     Case: 08-40923     Document: 00511220994          Page: 1    Date Filed: 08/31/2010




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

                                                  FILED
                                                                           August 31, 2010

                                       No. 08-40923                         Lyle W. Cayce
                                                                                 Clerk

RAY DALE HOOKS,

                                                   Petitioner - Appellant
v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                   Respondent - Appellee




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 2:04-CV-389


Before CLEMENT, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Appellant Ray Dale Hooks (“Hooks”) appeals the district court’s denial of
his federal petition for habeas corpus.            We hold that Hooks has failed to
demonstrate the necessary prejudice to sustain his claim of ineffective assistance
of counsel and, thus, we AFFIRM the district court’s denial of Hooks’s habeas
petition.




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 08-40923      Document: 00511220994        Page: 2     Date Filed: 08/31/2010

                                     No. 08-40923

              I. FACTUAL & PROCEDURAL BACKGROUND
A. Factual Background
       On the evening of March 14, 1999, Roger Carney (“Carney”) was last seen
alive walking along the concrete shoulder of the eastbound side of U.S. Highway
80 after an argument with his wife. His wife returned a short time later to
convince Carney to accept a ride home and found him lying dead on the shoulder
of the road. The medical examiner later determined that Carney had been
struck from behind by an automobile.
       A Department of Public Safety (“DPS”) officer arrived on the scene shortly
thereafter and instructed other first responders to follow a trail of anti-freeze
leading away from the scene of the accident. The trail ultimately led them to
Hooks who was taken into custody. Blood alcohol tests revealed that Hooks had
a blood alcohol concentration of 0.29 grams of alcohol per 100 milliliters of blood
at the time of his arrest. The state offered expert testimony at trial that a
concentration of 0.29 at 11:46 p.m. meant Hooks’s blood alcohol level at the time
of the accident was as high as 0.35.
       Hooks was charged by way of grand jury indictment in Harrison County,
Texas, with intoxication manslaughter and leaving the scene of an accident.1 At
trial, the state alleged that Hooks had swerved onto the shoulder of the road and
hit Carney. In support of its theory, the state offered testimony from two DPS
officers to support the conclusion that Carney was on the shoulder of the road
when he was struck.
       Hooks’s trial counsel, Kevin McCarter (“McCarter”), stated in an affidavit
that he adopted a strategy of trying to discredit the state’s experts’ opinions in
an effort to support the alternative theory that Hooks struck Carney in the


      1
        The only remaining argument in the case addresses counsel’s alleged ineffectiveness
with respect to the intoxication manslaughter charge. Hooks has not contended that counsel
was ineffective regarding the leaving the scene charge.

                                            2
   Case: 08-40923       Document: 00511220994          Page: 3    Date Filed: 08/31/2010

                                       No. 08-40923

roadway rather than on the shoulder of the road such that Hooks’s obvious
intoxication did not “cause” Carney’s death.2               McCarter intensively cross-
examined both officers. In his cross-examination of Officer Hitt, McCarter
elicited testimony that undercut the factual basis given by one of the DPS
officers for the ultimate conclusion reached by the other. Additionally, McCarter
used the cross examinations of both witnesses to set out Hooks’s alternative
theory of the case, although neither officer expressly adopted the view that
Carney was in fact on the roadway. McCarter did not call any witnesses.
       Hooks was convicted of both counts. The jury assessed a punishment of
life imprisonment on the intoxication manslaughter charge and twenty years’
imprisonment on the charge of leaving an accident scene.
B. Procedural History
       Hooks’s conviction was affirmed by the intermediate appellate court,
Hooks v. State, 44 S.W.3d 607 (Tex. Ct. App. 2001), and the Texas Court of
Criminal Appeals denied discretionary review. The Supreme Court denied
Hooks’s petition for certiorari on May 20, 2002. Hooks v. Texas, 535 U.S. 1085
(2002). Hooks filed his state court habeas petition on May 9, 2003. Hooks’s
petition was remanded to the district court for the resolution of several factual
issues. The trial court entered fourteen separate findings of fact and four
conclusions of law. The Texas Court of Criminal Appeals denied Hooks’s petition
on the findings of the trial court without written order and without a hearing.
Ex Parte Hooks, No. 56,185-01 (Tex. Crim. App. Sept. 22, 2004).



       2
         Hooks claims that if Carney was on the road when hit such evidence would prove that
he was “actually innocent,” and that Carney’s intoxication would be deemed the cause of his
own death. We note that a conclusion that Carney was struck on the roadway would not be
wholly exonerative as a jury could find that Hooks’s intoxication made him less able to avoid
the accident than if he had been sober. See TEX . PENAL CODE ANN . § 6.04(a) (2010). Hooks’s
argument that a juror would find “the cause of Carney’s death was the fact that he was in the
road at the time of the accident,” ignores the fact that a driver cannot simply hit whatever is
in the roadway.

