     Case: 18-40139      Document: 00514739633         Page: 1    Date Filed: 11/28/2018




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

                                      No. 18-40139                         FILED
                                                                   November 28, 2018
                                                                      Lyle W. Cayce
DONNIE EARL DUCKSWORTH,                                                    Clerk

              Petitioner - Appellee

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

              Respondent - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:16-CV-318


Before DAVIS, COSTA, and OLDHAM, Circuit Judges.
PER CURIAM:*

       Respondent-Appellant Lorie Davis, Director of the Correctional
Institutions Division of the Texas Department of Criminal Justice (“the
State”), appeals the district court’s grant of habeas relief under 28 U.S.C.
§ 2254 to Petitioner-Appellee Donnie Ducksworth (“Ducksworth”). At
Ducksworth’s state jury trial on two counts of aggravated robbery, his counsel


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                   No. 18-40139
did not request a lesser-included offense charge of robbery. The district court
determined that counsel’s omission constituted deficient performance that
resulted in prejudice to Ducksworth. After reviewing the record, however, we
hold that the district court erred in finding prejudice under the familiar
Strickland v. Washington 1 ineffective-assistance-of-counsel test. We therefore
reverse the district court’s judgment and render judgment for the State.
                                          I.
A.    FACTUAL BACKGROUND 2
      On November 3, 2012, Ducksworth, along with his wife, Connie Peters
(“Peters”), drove their pickup truck into a construction site of Triple B
Construction Service. Ducksworth exited the truck, picked up pieces of rusty
pipe, and placed it in the bed of his vehicle. Two construction workers and
brothers, Jose and Ruben Vera (the “Veras”), approached Ducksworth to tell
him that the pipe was not construction debris and that he could not take them.
According to the Veras, Ducksworth pulled a knife partially out of his pocket,
threatened them, and left the construction site with the pipe. The Veras then
called the police; a few minutes later, Ducksworth and his wife were stopped
and arrested. The police found the pipe and a knife in the bed of Ducksworth’s
truck. The State charged Ducksworth with two counts of aggravated robbery.
B.    DUCKSWORTH’S TRIAL
      Ducksworth was represented by appointed counsel Faye Gordon
(“Gordon”). At trial, Peters testified that a third construction worker had given
his consent to Ducksworth to take the pipe before the Veras intervened. Peters
said they kept the knife in the cab of the truck and used it to operate the truck’s
broken ignition. She also testified that the knife remained in the cab of the


      1 466 U.S. 668 (1984).
      2 See Ducksworth v. State, No. 01-13-00616-CR, 2014 WL 2582895, at *1 (Tex. App.
June 10, 2014).
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                                      No. 18-40139
truck throughout the confrontation, meaning Ducksworth could not have used
it to threaten the Veras. The Veras, on the other hand, told the jury that
Ducksworth partially revealed his knife and made verbal threats. Ducksworth
did not testify.
      At the charge conference with the trial court, Gordon initially requested
that a charge for theft be included in the jury instructions as a lesser-included
offense. The State objected, arguing that the defendant had presented no
evidence “as to [the] value [of the pipe] of any sort [for] theft.” The trial court
referred both counsel to a Texas Court of Criminal Appeals case, Sweed v.
State, 3 and instructed them to review it to see whether there was enough
evidence to warrant a lesser-included offense charge for theft. After a short
recess, the court again asked whether counsel had any further objections or
changes to the proposed charge. Gordon continued to ask for “a lesser-included
offense [charge].” The court, in response, inquired from Gordon whether she
had prepared “a proposed instruction [for the court].” After an off-the-record
discussion, Gordon withdrew her request, saying “I reviewed the charge. I
don’t have any additions or deletions.”           The charge approved by Gordon
included instructions on aggravated robbery only.
      Consistent with the charge, the verdict form presented the jury with two
options: acquittal or conviction on two counts of aggravated robbery. The jury
found Ducksworth guilty on the latter. Six months later, at the punishment
phase, Ducksworth pleaded true to the habitual offender enhancement, and
the jury sentenced him to sixty years of imprisonment.




