     Case: 12-70008      Document: 00514084389         Page: 1    Date Filed: 07/21/2017




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

                                      No. 12-70008
                                                                                       Fifth Circuit

                                                                                     FILED
                                                                                 July 21, 2017

TODD WESSINGER,                                                                 Lyle W. Cayce
                                                                                     Clerk
              Petitioner - Appellant

v.

DARREL VANNOY, WARDEN, LOUISIANA STATE PENITENTIARY,

              Respondent - Appellee




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:04-CV-637


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Louisiana death row inmate Todd Wessinger seeks certificates of
appealability to appeal the district court’s denial of his claims of ineffective
assistance of trial counsel during voir dire, ineffective assistance of trial
counsel at the guilt phase, and suppression of material evidence in violation of
Brady v. Maryland.        Because Wessinger has failed to make the requisite




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 12-70008
showing under Miller-El v. Cockrell, 537 U.S. 322, 327 (2003), we DENY
Wessinger’s motion for COAs as to all of these claims.
                                       I
      Todd Kelvin Wessinger was charged with two counts of first degree
murder in the November 19, 1995, shooting deaths of Stephanie Guzzardo and
David Breakwell. During a two-day jury trial, the State sought to establish
the following occurrences. On the morning of November 19, Wessinger rode
his bicycle to Calendar’s Restaurant in Baton Rouge, where he used to work.
Mike Armentor, a bartender at Calendar’s, saw Wessinger just outside of the
restaurant, and the two exchanged greetings. Wessinger then entered the
restaurant through a rear door and shot Armentor twice in the back with a
.380 semi-automatic pistol. He then tried to shoot Alvin Ricks, a dishwasher,
but the gun would not fire. Ricks ran out of the restaurant and across the
street to call 911, passing Willie Grigsby, another employee of the restaurant,
who escaped the restaurant without being seen. Stephanie Guzzardo, the
manager on duty that morning, heard the commotion from the restaurant’s
office and called 911.   Before she could speak to the operator, Wessinger
entered the office; after a short exchange during which Stephanie begged for
her life, Wessinger shot her through the heart.     Wessinger then removed
approximately $7000 from the office. He next found David Breakwell, a cook
who had been hiding in the restaurant’s cooler, and shot him as he begged for
his life.   He left the restaurant on his bicycle, leaving Guzzardo dead;
Breakwell died en route to the hospital. Armentor survived.
      Armentor and Ricks both testified at trial, as did four after-the-fact
witnesses. Both Armentor, who did not know Wessinger, and Ricks, who did,
testified that Wessinger robbed Calendar’s and shot Guzzardo and Breakwell.
Another trial witness testified that Wessinger had asked one of his friends to
commit the robbery with him. Multiple witnesses testified that Wessinger
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                                      No. 12-70008
confessed to the commission of the crime, and several people testified that they
had seen Wessinger with large sums of money after the crime. The murder
weapon was subsequently discovered, along with a pair of gloves worn during
the crime, at an abandoned house across the street from Wessinger’s residence.
One of Wessinger’s friends testified that Wessinger had asked him to remove
the murder weapon from the abandoned house.
       The jury found Wessinger guilty on both counts and sentenced him to
death. On direct appeal, Wessinger argued eighteen separate assignments of
error. On May 28, 1999, the Louisiana Supreme Court affirmed the conviction
and sentence. Wessinger was appointed pro bono post-conviction counsel, who
eventually filed a state habeas petition raising claims of, inter alia, ineffective
assistance of trial counsel (IAC) and suppression of material evidence. The
state trial court dismissed all claims on the merits. The Louisiana Supreme
Court affirmed the state trial court’s denial of relief without reasons in
September 2004. Wessinger filed an application for a writ of habeas corpus in
the United States District Court for the Middle District of Louisiana later that
same month, asserting claims of IAC in voir dire, at the guilt phase, and at the
penalty phase, and a Brady claim. The district court denied all claims. He
now seeks certificates of appealability to appeal the denial of his voir dire IAC,
guilty-phase IAC, and Brady claims. 1
                                            II
       “In a habeas corpus appeal, we review the district court’s findings of fact
for clear error and its conclusions of law de novo, applying the same standards
to the state court’s decision as did the district court.” Lewis v. Thaler, 701 F.3d



