Pondexter v. Quarterman

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
July 29, 2008

No. 06-70048 Charles R. Fulbruge III
Clerk

WILLIE EARL PONDEXTER, JR

Petitioner-Appellant
v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

Respondent-Appellee

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

Before BARKSDALE, BENAVIDES, and STEWART, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
In 1994, Willie Earl Pondexter was convicted in Texas state court of
capital murder and sentenced to death. Although he was denied habeas relief
in state court in 1999, the district court granted such relief in September 2002.
Our court vacated that relief in 2003, however, and remanded to district court.
On remand, habeas relief was denied in September 2006. Pondexter contests
that denial.
At issue, pursuant to the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), is whether the state-court decision denying habeas relief was
unreasonable. In that regard, primarily at issue is the state-court denial of one
 No. 06-70048

of Pondexter’s four ineffective-assistance-of-counsel claims: trial counsel’s
failure to consult with, and present the testimony of, a pathologist. AFFIRMED.
I.
The pertinent facts concerning the murder were summarized in our 2003
opinion vacating the district court’s granting relief:
On the night of October 28, 1993, Ricky Bell, James Bell, Deon
Williams, and Pondexter met at an apartment and discussed
robbing “an old lady”. Following this discussion, the group walked
to a corner store, and then to [the victim’s] house where they
checked to see what kind of car she owned. The group then walked
to a trailer park, and then to a friend’s house. Once there, they met
with James Henderson. Pondexter borrowed a car and all five drove
to Annona to buy beer and go to a club. During the drive to and
from Annona, the five talked about robbing “the old lady”, and about
“crips and bloods and stuff”. Specifically, they discussed which crip
“had the heart” to do what they were planning to do to “the old
lady”. On the way to the victim’s house, the group stopped at a store
where they talked about which crip had the heart to knock out a
man who happened to be getting gas. Although Williams and
Henderson did get out of the car, no harm was actually done to the
man. The group drove to the victim’s house, but parked the car a
few blocks away. On their first attempt to enter the house, they
were scared away by the sight of a patrolling police car. Four of the
five ran back to the car, but James Bell ran in another direction and
was not seen by the rest of the group again that night. Pondexter,
Henderson, Williams, and Ricky Bell went back to the victim’s
house where Pondexter kicked in the front door. All four proceeded
up the stairs and into the bedroom where the victim was sitting on
her bed.
Once all four were in the bedroom, Williams took the seven
dollars that was in the victim’s coin purse. Immediately thereafter,
Henderson shot the victim in the head and handed the gun to
Pondexter. Pondexter also shot the victim in the head, stating “that’s
how you smoke a bitch”. The four drove to Dallas and were arrested
in the victim’s car.

Pondexter v. Dretke, 346 F.3d 142, 144 (5th Cir. 2003) (emphasis added) (footnote
omitted). The victim was 84-years-old.

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Pondexter and Henderson were charged with capital murder. Pondexter
claims that, while in custody, he told Michael Kendricks (who was in custody on
unrelated charges) that he knew the victim was already dead when he shot her.
Kendricks provided this information to a State investigator.
Henderson was tried first. Relying on the testimony of co-conspirator
Williams, the State established Henderson shot the victim first, through the
brain. Henderson was convicted of capital murder and sentenced to death.
At Pondexter’s subsequent trial in 1994, the State did not rely on, nor was
the jury instructed on, Texas’ law of the parties, although such an instruction
was presumably available to the State. See id. at 145 n.3. Instead, the State
maintained Pondexter had fired the fatal shot through the brain. Pondexter
anchored his defense on two theories. His primary position was that, although
he participated in the robbery of the victim, he did not shoot her. His alternative
theory was that, because the gunshot, fired by Henderson, into the victim’s brain
would have killed her instantly, the subsequent shot Pondexter fired into the
victim’s face was not culpably lethal. Kendricks testified for the State that
Pondexter told him he shot the victim in the jaw. (As discussed infra, as two of
his ineffective-assistance-of-counsel claims, Pondexter asserts his trial counsel
neither consulted a pathologist nor interviewed Kendricks.)
The autopsy report, introduced at trial, identified two gunshot wounds as
the cause of death. The medical examiner, Dr. Guileyardo, testified: both
wounds were inflicted while the victim was still alive; and either could have
killed her. Along that line, Dr. Guileyardo testified: one bullet entered the left
side of the victim’s face (the autopsy report provided that the bullet entered “at
the left aspect of the face, 6 inches below the top of the head and 2-1/2 inches
anterior to the left ear canal”) and exited below her right ear, perforating her
oral cavity, boring a hole through her tongue, and shattering her right jawbone;

