     Case: 12-30077   Document: 00512104953     Page: 1   Date Filed: 01/08/2013




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

                                                                   FILED
                                                               January 8, 2013

                                 No. 12-30077                   Lyle W. Cayce
                                                                     Clerk

BENEDICT KATELY,

                                           Petitioner - Appellee
v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                           Respondent - Appellant



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


Before DeMOSS, SOUTHWICK, and HIGGINSON, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      A Louisiana state court denied the petitioner’s application for a writ of
habeas corpus. The federal district court subsequently granted the petitioner
habeas relief, determining that the state court’s decision was based on an
unreasonable determination of the facts. We REVERSE.
              FACTUAL AND PROCEDURAL BACKGROUND
      On September 13, 2002, New Orleans police officers responded to a call
about a shooting. They found Kendron Anderson lying on the floor in an
apartment with a gunshot wound. He died at a hospital as the result of a
gunshot wound to the chest. Days later, 14-year-old Ernestine Howard told a
detective that, on the night of the shooting, she was sitting with the victim on
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                                 No. 12-30077

the porch when two men approached. One of the men had dreadlocks, and the
other wore a towel over his head.
      The following day, the detective learned that Benedict Kately may have
been responsible for the shooting.      The detective compiled photographs,
including a picture of Kately, and took them to Howard for identification. After
looking through two groups of photographs, Howard identified Kately as the
person who shot the victim.
      The detective, his partner, Howard, and her mother went to the police
station where Howard gave a recorded statement. For the first time, Howard
identified the shooter by name and provided other details about the night of the
shooting. After a warrant was issued, Kately surrendered at a police station.
      Kately was indicted for first-degree murder in Louisiana district court. At
trial, Howard testified that while she and the victim were on the porch, Kately
and his companion approached Howard and the victim about marijuana, and
then Kately shot the victim. Howard testified that, after the shooting, she
dreamed about the events and realized she knew the shooter from the
neighborhood. On the witness stand, Howard repeated her identification of
Kately as the person who shot the victim.
      Kately was convicted of first-degree murder and sentenced to life
imprisonment. Both the conviction and sentence were affirmed on appeal.
      Kately applied for post-conviction habeas relief in state court, claiming
that he received ineffective assistance of counsel. At a hearing, Kately’s cousin
Tyrone Jordan testified he was with Kately the night of the shooting. Between
9:30 and 10:00 p.m., the two arrived at a location one block from the murder
scene and saw police vehicles. Jordan claimed he was never contacted by


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                                     No. 12-30077
Kately’s attorney but did attend the trial and was prepared to testify. Jordan
claimed he approached an investigator about his knowledge of the events but
never spoke to an attorney.
      Devone Mitchell, another one of Kately’s relatives, testified she was
standing near the apartment building when the shooting occurred. Mitchell
stated that seconds before she heard gunshots, two men walked near the
building. Mitchell noticed that one of them may have had a towel around his
head, but neither of the men were Kately. Mitchell admitted she did not see the
shooting. When asked if she were ever contacted by Kately’s attorneys, Mitchell
responded, “I never knew who I was speaking with until it was time for court.”
Counsel asked Mitchell to repeat what she said, at which point Mitchell said, “I
don’t recall speaking to anybody.”
      Like Jordan, Mitchell attended the trial and was prepared to testify. She
claimed she spoke to an attorney at the trial but was not called to testify. Later,
Mitchell stated she never spoke to the attorney before the day of the trial, but
Mitchell admitted she was aware that she could be called to the stand.
      A third individual, referred to at the hearing as Marvin Blake, failed to
attend the state-court hearing. The court asked counsel what Blake would say
if he were present. Counsel replied that Blake would testify he witnessed the
shooting and that Kately did not shoot the victim. Opposing counsel countered
that Blake left the scene and was not present during the actual shooting.1
      Harry Boyer, Jr. had been Kately’s attorney. He testified that he filed a
notice of intent to call three alibi witnesses at trial. Boyer claimed he learned

      1
        Blake’s name did not appear on the alibi witness list. Howard testified that this
individual left the immediate scene of the crime before Kately and his companion directly
approached Howard and the victim.

