United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS August 14, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
)))))))))))))))))))))))))) Clerk
No. 04-11188
))))))))))))))))))))))))))
SCOTTY LAYNE HARRISON,
Petitioner-Appellant,
versus
NATHANIEL QUARTERMAN, Director, Texas Department of Criminal
Justice, Correctional Institutions Division,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
Before DENNIS, CLEMENT, and PRADO, Circuit Judges.
PRADO, Circuit Judge:
On December 12, 2001, a Texas state jury found Petitioner-
Appellant Scotty Harrison (“Harrison”) guilty of sexual assault.
Harrison received a mandatory life sentence because the jury also
determined that he had been previously convicted of sexual assault.
See TEX. PENAL CODE ANN. § 12.42(c)(2)(A)(i) and (B)(ii). Harrison
unsuccessfully challenged his conviction in the state courts.
Having exhausted all avenues of relief in the state system, Harrison
filed a federal petition for a writ of habeas corpus under 28 U.S.C.
§ 2254, alleging ineffective assistance of counsel. Harrison,
proceeding pro se, now appeals the order of the district court
denying his application for habeas relief.
I. FACTUAL AND PROCEDURAL HISTORY
Harrison was convicted of sexual assault after a trial in which
six witnesses testified--three appeared for the prosecution and
three for the defense. The first witness to appear for the
prosecution was Christina Jones (“Jones”), the victim of the sexual
assualt. Jones testified that, prior to the sexual assault, she had
been friends with Harrison for about five months, and that she had
previously had sex with Harrison on one occasion while using drugs.
On July 17, 2000, Harrison came to her apartment at about 9:00 or
10:00 p.m., told her that he had broken up with his girlfriend, and
asked to take a shower. Jones told him that he could take a shower
and that she was going to be on the couch because she was not
feeling well due to the herniated disks in her neck and back.
Jones testified that she then fell asleep and that she woke up
when Harrison sat at the end of the couch wearing only his boxer
shorts. Next, she stated that Harrison engaged in forced sexual
intercourse with her and that she heard something “pop” in her neck
during the assault. After Harrison was finished, he put on his
clothes and left. Due to her neck and back pain, Jones remained on
the couch for several days until her stepfather came to her
apartment and found her.
Jones further testified that she was in the hospital for
approximately four months following the assault. Jones also stated
2
that, at the time of trial, she had not regained use of her legs and
was living in a nursing home.
On cross-examination, Dennis Jones, Harrison’s trial counsel,1
challenged Jones’s testimony. Trial counsel asked Jones whether she
had consensual three-way sex with Harrison and another man, Tony
West, on July 17, 2000. Jones responded that West was not at her
apartment that night, and that she did not have consensual three-way
sex with Harrison and West that night. Trial counsel then asked
Jones whether she had told Patricia Herron (“Herron”), an
acquaintance and Jones’s drug supplier, that she had consensual
three-way sex with Harrison and West which got rough and out-of-
hand. Jones denied ever telling Herron about such an encounter, and
she stated that she never had consensual three-way sex with Harrison
and West.
The second witness to testify for the prosecution was Jodi
Cotner, a nurse at Baylor University Medical Center. Cotner
testified that Jones suffered from extreme dehydration, paralysis,
and an infection when Jones was admitted to the intensive care unit
on July 24, 2000. According to Cotner’s testimony, a rape
examination was performed, and the results were “pretty normal,”
except for some edema and swollen labia which Cotner believed were
consistent with sexual assault. The examination did not reveal
1
To avoid any confusion between Dennis Jones, Harrison’s
trial counsel, and Christina Jones, the victim of the sexual
assault, this opinion shall refer to Dennis Jones as “trial
counsel.”
3
evidence of seminal fluid or spermatozoa, but Cotner stated that she
was not surprised that semen was not found due to the passage of
time between the rape and Jones’s admission to the hospital.
Charles Weise, Jones’s stepfather, was the final witness to
appear for the prosecution. Weise testified that he went to Jones’s
apartment on July 24 because he became concerned when he had not
heard from Jones for several days. Weise went to his daughter’s
apartment and discovered her lying on the couch. The prosecution
rested its case after Weise’s testimony.
Darlene Waddle was the first witness to appear on Harrison’s
behalf. Waddle had known Harrison for about ten years, and they had
lived together for about five-and-a-half years beginning in 1991.