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and the other bullet entered the victim’s forehead, traveled through her brain,
and exited at the back of her head.
A jury convicted Pondexter of capital murder; he was sentenced to death.
The conviction and sentence were affirmed on appeal. Pondexter v. State, 942
S.W.2d 577, 579-80 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 825 (1997).
Pondexter filed a state-habeas petition challenging his conviction and
death sentence. He maintained, inter alia: (1) his right to effective assistance
of counsel was violated by trial counsel’s failure (a) to consult with, and call, a
pathologist, (b) to interview Kendricks (who allegedly could have provided
evidence negating an element of the offense), and (c) to object to the prosecutor’s
improper jury argument; (2) his right to due process was violated when the State
failed to disclose to Pondexter a statement made by Kendricks to law
enforcement that Pondexter had told him he knew the victim was dead when he
shot her (later, the statement was in an affidavit for habeas purposes); and (3)
his right to due process and a fair trial was violated by the prosecution’s alleged
misstatements of evidence during jury argument in the guilt-innocence phase of
trial that advanced a theory of the case inconsistent with all known evidence.
For that state-habeas petition, Pondexter’s post-conviction counsel
consulted Dr. Bolesta, a pathologist, who examined, inter alia, testimony,
witness statements, autopsy photographs, and the autopsy report. Pondexter
contested the medical examiner’s (Dr. Guileyardo’s) testimony, and asserted his
alternative defense theory: he shot the victim through the jaw; and that shot did
not kill her (cause-of-death claim). Pondexter also challenged the medical
examiner’s cause-of-death testimony as unreliable, and contended his trial
counsel rendered ineffective assistance by failing to retain, and present
testimony from, a pathologist to rebut the medical examiner’s opinions. The
medical examiner’s autopsy report, which had been admitted at trial, was
included with Pondexter’s state-habeas application.

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In August 1998, the state-habeas court held a one-day evidentiary hearing
to allow Pondexter, inter alia, to expand on his actual-innocence claim. Among
other points addressed were the two issues concerning Pondexter’s asserted
statements to Kendricks.
At the hearing, Dr. Bolesta, on behalf of Pondexter, testified that the first
shot—to the victim’s forehead—was universally fatal, while the second—to the
left side of her face—was only potentially fatal. In response, Dr. Guileyardo, the
medical examiner who had performed the autopsy and had testified at trial,
again maintained: either of the two gunshot wounds could have caused the
death; and the victim most likely died from a combination of the two wounds.
Dr. Guileyardo also distinguished brain death from actual death and stated the
presence of blood in the victim’s mouth and throat indicated her heart was still
beating when she was shot in the face.
In October 1998, in a 23-page opinion, addressing 16 claims and containing
168 findings-of-fact and conclusions-of-law, the state-habeas trial court
recommended denying habeas relief. For the issues before us, it did so for the
following reasons.
It concluded: Dr. Guileyardo’s testimony was more credible than Dr.
Bolesta’s; the trial evidence supported a conclusion that Pondexter shot the
victim in the brain; both gunshot wounds contributed to the victim’s death; and
she was alive when Pondexter shot her.
In addition, the state-habeas trial court made the following
recommendations concerning trial counsel’s not having a pathologist testify.
Recommending trial counsel’s performance was not deficient under Strickland
v. Washington, 466 U.S. 668 (1984), the court stated: Dr. Bolesta’s testimony
admitted both wounds were capable of causing death; Dr. Bolesta’s testimony did
not differ substantially from Dr. Guileyardo’s; and, trial counsel may have

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strategically planned on not calling a pathologist. (No affidavit was submitted
attesting to trial counsel’s not consulting with a pathologist.)
The state-habeas trial court recommended denying Pondexter’s ineffective-
assistance-of-counsel (IAC) claim for trial counsel’s not interviewing Kendricks.
It concluded that Pondexter failed to establish both deficient performance and
prejudice.
It also recommended denying the IAC claim based on trial counsel’s not
objecting to the prosecutor’s closing argument. The court concluded: any
objection would have been meritless; and, therefore, Pondexter failed to establish
the deficiency-prong of Strickland.
Because Pondexter failed to specifically argue each instance of asserted
IAC, the state-habeas court recommended denial of his cumulative-IAC claim.
Regarding Pondexter’s claim under Brady v. Maryland, 373 U.S. 83 (1963),
and because it found Kendricks’ affidavit (concerning his statement to law
enforcement) not exculpatory, the court recommended no Brady violation
occurred.
The state-habeas trial court recommended denying Pondexter’s
misstatement-of-the-evidence claim because Pondexter failed to object
contemporaneously to any of the alleged improper jury arguments and,
therefore, the claim was waived.
In 1999, in a two-page order, without additional reasons, the Texas Court
of Criminal Appeals (TCCA) adopted the state-habeas trial court’s
recommendation and denied relief. Ex parte Pondexter, No. 39,706-01 (Tex.
Crim. App. 27 Jan. 1999). Pondexter did not seek review by the Supreme Court
of the United States.
Pondexter filed the instant federal habeas application in November 1999,
presenting 20 claims. The district court granted relief on the first claim,
concluding: the state-court decision that trial counsel’s failure to consult with,