       1Wessinger moved pursuant to Federal Rule of Civil Procedure 59(e) to alter or amend
the judgment as to his claim of penalty-phase IAC. The district court granted his motion and
ultimately granted habeas relief. In Wessinger v. Vannoy, No. 15-70027, the panel majority
reversed the district court’s grant of habeas relief.
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                                  No. 12-70008
783, 787 (5th Cir. 2012) (quoting Busby v. Dretke, 359 F.3d 708, 713 (5th Cir.
2004)). Review of claims that the state court adjudicated on the merits is
governed by the standards set forth in the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), codified in relevant part at 28 U.S.C. § 2254(d).
See Miller v. Thaler, 714 F.3d 897, 901 (5th Cir. 2013); Druery v. Thaler, 647
F.3d 535, 538 (5th Cir. 2011). Under § 2254(d), a state prisoner’s
        application for a writ of habeas corpus . . . 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: (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); Lewis, 701 F.3d at 788. “We review pure questions of law
under the ‘contrary to’ standard of sub-section (d)(1), mixed questions of law
and fact under the ‘unreasonable application’ standard of sub-section (d)(1),
and pure questions of fact under the ‘unreasonable determination of facts’
standard of sub-section (d)(2).” Simmons v. Epps, 654 F.3d 526, 534 (5th Cir.
2011) (quoting Murphy v. Johnson, 205 F.3d 809, 813 (5th Cir. 2000)).
                                        III
      A COA may be granted only if Wessinger has “made a substantial
showing of the denial of a constitutional right” by demonstrating that “jurists
of reason could disagree with the district court’s resolution of his constitutional
claims” or that the issues presented “are adequate to deserve encouragement
to proceed further.”    See Miller-El, 537 U.S. at 327; see also 28 U.S.C.
§ 2253(c)(2). For the following reasons, we find that Wessinger has failed to
make the required showing and DENY COAs as to all of his claims.



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                                 No. 12-70008
   A. Ineffective Assistance of Trial Counsel at Voir Dire
      Wessinger seeks a COA to appeal the district court’s denial of his IAC
claim relating to trial counsel’s alleged failures during voir dire. A petitioner
seeking to establish that his Sixth Amendment right to effective counsel was
violated must show “that counsel’s performance was deficient” and “that the
deficient performance prejudiced the defense.” Strickland v. Washington, 466
U.S. 668, 687 (1984). The state court denied Wessinger’s IAC claim relating to
voir dire on the merits; thus, the “doubly” deferential AEDPA-Strickland
standard applies. Harrington v. Richter, 562 U.S. 86, 105 (2011). Under this
standard, “the question is not whether counsel’s actions were reasonable. The
question is whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.” Id.
      Wessinger argues that counsel was ineffective in failing to strike for
cause or use a peremptory strike on a juror who stated that she would vote for
the death penalty “automatically” upon a verdict of guilty. We agree with the
district court that there is an eminently reasonable argument that counsel’s
conduct in this case did not fall below an objective standard of reasonableness.
      The voir dire transcript indicates that the juror in question gave
inconsistent responses with respect to her ability to sentence a defendant to
death. Initially, the juror said she thought she could return a verdict of death,
but when pressed, she said, “Well, I think it’s hard to be the one to say to put
this person, you know, to die.” She then continued, “But then again, if all the
evidence proves that he’s definitely guilty I just feel like the system today so
many people are sent for a life sentence and they eventually get off on parole
or come up for parole and then they get out or something.” She concluded, “I
just feel like if they’re there and it’s been proven that they’re guilty and that
they did do the crime then they should be put to death.” Later, defense counsel
returned to that juror and pressed her on her previous answer:
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                                       No. 12-70008
       [Y]ou indicated that you have a problem with people getting out on
       parole. . . . But in this case, . . . if it’s a recommendation of life [the
       judge] will sentence the defendant to life imprisonment and he’ll
       further say without the benefit of probation, parole or suspension.
The juror responded that she understood. In light of this colloquy, a reasonable
attorney could easily believe that, after clearing up her misunderstanding of
the law regarding parole, this juror would actually be reluctant to impose the
death penalty. In view of the highly deferential standard of review, reasonable
jurists would not find the district court’s dismissal of this claim debatable.
   B. Ineffective Assistance of Trial Counsel at the Guilt Phase
       Wessinger seeks a COA to appeal the district court’s denial of his IAC
claim relating to trial counsel’s alleged failures at the guilt phase. Specifically,
he argues that counsel was ineffective in failing to interview and prepare to
cross-examine eyewitnesses to the crime and after-the-fact witnesses and in
failing to highlight to the jury, at any point during the guilt phase of the trial,
the lack of physical evidence linking Wessinger to the crime. 2 The state court
denied Wessinger’s claims alleging IAC at the guilt phase on the merits; we
must therefore analyze them under a doubly-deferential standard of review.
Richter, 562 U.S. at 105.
       Wessinger first argues that counsel’s failure to interview or effectively
cross examine the State’s witnesses rendered his performance constitutionally
deficient. With respect to eyewitness Eric Armentor, he argues that counsel
was deficient in failing to recognize and inform the jury of the inconsistencies
in Armentor’s accounts of the shooting given that day, three days later, and at
trial, and in failing to note that Armentor’s identification of the shooter


