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

                                                                            FILED
                                                                            May 1, 2008

                                       No. 07-70018                   Charles R. Fulbruge III
                                                                              Clerk

WALTER J KOON

                                                  Petitioner-Appellee
v.

BURL CAIN, Warden, Louisiana State Penitentiary

                                                  Respondent-Appellant



                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:01-CV-327



Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
       Petitioner-Appellee Walter J. Koon petitioned the district court for writ of
habeas corpus, asserting that his trial counsel, Kevin Monahan, violated his
constitutional right to effective assistance of counsel during both the
guilt/innocence and penalty phases of his murder trial in state court. The
district court granted Koon’s petition, reversing and vacating his conviction on
three counts of first degree murder (and thus his death sentence) and remanding



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                        No. 07-70018

to state court for a new trial. Respondent-Appellant Warden Burl Cain, on
behalf of the State of Louisiana, appeals the district court’s grant of habeas
relief, insisting that the court erred in (1) failing to afford proper deference to the
state court’s decisions and rulings; (2) concluding that Koon was denied effective
assistance of counsel during the guilt/innocence phase of his trial; (3) concluding
that Koon was denied effective assistance of counsel during the penalty phase
of his trial; and (4) denying the State’s motion for a new trial.1 We find no merit
to the State’s contention that the district court failed to afford proper deference
to the state court’s decisions and rulings. And, convinced that the district court
applied the proper legal standards to the relevant facts and reached the correct
conclusions, we affirm its grant of Koon’s petition on the basis that he was
denied effective assistance of counsel during the guilt/innocence phase of his
trial.2 Finally, we conclude that the district court acted within its discretion
when it denied the State’s motion for a new trial.
                            I. FACTS AND PROCEEDINGS
       Around noon on March 5, 1993, Koon, along with his passenger, Sarah
Robinson, drove to the Baton Rouge home of his in-laws, where his estranged
wife, Michelle Guidry, was staying. After parking his truck in the driveway of
the Guidry residence, Koon walked to the backyard, where he shot and killed his
wife before entering the home and shooting and killing her parents. After
observing Koon shoot his wife, Robinson ran screaming from Koon’s truck into


       1
        Although the State’s motion in response to the district court’s ruling granting Koon
habeas relief was technically styled as a “motion for new trial,” the State did not literally seek
a new “trial” but rather reconsideration of the district court’s habeas ruling.
       2
         Accordingly, the question whether Koon was also denied effective assistance of counsel
during the sentencing phase of his trial is moot. See, e.g., Soffar v. Dretke, 368 F.3d 441, 442,
480 (5th Cir. 2004) (setting aside both defendant’s conviction and sentence because of counsel’s
failure to provide effective assistance during guilt/innocence phase). We emphasize, though,
that our affirming of the district court’s order that reversed and vacated Koon’s conviction of
first degree murder vacates his death sentence as well. Should Koon be retried and found
guilty, he must be re-sentenced as well.

                                                2
                                  No. 07-70018

the Guidry residence, where she hid until Koon had left the scene. Immediately
following the shootings, Koon drove to his home in Livingston Parish, where he
called the local authorities and turned himself in for the killings.
      Koon was charged with three counts of first degree murder. He was
initially represented by the Office of the Public Defender; however, after voicing
his dissatisfaction with this representation, the Louisiana state court appointed
Monahan, a private criminal defense attorney, to represent Koon jointly with the
public defender.    Soon thereafter, a private attorney, Denise Vinet, was
substituted for the public defender as co-counsel. At the beginning of Koon’s
trial in March 1995, though, Monahan informed the court that Vinet wished to
withdraw, stating that Vinet’s assistance was not needed. Vinet also indicated
that her withdrawal should not be a problem because Monahan had not asked
her to do a thing on the case. The court granted Vinet’s motion to withdraw, but
only after Koon waived any objection. No assistant counsel was appointed to
replace Vinet.
      At trial, Monahan entered Koon’s dual plea of not guilty and not guilty by
reason of insanity. Monahan’s defensive strategy centered on Koon’s mental
state at the time of the killings. Specifically, Monahan elected to emphasize that
Koon “just had one bad week” in an effort to negate his specific intent and lessen
his culpability for his actions. Monahan would introduce evidence that, by the
end of the week, Koon’s wife had left him; he had become ill; he had a tax lien
levied against him; and he had just learned that his wife was having an affair
(which, according to Koon, had been disclosed to him by Robinson while they
were riding in Koon’s truck en route to the Guidry residence). In addition,
Monahan had been told by Koon that he was not using drugs, Xanax, or alcohol
when he shot and killed the Guidrys but that he had been doing so in the early
morning hours that day as well as in the preceding weeks, leading Monahan to
theorize that Koon was suffering from “withdrawal” effects at the time of the