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and present the testimony of, a pathologist did not constitute IAC was
unreasonable under AEDPA. In so doing, the district court ruled the evidence
was sufficient to demonstrate prejudice for purposes of the IAC pathologist
claim. Pondexter v. Cockrell, No. 6:99CV068 (E.D. Tex. 24 Sept. 2002). Having
granted relief on the IAC pathologist claim, the district court did not rule on the
other claims. Id.
In September 2003, our court vacated that relief and remanded, holding:
the state-habeas court’s implied decision that Pondexter was not prejudiced by
counsel’s failure to call a pathologist was not an unreasonable application of
federal law under AEDPA’s deferential standard. Pondexter, 346 F.3d at 153.
(The state-court prejudice-prong determination was “implied” because it had
found trial counsel’s performance was not deficient and, therefore, did not reach
prejudice.) The Supreme Court denied review in May 2004. Pondexter v. Dretke,
541 U.S. 1045 (2004).
On remand, in the light of an intervening Supreme Court decision
discussed infra, Pondexter filed a supplemental brief seeking to have the district
court, inter alia, revisit the IAC pathologist claim. In September 2006, the
district court: refused to reconsider the IAC claim previously denied by our
court; rejected the remainder of Pondexter’s claims; and granted judgment for
the State. Pondexter v. Quarterman, No. 6:99CV68, 2006 WL 2822173 (E.D. Tex.
27 Sept. 2006). In March 2007, pursuant to 28 U.S.C. § 2253, the district court
granted a certificate of appealability (COA) for three of the four issues Pondexter
requested to be certified for appeal. Those certified issues are:
1. Whether Pondexter’s trial counsel rendered IAC by failing to (a) consult
with and present the testimony of a pathologist (IAC pathologist claim),
(b) interview witness Kendricks, and (c) object to the prosecution’s
improper closing argument; or whether there is (d) cumulative error;

2. Whether the State withheld a statement by Kendricks, in violation of
Brady; and

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3. Whether the prosecution’s use of inconsistent theories and argument
offered at the trials of Pondexter and Henderson violated Pondexter’s due
process rights.

Concerning the COA for the IAC pathologist claim, and as discussed infra,
although the district court refused to reconsider that claim on remand, it
nevertheless felt that issue should be reconsidered on appeal.
II.
Accordingly, those three certified issues are presented here, with our
review being controlled by AEDPA. See, e.g., Penry v. Johnson, 532 U.S. 782,
792 (2001). Pursuant to AEDPA, where a state court has rejected a habeas
claim, a federal court may grant relief only if the state-court decision: (1) 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”. 28 U.S.C.
§ 2254(d). In reviewing the district court’s application of § 2254(d) to the state-
court decision, the district court’s findings of fact are reviewed for clear error; its
conclusions of law, de novo. E.g., Foster v. Johnson, 293 F.3d 766, 776 (5th Cir.
2002). Needless to say, for deciding whether the state-habeas court decision was
unreasonable, we must consider the elements for each claim, including what
was presented in support. See, e.g., Miller v. Dretke, 431 F.3d 241, 361 (5th Cir.
2005).
A.
Pondexter first advances his IAC claim, maintaining trial counsel was
ineffective for failing: to consult with, and present the testimony of, a
pathologist; to interview witness Kendricks; and to object to the prosecution’s
closing argument. He also asserts cumulative error.

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For purposes of our AEDPA review of the state court’s rejection of the IAC
claim, and under Strickland, 466 U.S. at 687-89, IAC could be established in
state court by demonstrating (1) counsel’s deficient performance, and (2)
resulting prejudice. Of course, for habeas review under AEDPA, the state court’s
performance and/or prejudice rulings are generally reviewed to determine only
whether the state-court decision is unreasonable, not whether, in federal court,
petitioner has shown each IAC prong. E.g., Schaetzle v. Cockrell, 343 F.3d 440,
443-44 (5th Cir. 2003). Generally, that task must be accomplished in state court.
Id.
The reviewing court “must strongly presume that trial counsel rendered
adequate assistance and that the challenged conduct was the product of
reasoned trial strategy”. Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir.
1992) (citing Strickland, 466 U.S. at 690). An IAC claim may be rejected for
want of either deficient performance or prejudice. Therefore, the absence of
either prong of the claim is dispositive, and a reviewing court is not required to
inquire into a prong of the claim if the defendant has failed to carry his burden
on the other prong. Strickland, 466 U.S. at 697.
In state court, to establish deficient performance, Pondexter was required
to show that, in the light of all the circumstances as they appeared at the time
of the conduct, counsel’s performance fell below an objective level of
reasonableness. Strickland, 466 U.S. at 687-688. “Judicial scrutiny of counsel’s
performance must be highly deferential” with every effort made to avoid “the
distorting effects of hindsight”. Id. at 689-90. Further, as stated, reviewing
courts are to “indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance”. Id. at 689. Indeed, “[a]
conscious and informed decision on trial tactics and strategy cannot be the basis
for constitutionally ineffective assistance of counsel unless it is so ill chosen that