       2 Wessinger also asserts that counsel was ineffective in failing to engage in adequate
pretrial motions practice and in failing to object to several “inappropriate” jury instructions.
However, he makes no argument to establish that counsel’s performance was deficient or to
demonstrate that he was prejudiced by counsel’s failures. Therefore, these arguments are
forfeited. FED. R. APP. P. 28(a)(8).
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                                 No. 12-70008
occurred three days after the shooting, after photos of Wessinger had been
published in local newspapers. He argues that this deficiency was prejudicial
because, “[h]ad counsel interviewed Armentor and obtained copies of
Armentor’s previous statements, he could have shown that the eyewitness,
understandably, was confused and that his perceptions could not be trusted.”
      With respect to Alvin Ricks, Wessinger argues that counsel was deficient
in failing to suggest that Ricks “was more than [a] mere spectator or that he
otherwise had motivation to point the finger at Wessinger and away from
himself” and in failing to note the inconsistencies in his accounts of the crime.
He argues that this deficiency was prejudicial because it prevented him from
refuting the State’s version of events and establishing an alternative theory of
defense.
      Regarding the after-the-fact witnesses, Wessinger asserts that “counsel
also did nothing to suggest that the witnesses who claimed that Wessinger
confessed to them had their own motivations to lie, whether because of
criminal charges or their own possible involvement in the crime.”
      Wessinger also argues that counsel’s failure to highlight at trial the lack
of physical evidence linking him to the crime rendered his performance
constitutionally deficient. He notes that the State’s latent print examiner
analyzed fingerprints lifted from a cartridge box, a cartridge holder, the
magazine of the murder weapon, the telephone terminal in the closet at
Calendar’s, and several heat coils from the terminal, and that none was a
match. He argues that because the State asserted that the murder weapon
was discovered across the street from his home, “the most effective way [to




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                                      No. 12-70008
refute the State’s case] would have been to demonstrate to the jury that no
prints were found on the gun or any other items found in the house.” 3
       Counsel “is strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional
judgment.” Strickland, 466 U.S. at 690. Even assuming, however, that trial
counsel’s performance was deficient, “[i]f [Wessinger] fails to show prejudice,
the alleged deficiencies in his counsel’s performance need not be considered.”
Yohey v. Collins, 985 F.2d 222, 228 (5th Cir. 1993). “Proving prejudice requires
more than a showing that counsel’s ‘errors had some conceivable effect on the
outcome of the proceeding.’” Dorsey v. Stephens, 720 F.3d 309, 321 (5th Cir.
2013) (quoting Strickland, 466 U.S. at 693). “The likelihood of a different
result must be substantial, not just conceivable.” Id. (quoting Richter, 563
U.S. at 112).
       The district court found that “the overwhelming evidence against
Wessinger argues against a finding of unreasonableness by the state courts.”
Put differently, the district court determined that, even if counsel’s
performance was constitutionally deficient, the state court reasonably
concluded that these errors did not prejudice Wessinger. At trial, the State
presented the jury with ample evidence to establish Wessinger’s guilt,
including:
       two eyewitness identifications by survivors (Armentor and Ricks),
       testimony that Wessinger borrowed the gun from a friend,
       testimony he asked Brown, a friend, to help him, testimony he had
       told others he planned the robbery, and testimony Wessinger told
       people afterwards that he had robbed the restaurant and killed
       several people.