                                              3
   Case: 08-40923     Document: 00511220994   Page: 4    Date Filed: 08/31/2010

                                 No. 08-40923

      Hooks filed his federal habeas petition pro se on October 29, 2004. After
appointment of counsel, Hooks submitted a report from Brent Munyon
(“Munyon”), an accident reconstruction expert, with his supplemental
memorandum in support of his petition. The report supported Hooks’s allegation
that Carney was in the road at the time of the accident. Munyon was not
retained until after the conclusion of Hooks’s state proceedings.       Notably,
Munyon’s résumé states that he did not become certified in accident
reconstruction until 2005. He was serving as a police officer at the time of
Hooks’s 1999 trial.
      The petition was initially dismissed as time-barred, but this court vacated
the dismissal and remanded for further consideration. Hooks v. Quarterman,
224 F. App’x 352 (5th Cir. 2007). The magistrate judge assigned to the case
subsequently issued his report and recommendations finding, insofar as is
relevant here, that Hooks properly exhausted his ineffective assistance claim but
that he was not entitled to habeas relief on the merits of that claim. Hooks
timely raised objections challenging, among other things, the magistrate judge’s
conclusion that his counsel was not ineffective for failing to call an accident
reconstruction expert.     Appellee filed a timely objection challenging the
magistrate judge’s conclusion that Hooks had exhausted his claim. The district
court adopted the magistrate judge’s report and recommendations, denied
Hooks’s petition, and denied a certificate of appealability (“COA”) sua sponte.
      Hooks timely sought a COA from this court on a variety of issues. The
court granted a COA on Hooks’s ineffective assistance claim flowing from
McCarter’s failure to call an accident reconstruction expert. The court also
instructed the parties to brief the exhaustion issue.
                               II. DISCUSSION
      Hooks’s only remaining habeas claim arises from his trial counsel’s failure
to call an expert witness to rebut the accident reconstruction testimony offered

                                       4
   Case: 08-40923      Document: 00511220994        Page: 5    Date Filed: 08/31/2010

                                     No. 08-40923

by the state through the DPS officers. Hooks contends that McCarter was
obligated to call an expert because the reliability of the scientific evidence offered
by the state represented a crucial aspect of his case. Further, he contends that
the outcome of his trial would have been different had McCarter presented
Munyon’s conflicting report. We hold that Hooks has failed to “affirmatively
prove” he was prejudiced by McCarter’s failure to call an expert witness as
required by Strickland v. Washington, 466 U.S. 668, 693 (1984).3
      Claims of ineffective assistance of counsel are analyzed in light of
Strickland. Strickland established a two-prong test for deciding ineffective
assistance claims, under which the petitioner must show that trial counsel’s
performance was deficient and that the deficient performance prejudiced the
defendant. Id. at 687. In order to prove prejudice, “[t]he defendant must show
that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 694. The
petitioner must “affirmatively prove,” not just allege, prejudice. Id. at 693. If
the petitioner fails to prove the prejudice component, the court need not address
the question of counsel’s performance. Id. at 697. “We can affirm on any ground
supported by the record.” Fisher v. Texas, 169 F.3d 295, 299 (5th Cir. 1999).
      As Hooks raises an ineffective assistance claim premised on his counsel’s
failure to call a witness, he is required by the precedent of this court to “name
the witness, demonstrate that the witness was available to testify and would
have done so, set out the content of the witness’s proposed testimony, and show
that the testimony would have been favorable to a particular defense.” Day v.
Quarterman, 566 F.3d 527, 538 (5th Cir. 2009). We require “this showing for



      3
         Because we hold that Hooks has failed to satisfactorily demonstrate ineffective
assistance, we need not address whether Hooks properly exhausted his claim in the state
courts. See Richardson v. Quarterman, 537 F.3d 466, 474 n.3 (5th Cir. 2008) (pretermitting
the question of exhaustion), cert. denied, 129 S.Ct. 1355 (2009).

                                            5
   Case: 08-40923    Document: 00511220994      Page: 6   Date Filed: 08/31/2010

                                  No. 08-40923

claims regarding uncalled lay and expert witnesses alike.”          Id.   We have
subsequently clarified that the seemingly technical requirements of affirmatively
showing availability and willingness to testify “[are] not a matter of formalism.”
Woodfox v. Cain, 609 F.3d 774, 808 (5th Cir. 2010). Rather, a petitioner must
present evidence on these points as part of the burden of proving that trial
counsel could have found and presented a favorable expert. Id.
      In contravention of Day and Woodfox, Hooks did not offer any evidence to
the district court, nor has he pointed to any evidence in his appellate papers, for
the proposition that Munyon was available and willing to testify at the original
trial. See Day, 566 F.3d at 538 (“[T]he petitioner must . . . demonstrate that the
witness was available to testify and would have done so . . . .”); Woodfox, 609
F.3d at 808 (experts required to state that they could and would have testified
at original trial even where they otherwise state they would be willing to testify
in future proceedings). Given this complete lack of necessary evidence, Hooks
cannot establish prejudice under Strickland.
                              III. CONCLUSION
      For the reasons set forth above, we AFFIRM the judgment of the district
court denying Hooks’s habeas corpus petition.




                                        6