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it permeates the entire trial with obvious unfairness”. Crane v. Johnson, 178
F.3d 309, 314 (5th Cir. 1999) (citation and internal quotation marks omitted).
As discussed, even if counsel’s representation was deficient, such
performance must be prejudicial to the defense. Strickland, 466 U.S. at 692. In
state court, to establish prejudice, Pondexter was required 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 the confidence in the outcome”. Id. at 694.
1.
For his first IAC claim, Pondexter maintains trial counsel failed to consult
with, and present the testimony of, a pathologist (IAC pathologist claim). In this
regard, however, Pondexter did not present an affidavit, in the state or district
courts, concerning whether trial counsel consulted with a pathologist. The State
fails to note this important point.
Ordinarily, parties are required to present evidence, often attached as an
exhibit, to support claims in a habeas petition. On the other hand, it appears the
State, during both state-and federal-habeas proceedings, conceded that
Pondexter’s trial counsel did not consult with a pathologist. (It is of record, of
course, that he did not have a pathologist testify.) Accordingly, Pondexter’s IAC
claim will be analyzed under the assumption that trial counsel did not consult
with a pathologist.
a.
In addressing this IAC pathologist claim, both parties focus almost
exclusively on Strickland’s prejudice prong. As noted, however, if a court rules
trial counsel’s performance was not deficient, prejudice need not be addressed.
See Strickland, 466 U.S. at 697.
In recommending denying habeas relief for this IAC claim, the state-
habeas trial court concluded that trial counsel’s performance was not deficient.

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As discussed infra, in addressing this claim, however, that court did not
expressly address the prejudice prong. Without providing additional reasons, the
TCCA adopted the trial court’s recommended findings of fact and conclusions of
law and denied relief.
On its first federal-habeas review, the district court concluded the state-
court determination that trial counsel’s performance was not deficient was
unreasonable under AEDPA.
Pondexter maintains the district court’s deficient-performance ruling was
not disturbed by this court. To place this misleading “not-disturbed” contention
in as kind a light as possible, this is simply because this prong was not reached.
Indeed, our opinion stated: “Because we conclude that Pondexter failed to show
he was prejudiced by counsel’s failure to call a pathologist, we do not address the
deficiency prong”. Pondexter, 346 F.3d at 147 (emphasis added).
In any event, Pondexter devotes only one paragraph in his brief to the
deficient-performance prong, stating it “is easily met in this case”. In a footnote,
he asserts that our court “assumed without deciding . . . [he] satisfied the first
prong of Strickland”. As noted above, that is quite incorrect.
As required, our court has consistently given great weight to trial counsel’s
judgment on strategy and approach. Consistent with that, “[t]actical decisions,
made on an informed and reasoned basis, do not fall below Strickland standards
simply because they do not succeed as planned”. Jones v. Butler, 837 F.2d 691,
693-94 (5th Cir. 1988); see also Granados v. Quarterman, 455 F.3d 529, 533-34
(5th Cir. 2006); Busby v. Dretke, 359 F.3d 708, 715 (5th Cir. 2004); Lowenfield
v. Phelps, 817 F.2d 285, 291 (5th Cir. 1987).
At trial, Pondexter’s primary theory was that he did not shoot the victim.
His alternative theory was that he fired the second shot. We assume Pondexter’s
trial counsel was aware of Dr. Guileyardo’s autopsy report, which was entered
in evidence at trial, and was aware he would testify for the State.