Waddle related a conversation that she had with Jones in the summer
of 2000 in which Jones stated that she was obsessed with Harrison.
According to Waddle’s testimony, Jones became angry and would not
speak to her after Jones learned that she had lived with Harrison.
On cross-examination, Waddle admitted to a prior felony conviction
for possession of methamphetamine and a prior misdemeanor theft
conviction.
Herron was the next witness to testify for the defense. She
had known Harrison for about two or three years and had sold drugs
to Jones. Herron testified that Jones told her that she severely
injured her back while having rough three-way sex with Harrison and
another man. Herron identified the other man as Brian Fincher. On
cross-examination, Herron conceded that she did not know what
4
happened at Jones’s apartment on July 17, 2000, and that she could
not recall when the conversation with Jones took place.
At the time of the trial, Herron was in jail awaiting
sentencing after having pled guilty to a federal drug conspiracy
charge. Herron also admitted that there were pending state charges
relating to possession with the intent to deliver methamphetamine.
Dana Hobbs was the final defense witness. She testified that
she had known Harrison for about fourteen years. Hobbs stated that
Jones worked at the Eight Liners Heaven game room in July of 2000.
Hobbs testified about Jones’s back condition prior to the assault.
She stated that, although she had heard that Jones had a back
injury, she had observed Jones cleaning up, doing odd jobs, and
running errands. The defense rested after Hobbs’s testimony.
The following day, the jury returned a verdict that Harrison
was guilty of sexual assault. Harrison subsequently appealed to the
Court of Appeals for the Tenth District of Texas, which affirmed his
conviction. See Harrison v. State, No. 10-02-064-CR, slip op. (Tex.
App. 2002) (unpublished). Harrison did not seek discretionary
review from the Texas Court of Criminal Appeals. Harrison,
proceeding pro se, submitted a state application for a writ of
habeas corpus which alleged, among other claims, ineffective
assistance of counsel. On February 4, 2004, the Texas Court of
Criminal Appeals denied his application without a written order and
without holding a hearing. See Ex parte Harrison, Application No.
57,647-01.
5
Finding no relief from his conviction for sexual assault in the
Texas state courts, Harrison filed a federal petition for a writ of
habeas corpus under 28 U.S.C. § 2254, again alleging ineffective
assistance of counsel. On August 30, 2004, a magistrate judge
issued a report recommending that the petition be denied. Over
Harrison’s objection to the report, the district court adopted the
magistrate judge’s findings and denied the petition. On January 9,
2006, this court granted a certificate of appealability on the
ineffective assistance of counsel claim.
II. STANDARD OF REVIEW
In a habeas appeal, this court reviews the district court’s
findings of fact for clear error and its conclusions of law de novo,
applying the same standards to the state court’s decision as did the
district court. Coble v. Dretke, 444 F.3d 345, 349 (5th Cir. 2006).
Harrison filed his habeas petition after the effective date of
the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28
U.S.C. § 2254; therefore, AEDPA governs this appeal. Lindh v.
Murphy, 521 U.S. 320, 336 (1997). Under AEDPA, this court may not
grant habeas relief on a claim that a state court has adjudicated
on the merits “unless the adjudication of the claim . . . 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.” Riddle v. Cockrell, 288
F.3d 713, 716 (5th Cir. 2002) (quoting 28 U.S.C. § 2254(d)(1)-(2))
(internal quotation marks omitted). A state court’s decision is
6
“contrary to” clearly established federal law if “it relies on legal
rules that directly conflict with prior holdings of the Supreme
Court or if it reaches a different conclusion than the Supreme Court
on materially indistinguishable facts.” Busby v. Dretke, 359 F.3d
708, 713 (5th Cir. 2004) (citing Williams v. Taylor, 529 U.S. 362,
405-06 (2000)). A decision constitutes an “unreasonable
application” of clearly established federal law if it is
“objectively unreasonable.” Pondexter v. Dretke, 346 F.3d 142, 146
(5th Cir. 2003). The decision of the state court might be
incorrect, but still fall below the “objectively unreasonable”
threshold. See Neal v. Puckett, 286 F.3d 230, 236 (5th Cir. 2002).