                                        3
                                 No. 07-70018

killings. According to Monahan, these detoxification effects combined with
Koon’s “bad week” to render him unable to tell right from wrong when he shot
his estranged wife and her parents.
      Monahan enlisted the help of a few medical experts to assist in his
presentation of this insanity/manslaughter defense. His chief expert, Dr. Marc
Zimmerman, who testified that Koon’s detoxification contributed to his inability
to tell right from wrong at the time of the killings, was hired by Monahan the
day before Koon’s trial began and had only an hour to interview Koon before
testifying. Zimmerman’s testimony was torn apart by the State’s opposing
expert, Dr. Donald Hoppe, who criticized Zimmerman’s cursory interview of
Koon as well as Zimmerman’s failure to interview Koon’s family members and
close friends.   Furthermore, Hoppe, a clinical psychologist who had not
interviewed Koon but had reviewed the results of the MMPI test conducted by
Zimmerman, ventured that Koon’s test results showed that he was not
remorseful; was a liar; was manipulative; and was violent. Monahan was
unprepared—and, in fact, made no attempt—to counter the State’s devastating
rebuttal, even though it turned out that there was little in the literature to
support Hoppe’s broad interpretation of Koon’s test results.
      Koon’s insanity/manslaughter defense was dealt another blow when
Robinson, the lone eyewitness to the killings, whom Monahan had failed to
interview prior to trial, contradicted Koon’s own testimony by denying that she
had told him shortly before the killings that his wife was having an affair with
one Joey Leblanc, a person Koon particularly disliked because he had been
betrayed by Leblanc in the past. Robinson also contradicted Koon’s testimony
that he had consumed alcohol and drugs (including Xanax) the morning of the
killings.
      The jury convicted Koon of first degree murder on all counts and sentenced
him to death. Koon appealed his conviction and sentence to the Louisiana

                                       4
                                          No. 07-70018

Supreme Court on 11 different grounds, but that court affirmed.3 Koon then
moved for post-conviction relief in state court based on ineffective assistance of
counsel. In anticipation of his post-conviction relief hearing, Koon requested
that the court issue subpoenas directing the attendance of 33 witnesses at the
hearing; however, the court limited him to two: Monahan and Vinet. Following
Monahan’s and Vinet’s testimony, the state court denied Koon relief, concluding
that Monahan “did a good job with what he had to work with.”
         After Koon exhausted his available state court remedies, he filed this
petition for writ of habeas corpus in the United States District Court for the
Middle District of Louisiana.               The district court first granted Koon an
opportunity to present the evidence that the state court had disallowed in its
post-conviction relief proceeding. After holding a hearing and considering
evidence concerning Monahan’s performance during both the guilt/innocence and
penalty phases of Koon’s trial, the district court granted Koon’s petition,
vacating his conviction and sentence and remanding to state court for a new
trial.        The district court concluded that Monahan’s performance was
constitutionally deficient during both phases because he inadequately
investigated and prepared Koon’s defense, which prejudiced Koon: The jury (1)
could have found him guilty of a lesser offense than first degree murder, and (2)
might have sentenced him to life in prison, rather than to death. In response,
the State moved for a new trial, which motion was denied. The State then
timely filed a notice of appeal, challenging the district court’s ruling as well as
its denial of the State’s motion for a new trial.




         3
             Louisiana v. Koon, 704 So. 2d 756 (La. 1997).

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                                       No. 07-70018

                                      II. ANALYSIS
A.    Standard of Review
      The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) is
applicable to this proceeding because Koon’s habeas petition was filed after the
effective date of the AEDPA. The AEDPA specifies that federal habeas relief
“shall not be granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the claim 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 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.”4
      The Supreme Court has held that a state court’s decision that correctly
identifies the governing legal rule but unreasonably applies it to the facts of a
particular prisoner’s case is sufficient for a federal habeas court to grant the
writ.5 For a federal court to find a state court’s application of Supreme Court
precedent “unreasonable,” however, the state court’s decision must have been
more than simply incorrect or erroneous;6 its application of federal law must
have been “objectively unreasonable.”7 Moreover, the state court’s findings of
fact are presumed to be correct, and the federal court only reviews the facts for
clear and convincing error.8




      4
          28 U.S.C. § 2254(d).
      5
          Wiggins v. Smith, 539 U.S. 510, 520 (2003); Bell v. Cone, 535 U.S. 685, 694 (2002).
      6
          Wiggins, 539 U.S. at 520; Lockyer v. Andrade, 538 U.S. 63, 75 (2003).
      7
          Williams v. Taylor, 529 U.S. 362, 409 (2000).
      8
          28 U.S.C. § 2254(e)(1).

