     Case: 10-20876     Document: 00511731863         Page: 1     Date Filed: 01/20/2012




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

                                                                            FILED
                                                                         January 20, 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
                                  4:03-CV-1508


Before JONES, Chief Judge, DAVIS, and DeMOSS, Circuit Judges.
PER CURIAM:*
        Appellant Rick Thaler appeals the district court’s grant of appellee Nanon
McKwel 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




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-20876

was no reasonable basis for the state court’s denial of Williams’ habeas petition,
we reverse the district court’s grant of relief.
                                         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,


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                               No. 10-20876

   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
   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


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      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
      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, not a .25-caliber pistol. 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 fatality.
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) 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
Collier was alive when hit by the shotgun pellets, and that he would have listed

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                                  No. 10-20876

EB-1 as a contributory 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.
                                        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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      Williams’ Strickland claim was adjudicated on the merits in state court.
Therefore the sole issue here is whether the decision by the Texas Court of
Criminal Appeals 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).
      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
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,
giving federal courts authority to issue the writ only where “there is no
possibility fairminded jurists could disagree that the state court’s decision
conflicts with [Supreme Court] precedent.” Harrington v. Richter, 131 S. Ct. 770,
786 (2011); see also Chester v. Thaler, 2011 WL 6846746, at *3 (5th Cir. Dec. 20,
2011).
      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. 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

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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). 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.
      It is uncontested here that trial counsel’s performance fell below an
objective standard of reasonableness.       Because of counsel’s failure to obtain
independent ballistics and forensics experts, Williams could offer no real
challenge to the state’s argument that he had fired both EB-1 and the shotgun
pellets.   He was unable to meaningfully challenge the testimony of Vaal
Guevara, the only testifying eyewitness. And without ballistic or forensic
evidence showing that Guevara fired EB-1, Williams could not make the
argument that is now at the crux of the case: that Collier was dead before he was
shot with the shotgun.
      The remaining issue is whether Williams was prejudiced by his counsel’s
deficient performance. In assessing prejudice under Strickland, the question is
whether it is “reasonably likely” the result would have been different if counsel
had acted different. Certainly the trial would have proceeded differently if
Williams’ counsel had obtained independent expert reports. As it was, both sides
proceeded on the assumption that Williams fired both shots, which rendered
irrelevant the issue of which shot was fatal. If independent experts had testified
that Williams did not fire both shots, the defense would have been able to argue
that Guevara, not Williams, killed Collier.



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                                  No. 10-20876

      But the fact that the trial would have been argued differently does not
necessarily mean that the outcome would have been different. There was ample
evidence showing that Williams shot Collier in the face with a shotgun, and
Williams’ post-trial expert reports could not conclusively state that Collier was
already dead when Williams shot him. None of the expert testimony or reports,
either during trial or post-trial, has been able to rule out the shotgun blast as a
contributing factor in Collier’s death. Post-trial experts disagreed as to the
degree to which EB-1 contributed to Collier’s death, but none could conclusively
state that the .22-caliber weapon was solely responsible.
      Whether expert testimony would have led a juror to entertain a reasonable
doubt about Williams’ guilt, then, is a point on which fairminded jurists could
differ. Keeping in mind the highly deferential standard imposed by the AEDPA,
we cannot conclude that the CCA’s denial of relief was unreasonable. The CCA
could have reasonably determined that, even if Williams had been able to show
that he did not fire EB-1, the overwhelming evidence that he shot Collier with
a shotgun would have led the jury to conclude that he contributed to Collier’s
death and was therefore guilty of capital murder.
                                       IV.
      For the foregoing 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.




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