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Pondexter had different attorneys for trial, direct appeal, and state-habeas
proceedings. As noted supra, the record contains no affidavit from Pondexter’s
trial attorney either concerning whether he consulted with a pathologist, or
explaining why he did not call one at trial.
With regard to deficient performance vel non, the state-habeas court
concluded: “[Pondexter] has failed to demonstrate any specific deficiency on the
part of trial counsel by failing to consult and/or call a pathologist to testify”; and
“[t]rial counsel’s actions in not calling their own expert, and only cross-
examining the state’s expert, may have been strategy”. For the above-stated
reasons, that conclusion was arguably not contrary to, or an unreasonable
application of, Strickland and its progeny, and did not otherwise result in an
unreasonable decision. See 28 U.S.C. § 2254(d). Nevertheless, because the
prejudice prong presents a more certain basis for deciding the IAC pathologist
claim, we need not make a decision, under AEDPA’s deferential standard of
review, on the deficient-performance prong.
b.
For ruling, under AEDPA, on the prejudice prong, we must first decide
whether the state-habeas court considered this prong. With regard to
recommending denying habeas relief for Pondexter’s cumulative error claim, the
state-habeas court concluded, inter alia: “[B]ecause of overwhelming evidence
of guilt and extensive punishment evidence, Pondexter has failed to show
prejudice to his case”. (Emphasis added.) The cumulative error claim, of course,
included Pondexter’s IAC pathologist claim. Arguably, therefore, the state court
made a finding of no prejudice with respect to that IAC pathologist claim. The
conclusions of law addressing “failure to consult”, however, address only
deficient performance.
In granting relief on its first federal-habeas review, the district court held:
the state-court decision that trial counsel was not ineffective was unreasonable.

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As discussed, our court reversed and remanded, holding the district court did not
apply proper AEDPA deference to that decision. Pondexter, 346 F.3d at 147. We
“conclude[d] . . . Pondexter failed to show he was prejudiced by counsel’s failure
to call a pathologist”, explaining “that a federal habeas court is authorized by
Section 2254(d) to review only a state court’s decision, and not the written
opinion explaining that decision”. Id. at 147-48 (citation and internal quotation
marks omitted). We noted the state court’s express findings that Pondexter’s
expert, Dr. Bolesta, was less credible than the State’s medical examiner, Dr.
Guileyardo. Id. at 149. Because we found the state-court ultimate conclusion
was reasonable under AEDPA, we held “the district court [failed to] afford[ the]
proper weight to it in making the prejudice determination”. Id. at 149-50.
After oral argument, but before our first panel rendered its decision, the
Supreme Court decided Wiggins v. Smith, 539 U.S. 510 (2003). Among the
issues in Wiggins was whether trial counsel rendered ineffective assistance for
failure to investigate. After reaching a decision contrary to the state court’s on
deficient performance, the Court turned to the prejudice prong. Because
“neither of the state courts below reached this prong of the Strickland analysis”,
the Court’s review was “not circumscribed by a state court conclusion with
respect to prejudice”. Id. at 534. Pondexter raised this point in his petitions for
rehearing en banc to this court and for a writ of certiorari to the Supreme Court,
asserting Wiggins required no AEDPA deference for the prejudice-prong of his
IAC pathologist claim. As discussed, each petition was denied.
Accordingly, on remand to district court, Pondexter again maintained
Wiggins required no AEDPA deference for claims not adjudicated on the merits
in state court. See id. Specifically, Pondexter maintained that, for his IAC
pathologist claim, because the state court made no findings with respect to
prejudice, that prong of Strickland is reviewed de novo. In September 2006, the
district court rejected that assertion, citing this court’s prior opinion. Although

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it found “[Pondexter’s] arguments compelling”, it was persuaded that, “[i]n [the]
light of the timing of the Supreme Court decision [in Wiggins]” and when our
court rendered its first opinion, “it should not review [Pondexter’s] claim under
the de novo standard of review”. Pondexter, 2006 WL 2822173, at *21.
Any doubt about the proper standard of review of an ineffective-assistance
prong not considered by a state court was resolved by Rompilla v. Beard, 545
U.S. 374, 390 (2005). Rompilla was issued after Pondexter filed his
supplemental briefing on remand, but prior to the district court’s opinion.
Neither discusses this case.
At issue in Rompilla was whether trial counsel’s failure to examine the
defendant’s prior conviction file rendered his performance constitutionally
ineffective. Id. at 383. Addressing that claim under Strickland, the Court first
held unreasonable the state-court decision that trial counsel’s performance was
not deficient. Id. at 383-90. Turning to the prejudice-prong, the Court noted:
“Because the state courts found the representation adequate, they never reached
the issue of prejudice”. Id. at 390. Accordingly, the Court held it must “examine
[that] element of the Strickland claim de novo”. Id. (citing Wiggins, 539 U.S. at
534).
The State claims in its brief that the law-of-the-case doctrine precludes
this IAC pathologist claim “because this Court already determined that the state
court’s findings and conclusions sufficiently addressed the prejudice prong of
Strickland enough to warrant deference under the AEDPA”. Pondexter
counters: the intervening-controlling-authority exception to the law-of-the-case
doctrine applies; and this court should afford de novo review to the prejudice
prong of this claim. See United States v. Agofsky, 516 F.3d 280, 283 (5th Cir.
2008) (recognizing exception), petition for cert. filed, No. 07-10762 (2 May 2008).
As stated supra, our court held on Pondexter’s first appeal that he failed
to establish prejudice sufficient to demonstrate, under AEDPA, that the state-

