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
1
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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