewitnesses testified at trial and, apparently,
there was no physical evidence linking Anderson to the crime. In
light of this relatively “weak” case,55 there is a reasonable
probability that “but for” trial counsel’s failure to interview and
call Arthur Gray to testify, the result of the proceeding would
have been different. As noted, Gray was one of only two adults to
witness the events. Certainly his testimony would have been a
powerful rebuttal to that of the victim and her minor daughter.
Anderson had been tried once before, on the same charges and
presumably on the same evidence, and the jury was unable to reach
53
Strickland, 466 U.S. at 694.
54
Id.
55
The State grossly mischaracterizes the evidence against
Anderson as “overwhelming.” The record indicates that the State
called six witnesses in its case-in-chief: Dorothy and Fredrika
Brister, Dexter Patrick, Anderson’s former cellmate (a jailhouse
informant), and three law enforcement officials.
23
a verdict. Accordingly, we conclude that Anderson has established
the requisite cause and prejudice required to establish ineffective
assistance of trial counsel.56
This does not, however, end our analysis; this constitutional
failing must be assessed through the prism of the AEDPA’s highly
deferential standards. Neal instructs that courts are to look only
to the “ultimate legal conclusion that the state court reached and
not [to] whether the state court considered and discussed every
angle of the evidence.”57 The Mississippi Supreme Court ruled on
Anderson’s claims in a one-paragraph order, without specifically
addressing the ineffectiveness of trial counsel.58 Given counsel’s
56
As we conclude that trial counsel was ineffective, we do not
reach the issue of appellate counsel’s performance. Catalan, 315
F.3d at 493 n.2 (“Because we find ineffective assistance with
respect to [trial counsel] we do not reach the issue of appellate
counsel’s performance.”).
57
Neal, 286 F.3d at 246.
58
In a one-page order denying state habeas relief the
Mississippi Supreme Court explained
Anderson alleges that he received ineffective assistance
of counsel on direct appeal in that counsel failed to
raise certain issues on appeal. Anderson also alleges
there is newly discovered evidence which raises doubt
about the validity of his conviction. After due
consideration the panel finds that the issues Anderson
would have raised on direct appeal are without merit, and
appellate counsel was not ineffective under Strickland v.
Washington, 466 U.S. 668 (1984), for not raising these
issues. The panel further finds that the unsigned
affidavit relied on by Anderson does not amount to newly
discovered evidence, and the Application for Leave to
Proceed in the Trial Court is not well taken and should
be denied.
24
admitted failure to investigate and interview at least one crucial
eyewitnesses, and assuming the Mississippi court applied
Strickland,59 we conclude that Anderson has established a Strickland
violation and that the Mississippi state court’s “ultimate legal
conclusion” to the contrary was objectively unreasonable.
III. Conclusion
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
The affidavit referenced in the court’s order is not that of Arthur
Gray, but was in support of Anderson’s unrelated claim of “newly
discovered evidence.”
59
See, e.g., Catalan, 315 F.3d at 492 n.3 (“assuming” that
state court applied Strickland, because the parties briefs focused
on Strickland, even though the state court did not issue a written
opinion).
25