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court decision was unreasonable. On remand, the district court, apparently
recognizing that holding, did not again review this IAC pathologist claim, citing
only our prior opinion to deny it. In his application to the district court for a
COA, Pondexter again raised this claim, “[e]specially in [the] light of the
apparent conflict between the Fifth Circuit’s application of § 2254(d) and that
recently endorsed by the Supreme Court [in Wiggins and Rompilla]”. For
granting COA under AEDPA, the district court apparently found sufficient merit
in this assertion because it certified the IAC pathologist claim for appeal.
The law-of-the-case doctrine “generally precludes reexamination of issues
of law or fact decided on appeal, either by the district court on remand or by the
appellate court itself on a subsequent appeal”. Alpha/Omega Ins. Servs., Inc.
v. Prudential Ins. Co. of Am., 272 F.3d 276, 279 (5th Cir. 2001) (citation and
internal quotation marks omitted). The doctrine is “premised on the salutary
and sound public policy that litigation should come to an end”. Id. (citation and
internal quotation marks omitted). Under this doctrine, a prior decision will be
followed without re-examination unless, inter alia, “there has been an
intervening change of law by a controlling authority”. Agofsky, 516 F.3d at 283
(citation and internal quotation marks omitted).
For the reasons provided supra, we will assume the state court did not rule
on the prejudice prong of Strickland. Therefore, we agree that, because of an
intervening change in the law, see Wiggins, 539 U.S. at 534; Rompilla, 545 U.S.
at 390, the law of the case doctrine would not preclude our review of the
prejudice prong for the IAC pathologist claim.
The State also seeks to benefit from Pondexter’s having briefed Wiggins
in his petitions for rehearing en banc and for a writ of certiorari to the Supreme
Court. As a result, the State again asserts the law-of-the-case doctrine precludes
his raising the issue here. Our court, however, has held that such denials do not

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constitute a decision on the merits. See, e.g., Alpha/Omega Ins. Servs., Inc., 272
F.3d at 281.
Pondexter relies heavily on Rompilla, maintaining it requires us to review
the prejudice prong of this IAC claim de novo, rather than, under AEDPA
deference, deciding whether the state-court decision was unreasonable. It is
unnecessary, however, to decide this question because, even under a de novo
standard of review, Pondexter fails to establish prejudice.
Under such plenary review, Pondexter fails to establish that, had trial
counsel consulted with, and/or presented, a pathologist, the jury’s verdict would
have been different. The jury was presented with the testimony of an eyewitness
that Pondexter shot the victim after Henderson fired the first shot. The State
also presented the medical testimony of Dr. Guileyardo. He testified that the
second bullet entered the left side of the victim’s face and exited below her right
ear, perforating her oral cavity, boring a hole through her tongue, and shattering
her right jawbone. It was Dr. Guileyardo’s opinion that both gunshot wounds
were inflicted while the victim was still alive, and that either shot could have
killed her.
Pursuant to our de novo review, we conclude that the jury, cognizant of
overwhelming evidence of guilt, would have found Pondexter guilty even if trial
counsel had consulted with, and/or called, a pathologist. As a result, there is not
a “reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different”. Strickland, 466 U.S. at 694
(emphasis added).
2.
For his second IAC claim, Pondexter asserts trial counsel was ineffective
for failing to interview Kendricks, Pondexter’s cellmate. Pursuant to Kendricks’
affidavit, attached to Pondexter’s state-habeas petition, Pondexter allegedly
provided the following information to Kendricks: Pondexter “confessed to

