     Case: 10-20876   Document: 00511892034        Page: 1   Date Filed: 06/19/2012




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

                                                                      FILED
                                                                     June 19, 2012

                                   No. 10-20876                      Lyle W. Cayce
                                                                          Clerk

NANON McKEWN WILLIAMS

                                             Petitioner-Appellee
v.

RICK THALER, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division

                                             Respondent-Appellant



               Appeal from the United States District Court for the
                  Southern District of Texas, Houston Division


Before JONES, Chief Judge, DAVIS, and DeMOSS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
        Upon reconsideration, this panel’s previous opinion in this case, Williams
v. Thaler, 459 Fed. Appx. 327 (5th Cir. 2012), is hereby withdrawn in its entirety
and replaced with the following.
        Appellant Rick Thaler appeals the district court’s grant of appellee Nanon
McKewn Williams’ writ of habeas corpus based on his claim that he received
ineffective assistance of counsel during his trial for murder, a claim that was
previously litigated in Texas state court. Because we cannot conclude that there
was no reasonable basis for the state court’s denial of Williams’ habeas petition,
we reverse the district court’s grant of relief.
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                               No. 10-20876

                                     I.
   In a previous appeal, this court detailed the facts of this case as follows:
         On May 13, 1992, Williams, his friend Vaal Guevara,
   and Guevara's friend Elaine Winn, went to Adonius Collier's
   apartment to arrange a drug transaction. Collier, his friend
   Ammade Rasul, and Rasul's girlfriend, Stephanie Anderson,
   met with Williams, Guevara, and Winn. They agreed to
   complete the transaction at a nearby park. The participants
   all went to the park in several vehicles. The Government
   alleged at trial that Williams carried a .25-caliber pistol and
   a shotgun hidden in his clothing while Guevara carried a
   .22-caliber pistol. Upon arriving at the park, Williams,
   Guevara, Rasul, and Collier went into the woods to conduct
   the drug transaction. The remaining participants stayed in
   the cars.
         During the course of the drug transaction, gunfire
   erupted. Rasul testified that Williams shot him once in the
   face with the pistol and that he suffered a bullet wound in the
   foot as he ran toward the parking lot. Forensic testimony
   proffered at trial linked the bullet from Rasul's foot to
   Williams's .25-caliber pistol. Rasul and Anderson sought
   medical attention for Rasul's injuries, and Anderson reported
   the shooting to a Houston police officer. Thereafter, the police
   investigated the park and found Collier's dead body. Collier
   had suffered a shotgun wound to the head. The medical
   examiners who performed Collier's autopsy recovered some
   shotgun pellets from Collier's cranial cavity and a spent and
   mutilated bullet, which was marked as “EB-1.” Winn,
   Anderson, and another person, identified at trial only as
   “Xavier,” were present at the park, but the only potential
   eyewitnesses to the shooting were Collier (the deceased),
   Rasul, Guevara, and Williams. Williams did not testify. Thus,
   the only eyewitness testimony at trial came from Rasul and
   Guevara.

         Rasul testified that after Williams shot him, he ran.
   While running, Rasul heard more shots including, apparently,
   the shot to his foot. Because Rasul ran before Collier was shot,
   while Guevara stayed behind, Guevera's story and its
   credibility were very important. Guevara initially testified


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                               No. 10-20876

   that he did not fire his gun at all. Later, Guevara testified
   that he fired his gun in the direction of Collier but did not
   strike him. Guevara then testified that he ran after Rasul. He
   stated that he never actually saw Williams shoot Collier, but
   he heard shotgun fire and saw Collier's feet twitching.
   Guevara also said that he heard Williams say “no more
   witnesses” before hearing the shotgun fire.

         The “objective” evidence in the case consisted of expert
   testimony about the ammunition recovered from Collier's
   head and the cause of Collier's death. The assistant medical
   examiner for Harris County, Dr. Brown, performed the
   autopsy. Dr. Brown testified that the shotgun pellets killed
   Collier and that Collier was still alive when shot with the
   shotgun. He based this conclusion on the fact that there was
   a red margin around Collier's bullet wound. According to Dr.
   Brown, this red margin indicated blood pressure at the time
   the wound was inflicted. Dr. Brown did not find any evidence
   of “EB-1” during the autopsy and could not account for its
   presence, but he admitted that Collier could have been shot
   with a bullet before the shotgun blast and that the shotgun
   blast could have then obliterated evidence of a prior bullet
   wound.

