                    UNITED STATES COURT OF APPEALS
                         For the Fifth Circuit



                             No. 98-30658


                             KIM KOHLER,

                                              Petitioner-Appellant,


                                VERSUS


         BURL CAIN, Warden, Louisiana State Penitentiary

                                               Respondent-Appellee.




          Appeal from the United States District Court
              For the Eastern District of Louisiana
                           (97-CV-1318-11)
                             May 5, 2000
Before POLITZ, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
     This is an appeal brought by Petitioner-Appellant Kim Kohler
(“Kohler”) from the denial of his petition for a writ of habeas
corpus brought pursuant to 28 U.S.C. § 2254.         Kohler contends,
among other things, that he was denied effective assistance of
counsel at trial.     Because Kohler is entitled to an evidentiary
hearing with respect to his claim of ineffective assistance of
counsel, we REVERSE the decision of the district court and REMAND
for further proceedings consistent with this opinion.




     *
      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this opinion should not be published and is not precedent except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.
                                      I.
     This case arises from a murder and an attempted murder that
were the consequence of a dispute over some allegedly stolen
jewelry.    In June, 1980 Vincent Allnet (“Vincent”) discovered that
some jewelry was missing from his home.        Vincent, convinced that a
sixteen-year old acquaintance Randy Sebble (“Sebble”) had stolen
the jewelry, confronted Sebble with his nephew Owen Meilleur
(“Meilleur”), who was sixteen as well.        During this confrontation,
Vincent became angry and began beating Sebble.                When Meilleur
attempted to stop the beating of Sebble, Vincent accused Meilleur
of conspiring with Sebble to steal the jewelry, beating him into
unconsciousness.
     Later that evening, after regaining consciousness, Meilleur
attended a cocktail lounge in Jefferson Parish to watch his cousin
perform.    Before he could enter the lounge, however, he noticed
Vincent’s car in the parking lot and attempted to flee.            A friend
of Vincent’s named Floyd Webb (“Webb”) chased Meilleur and forced
him into Vincent’s car.        In the car were Vincent, his brother
Richard Allnent (“Richard”), Kohler, Sebble and Webb. The car then
left the parking lot of the lounge and proceeded towards St.
Tammany    Parish,   during   which    time   Sebble    and   Meilleur   were
threatened to return the jewelry “or else.”            The car stopped at a
convenience store so that Vincent could purchase beer.              At that
time Meilleur attempted to escape from the car having noticed a
police car in the parking lot, but was forcibly restrained by two
of the men in the car so that his screams were muffled against the
car seat.     The car subsequently left the convenience store and
continued into an isolated area of St. Tammany Parish.
     Once the car pulled over, Sebble and Meilleur were forcibly
removed from the car and brutally beaten again by Vincent and
Richard.    After the beatings, Webb retrieved a handgun from the
car, which was used to shoot at the feet of Sebble and Meilleur

                                      -2-
causing    them   to    “dance.”      At     this    time   Vincent    and   Richard
retrieved shotguns that were hidden from view in the trunk of the
car.     Although offered one, Kohler refused to accept a weapon.
Vincent then returned to Sebble and Meilleur. At that time Vincent
ordered Richard to shoot Meilleur, to which Richard responded “are
you serious?”. In response, Vincent shot Meilleur in the side with
the shotgun seriously injuring, but not killing, him.                  Immediately
thereafter, Webb shot Sebble in the chest, killing him almost
instantaneously.        Vincent, Richard, Webb and Kohler then fled the
scene.     Once his assailants left, Meilleur attempted to crawl back
to the road for help when he recognized that the car had returned.
Fearing for his life, Meilleur pretended to be dead, placing his
face into an ant-hill.          A person exited from the car, kicked both
Sebble and Meilleur, and erroneously confirmed to the others that
both were dead.        The car then drove away.
       At trial, Kohler argued that he never intended to kill Sebble
and Meilleur; he contended that he neither restrained Meilleur in
the car nor was the person who confirmed that Sebble and Meilleur
were dead.     Rather, he contends that he only intended to help his
friend     Vincent     regain   his   jewelry       by   frightening   Sebble       and
Meilleur.     Kohler alleges that Richard, who was also on trial for
the same incident at the same time, would confirm this story and
also confirm that Kohler was not the man who checked to see if
Sebble and Meilleur were dead.              During trial, Meilleur testified
that Kohler was the man who had restrained and muzzled him in the
car at the convenience store and was the man who had confirmed he
was dead.     Despite having his head in a car seat and in the ant-
hill at these respective times, Meilleur based this identification
on   the   fact   that    he    recognized       Kohler’s    voice    and    that    he
recognized the shoes Kohler was wearing at the time.                         Kohler’s
counsel did not call any witnesses in Kohler’s defense, including
failing to call Richard to counter Meilleur’s testimony.                      Kohler

                                           -3-
was convicted of being a principal in the first-degree murder of
Sebble and was sentenced to life in prison without the possibility
of parole.
     After conviction, Kohler filed for post-conviction relief in
state court, contending inter alia that he was denied effective
assistance of counsel for failure to call Richard as a witness.
The 22nd Judicial District Court denied the petition as “without
merit” without holding an evidentiary hearing, and the Louisiana
Supreme Court declined to exercise its supervisory jurisdiction.
Kohler then filed a federal habeas petition, contending (1) he was
denied compulsory process when prevented from calling Richard as a
witness as Richard was at his own trial, and (2) he received
ineffective assistance of counsel for failure to call Richard as a
witness and for failure to seek a continuance so that Richard could
be called as a witness.             The district court denied Kohler’s
petition without holding an evidentiary hearing either.                 Kohler
timely applied for a certificate of appealability (“COA”) with this
court, which was granted solely as to the second issue.