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[Kendricks] that he fired the second shot into the victim”; he “knew that the
victim . . . was already dead before he shot her”; and he shot her to “show[] off
in front of the others” and to show them “the way to do it”. (The last comments
apparently are linked to Pondexter’s boasting, after shooting the victim, “that’s
how you smoke a bitch”, as quoted supra.) Kendricks also stated, in the
affidavit, that he provided this information to the State before Pondexter’s trial.
The state-habeas court concluded that, “[b]ecause the information in
[Kendricks’] affidavit was not exculpatory, [trial] counsel was not deficient for
failing to have this information brought to the attention of the jury”. In any
event, the state-habeas court also found no prejudice because “[t]he statements
would have added nothing to Pondexter’s defense”.
On remand, the district court concluded it was not unreasonable for the
state court to rule that Pondexter’s trial counsel was not ineffective for failing
to interview Kendricks.
The state-habeas court decision that counsel’s performance with respect
to this issue was neither deficient nor prejudicial is not unreasonable under
AEDPA. As noted by both the state-habeas trial court and district court, if
Pondexter made statements to Kendricks, it was Pondexter who was in the best
position to notify his counsel of the need to obtain that information. See, e.g.,
Boyd v. Johnson, 167 F.3d 907, 910 (5th Cir. 1999).
The record is devoid of an affidavit from trial counsel or Pondexter
attesting to whether Pondexter did not notify counsel of Pondexter’s alleged
statements to Kendricks. Only Pondexter’s state-habeas counsel provided an
affidavit, attached to Pondexter’s state-habeas petition, stating he spoke with
trial counsel, who “did not believe that they spoke with . . . Michael Kendricks”.
(Emphasis added.) The affidavit does not state, however, whether Pondexter
notified trial counsel of his alleged statements to Kendricks.

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Even assuming, arguendo, as unreasonable, under AEDPA, the state-court
decision that trial counsel’s failure to interview Kendricks was not deficient
performance, the state-court decision that the statement at issue was not
exculpatory and does not establish prejudice is not, under AEDPA, an
unreasonable application of Strickland. Pondexter presented an innocence-
defense at trial, and the jury had overwhelming evidence by which to convict
him.
3.
For his third IAC claim, Pondexter maintains: the prosecutor’s stating in
closing argument that it was Pondexter who shot the victim through the brain
was improper; and, accordingly, his counsel was ineffective for failing to object.
The state court concluded that the prosecutor’s arguments were proper, and as
a result, objections would have been meritless. Accordingly, it concluded
Pondexter failed to establish the deficiency-prong of Strickland. In addition,
that court concluded no prejudice was shown because of the overwhelming
evidence of guilt.
On remand, pursuant to AEDPA, the district court found unreasonable the
state-court decision that trial counsel was not deficient for failing to object, but
held that the state-court’s no-prejudice conclusion was reasonable, under
AEDPA, because, even if trial counsel had objected, and the jury had been
instructed to disregard the argument, the jury nevertheless could have
reasonably concluded Pondexter’s shot to the victim’s face was the cause of
death.
Even assuming the state-court decision that trial counsel’s performance
was not deficient is unreasonable under AEDPA, the overwhelming evidence of
Pondexter’s guilt precluded his establishing prejudice in the state-habeas court.
As discussed, Dr. Guileyardo testified the victim was alive before the second
gunshot was fired, and that the cause of death was a result of both wounds.

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Accordingly, under AEDPA, the state-court decision that no prejudice resulted
was not unreasonable.
4.
For his final IAC claim, Pondexter asserts the above three claims, when
considered cumulatively, render trial counsel’s performance ineffective. The
state-habeas trial court recommendation was that “Pondexter’s failure to
specifically argue each instance of alleged ineffective assistance of counsel
[rendered] his claims [to be] multifarious and waived”. Alternatively, it
recommended that Pondexter failed to establish both deficiency and prejudice.
As noted, the TCCA adopted those recommendations.
On remand, the district court noted that “[m]eritless claims or claims that
are not prejudicial cannot be cumulated, regardless of the total number raised”.
We agree. Therefore, the state-court decision, under AEDPA, was not
unreasonable.
B.
Pondexter maintains the State, in violation of Brady, suppressed evidence
that allegedly demonstrates Pondexter did not intend to cause the victim’s
death. 373 U.S. 83. In so doing, he asserts the State withheld information that
Kendricks (Pondexter’s cellmate, who testified for the State at trial about
Pondexter’s jailhouse statement to him) told an investigator before trial that
Pondexter said he knew the victim was dead when he shot her.
The state-habeas trial court recommended denying the claim. It found:
Kendricks’ affidavit was not exculpatory; and, in any event, “Pondexter should
have been aware of the statements, because he supposedly made them”. That
court concluded the self-serving affidavit supplied by Kendricks was not a basis
for habeas relief. It found “no reasonable likelihood that this evidence, had it
come before the jury, would have altered the outcome of the trial”. Again, as
noted, the TCCA adopted those recommendations.