          The other expert was a Houston police department
   criminalist, Robert Baldwin, who specifically testified that the
   “EB-1” bullet came from a .25-caliber pistol like the one
   witnesses claimed Williams had carried and not from a
   .22-caliber pistol like the one Guevara admitted to carrying.
   Baldwin admitted that he failed to test fire the pistols, but
   testified unequivocally that his analysis was correct.

          Williams's trial counsel, Loretta Muldrow, never sought
   an independent ballistics test or an independent autopsy or
   examination of the pathology report. Even after learning that
   Baldwin had not test fired the pistols in his examination of
   the ballistics evidence, Muldrow still did not request a
   continuance to have an independent expert further examine
   this evidence. Consequently, Baldwin's unrebutted testimony
   buttressed and gave credibility to Guevara's testimony that
   he was not Collier's killer. Indeed, throughout the State's


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      case, notably in closing argument, the prosecutor made much
      of the fact that the jury did not need to decide which shot
      killed Collier because the objective evidence showed that all
      shots came from firearms attributable to Williams, not to
      Guevara.

Williams v. Quarterman, 551 F.3d 352, 353–55 (5th Cir. 2008). On July 26,
1995, Williams was convicted of capital murder and sentenced to death. The
Texas Court of Criminal Appeals (CCA) affirmed the conviction on direct appeal.
      Williams filed a state habeas application, in connection with which a state
trial court ordered the prosecution to release its ballistics evidence and
Guevara’s .22-caliber pistol. Before delivering the evidence to Williams’ counsel,
the prosecution conducted its own tests which revealed that the Houston Police
Department had misidentified EB-1. The post-trial test established that EB-1
was fired from a .22-caliber pistol (the same caliber as Guevara’s weapon), not
a .25-caliber pistol (the same caliber as Williams’ weapon). Based upon those
results, Williams claimed that he was entitled to habeas relief under Strickland
v. Washington, 466 U.S. 668 (1984). He argued that trial counsel’s failure to
secure independent ballistics and pathology experts, who he argued would have
testified that EB-1 was fired from a .22-caliber weapon, constituted an
objectively deficient performance.      Williams further argued that he was
prejudiced by that lack of evidence, because it would have created doubt as to
whether he caused Collier’s death. Ex parte Williams, No. 634442-A (248th
Dist. Ct. 2001).
      The state trial court held two evidentiary hearings. Williams presented
the new ballistics evidence, including testimony from the Chief Criminalist of
the Tarrant County Medical Examiner’s Office, Ronald Singer. Ronald Singer
testified that Collier had suffered two wounds to the head, one inflicted by a .22-
caliber weapon, and one inflicted by a shotgun. Singer stated that EB-1 was



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easily identifiable as a bullet from a .22-caliber pistol, and that any competent
examiner would have been able to identify it as such. Id.
      Williams also presented testimony and affidavits of Dr. Marc Andrew
Krouse, Deputy Chief Medical Examiner of the Tarrant County Medical
Examiner’s Office.    Dr. Krouse examined the autopsy evidence and trial
testimony and testified that EB-1 was itself highly likely to have caused death.
He stated that he did not agree with the conclusion made at trial that the red
margin around the bullet wound meant that Collier was alive when shot with
the shotgun. Dr. Krouse concluded that it was impossible to tell in which order
the firearm wounds had been inflicted, and that if he had performed the original
autopsy he would have listed both wounds as causes of death. Id.
      The prosecution presented the testimony of Smith, who was in the car
during the shootings but was not present to testify at trial. Smith testified that
he heard a pistol shot and then heard Collier yell “I’m hit,” and that he saw
Williams standing over Collier and pointing the shotgun at him. Id.
      The state trial court found, inter alia, that Collier was alive when Williams
shot him with the shotgun. But the state trial court nevertheless recommended
that habeas relief be granted, finding that Williams had proven that trial
counsel’s failure to obtain independent experts constituted ineffective assistance
under the Strickland standard. Id. The trial court reasoned that if trial counsel
had sought out independent expert testimony, the evidence would have “changed
the type and strength of cross-examination of Guevara . . . and much of the
prosecution’s closing argument” and that the jury “would have been presented
with favorable and arguably exculpatory evidence.” Id.
      The CCA rejected the state trial court’s recommendation in a two-page
order, which stated in relevant part: “[W]e do not believe, based on our review
of the record presented, that some of the crucial fact findings and the
recommendation based, at least in part, on them, are supported by the evidence