      3   351 S.W.3d 63 (Tex. Crim. App. 2011).
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                                       No. 18-40139
C.     STATE HABEAS PROCEEDING
       After the Texas First Court of Appeals affirmed the jury’s conviction, 4
Ducksworth filed a habeas petition in state court. Ducksworth argued that
Gordon rendered ineffective assistance by failing to request a lesser-included
jury charge on robbery.          Ducksworth claimed that he was prejudiced by
Gordon’s deficient performance because Ducksworth would be eligible for
parole in 7.5 years if convicted of robbery, whereas he would only be eligible
for parole in 30 years upon conviction of aggravated robbery.
       Applying Strickland’s two-prong test, the state habeas court found no
deficient performance or prejudice. The court held: “There is nothing in the
record to suggest that if Ms. Gordon had discussed parole eligibility with
Applicant after it was determined that the Court would not allow a charge of
[t]heft, that Applicant would have wanted the charge of [r]obbery submitted.”
The state court also found that a robbery charge would have lessened
Ducksworth’s available defenses; therefore, it was reasonable for Gordon to
withdraw this charge. The court concluded that any argument of deficient
performance or prejudice was speculative, and denied Ducksworth’s petition. 5
D.     FEDERAL HABEAS PROCEEDING
       Ducksworth next sought habeas relief in federal court. The district court
found that Gordon performed deficiently at trial. The court noted that because
Texas law supported a robbery instruction and Gordon’s purported tactic to
refrain from requesting it was not a reasonable execution of an all-or-nothing



       4 Because Gordon “failed to give [a proposed instruction]” and instead said she “did
not have any additions or deletions to the court’s” proposed jury charge, the state appellate
court found that Ducksworth “failed to make a proper request” for a lesser-included offense
instruction for theft. Ducksworth, 2014 WL 2582895, at *5 (internal quotation marks
omitted). Additionally, the court determined that the trial judge did not err in failing to give
sua sponte a lesser-included offense instruction for theft, and that Gordon failed to preserve
any such error. Id.
       5 The Texas Court of Criminal Appeals denied review without a written opinion.

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                                       No. 18-40139
strategy, Gordon acted ineffectively at trial. The district court concluded that
“the significant difference in parole eligibility establishes prejudice,” and “a
robbery instruction would have given [] Ducksworth’s jury a vehicle for
reasonable doubt as to whether Ducksworth used or exhibited a deadly weapon
to facilitate the offense.” Holding that the state court’s ruling was contrary to
or an unreasonable application of Strickland, the district court granted
Ducksworth habeas relief, pending the result of this appeal. The district court,
however, never engaged with the evidence to show why there is a reasonable
probability that the evidence in this case might have led to a verdict only on
the lesser-included offense of robbery.
       We now address the issues below.
                                             II.
       We review “a district court’s grant of summary judgment in a habeas
proceeding de novo.” 6 Because a state court has adjudicated Ducksworth’s
claims on the merits, our review is subject to the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”)’s so-called “relitigation bar.” 7 We apply
AEDPA’s standards to the “last reasoned state court decision” on the claim 8—
that is, here, the decision of the 412th District Court of Brazoria County, Texas.
Under AEDPA, we “presume all state court findings of fact to be correct in the
absence of clear and convincing evidence.” 9




       6 Ogan v. Cockrell, 297 F.3d 349, 355–56 (5th Cir. 2002) (citing Soffar v. Johnson, 237
F.3d 411, 449 (5th Cir. 2000)).
       7 See 28 U.S.C. § 2254(d)(1).
       8 Batchelor v. Cain, 682 F.3d 400, 405 (5th Cir. 2012) (quoting Wood v. Quarterman,

491 F.3d 196, 202 (5th Cir. 2007)) (internal quotation marks omitted).
       9 Ogan, 297 F.3d at 356 (internal quotation marks omitted); see also 28 U.S.C.

§ 2254(e)(1).
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                                      No. 18-40139
                                            III.
       On appeal, the State argues that Ducksworth received constitutionally
effective assistance of counsel at trial as required by the Sixth Amendment. To
succeed on this claim, a petitioner must show two elements: (1) that counsel’s
performance was constitutionally deficient and (2) that such deficiency
prejudiced the defense. 10 We elect to decide this case solely on the prejudice
prong of Strickland. Assuming, without deciding, that deficient performance
has been established, we hold that Ducksworth fails to meet his burden to
demonstrate prejudice. 11
       As we have recognized, “[t]o demonstrate prejudice, a petitioner ‘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.’” 12 “The likelihood of a different result must be substantial, not
just conceivable.” 13
       “[I]n ineffective-assistance cases involving a failure to request a lesser-
included-offense instruction, Strickland requires a reviewing court to assess
the likelihood that the defendant’s jury would have convicted only on the lesser
included offense.” 14 “Surmounting Strickland’s high bar is never an easy
task.” 15   “[A] court assessing prejudice must consider the totality of the
evidence before the judge or jury.” 16 “This inquiry necessarily examines the


       10  Strickland, 466 U.S. at 687.
       11  Because Ducksworth cannot show prejudice, we need not discuss whether Gordon’s
performance was deficient. See id. at 697.
        12 Richards v. Quarterman, 566 F.3d 553, 564 (5th Cir. 2009) (quoting Strickland, 466