                                      II.
     For the first time on appeal Kohler attempts to argue that the
state   court   denied   his   equal     protection       rights   through    the
systematic exclusion of black forepersons from St. Tammany Parish
juries and that Kohler received ineffective assistance of counsel
because   counsel   failed     to   move     to   quash    the   indictment   as
unconstitutional.    Issues not raised before the district court
cannot be considered for the first time on appeal.               See Johnson v.
Puckett, 176 F.3d 809, 814 (5th Cir. 1999).               Further, issues that
are not covered by a COA are not properly before this court and
thus cannot be considered on appeal.              See Lackey v. Johnson, 116
F.3d 149, 151 (5th Cir. 1997).           Therefore, we need not consider
either of these claims raised by Kohler for the first time on

                                       -4-
appeal.


                                           III.
     To prevail on a claim of ineffective assistance of counsel, a
petitioner must demonstrate (1) that his counsel’s performance was
deficient    in     that    it    fell     below    an     objective     standard    of
reasonableness and (2) that the deficient performance prejudiced
his defense.       See Strickland v. Washington, 466 U.S. 668, 689-94
(1984).     “In reviewing an ineffective assistance claim, we must
‘judge the conduct of the defense according to the objective
standard of the reasonable attorney,’ and ‘give great deference to
counsel's assistance, strongly presuming that counsel has exercised
reasonable    professional         judgment.’.           Accordingly,     ‘strategic
choices made after thorough investigation of law and facts relevant
to plausible options are virtually unchallengeable;                     and strategic
choices made after less than complete investigation are reasonable
precisely to the extent that reasonable professional judgments
support the limitations on investigation.’” Andrews v. Collins, 21
F.3d 612, 621 (5th Cir. 1994) (internal citations omitted).
     Specifically, “complaints based upon uncalled witnesses [are]
not favored because the presentation of witness testimony is
essentially strategy and thus within the trial counsel’s domain,
and that     speculations        as   to   what    these     witnesses    would     have
testified    is    too     uncertain.        In    order    for   the   appellant    to
demonstrate the requisite Strickland prejudice, the appellant must
show not only that this testimony would have been favorable, but
also that the witness would have testified at trial.”                    Alexander v.
McCotter, 775 F.2d 595, 602 (5th Cir. 1985).
     The district court relied on this strong presumption that
failure to call a witness is proper trial strategy, and thus not
ineffective       assistance     of   counsel,      in     denying   habeas   relief.
Although there is such a strong presumption, and courts must be

                                            -5-
extremely hesitant in second-guessing trial strategy, it appears
that Kohler may have arguably met this high standard.                 Kohler
contends that    Richard    Allnet   can    testify   that   Kohler   had   no
knowledge of the intent to murder Sebble and that Kohler in no way
participated in the murder -- either by restraining Meilleur in the
car while stopped at the convenience store or by confirming that
Sebble and Meilleur were dead.             Such testimony would directly
contradict that of Meilleur, the only direct evidence linking
Kohler to the murder.      Further, in his affidavit Richard attested
that he would waive his right against self-incrimination under the
Fifth Amendment.   Thus, as a preliminary matter, it appears that
Kohler has demonstrated “not only that this testimony would have
been favorable, but also that the witness would have testified at
trial.”   Id.
     The district court further held that, even if Richard were to
testify as he stated he would in his affidavit, failure to call him
could still be within counsel’s trial strategy because Allnet’s
testimony could be impeached by possibly contradictory testimony at
his own trial.     In addition, the district court held that the
failure to call Richard could have been due to counsel’s fear that
having a person convicted of murder for the same incident testify
would more closely connect Kohler to the murder, rather than
exonerate him. While these assumptions may well be correct, Kohler
contends that when he asked counsel the reason for his failure to
call Richard, his attorney merely stated that “he forgot.”             There
is no evidence in the record supporting either assertion.
     “When there is a factual dispute [that] if resolved in the
petitioner’s favor would entitle [him] to relief and the state has
not afforded him a full and fair evidentiary hearing, a federal
habeas petitioner is entitled to discovery and an evidentiary
hearing.”   Goodwin v. Johnson, 132 F.3d 162, 178 (5th Cir. 1998).
In the present case, there is a factual dispute as to why Kohler’s

                                     -6-
counsel failed to call Richard as a witness.      It is undisputed that
the 22nd Judicial District Court did not conduct an evidentiary
hearing with respect to Kohler’s claim of ineffective assistance of
counsel.   While   there   is   a   strong   presumption   that   Kohler’s
counsel’s failure to call Richard as a witness was for strategic
reasons, Kohler has alleged facts that, if resolved in his favor,
would entitle him to relief, i.e., that his counsel failed to call
a witness that would directly contradict the sole direct evidence
linking Kohler to the murder of Sebble because he forgot to do so.
Since these alleged facts seem to establish precisely the type of
ineffective assistance of counsel claim contemplated in Alexander,
an evidentiary hearing is necessary to determine the true reason
for counsel’s failure to call Richard as a witness.         Accordingly,
the district court erred in failing to hold such an evidentiary
hearing.


                                    IV.
     Because the district court erred in not holding an evidentiary
hearing as to why Kohler’s counsel failed to call Richard Allnet as
a witness, the decision of the district court is REVERSED and the
case is REMANDED to the district court for further proceedings
consistent with this opinion.




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