                                              6
                                          No. 07-70018

      Having reviewed the record on appeal and the district court’s lengthy and
comprehensive ruling on Koon’s petition for writ of habeas corpus, we conclude
that the district court afforded proper deference to the state court’s decisions and
rulings. Accordingly, we reject the State’s contention to the contrary.
B.    Ineffective Assistance of Counsel
      The governing legal principles for Koon’s claims of ineffective assistance
of counsel were established in Strickland v. Washington.9 To succeed on a
charge of ineffective assistance of counsel in state court, a petitioner must satisfy
both prongs of Strickland’s two-part test by demonstrating that (1) counsel’s
performance was deficient and (2) counsel’s deficient performance caused actual
prejudice to the petitioner’s defense.10
      To prove deficient performance, “a petitioner must demonstrate that
counsel’s representation fell below an objective standard of reasonableness,”11
under the then “prevailing professional norms.”12                 In evaluating counsel’s
performance, the Supreme Court has long referred to the American Bar
Association (“ABA”) Standards for Criminal Justice as “guides to determining
what is reasonable.”13 Moreover, we apply “the strong presumption that counsel
performed adequately and exercised reasonable professional judgment.”14 “[A]
conscious and informed decision on trial tactics and strategy cannot be the basis
of constitutionally ineffective assistance of counsel unless it is so ill chosen that


      9
          466 U.S. 668 (1984).
      10
           Id. at 687.
      11
           Virgil v. Dretke, 446 F.3d 598, 608 (5th Cir. 2006).
      12
           Strickland, 466 U.S. at 688.
      13
          Rompilla v. Beard, 545 U.S. 374, 387 (2005); Wiggins v. Smith, 539 U.S. 510, 524
(2003); Strickland, 466 U.S. at 688.
      14
           Virgil, 446 F.3d at 608 (internal quotation marks omitted).

                                                7
                                        No. 07-70018

it permeates the entire trial with obvious unfairness.”15 At the same time,
however, we recognize the distinction between strategic judgment calls and plain
omissions,16 and we are “not required to condone unreasonable decisions
parading under the umbrella of strategy, or to fabricate tactical decisions on
behalf of counsel when it appears on the face of the record that counsel made no
strategic decision at all.”17
      To 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.”18              Stated
differently, a constitutional trial error is harmful only if there is “more than a
reasonable probability that it contributed to the verdict.”19
      The district court identified four crucial mistakes by Monahan in support
of its ruling that the state court’s decision that Koon was not denied effective
assistance of counsel during the guilt/innocence phase of his trial “was contrary
to, or involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States”: (1) his failure to
interview Robinson before trial; (2) his waiting until one day before trial to hire
Zimmerman, his mental health expert; (3) his decision to proceed alone without
the aid of at least one other attorney; and (4) his failure to prepare Koon




      15
           Id. (internal quotation marks omitted).
      16
           See Lloyd v. Whitley, 977 F.2d 149, 158 (5th Cir. 1992).
      17
           Moore v. Johnson, 194 F.3d 586, 604 (5th Cir. 1999).
      18
           Virgil, 446 F.3d at 611 (quoting Strickland, 466 U.S. at 694).
      19
           Mayabb v. Johnson, 168 F.3d 863, 868 (5th Cir. 1999).

                                               8
                                    No. 07-70018

adequately to testify.20 The district court made clear that Monahan’s failure to
interview Robinson, standing alone, is a constitutionally deficient performance;
it highlighted his other missteps, though, to further emphasize the
egregiousness of Monahan’s deficient representation during the guilt/innocence
phase of Koon’s trial as well as the cumulative prejudicial effort of these multiple
deficiencies.
      We agree with the district court that Monahan’s failure to interview
Robinson constitutes deficient performance per se. Moreover, we agree that his
other actions, particularly his last minute hiring of Zimmerman, exacerbate his
overall deficient performance and heighten its prejudice.
      ABA Criminal Justice Standards 4-4.1(a) provides:
      Defense counsel should conduct a prompt investigation of the
      circumstances of the case and explore all avenues leading to facts
      relevant to the merits of the case and the penalty in the event of
      conviction. The investigation should include efforts to secure
      information in the possession of the prosecution and law
      enforcement authorities. The duty to investigate exists regardless
      of the accused’s admissions or statements to defense counsel of facts
      constituting guilt or the accused’s stated desire to plead guilty.