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presented at the evidentiary hearing. Accordingly, after a review of the record
with respect to the allegations made by [Williams], and with due consideration
of the recommendation made by the trial court, the relief sought is denied.” Ex
parte Williams, No. 46,736-02 (Tex. Crim. App. 2002) (per curiam).
      Williams then brought a habeas petition in federal court, making the same
Strickland claim, among others. The district court presumed the correctness of
the factual findings issued by the state trial court, except insofar as those
findings were inconsistent with the CCA’s denial of state habeas relief. Williams
v. Dretke, No. H-03-1508 (S.D. Tex. Mar. 29, 2005). The district court concluded
that 22 U.S.C. 2254(d) precluded federal habeas relief with respect to the
Strickland claim concerning omitted expert testimony. The district court issued
a Certificate of Appealability with regard to the Strickland claim. Id.
      This court reversed, holding that the district court erred in applying a
presumption of correctness to the state-court findings of fact. Williams v.
Quarterman, 551 F.3d 352, 358 (5th Cir. 2008) (Williams 1) The case was
remanded to the district court “for a full de novo evidentiary hearing of
Williams’s ineffective assistance of counsel claims on which the [COA] was
granted.” Id.
      The district court held an evidentiary hearing at which two pathology
experts testified. Williams v. Thaler, 756 F. Supp. 2d 809 (S.D. Tex. 2010).
Williams called Dr. Krouse, who had previously testified on his behalf in the
state habeas proceedings, and the Director called Dr. Vincent J. M. Di Maio. Dr.
Krouse reiterated the findings that he reported in state court, and testified that
the amount that Collier bled led him to conclude that Collier did not have blood
pressure when he was shot with the shotgun. Id. at 822. On cross-examination,
Dr. Krouse conceded that he could not definitively conclude whether Collier was
alive at the time of the shotgun blast. Id. at 823. The prosecution’s expert Dr.
Maio testified that blood in the tissue surrounding the wound indicated that

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                                 No. 10-20876

Collier was alive when hit by the shotgun pellets, and that he would have listed
EB-1 “as a finding” but not as a cause of death. Id. On cross-examination, Dr.
Maio agreed that a .22 magnum “has a high potential for fatality if you’re struck
in the head with it.” Id.
      After reviewing the evidence, the district court found that trial counsel’s
failure to obtain expert testimony regarding ballistics and pathology constituted
ineffective assistance of counsel under Strickland. The district court therefore
granted Williams’ habeas application. Id. at 828. This appeal followed.
                                       II.
      Williams filed his federal habeas petition after the effective date of the
Antiterrorism and Effective Death Penalty Act (AEDPA), therefore the
requirements of the AEDPA apply. The AEDPA generally bars relitigation of
claims that have already been adjudicated on the merits by a state court. 28
U.S.C. § 2254(d); see Premo v. Moore, 131 S. Ct. 733, 739 (2011); Schriro v.
Landrigan, 550 U.S. 465, 473 (2007). The statute provides three exceptions to
the general relitigation bar. A petitioner may obtain federal habeas relief on a
claim that has been litigated in state court if the petitioner can show that the
state court’s decision was contrary to a federal law that was clearly established
in Supreme Court holdings, that the decision was an unreasonable application
of such law, or that the decision was based on an unreasonable factual
determination. 28 U.S.C. § 2254(d)(1)–(3); see also Penry v. Johnson, 543 U.S.
782, 792 (2001).
      In reviewing a district court’s grant of habeas relief, we review “for clear
error with respect to findings of fact and de novo for issues of law.” Richardson
v. Joslin, 501 F.3d 415, 418 (5th Cir. 2007). The district court’s application of
AEDPA is a question of law and is therefore subject to de novo review. Buntion
v. Quarterman, 524 F.3d 664, 670 (5th Cir. 2008).
                                       III.