       3 Wessinger also argues that counsel was deficient in failing to challenge the State’s
forensic experts, but this challenge is wholly conclusory: Wessinger fails to specify what
challenges could have been brought and fails to assert what effect any such challenge might
have had on the proceedings.
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                                  No. 12-70008
Wessinger does not specifically allege how counsel’s errors would have
undercut this evidence and changed the outcome of the proceeding. Similarly,
Wessinger does not explain what evidence effective cross-examination of the
State’s witnesses would have produced. Although he states that Ricks was
involved in the murder, this assertion is wholly conjectural. The same is true
for his contention that Armentor was either unreliable or deceptive.
Importantly, Wessinger does not contend that Armentor actually saw
Wessigner’s photos in the newspapers prior to identifying Wessinger. As for
counsel’s failure to highlight the lack of physical evidence, Wessinger does not
explain how this failure could have affected the judgment in light of the
overwhelming evidence against him. On this background, reasonable jurists
would not debate the district court’s conclusion that the state court’s denial of
this claim was reasonable. See Richter, 562 U.S. at 105.
   C. Failure to Produce Material Exculpatory Evidence
      Finally, Wessinger alleges that the State withheld exculpatory evidence
from the defense, in violation of Brady v. Maryland, 373 U.S. 83 (1963). The
state habeas court rejected this claim on the merits, and AEDPA deference
therefore applies.
      In Brady, the Supreme Court held that “the suppression by the
prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Id. at 87. To be
entitled to federal habeas corpus relief on a Brady claim, Wessinger must show:
“(1) the prosecution suppressed evidence; (2) [the suppressed] evidence was
favorable to the accused; and (3) the evidence was material either to guilt or
punishment.” Brogdon v. Blackburn, 790 F.2d 1164, 1167 (5th Cir. 1986)
(internal quotation markss and citation omitted).            The “touchstone of
materiality is a ‘reasonable probability’ of a different result . . . . The question
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                                 No. 12-70008
is not whether the defendant would more likely than not have received a
different verdict with the evidence, but whether in its absence he received a
fair trial, understood as a trial resulting in a verdict worthy of confidence.”
Kyles v. Whitley, 514 U.S. 419, 434 (1995).
      Wessinger asserts that the State withheld “extensive” exculpatory
evidence, including the statement Eric Armentor gave to police three days after
the murder; the statement Alvin Ricks gave to the police the day of the murder;
the transcript of Ricks’s 911 call; the statement Willie Grigsby, the Calendar’s
employee who escaped the restaurant before Ricks, gave to police the day of
the shooting; the statement the State’s after-the-fact witness Tilton Brown
gave to the police on November 29, 1995; Brown’s criminal records; the
cooperation plea agreement of Randolph Harden, another after-the-fact
witness; and an investigative report discussing the fact that Wessinger’s
fingerprints were not on the murder weapon, on other physical evidence, or at
the crime scene.
      The district court accepted that “it is clear that certain information did
not make it into the hands of the defense team for use at trial,” and that this
evidence was favorable. But the court concluded that, given the “quantity and
quality of the evidence of guilt that was part of the record before the state
court,” the evidence was not material under Brady. We agree. Wessinger has
done nothing to demonstrate how the suppression prejudiced him. He asserts:
“The two eyewitnesses contradicted each other and their own statements, and
other key State witnesses hoped to receive something in exchange for their
testimony. The majority of the witnesses had prior criminal records that were
not divulged by the State.” But he again fails to explain how this information
would have undermined the State’s case against him. Wessinger’s brief on the
issue of materiality is entirely conclusory and devoid of any meaningful
argument. We therefore find that the state court reasonably concluded that
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                                No. 12-70008
Wessinger failed to satisfy Brady’s requirements, see Richter, 562 U.S. at 105,
and thus that reasonable jurists would not debate the district court’s
conclusion.
                                  CONCLUSION
      For the foregoing reasons, Wessinger’s motion for COAs is DENIED.




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