U.S. at 694).
        13 Harrington v. Richter, 562 U.S. 86, 112 (2011).
        14 Crace v. Herzog, 798 F.3d 840, 849 (9th Cir. 2015) (citation omitted).
        15 Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
        16 Mejia v. Davis, 906 F.3d 307, 315 (5th Cir. 2018) (quoting Strickland, 466 U.S. at

696) (internal quotation marks omitted).
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                                       No. 18-40139
strength of the other evidence in the case weighed against the egregiousness
of counsel’s error.” 17
       In this case, we are satisfied that Gordon’s failure to request a robbery
charge did not result in prejudice to Ducksworth under Strickland. That is,
we cannot say that it is likely the jury would have convicted Ducksworth only
for robbery and not aggravated robbery.
       The record here is light. Five witnesses testified: the Vera brothers, two
responding officers, and Ducksworth’s wife, Connie Peters. Under Texas law,
robbery is a lesser-included offense of aggravated robbery, 18 and the evidence
at trial supports both convictions. The main difference between the two here
is that under an aggravated robbery charge, the State must prove that the
defendant threatened the victims with a “deadly weapon,” such as a knife, that
“is capable of causing serious bodily injury or death. . . .” 19 The State need not
prove the use of a deadly weapon to establish simple robbery.
       In order to find prejudice, Ducksworth would have to show a reasonable
probability that the jury would have credited the testimony of Peters over that
of the Vera brothers. He cannot do so here. Peters testified that a third
construction worker gave Ducksworth permission to take the pipe, and that
the knife remained in the cab of the truck—and not on Ducksworth—


       17  Thomas v. Vannoy, 651 F. App’x 298, 301 (5th Cir. 2016) (unpublished) (citing
Berghuis v. Thompkins, 130 S. Ct. 2250, 2264 (2010)). While our unpublished opinions are
not controlling precedent, they may be persuasive authority. See Ballard v. Burton, 444 F.3d
391, 401 & n.7 (5th Cir. 2006) (citation omitted).
        18 Compare Aggravated Robbery (TEX. PENAL CODE ANN. § 29.03(a)(1) & (2)) (“A

person commits an offense if he commits robbery as defined in Section 29.02 [Robbery], and
he: (1) causes serious bodily injury to another; [or] (2) uses or exhibits a deadly weapon.”)
with Robbery (TEX. PENAL CODE ANN. § 29.02(a)(1) & (2)) (“A person commits an offense if,
in the course of committing theft as defined in Chapter 31 [Theft] and with intent to obtain
or maintain control of the property, he: (1) intentionally, knowingly, or recklessly causes
bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear
of imminent bodily injury or death.”).
        19 Brown v. State, 716 S.W.2d 939, 946 (Tex. Crim. App. 1986); see Tucker v. State, 274

S.W.3d 688, 691 (Tex. Crim. App. 2008) (citing TEX. PENAL CODE § 1.07(a)(17)).
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                                     No. 18-40139
throughout the confrontation. The Veras, on the other hand, testified that
Ducksworth partially revealed his knife and made verbal threats; as a result,
they feared imminent serious bodily injury or death. With only these two
conflicting accounts of the confrontation, the issue boils down to one of
credibility. We find it unlikely the jury would have credited Peters’ testimony
over that of the Veras: Peters is Ducksworth’s wife, and charges were pending
against her arising out of the same incident. On the contrary, the jury had
little reason not to accept the Veras’ testimony. Moreover, the police did in fact
find the pipe and knife in Ducksworth’s truck. Even more problematic for
Ducksworth, a verdict finding him guilty of robbery but not aggravated robbery
would have required the jury to credit Peters on some aspects of her testimony
(that no weapon was displayed) but then disbelieve other aspects (that there
was consent for Ducksworth to take the pipe). Without any indication in the
record that the jury would have convicted Ducksworth only on robbery, we
determine that the district court erred in finding prejudice.
      We agree with the state habeas court that Petitioner failed to show a
reasonable probability of a different result if the jury had been given the option
of convicting Ducksworth of robbery. Such speculation cannot be the basis to
support a finding of prejudice under Strickland. 20 Accordingly, even if Gordon
erred in failing to request a robbery charge, such omission is insufficient to
undermine our confidence in the outcome of Ducksworth’s trial. 21 We therefore
conclude that, “[e]ven if [Duckworth’s] ineffective-assistance-of-counsel claim
were eligible for de novo review,” the district court erred in granting
Ducksworth habeas relief. 22 Consequently, we need not discuss the application
of AEDPA’s relitigation bar.


      20 See Harrington, 562 U.S. at 112.
      21 See Strickland, 466 U.S. at 694.
      22 Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).

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                             No. 18-40139
                                  IV.
     For the foregoing reasons, we REVERSE the district court’s judgment,
and RENDER judgment for the State.
     REVERSED; JUDGMENT FOR APPELLANT.




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