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The district court stated: Pondexter “failed to produce evidence
demonstrating that the prosecution suppressed exculpatory evidence”. As had
the state-habeas court, the district court also noted Pondexter was in the best
position to inform his trial counsel of the alleged knew-the-victim-was-dead
statement he made to Kendricks.
Brady held: “[T]he suppression by the prosecution of evidence favorable
to an accused upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution”. 373 U.S. at 87. In order to establish a Brady-claim in state-habeas
court, Pondexter had to demonstrate “that the prosecution suppressed favorable,
material evidence that was not discoverable through due diligence”. Kutzner v.
Cockrell, 303 F.3d 333, 336 (5th Cir. 2002) (citations omitted); see also Rector v.
Johnson, 120 F.3d 551, 558-59 (5th Cir. 1997) (citations omitted).
As our court has made clear, “[e]vidence is not ‘suppressed’ if the
defendant ‘knows or should know of the essential facts that would enable him to
take advantage of it’”. United States v. Runyan, 290 F.3d 223, 246 (5th Cir.
2002) (citation omitted). In sum, the State was not required by Brady to supply
the defendant with “evidence that [was] fully available . . . through the exercise
of reasonable diligence”. Kutzner, 303 F.3d at 336. In such a situation, the
defendant bears the responsibility for his failure to investigate diligently. Id.
(citation omitted); see also United States v. Brown, 628 F.2d 471, 473 (5th Cir.
1980) (“[W]hen information is fully available to a defendant at the time of trial
and his only reason for not obtaining and presenting the evidence to the Court
is his lack of reasonable diligence, the defendant has no Brady claim”. (citations
omitted)).
As noted, Pondexter asserts only that the State suppressed statements he
allegedly made to Kendricks while incarcerated with him. As discussed earlier,
if Pondexter made these statements to Kendricks, Pondexter, of course, was fully

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aware both of having done so and of Kendricks’ ability to verify they had been
made. Accordingly, because he would have possessed the information at the
time of trial, the state-court denial of his Brady claim was not unreasonable
under AEDPA. See Brown, 628 F.2d at 473.
C.
Pondexter’s final claim is that his due-process rights were violated by the
prosecution’s use of inconsistent theories at the separate trials of his co-
defendant Henderson and then of Pondexter. Pondexter contends: at
Henderson’s trial, the State asserted it was Henderson who fired the shot
through the victim’s brain; but, subsequently, at Pondexter’s trial, the State
maintained it was Pondexter who fired that shot.
1.
Pondexter raised this inconsistent-theories claim for the first time in the
district court in supplemental briefing following remand by our court. He again
raised this claim in his application for a COA with that court. In other words,
Pondexter did not present this claim in either his state-court direct appeal or his
state- or federal-habeas petitions. On remand, the district court did not address
this specific claim although, as noted, Pondexter raised it in his post-remand
supplemental briefing. The State fails to raise this procedural bar.
Ordinarily, “[c]laims not raised in state court . . . cannot be considered on
federal-habeas because they are not exhausted”. Miller, 431 F.3d at 244; see 28
U.S.C. § 2254(b)(1)(A). On the other hand, the court may “deny (but not grant)”
an unexhausted claim on the merits. Miller, 431 F.3d at 245 (emphasis in
original); 28 U.S.C. § 2254(b)(2); see also Neville v. Dretke, 423 F.3d 474, 482 (5th
Cir. 2005) (“[C]onsistent with its goal of providing for the speedy resolution of
federal petitions, AEDPA provides that applications may be denied on the
merits, ‘notwithstanding the failure of the applicant to exhaust the remedies
available in the courts of the State’”. (quoting 28 U.S.C. § 2254(b)(2))).

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It is well-established that the use of inconsistent theories in the separate
trials of co-defendants is not a violation of the due-process clause. See United
States v. Frye, 489 F.3d 201, 214 (5th Cir. 2007) (rejecting similar claim where
government made inconsistent arguments at the separate trials of
codefendants). Accordingly, habeas relief is denied for this claim as well.
2.
Pondexter also seeks habeas relief for the prosecutor’s alleged
misstatements of evidence at the guilt-innocence phase of his trial. Pondexter
maintains the prosecutor’s assertion that Pondexter fired the shot through the
brain was contradicted by trial testimony.
The district court granted a COA, however, only on whether “the
prosecution’s use of inconsistent theories and argument concerning this capital
murder offered at [Pondexter’s] trial and the trial of co-defendant Henderson
invalidates his conviction and sentence”. (Emphasis added.) Therefore, this
misstatement-of-evidence issue is not properly before this court. See 28 U.S.C.
§ 2253(c)(1); Dorsey v. Quarterman, 494 F.3d 527, 532 (5th Cir. 2007) (explaining
lack of jurisdiction absent a COA).
In the alternative, even assuming the issue is part of the inconsistent-
theories claim, for which a COA was granted, it would not change the denial of
that claim, for the above-stated reasons. Along that line, the state-court decision
on this point, based on waiver for failing to object contemporaneously, was not
unreasonable under AEDPA.
III.
For the foregoing reasons, the judgment is AFFIRMED.

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