      Monahan’s defensive strategy centered on Koon’s mental state at the time
of the killings, and Robinson was the only eyewitness to them and to Koon’s
behavior in the hours preceding the shootings. As such, she was the only person
who could speak to Koon’s mental state leading up to and during the event.
Monahan should have interviewed her to ascertain what she intended to say at
trial, especially whether she would corroborate Koon’s intended testimony about
his mental state, around which Monahan’s entire defense was structured.
Monahan failed even to attempt to interview her, though, and Robinson
ultimately took the stand and directly contradicted Koon’s testimony that she

      20
          The district court concluded that Monahan’s failure to prepare Koon adequately
resulted in Koon’s testimony being perceived as cold, remorseless, and unsympathetic.

                                           9
                                     No. 07-70018

had told him that his wife was having an affair. The prejudicial effect of this
contradiction cannot be overstated because Monahan had theorized that
Robinson’s testimony would bolster Koon’s “heat of passion” defense, not
undermine it. Furthermore, Robinson subsequently recanted her trial testimony
at the federal evidentiary hearing and admitted that she had told Koon about
the affair before the killings, stating further that she would have told the truth
at trial if Monahan had merely approached her ahead of time and assured her
that she would not be held criminally responsible for the killings.
       The State advances a number of excuses for Monahan’s failure to interview
Robinson, e.g., it was his policy not to interview government witnesses; there
was no guarantee that she would have come clean and told the truth at trial
even if she had been approached by Monahan; she was not a credible witness;
and so on and so forth—none of which justify his conduct. Irrespective of
Robinson’s credibility (or lack thereof) and whether she would have actually told
the truth as she now insists, Monahan had an absolute obligation to interview
her as the only eyewitness to the crime: Her testimony was crucial to Monahan’s
defensive theory. If he had interviewed her and then decided not to call her to
testify, his decision might be excusable as strategic.21 His failure to interview
her altogether, though, is deficient per se, at least under the specific
circumstances present here.22
       Monahan’s decision not to hire Zimmerman, his primary mental health
expert, until one day before trial exacerbates his overall deficient performance.
Monahan came up with the detoxification facet of the mental health defense
because Koon had told him that he was not using drugs or alcohol when he shot
his wife and her parents (Koon later revealed, during the federal evidentiary

       21
         Soffar v. Dretke, 368 F.3d 441, 474-75 (quoting Anderson v. Johnson, 338 F.3d 382,
392 (5th Cir. 2003)).
       22
            Id. at 471-76.

                                            10
                                  No. 07-70018

hearing, that he was in fact using at the time). Zimmerman was able to conduct
a few tests on Koon, but only met with him for one hour and could not consult
with any of his family members or friends before testifying. The State’s opposing
expert, Hoppe, severely undermined Zimmerman’s testimony, highlighting the
limited time and information available to Zimmerman. This rebuttal testimony
went uncontested by Monahan. In fact, Zimmerman was not even present for
Hoppe’s testimony, as Monahan had failed to ensure that Zimmerman was on
hand to assist Monahan in cross-examination. At the federal evidentiary
hearing, Koon’s experts testified that Zimmerman had insufficient time to
develop a complete psychological history and insufficient information on which
to base an opinion of Koon’s mental state at the time of the killings, which left
Zimmerman’s testimony vulnerable to attack and resulted in severe damage to
the detoxification aspect of Koon’s mental health defense.
      The State attempts to make much of the fact that Koon’s experts at the
federal evidentiary hearing had the benefit of basing their testimony on Koon’s
revelation that he actually had been using drugs and alcohol at the time of the
killings, insisting that Koon’s self-serving change in testimony cannot serve as
the basis for arguing that Monahan’s assistance was ineffective. Even if we
acknowledge that Koon’s defense would have been better served if he had
admitted his drug and alcohol use, and even if we concede that Koon is solely to
blame for the detoxification theory employed by Monahan, we still must evaluate
the actual execution and quality of the defense as presented. And, it is apparent
that this aspect of Koon’s defense, predicated as it was on the effects of
withdrawal, was hamstrung by Monahan’s failure to hire Zimmerman until the
eve of trial. The state court had granted Monahan the authority and funds to
hire a mental health expert nearly a year before trial, yet he procrastinated until
the last minute. Not only did Monahan make a questionable decision to pursue
a detoxification defense on his own (without first consulting a medical