This court must presume that a state court’s findings of fact are
correct, and the petitioner has the burden of rebutting the
presumption of correctness by clear and convincing evidence. See
28 U.S.C. § 2254(e)(1).
III. DISCUSSION
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme
Court articulated the standard for establishing an ineffective
assistance of counsel claim. Harrison must demonstrate both that:
(1) his counsel’s performance was deficient; and (2) counsel’s
deficient performance prejudiced his defense. Id. at 687.
Counsel’s performance is deficient if it “fell below an objective
standard of reasonableness.” Id. at 688. Judicial scrutiny of
counsel’s performance must be “highly deferential.” Id. at 689.
7
A reviewing court should make every effort “to eliminate the
distorting effects of hindsight” and to “evaluate the conduct from
counsel’s perspective at the time.” Id. Further, “strategic
choices made after thorough investigation of law and facts relevant
to plausible options are virtually unchallengeable; and strategic
choices made after less than complete investigation are reasonable
precisely to the extent that reasonable professional judgments
support the limitations on investigation.” Id. at 690-91.
Harrison must demonstrate prejudice in addition to deficient
performance. Deficient performance results in prejudice when “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.” Id. at 694.
1. Deficient Performance
Harrison alleges that trial counsel provided ineffective
assistance by not interviewing West pretrial and by not calling West
as a witness at trial.2 Harrison avers that West would have
testified that he, Harrison, and Jones had consensual three-way sex
on July 17, 2000. According to Harrison, West made it known that
he was readily available and willing to testify on behalf of
Harrison. Harrison maintains that he advised trial counsel,
2
Harrison based his ineffective assistance of counsel claim
on several grounds. The only issue on appeal is Harrison’s
contention that trial counsel provided ineffective assistance by
failing to investigate West and have West testify at trial.
8
verbally and in writing, in October and November of 2000 to contact
West.3 Harrison also contends that he told trial counsel how to
contact West, for he informed trial counsel that West was
incarcerated in the Dallas County jail. Trial counsel, Harrison
alleges, never interviewed West or issued a subpoena for West to
appear at trial.
If Harrison’s characterization of West’s potential testimony
is accurate and West was willing to so testify, then Harrison has
a strong argument that trial counsel’s failure to interview West,
a potential eyewitness, and call him as a witness at trial fell
below the standard of a reasonably competent attorney. It is beyond
cavil that “an attorney must engage in a reasonable amount of
pretrial investigation and[,] at a minimum, interview potential
witnesses and make an independent investigation of the facts and
circumstances in the case.” Bryant v. Scott, 28 F.3d 1411, 1415
(5th Cir. 1994) (internal quotation marks and alterations omitted).
In Bryant, this court held that trial counsel’s “failure to
interview eyewitnesses to the crime was constitutionally deficient
representation.” Id. at 1418. In this case, trial counsel’s
failure to interview West, a potential eyewitness, raises serious
concerns about whether counsel provided constitutionally adequate
representation. See Soffar v. Dretke, 368 F.3d 441, 473-74 (5th
3
Trial counsel would have had sufficient time to locate West,
for the trial took place on December 10-12, 2001.
9
Cir. 2004) (holding that counsel’s failure to interview the only
known eyewitness to the crime charged amounted to deficient
performance under Strickland); see also Anderson v. Johnson, 338
F.3d 382, 392 (5th Cir. 2003) (holding that counsel’s failure to
investigate an eyewitness constituted constitutionally deficient
representation).
The district court reasoned, however, that Harrison could not
satisfy Strickland’s deficient performance prong because West’s
testimony, assuming that it would have been consistent with
Harrison’s representations, would have been cumulative of Herron’s
testimony. See United States v. Harris, 408 F.3d 186, 191 (5th Cir.
2005) (“This Court has previously refused to allow the omission of
cumulative testimony to amount to ineffective assistance of
counsel.”). The district court also determined that trial counsel’s
failure to have West appear as a witness at trial may have been a
strategic choice, for trial counsel “may well have determined that
in light of all the credibility issues at play it would not have
advanced the defense to have presented the testimony of a person
then confined at the Dallas County Jail.” See Murray v. Maggio, 736
F.2d 279, 282 (5th Cir. 1984) (observing the “strong presumption”
that counsel’s decision not to call a witness is strategic); see
also Martinez v. Quarterman, 481 F.3d 249, 257 (5th Cir. 2007)
(noting that counsel’s strategic choices are entitled to deference).
