IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 19, 2008
No. 05-41747 Charles R. Fulbruge III
Clerk
MICHAEL STUART DALE
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 JONES, Chief Judge, and GARWOOD and SMITH, Circuit Judges.
PER CURIAM:
Michael Stuart Dale, a Texas prisoner, appeals the denial of his petition
for a writ of habeas corpus alleging ineffective assistance of counsel at the
sentencing phase of his deferred adjudication probation revocation hearing.
Because the state courts did not unreasonably apply the Strickland test to the
facts in this case, we affirm the district court’s judgment.
BACKGROUND
Dale was charged with and tried for aggravated sexual assault in 1997.
While the jury was deliberating, he pled guilty to the offense and was sentenced
to five years of deferred adjudication probation. During the next 14 months, he
violated the terms and conditions of his probation by missing appointments with
No. 05-41747
his scheduled supervision officer, refusing to submit to electronic monitoring,
failing to attend treatment sessions, and failing to perform the required amount
of community service. The state moved to enter a final adjudication of his guilt.
Dale retained Wayne Ames as counsel for the deferred adjudication probation
revocation hearing, during which Dale and his roommate both testified. The
court adjudicated Dale guilty and immediately moved to sentencing.
Although Ames was given the opportunity, he called no more witnesses
and offered only a three-sentence plea that the court return Dale to probation.
The court, however, sentenced Dale to 20 years in prison, the statutory
maximum. Dale exhausted his state appellate remedies without success.
Dale then filed a petition for a writ of habeas corpus in Texas court
alleging, inter alia, ineffective assistance of counsel at the sentencing phase of
his probation revocation hearing. Dale asserted that Ames’s failure to introduce
available mitigation evidence resulted in a significantly harsher sentence than
he would have otherwise received. In support, Dale presented eleven affidavits
of family members or friends who stated that they would have testified to his
good character had Ames contacted them. The affidavits are nearly identical.1
1
Nine affidavits are identical, and the other two are identical to one another. They all
contain the same substantive information. The nine identical affidavits state:
Had I been contacted by Michael’s counsel, Mr. Ames, I would have told
him that I was ready, willing, and available to testify at Michael’s adjudication
hearing, in person stating under oath that Michael is someone who should be
entitled to another chance on probation or at the very least, something less than
a maximum prison sentence, particularly in light of the fact that his probation
was revoked for reasons not relating to committing another criminal offense. I
would have done what I could to ensure that Judge Tolle saw Michael as
someone deserving of some form of leniency, that is, to have humanized Michael
in the Judge’s eye.
The two affidavits with slightly different wording state:
Had I been contacted by Michael’s counsel, Mr. Ames, I would have
informed him that I was ready, willing and able to testify at Michael’s
adjudication hearing. I would have testified under oath, in person, that Michael
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No. 05-41747
Ames also signed an affidavit admitting that Dale informed him about these
witnesses and that his failure to call them was not based on trial strategy.
At a hearing, an experienced local criminal defense attorney testified,
based on hypothetical facts resembling Dale’s case, that Dale’s punishment was
excessive and that Ames’s failure to investigate and call witnesses and his
failure to explore additional punishment options constituted objectively deficient
representation. Finally, Ames’s sister testified about Ames’s deteriorating
mental acuity.
The state trial court denied Dale’s petition. It found that the substantially
identical and conclusory nature of these affidavits detracted from their
credibility. In addition, none of the affidavits contained specific facts suggesting
how the judge should have found Dale “humanized,” nor, according to the state
habeas court, did any evidence discuss whether this testimony would have been
susceptible to impeachment. The Texas Court of Criminal Appeals affirmed
without opinion.
Dale then filed a petition for a writ of habeas corpus in federal court. The
district court denied relief, and this Court issued a certificate of appealability.
STANDARD OF REVIEW
A federal court may not issue a writ of habeas corpus for Dale unless the
Texas court’s adjudication of his 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.” 28 U.S.C.
§ 2254(d)(1). The legal application must be “objectively unreasonable,” meaning
is someone of good character who deserves another chance at probation or
something far less than a maximum prison sentence. Particularly in light of the
fact that his probation was revoked for reasons unrelated to the commission of
another criminal offense. I would have done my best to ensure that Judge Tolle
saw Michael as someone deserving of leniency. Also, I feel my presence would
have humanized Michael in the Judge’s eye.
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No. 05-41747
more than merely “erroneous or incorrect.” Williams v. Taylor, 529 U.S. 362,
409, 411, 120 S. Ct. 1495, 1521 (2000) (internal quotation marks omitted);
Tucker v. Johnson, 242 F.3d 617, 620 (5th Cir. 2001). For example, a decision
unreasonably applies clearly established law if it “correctly identifies the
governing legal rule but applies it unreasonably to the facts of a particular
prisoner’s case.” Williams, 529 U.S. at 407-08, 120 S. Ct. at 1520. The focus of
this objective reasonableness inquiry is on the state court’s ultimate decision, not
whether the state court “discussed every angle of the evidence.” Neal v. Puckett,
286 F.3d 230, 246 (5th Cir. 2002) (en banc).
A state habeas court’s findings of facts and its credibility determinations
are presumed correct, but may be rebutted by clear and convincing evidence.
Summers v. Dretke, 431 F.3d 861, 871-72 (5th Cir. 2005) (citing 28 U.S.C.
§ 2254(e)(1)). In addition, this Court reviews the district court’s findings of fact
for clear error and issues of law de novo using the same standards applied below.
Barrientes v. Johnson, 221 F.3d 741, 750 (5th Cir. 2000).