                                        11
                                        No. 07-70018

professional and substantiating his theory), but he then severely limited the
effectiveness of even that questionable defense by enlisting an expert who was
not given even minimally sufficient time to gather information in support of his
opinions.
      Considering Monahan’s failure to interview Robinson and his botched
handling of Zimmerman, together with his other deficiencies identified by the
district court, we see as inescapable the conclusion that Monahan’s performance
was deficient during the guilt/innocence phase of Koon’s trial.          Equally
inescapable is the conclusion that Koon was prejudiced by Monahan’s deficient
performance: There is a reasonable probability that the jury would have
convicted Koon of a lesser offense than first degree murder if Monahan’s
performance had not been deficient.23
      If Monahan had interviewed Robinson before trial, she may have told the
truth instead of controverting Koon’s testimony regarding his mental state at the
time of the killings. It follows that the jury could have and likely would have
given greater consideration to the “heat of passion” aspect of Koon’s defense. If,
on the other hand, Robinson had continued to insist on denying that she had told
Koon about his wife’s affair after Monahan interviewed her, he would have been
aware of Robinson’s intended testimony and could have adjusted his defensive
strategy accordingly and mitigated the damaging effects of Robinson’s testimony.
Furthermore, if Zimmerman had been retained a reasonable time in advance of
trial, he would have had plenty of time to evaluate Koon and interview his
friends and family. That way, Zimmerman could have formulated a more
informed opinion on Koon’s mental state and been prepared to support and
defend that opinion on cross-examination. In short, if Monahan’s performance
had not been deficient and prejudicial, it is probable that Koon’s level of



      23
           See LA. REV. STAT. ANN. §§ 14:30.1(A), 14:31(A)(1).

                                              12
                                         No. 07-70018

culpability would have been reduced in the eyes of the jury. These failings by
Monahan, which subverted both the insanity and manslaughter aspects of
Koon’s defense, undermine any confidence we might otherwise have in the
propriety of his first degree murder conviction.                  Based on the foregoing
considerations, the state court’s ruling that Koon was not denied effective
assistance of counsel during the guilt/innocence phase of his trial is objectively
unreasonable.
C.     Motion for New Trial
       Before we will disturb a district court’s ruling denying a motion for a new
trial, we must find that the district court clearly abused its discretion.24
Following the district court’s grant of Koon’s petition, the State filed its motion
based on Monahan’s post-federal hearing revelation that the true reason he did
not interview Robinson before Koon’s trial is because Koon had told him that the
murders were premeditated and that Robinson was a co-conspirator. The State
insists that this newly discovered information reveals that Monahan’s decision
not to interview Robinson was strategic, warranting a new trial under Federal
Rule of Civil Procedure 59.25
       We reject the State’s contention because Monahan’s disclosure, even if
true,26 does not absolve him of his failure to interview Robinson. Again, there
is a critical distinction between, on the one hand, failing even to attempt to
interview the lone eyewitness to a crime, whose testimony is critical to the


       24
            Diaz v. Methodist Hosp., 46 F.3d 492, 495 (5th Cir. 1995).
       25
           A motion for a new trial on the basis of newly discovered evidence requires the
movant to prove the following: (1) the evidence is newly discovered and was unknown to the
movant at the time of the trial; (2) the movant’s failure to detect the evidence was not due to
a lack of diligence; (3) the evidence is material and not merely cumulative or impeaching; and
(4) the evidence would probably produce a different outcome at a new trial. See United States
v. Pena, 949 F.2d 751, 758 (5th Cir. 1991).
       26
            The district court observed that it did not find Monahan to be credible.

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                                       No. 07-70018

defensive theory presented, and, on the other hand, strategically deciding not to
call that person to testify based on the results of such an interview. Accordingly
(and without determining whether the State met the other requirements for a
new trial), this newly discovered evidence would not produce a different habeas
outcome even if a new trial were held.27 The district court did not abuse its
discretion in denying the State’s motion.
                                   III. CONCLUSION
       We affirm the district court’s holding that Monahan failed to provide
effective assistance of counsel to Koon during the guilt/innocence phase of his
trial, and that the state court’s ruling to the contrary is objectively unreasonable.
We further hold that the district court afforded proper deference to the state
court’s decisions and rulings in reaching its decision, and that it did not abuse
its discretion in denying the State’s motion for a new trial. Accordingly, we
affirm the district court’s grant of Koon’s petition for writ of habeas corpus,
reversing and vacating his conviction and death sentence and remanding his
case to state court for a new trial (and re-sentencing if convicted). AFFIRMED.




       27
          Failure to prove any one of the four elements justifies the denial of a motion for new
trial. United States v. Freeman, 77 F.3d 812, 817 (5th Cir. 1996).

                                              14