Contrary to the district court’s conclusion, West’s potential
10
testimony would not have been cumulative of Herron’s testimony. The
defense’s theory was that Jones injured her back while having
consensual, albeit rough, three-way sex with Harrison and West on
July 17, 2000. The defense called Herron in an attempt to impeach
Jones’s testimony in which she stated that she never told Herron
that she had three-way sex with Harrison and West. Herron testified
that Jones told her that Jones had rough three-way sex with Harrison
and Brian Fincher. Herron could not recall when the conversation
took place and she conceded that she had no idea what happened at
Jones’s apartment on the night of July 17, 2000.
Admittedly, there is some overlap between Herron’s testimony
and West’s proposed testimony, but Herron’s impeachment testimony
is no substitute for West’s proposed eyewitness testimony. Herron
could not corroborate the defense’s theory that West was the other
man, for she identified Fincher as the third participant.
Furthermore, Herron’s testimony suggested that the three-way sex may
not have been consensual.4 Another important difference between
Herron’s testimony and West’s proposed testimony is that Herron,
unlike West, could not testify that Jones and Harrison had
consensual sex on the night of July 17, 2000. West’s proposed
testimony cannot be dismissed as cumulative because the difference
4
Herron testified that Jones said she, “did some drugs and had
a threesome and it got out of control and . . . that she had asked
it to stop but it didn’t stop and that she snapped her spinal
cord.” (emphasis added).
11
between his testimony and Herron’s testimony goes to the heart of
whether a sexual assault occurred on July 17, 2000, as the state
charged. See Washington v. Smith, 219 F.3d 620, 633-34 (7th Cir.
2000) (holding that additional alibi witness testimony was not
cumulative where the alibi witness who did testify had no direct
knowledge of the defendant’s whereabouts at the time of the
robbery); see also Stewart v. Wolfenbarger, 468 F.3d 338, 359 (6th
Cir. 2007) (finding additional alibi testimony was not cumulative
where it “would have added a great deal of substance and
credibility” to the defendant’s alibi defense).
We are equally unpersuaded by the district court’s reasoning
that trial counsel made a strategic choice by not calling West as
a witness at trial. First, Strickland counsels that “strategic
choices made after thorough investigation of law and facts relevant
to plausible options are virtually unchallengeable; and strategic
choices made after less than complete investigation are reasonable
precisely to the extent that reasonable professional judgments
support the limitations on investigation.” 466 U.S. at 690-91
(emphasis added). In Anderson, we acknowledged that “a lack of
credibility might support a strategic decision not to call a witness
to testify,” but we also explained that “a witness’s character flaws
cannot support a failure to investigate.” 338 F.3d at 392. If
counsel does not speak to a witness, then counsel “is ill-equipped
to assess his credibility or persuasiveness as a witness.” Id.; see
12
also Griffin v. Warden, 970 F.2d 1355, 1358 (4th Cir. 1992) (holding
that counsel did not make a strategic choice not to call a witness
when counsel did not talk to that witness). In this case, Harrison
alleges that trial counsel did not interview West. If this
allegation is true, then, under Anderson, trial counsel did not make
a strategic choice when he did not call West to testify at trial.
Second, the district court’s supposition that trial counsel did
not have West testify at trial because trial counsel “may well have
determined that in light of all the credibility issues at play it
would not have advanced the defense to have presented the testimony
of a person then confined at the Dallas County Jail” is speculation
unsupported by the record. Trial counsel called two witnesses with
blemished criminal records during the trial. Waddle had a prior
felony conviction for possession of methamphetamine and a prior
misdemeanor theft conviction, and Herron was awaiting sentencing
after having pled guilty to federal drug conspiracy charges.5 Given
the fact that trial counsel called two witnesses with criminal
histories, one of whom was in jail awaiting sentencing, the district
court erred in speculating that trial counsel excluded West from the
witness stand because he was incarcerated in the Dallas County jail.
5
We recognize that in some cases counsel may have strategic
reasons to differentiate between criminal convictions. For
example, if West had been in jail for sexual assualt, trial counsel
would have had a strategic reason for not calling him as a defense
witness in Harrison’s sexual assault trial. In this case, Harrison
alleges that trial counsel did not interview West, and the record
does not disclose whether trial counsel knew why West was
incarcerated in the Dallas County jail.