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                                       No. 12-30077
of these witnesses through Kately or the police report. Boyer stated that he
personally conducted an investigation.2 When asked whether he spoke to these
individuals “at any point before trial,” Boyer responded, “I’m sure we did. I did,
[co-counsel] did. I believe during the trial, I don’t recall who spoke to them.”
       On cross-examination, Boyer testified that he, an investigator, and co-
counsel spoke to Jordan before the trial. Boyer then stated, “The three witnesses
that are on the alibi list, at some point in time – I can’t tell you if it was 10
minutes before they were getting called to testify, or the day before, the week
before. But I believe there [were] several conversations with those folks.” Boyer
further said he interviewed Kately before the trial.
       When asked about his decision not to call these witnesses at trial, Boyer
explained he was worried they “would do more harm to Mr. Kately’s defense
than good” because the State’s only eyewitness remembered the shooter’s name
in a dream. Boyer further reasoned that the alibi witnesses did not witness the
crime, and their uncorroborated testimonies were ultimately not “strong enough
to overcome the possibility that they would hurt [Kately’s] case.”
       The state habeas court issued a written judgment. It provided, in part,
“Kately’s trial counsel, Harry Boyer, testified that he did interview all potential
witnesses, as did his investigator and co-counsel.” Without further discussion
about counsel’s investigation, the court then discussed Boyer’s decision not to
call any witnesses, concluding Boyer’s assistance as counsel was not ineffective
under Strickland v. Washington, 466 U.S. 668 (1984). Therefore, the state
habeas court denied Kately’s application for post-conviction relief.

       2
        Boyer was asked, “But [did you], in fact, conduct an investigation in this case[?]”
Boyer answered, “Sure. Not only did I conduct an investigation, I think we had an investigator
that worked for the Indigent Defense Program, conducting an investigation.”

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      Kately filed an application for a writ of habeas corpus in the United States
District Court for the Eastern District of Louisiana. See 28 U.S.C. § 2254.
Kately claimed he received ineffective assistance of counsel because his
attorneys did not investigate and interview alibi witnesses who would have
testified that Kately did not shoot the victim.
      A magistrate judge issued a report and recommendation to dismiss the
application. The district court disagreed. The court granted Kately’s habeas
relief, concluding that “Boyer’s performance was deficient if he did not interview
[Jordan and Mitchell] prior to trial.” Noting the state judgment’s brevity as to
Boyer’s investigation, the district court questioned whether the state habeas
court found as a matter of fact that Boyer questioned these two alibi witnesses.
The district court concluded that
      for the state court to reach the decision it did – denying relief – it
      would have needed to find that Boyer, in fact, interviewed Mitchell
      and Jordan in advance of trial to ascertain their potential
      testimony. Such a finding would not be supported by the evidence
      adduced at the evidentiary hearing [before the state court].3

      The district court also determined there was a reasonable probability that
Kately suffered actual prejudice because of counsel’s deficiency: Had Boyer
interviewed these two alibi witnesses, Boyer would have been able to develop a
defense to the State’s evidence, which rested on a single eyewitness’s testimony,


      3
          The district court also stated:

      Although the state court made no specific determination as to whether Boyer
      interviewed witnesses and investigated the case, the Court finds that based on
      the failure of proof that any such investigation occurred, the state court’s
      decision denying post-conviction relief outright was “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)(2).

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                                       No. 12-30077
that “would have led the jury to conclude that the State had not met its burden
of proof beyond a reasonable doubt.” The district court noted Boyer’s decision to
refrain from calling these witnesses was arguably a reasonable trial strategy,
but the court concluded that if Boyer had investigated the content of the two
witnesses’ potential testimony, then Boyer’s analysis of whether to call the
witnesses would have been different.
       Thus, considering only the evidence before the state habeas court,4 the
district court held the state court’s judgment resulted in a decision that was
“contrary to, or involved an unreasonable application of, clearly established
Supreme Court precedent under Title 28 U.S.C. § 2254(d)(1).” According to the
highly deferential test articulated in Harrington v. Richter, 131 S. Ct. 770, 788
(2011), the district court held there was “no reasonable argument that, based on
the evidence presented [to the state habeas court], trial counsel satisfied
Strickland’s demands.”
       The State timely appealed to this court, and the district court granted the
State’s motion for a stay pending this appeal.
                                      DISCUSSION
       We review the district court’s factual findings for clear error and its legal
conclusions de novo. Salts v. Epps, 676 F.3d 468, 473 (5th Cir. 2012). We apply
“the same standards to the state court’s decision as did the district court.” Id.
       A federal court is limited in its ability to provide habeas relief:
       An application for a writ of habeas corpus on behalf of a person in
       custody pursuant to the judgment of a State court shall not be
       granted with respect to any claim that was adjudicated on the


       4
        The district court expressly stated that it did not base its holding on any failure to
interview Blake. We need not evaluate the evidence regarding Blake.