DISCUSSION
Dale’s petition claims that the Texas habeas court unreasonably applied
clearly established federal law regarding ineffective assistance of counsel. To
prove ineffective assistance, a defendant must show that counsel was deficient,
and the deficiency prejudiced his defense. Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 2064 (1984). Counsel’s representation is deficient if
it “fell below an objective standard of reasonableness” measured by “prevailing
professional norms.” Id. at 688, 104 S. Ct. at 2064. “The reviewing court must
strongly presume that counsel rendered adequate assistance and that the
challenged conduct was the product of reasoned trial strategy.” Pondexter v.
Quarterman, 537 F.3d 511, 519 (5th Cir. 2008) (internal quotation marks
omitted).
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No. 05-41747
Prejudice “is 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, 104 S. Ct. at 2068. A reasonable probability is “a probability
sufficient to undermine confidence in the outcome” and is less than a
preponderance of the evidence. Id. at 693-94, 104 S. Ct. at 2068. In the state
sentencing context, the relevant inquiry is whether, absent counsel’s errors,
there is a reasonable probability that the defendant’s sentence would have been
“significantly less harsh,” Spriggs v. Collins, 993 F.2d 85, 88-89 (5th Cir. 1993),
taking into account “such factors as the defendant’s actual sentence, the
potential minimum and maximum sentences that could have been received, the
placement of the actual sentence within the range of potential sentences, and
any relevant mitigating or aggravating circumstances.” United States v. Segler,
37 F.3d 1131, 1136 (5th Cir. 1994) (citing Spriggs, 993 F.2d at 88).2
Even assuming arguendo that Ames’s performance was deficient, Dale has
failed to show that the state courts acted unreasonably in determining that there
is no reasonable probability that his sentence would have been significantly less
harsh absent Ames’s errors.
Some evidence relevant to mitigation was offered during the adjudication
phase, which the sentencing judge must have considered. See Pearson v. State,
994 S.W.2d 176, 178 (Tex. 1999). Much of Dale’s and his roommate’s testimony
was directed at Dale’s effort to comply with the terms of his probation. Dale
testified to his continuing efforts to finish his college degree and to pursue a
master’s degree in divinity school. His explanation why he fell short of his
probation obligations also addresses punishment on resentencing. Dale’s
2
The Spriggs “significantly less harsh” standard applies here because Dale’s habeas
petition alleges ineffective assistance of counsel during a state sentencing hearing, not a
federal one. United States v. Grammas, 376 F.3d 433, 438 & n.4 (5th Cir. 2004) (holding that
Glover v. United States, 531 U.S. 198, 203, 121 S. Ct. 696, 700 (2001), which cites Spriggs,
abrogates the significantly harsh test only in the federal sentencing context).
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No. 05-41747
roommate corroborated his efforts to comply with probation. She testified that
she would be willing to help him meet his obligations and that he was a good and
reliable friend.
Because this evidence obviously did not sway the court toward leniency,
Dale submitted, in habeas proceedings, eleven conclusory affidavits. Each
affiant knows Dale and believes him to be “of good character,” and each affiant
states that he or she would have testified in favor of a reduced sentence. The
affidavits do not provide any specific facts describing Dale’s good character or
good action, nor do the affidavits reveal whether the affiant has had timely,
recurring contact with and familiarity with Dale. All of the affiants live in
locations far removed from Texas (the closest being in North Carolina). The
affidavits offer no facts about his background that would engender sympathy.
The Texas habeas court found that such deficiencies undercut the affiants’
credibility, a finding Dale fails to rebut with clear and convincing evidence. See
Summers v. Dretke, 431 F.3d 861, 871-72 (5th Cir. 2005). When a number of
people swear to undifferentiated, verbatim statements, this court justifiably
discounts both the statements’ veracity and the intensity of the sentiments
expressed. See Sawyers v. Collins, 986 F.2d 1493, 1505 & n.20 (5th Cir. 1993).
Although the affidavits suggest that some additional mitigating evidence could
have been produced on Dale’s behalf, they do not create a reasonable probability
that a sentencing court would have given Dale a significantly less harsh
sentence had it been apprised of this information.
The severity of Dale’s sentence is a significant consideration under
Spriggs, but our analysis must also account for the sentencing context. Dale
pled guilty to aggravated sexual assault, specifically, to sexual penetration of the
victim. The revocation court judge presided over the trial and indicated his
familiarity with the underlying offense facts. The state showed that in
14 months Dale performed 17 hours of his then-required 140 hours of community
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No. 05-41747
service;3 failed to report to his supervision officer three times; failed to submit
to electronic monitoring; and failed to honor his obligations to participate in a
sexual abuse treatment program. Because Dale initially received a light
sentence, it seems likely that his failure to honor the lenient terms of probation
for a very serious offense influenced the sentencing judge’s decision. The
sentencing judge did not make a finding on the record during the revocation
hearing, but one may infer that Dale’s unpersuasive excuses for noncompliance
compounded the gravity of the offense. Under all of these circumstances, the
vague and conclusory mitigating affidavits do not represent testimony that, if
offered, would have led the judge to impose a significantly less harsh sentence.
A maximum sentence may seem unduly stringent, but it is not so because Dale
received ineffective assistance of counsel.
We affirm the district court’s denial of relief because we hold that the state
court’s ultimate decision, that Dale did not demonstrate a reasonable probability
that his sentence would have been significantly less harsh absent counsel’s
errors, is not an objectively unreasonable application of clearly established
federal law, as determined by the Supreme Court of the United States.
AFFIRMED.
3
By the terms of his probation, Dale was required to complete 240 hours of community
service at the rate of 10 hours per month. 14 months into his probation he, therefore, should
have completed 140 hours.
7