13
If Harrison’s allegations are true, then he has a strong
argument that, under Strickland and its progeny, trial counsel’s
performance fell below the standard of a reasonably competent
attorney. See Soffar, 368 F.3d at 473-74; Anderson, 338 F.3d at
392; Bryant, 28 F.3d at 1418.
2. Prejudice
To prevail on an ineffective assistance of counsel claim,
Harrison must also demonstrate that trial counsel’s deficient
performance prejudiced his defense. Strickland’s prejudice element
requires Harrison 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, 466 U.S. at 694; see also Soffar, 368 F.3d at 478
(noting that “reasonable probability need not be proof by a
preponderance that the result would have been different”).
Assuming Harrison’s allegations are true, he has a strong
argument that trial counsel’s failure to interview West and have
West testify at trial prejudiced his defense. Though there was some
physical evidence indicating that Jones had been sexually assaulted,
the prosecution and trial counsel acknowledged that the case turned
on witness testimony. Indeed, during closing argument, trial
counsel stressed that “the main issue in this case is to judge the
credibility of the witnesses.” Trial counsel also reiterated the
defense’s theory-of-the-case, namely, that Jones had consensual
14
three-way sex with Harrison and another man. During the closing
argument, trial counsel did not identify the other man as West, as
he had done during his cross-examination of Jones.
Trial counsel’s decision not to interview West and not to have
him testify undermined Harrison’s defense. The jury heard that
Jones had consensual three-way sex with Harrison and West. Trial
counsel’s failure to have West testify allowed the jury to draw a
negative inference against Harrison’s defense based on West’s
absence. Indeed, during the prosecution’s rebuttal to trial
counsel’s closing argument, the prosecution argued:
If there was three-way sex, you can bet your life Tony
West would have been here because that is who they
believe. That is their story, remember? . . . Where is
Tony West? . . . Where is Tony West? Where is Tony West
to corroborate their story? Can’t do it. Can’t
corroborate it.
Our sister circuits have held that counsel prejudices his client’s
defense when counsel fails to call a witness who is central to
establishing the defense’s theory-of-the-case, and the jury is
thereby allowed to draw a negative inference from that witness’s
absence. Stewart, 468 F.3d at 360; Washington, 219 F.3d at 634.
We agree. Given the role that credibility and witness testimony
played in this case, there exists a “reasonable probability” that,
but for counsel’s errors, the jury might have reached a different
verdict. See Anderson, 338 F.3d at 393-94 (holding that counsel’s
failure to have the only known exculpatory eyewitness testify
satisfied Strickland’s prejudice requirement).
15
3. Record Needs Further Development
Though the district court erroneously applied Strickland and
its progeny, we are not in a position to grant Harrison’s petition
for a writ of habeas corpus. In United States v. Cockrell, 720 F.2d
1423, 1427 (5th Cir. 1983), we observed that “complaints of uncalled
witnesses are not favored . . . .” Therefore, when “the only
evidence of a missing witnesses’[sic] testimony is from the
defendant, this Court views the claims of ineffective assistance
with great caution.” Sayre v. Anderson, 238 F.3d 631, 636 (5th Cir.
2001). Ordinarily, a defendant’s failure to present some evidence
from the uncalled witness regarding that witness’s potential
testimony and willingness to testify would be fatal to an
ineffective assistance of counsel claim. Id.; see also Alexander
v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985).
In this case, the only evidence of what West would have
testified to comes from Harrison. Furthermore, Harrison has not
provided an affidavit from West indicating that West would have been
willing to testify at Harrison’s trial. Harrison contends that his
failure to present either the state courts or the district court
with an affidavit from West should not defeat his ineffective
assistance of counsel claim because the Texas Department of Criminal
Justice (“TDCJ”) has prevented him from corresponding with West, who
is also incarcerated in the Texas prison system. Harrison urges
this court to appoint him an attorney to interview West and obtain
16
the necessary affidavit or to order the TDCJ to allow him to write
to West. Citing to Williams v. Taylor, 529 U.S. 420 (2000),
Respondent-Appellee Nathaniel Quarterman (“Quarterman” or “the
Director”) argues that Harrison is now barred from producing an
affidavit from West because Harrison never presented such an
affidavit to the state courts.
We disagree with Quarterman’s contention that Williams bars
Harrison from now obtaining West’s affidavit. In Williams, the
Supreme Court addressed the proper construction of 28 U.S.C.