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      As an initial matter, we turn to the precedent established by this court in
Williams v. Quarterman, 551 F.3d 352 (5th Cir. 2008) (“Williams I”).                In
Williams I, we held that our precedents require an evidentiary hearing in the
district court when a state appellate court issues a decision adopting some but
not all of the trial court’s findings, without specifying which it has adopted. Id.
at 358-59. We now hold that subsequent Supreme Court precedent established
in Cullen v. Pinholster, 131 S. Ct. 1388 (2011), and Harrington v. Richter, 131
S. Ct. 770 (2011), undermines our holding in Williams I. In Pinholster the
Supreme Court held that, because analysis under 2254(d)(1) requires a
determination of whether a state-court decision was reasonable at the time it
was made, “the record under review is limited to the record in existence at the
same time.” Pinholster at 1388. The Court went on to hold that “evidence
introduced in federal court has no bearing on § 2254(d)(1) review,” and that “[i]f
a claim has been adjudicated on the merits by a state court, a federal habeas
petitioner must overcome the limitation of § 2254(d)(1) on the record that was
before that state court.” Id. at 1400. This holding precludes consideration of
facts developed at a post-conviction federal district court evidentiary proceeding
in the § 2254(d)(1) analysis.
      Williams’ Strickland claim was adjudicated on the merits in state court.
Therefore under Pinholster the sole issue is whether the decision by the Texas
Court of Criminal Appeals (CCA) was an “objectively unreasonable” application
of the clearly established federal law concerning ineffective assistance of counsel.
Yarborough v. Gentry, 540 U.S. 1, 5 (2003). As established by Pinholster, this is
a “backward-looking” analysis, limiting itself to the record that was before the
Texas CCA at the time of its decision.
      Section 2254(d) “imposes a highly deferential standard for evaluating
state-court rulings and demands that state-court decisions be given the benefit
of the doubt.” Felkner v. Jackson, 131 S. Ct. 1305, 1307 (2011) (quoting Renico

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v. Lett, 130 S. Ct. 1855, 1862 (2010)) (internal quotation marks omitted). As the
Supreme Court recently held, the standard is meant to be difficult to meet.
Harrington v. Richter, 131 S.Ct. 770, 786 (2011).
      Although the CCA provided no explanation for its reasoning in denying
Williams’ Strickland claim, that fact does not alter the highly deferential nature
of the AEDPA standard. “Where a state court’s decision is unaccompanied by an
explanation, the habeas petitioner’s burden still must be met by showing there
was no reasonable basis for the state court to deny relief.” Harrington, 131 S. Ct.
at 784. In reviewing a state court habeas decision unsupported by explanation,
a federal court must “determine what arguments or theories . . . could have
supported the state court’s decision,” and then ask “whether it is possible
fairminded jurists could disagree that those arguments or theories are
inconsistent with the holding in a prior decision” of the Supreme Court. Id. at
786 (citing Lockyer v. Andrade, 538 U.S. 63, 71 (2003)).
      The Strickland standard for ineffective assistance of counsel requires that
the petitioner show both that counsel’s “representation fell below an objective
standard of reasonableness” and that there is “a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland at 694. Like AEDPA, Strickland establishes a deferential
standard. See Harrington at 788 (“The standards created by Strickland and
2254(d) are both highly deferential, and when the two apply in tandem, review
is doubly so.”) (internal citations and quotation marks omitted). Here, as in
Harrington, “[t]he pivotal question is whether the state court’s application of the
Strickland standard was unreasonable.” Harrington at 785. Williams must
prove both that his counsel’s performance was objectively deficient and that his
counsel’s deficiency prejudiced him, and that no reasonable jurist could conclude
otherwise.