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      merits in State court proceedings unless the adjudication of the
      claim –
      (1) 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; 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). We must presume the state court’s factual findings are
correct, and the applicant bears the burden to rebut that presumption with clear
and convincing evidence. § 2254(e)(1).
      Criminal defendants have a right to effective assistance of counsel in state-
court proceedings. Strickland, 466 U.S. at 684-86. To support a claim for
ineffective assistance of counsel, the defendant must make two showings: (1)
“counsel’s performance was deficient,” and (2) “the deficient performance
prejudiced the defense.” Id. at 687. A defendant may show counsel’s assistance
was deficient if the attorney failed to make a reasonable investigation into the
case before trial. Bryant v. Scott, 28 F.3d 1411, 1415 (5th Cir. 1994). Counsel
must, “at a minimum, . . . interview potential witnesses and . . . make an
independent investigation of the facts and circumstances in the case.” Id.
      The district court stated that the state court’s analysis of Kately’s claim
based on Boyer’s investigation and interviewing of alibi witnesses was “terse at
most.” The district court concluded that the state court must have made an
implicit finding that Boyer actually interviewed Jordan and Mitchell, because
such a finding was necessary to the decision the state court reached, but that
this implied finding was error inasmuch as “Jordan and Mitchell both testified
that they did not speak to Boyer prior to the trial[, and] Boyer did not


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unequivocally testify to the contrary.”     The district court granted relief,
determining that the state court’s decision “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” § 2254(d)(2). Both parties also construe the state court decision as
containing an implicit finding that Boyer interviewed Jordan and Mitchell. We
accept that construction and evaluate whether such a finding was unreasonable.
      At the hearing before the state habeas court, Jordan testified he did not
speak to an attorney before the trial. Mitchell said she did not know to whom
she spoke until it was time for court, then stated she did not remember speaking
to anybody, and later testified she spoke to an attorney at the trial. Attorney
Boyer’s testimony was somewhat ambiguous, but he explicitly stated that he
investigated this case and interviewed these witnesses before trial. Further, the
state habeas court had evidence of an alibi witness list, which was filed in the
trial court before trial, that contained both Jordan’s and Mitchell’s names and
addresses. In his opening statement at the murder trial, Boyer told jurors he
would likely call both Jordan and Mitchell as witnesses and provided details of
each witness’s potential testimonies.
       When the district court determined the evidence did not support that
Boyer had interviewed certain witnesses, the court was reweighing the
conflicting evidence. It should not have. A federal court is to presume a state
habeas court’s factual findings are correct absent clear and convincing evidence
to the contrary. Young v. Dretke, 356 F.3d 616, 629 (5th Cir. 2004). It is not
enough that the federal court “would have reached a different conclusion in the
first instance.” Wood v. Allen, 130 S. Ct. 841, 849 (2010). There was evidence
from Boyer himself that he interviewed the relevant witnesses. The evidence


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was contradicted and was not as clearly stated as it could have been, but the
state habeas court was entitled to credit it. Based on these facts, we cannot say
the state habeas court’s finding was unreasonable.
      A federal court also may grant habeas relief if the state court’s
adjudication “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.” § 2254(d)(1). The relevant established
law concerns ineffective assistance of counsel under Strickland. “[A] defendant
must meet the standard established in Strickland by showing that ‘counsel’s
performance was deficient and that the deficiency prejudiced the defense.’” Pape
v. Thaler, 645 F.3d 281, 288 (5th Cir. 2011) (quoting Wiggins v. Smith, 539 U.S.
510, 521 (2003)) (emphasis added).
      When we apply the standard in Section 2254(d)(1) to a claim for ineffective
assistance of counsel, “[t]he question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Harrington,
131 S. Ct. at 788. The state habeas court’s finding that Boyer interviewed the
alibi witnesses was not an unreasonable determination of the facts. Therefore,
it was error to conclude as the district court did that there was no reasonable
argument that Boyer’s performance was satisfactory. See Bryant, 28 F.3d at
1415. We thus do not need to reach the issue of prejudice.
      We REVERSE the district court’s judgment granting habeas relief.




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