§ 2254(e)(2), which places restrictions on the availability of a
federal evidentiary hearing when the habeas applicant has failed to
develop the factual basis of a claim in state court. 529 U.S. at
424. The Williams court makes it clear that § 2254(e)(2) is not
operative unless the “failure to develop the factual basis of a
claim” is due to a “lack of diligence, or some greater fault,
attributable to the prisoner or the prisoner’s counsel.” Id. at
432. If the TDCJ has prevented Harrison from corresponding with
West, then Harrison’s failure to obtain an affidavit from West is
not attributable to him and § 2254(e)(2) does not apply in this
case.
Quarterman makes much of the facts that: (1) Harrison only
attempted to correspond with West ten months after his conviction
became final and one month after he filed his state habeas corpus
application; and (2) Harrison did not attempt to obtain West’s
17
affidavit prior to his transfer to the Director’s custody. These
facts do not demonstrate that Harrison did not diligently attempt
to develop the factual basis of his ineffective assistance of
counsel claim in state court. The record discloses that Harrison
filed his state habeas petition on September 11, 2003, and that he
attempted to correspond with West on October 13, 2003. Harrison
therefore attempted to contact West while his state habeas petition
was still pending, for the Texas Court of Criminal Appeals did not
deny his application until February 4, 2004. Harrison’s actions are
therefore unlike those of the habeas petitioner in Williams who
first mentioned an important psychiatric report in his federal
habeas petition. 529 U.S. at 437-38. Quarterman apparently wants
this court to read § 2254(e)(2)’s diligence requirement as mandating
that a habeas petitioner act “as soon as possible,” but that is not
the law. See id. at 435 (“Diligence for purposes of the opening
clause [of § 2254(e)(2)] depends upon whether the prisoner made a
reasonable attempt, in light of the information available at the
time, to investigate and pursue claims in state court . . . .”)
(emphasis added).6
Quarterman does, however, advance a potentially meritorious
6
The Williams court also stated, “Diligence will require in
the usual case that the prisoner, at a minimum, seek an evidentiary
hearing in state court in the manner prescribed by state law.” 529
U.S. at 437. In this case, Harrison requested an evidentiary
hearing in his November 20, 2003 objection to the state’s response
to his habeas petition. The Texas Court of Criminal Appeals did
not grant Harrison’s request for an evidentiary hearing.
18
argument regarding whether Harrison exercised due diligence in
developing the factual basis of his ineffective assistance claim in
the state courts. Quarterman contends that Harrison has not shown
that he followed the TDCJ’s two-step grievance procedure for
challenging a denial of permission to correspond with West. If
Harrison did not follow or exhaust the TDCJ’s grievance procedure,
then arguably he is at fault for not obtaining West’s affidavit and
§ 2254(e)(2) applies. The district court did not address this
issue, and we decline to do so in the first instance.
As the unresolved issue regarding whether Harrison followed the
two-step grievance procedure suggests, the record needs further
development before we may determine if the Texas Court of Criminal
Appeals’s denial of habeas was an “unreasonable application” of
Strickland. The district court assumed Harrison’s allegations were
true, and erroneously applied Strickland to those presumed facts.
We therefore VACATE the portion of the district court’s judgment
that addresses Harrison’s ineffective assistance of counsel claim
based on the failure of trial counsel to interview West and to have
West testify at trial. We REMAND Harrison’s ineffective assistance
of counsel claim to the district court for further development of
the record.
On remand, the district court should resolve whether Harrison
followed the two-step grievance procedure. If the TDCJ has
prevented Harrison from contacting West even though Harrison has
followed all procedures for corresponding with another inmate, then
19
the district court should allow Harrison to obtain West’s affidavit.
Additionally, the district court should determine the extent to
which trial counsel attempted to contact or interview West, for
trial counsel’s affidavit does not mention whether he attempted to
interview West or why he decided against having West testify at
trial. After developing the record, the district court should
reconsider Harrison’s ineffective assistance of counsel claim in
light of the new evidence, if any.
IV. CONCLUSION
For the reasons stated above, we VACATE the district court’s
denial of habeas on Harrison’s ineffective assistance of counsel
claim based on trial counsel’s failure to interview West and call
West as a witness at trial, and REMAND for proceedings consistent
with this opinion.
VACATED and REMANDED.
20