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      It is uncontested here that trial counsel’s performance fell below an
objective standard of reasonableness. Williams’s counsel failed to obtain any
independent ballistics or forensics experts, and was therefore unable to offer any
meaningful challenge to the findings and conclusions of the state’s experts, many
of which proved to be incorrect.
      Having concluded that Williams received ineffective assistance of counsel,
the remaining question under Strickland is whether it is “reasonably likely” that
the result of the trial would have been different if counsel had provided effective
assistance. In order to determine whether the CCA reasonably concluded that
the outcome would not have been different, we must examine the record that
was before it. We have authority to issue the writ only if we conclude from this
record that no fairminded jurist could agree with the CCA’s determination.
Harrington, 131 S. Ct. at 784.
      The testimony at trial established that Williams went into the woods with
Guevara, Collier, and Rasul. Winn testified that she was “certain” that Williams
was carrying a shotgun he took from the car they arrived in, and that he was
wearing a jacket that he used to conceal the shotgun. Williams was also
carrying a .25-caliber pistol. After Guevara, Collier, Rasul and Williams entered
the woods, numerous shots were fired. Williams fired his .25-caliber pistol,
shooting Rasul in his foot. Collier was then shot in the face twice, once by a
shotgun and once by a pistol. Later, the autopsy revealed both a small-caliber
bullet and shotgun pellets in Collier’s cranial cavity. While no eyewitness saw
Williams shoot the shotgun, uncontroverted witness testimony established that
he was the only person in the vicinity carrying a shotgun at the time.
      The primary issue in this petition is whether trial counsel’s failure to
obtain expert reports was so prejudicial that every reasonable jurist would agree
that this failure changed the outcome of the trial. Certainly the trial would have
proceeded differently if Williams’ counsel had obtained independent expert

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reports. The state’s expert incorrectly concluded that Williams fired the pistol
round identified as EB-1 in addition to the shotgun pellets that were found in
Collier’s cranial cavity. This allowed the state to argue that because Williams
fired both the shotgun and the pistol that delivered EB-1, it was irrelevant
which shot caused Collier’s death. Williams argues that if his counsel had called
ballistic experts to testify that EB-1 was delivered by a .22-caliber pistol, the
defense would have been able to argue that Guevara, not Williams, killed
Collier.
       But the fact that the new evidence would have given Williams a stronger
defense or that the case would have been argued differently does not necessarily
mean that the outcome would have been different. There was uncontradicted
witness testimony1 supporting the fact that Williams shot Collier in the face at
close range with a shotgun. Dr. Brown, the medical examiner who performed
the autopsy, testified at trial that Collier was alive when shot with the shotgun
and that the shotgun, in his opinion, caused Collier’s death. Had Williams been
able to establish in the state habeas proceedings that Collier was already dead
when he was shot with the shotgun, the CCA’s determination may not have been
reasonable. But Williams has never been able to produce definitive evidence
that the pistol was fired before the shotgun. More importantly, Williams was
unable to definitively refute Dr. Brown’s trial testimony and establish that EB-1
independently caused Collier’s death. In the state habeas proceeding, Williams
submitted testimony from Dr. Krouse, a medical examiner, who concluded based
on his review of the record that the pistol shot alone carried a high probability
of fatality. But he could not state with certainty the order in which the shots
were fired or whether either shot was the independent cause of Collier’s death.


       1
        Winn, Guevara, and Smith, all of whom were in the car with Williams, stated that
when Williams left the car to go into the woods, he was carrying the shotgun. No one testified
that anyone else possessed the shotgun.

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The record reveals that the two opposing medical examiners were dealing with
a very difficult and uncertain question: the role of the two gunshots delivered
within seconds of one another in causing Collier’s death. Although Dr. Krouse’s
testimony in this regard was slightly more favorable to Williams than that of Dr.
Brown, he was unable to say with any degree of certainty that the shotgun blast
did not contribute to Collier’s death. Therefore it was not unreasonable for the
CCA to conclude that, even if Williams’s attorney had presented evidence
showing that Williams did not also fire the pistol, it was not “reasonably likely”
that the jury would have concluded that the shotgun blast was not responsible
for Collier’s death. Keeping in mind the highly deferential standard imposed by
the AEDPA, we cannot conclude that the CCA’s denial of relief was
unreasonable.
                                       IV.
      For the above reasons, we conclude that the CCA’s decision was not an
unreasonable application of clearly established federal law. Accordingly, we
REVERSE the district court’s grant of habeas relief to Williams and RENDER
judgment in favor of the director.
REVERSED and RENDERED.




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