     Case: 17-20040        Document: 00515117336   Page: 1   Date Filed: 09/13/2019




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

                                                                        FILED
                                    No. 17-20040                September 13, 2019
                                                                   Lyle W. Cayce
ADEDJI O. ADEKEYE,                                                      Clerk


                Petitioner–Appellant,

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                Respondent–Appellee.


                    Appeal from the United States District Court
                         for the Southern District of Texas


Before CLEMENT, HAYNES, and WILLETT, Circuit Judges.
DON R. WILLETT, Circuit Judge:
      In this federal habeas action, Adedji Adekeye claims his Sixth
Amendment right to effective assistance of counsel was violated because his
trial attorney failed to conduct a sufficient pretrial investigation. But Adekeye
fails to allege what a sufficient investigation would have uncovered or how it
would have changed his trial outcome. As Adekeye cannot show prejudice, he
cannot show that the state habeas court unreasonably applied Strickland v.
Washington 1 or other clearly established federal law. The district court was
correct to deny habeas relief, and we AFFIRM.




      1   466 U.S. 668 (1984).
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                                       I
      Police arrested Adekeye in 2012 in Houston. The complaining witness,
Nora Mendez, had a hair salon storefront in a shopping center. One day
Mendez saw a woman walk slowly by the salon wearing a wig. A few minutes
later, Mendez saw the woman sitting inside a Ford Explorer parked in front of
the salon. Two men were also inside. Through the salon and Explorer windows,
Mendez saw one of the men put something on his head, put on gloves, and hold
up a pistol. Mendez called 911 and locked the salon’s door. While waiting for
the police, Mendez saw the man with the gun open the car door and begin to
get out. But he stayed in the Explorer, apparently because another person was
passing by. The man repeated this a second time but never fully exited the
Explorer.
      The Explorer drove away. Responding to the 911 call, the police
intercepted the Explorer, turned on their lights, and ordered the driver to pull
over. The driver sped away. At one point the Explorer slowed down, and two
men jumped out and ran away. The police chased them on foot. Along the way,
the police found a discarded mask, two pairs of gloves, and a gun. Bystanders
directed the police to two parked dump trucks. Inside one of the dump trucks
the police found Adekeye.
      Meanwhile, the police also caught the Explorer. Mendez identified its
driver as the woman she saw walking by her salon. And she identified Adekeye
as the passenger who held the gun and tried to exit the Explorer. The police
never caught the third passenger.
      The state charged Adekeye with two offenses in separate indictments. In
Cause No. 1349025, the state charged him with attempted aggravated robbery
and applied a sentencing enhancement for a prior felony conviction. In Cause


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No. 1349026, the state charged him with being a felon in possession of a
firearm. These charges went forward in a single case.
      Before trial, Adekeye had to obtain counsel and enter his plea. The court
initially appointed counsel for Adekeye. But about a month later Adekeye
moved to substitute his appointed counsel with retained counsel, Omotayo
Lawal. In plea negotiations, the state offered Adekeye a ten-year sentence in
exchange for a guilty plea. Lawal advised Adekeye that the state did not have
a strong case. And, according to Adekeye, Lawal incorrectly said ten years was
the maximum sentence for this offense. Adekeye rejected the plea deal.
      In preparation for trial, Lawal reviewed the prosecution’s case file, made
notes, and filed a discovery motion. He also hired a private investigator to help
prepare the case. But the investigator never produced a report because
Adekeye’s family did not pay him. Lawal omitted several other means of
pretrial investigation: He did not follow up his discovery motion by seeking a
ruling on the record. He did not visit or photograph Mendez’s salon. He did not
inspect any physical evidence. He did not view Adekeye’s or the Explorer
driver’s videotaped statements to the police. And he either interviewed none of
the eyewitnesses, or interviewed only Mendez.
      After a trial, the jury convicted Adekeye of both offenses. The court
sentenced Adekeye to 35 years in prison. Lawal then withdrew as counsel, and
the court appointed Lana Gordon to represent Adekeye going forward.
      Adekeye moved for a new trial based on ineffective assistance of counsel.
Among other theories, Adekeye argued that his prior counsel failed to
investigate the case before trial. The state trial court held a hearing on the
motion. At the hearing, Lawal admitted most of the facts that Adekeye relies
on for his ineffective assistance claim. Lawal’s testimony suggests he did not
interview any witnesses before trial. This exchange is representative: “Q. [by
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Gordon] Did you interview any witnesses . . . ? A. [by Lawal] I did not even see
the full offense report. I don’t know the witnesses that they will be calling at
any point.” 2 Lawal also suggested Adekeye would not pay for a pretrial
investigation. After the hearing, the state court denied the motion for new trial.
Its explanation from the bench focused on issues unrelated to pretrial
investigation.
       Adekeye took a direct appeal. Texas’s Fourteenth Court of Appeals
affirmed his conviction. 3 As relevant here, it held that there was no prejudice
from any failure of counsel’s pretrial investigation. One justice dissented on
unrelated grounds; he believed the evidence did not sustain Adekeye’s
conviction for attempted aggravated robbery.
       Adekeye, now proceeding pro se, sought discretionary review from the
Texas Court of Criminal Appeals. He adopted the dissenting justice’s theory
and advanced only one argument: The evidence was insufficient to sustain his
conviction. He did not argue that counsel’s pretrial investigation was deficient,
or present any theory based on ineffective assistance of counsel. The court
denied discretionary review.
       Adekeye, still proceeding pro se, sought state habeas relief. His petition
cited only Cause No. 1349025, the attempted aggravated robbery offense.
Among other arguments, he contended that counsel failed to investigate the
case before trial. The trial court recommended denying habeas relief. Its report
adopted the state’s proposed findings of fact and conclusions of law. The trial
court’s report rejected Adekeye’s ineffective assistance arguments, finding no
deficient performance or prejudice. Based on the trial court’s findings, the


       2   But, when cross-examining Mendez at trial, Lawal had asked to see her
identification, “to know whether this is the person I have [sic] a discussion earlier [sic].”
        3 Adekeye v. State, 437 S.W.3d 62 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d).

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Court of Criminal Appeals denied Adekeye’s state habeas petition without a
hearing or further reasons.
      Adekeye, still proceeding pro se, sought habeas relief in U.S. District
Court. His petition again cited only Cause No. 1349025, the attempted
aggravated robbery offense. He continued to argue that counsel failed to
investigate the case before trial. The district court denied relief and granted
the state’s motion for summary judgment. It held that “Adekeye fails to allege,
and the record fails to show, evidence that trial counsel’s investigation and
interviews would have uncovered or how that evidence would have changed
the trial outcome.” The district court denied a certificate of appealability
(COA).
      Adekeye appealed to this court. We granted a COA on “Adekeye’s claim
that counsel rendered ineffective assistance by failing to conduct an adequate
investigation.” 4 We denied a COA on all other issues. 5 We appointed counsel
to assist Adekeye under the circuit’s pro bono program and deeply appreciate
counsel’s able representation.
                                            II
      Federal habeas features an intricate procedural blend of statutory and
caselaw authority.
                                            A
      For starters, our review is limited by the COA. “COAs are granted on an
issue-by-issue basis, thereby limiting appellate review to those issues alone.” 6




      4 Order, Adekeye v. Davis, No. 17-20040 (5th Cir. June 4, 2018).
      5 Id.
      6 Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997).

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And when assessing a denial of habeas relief, “we review the district court’s
findings of fact for clear error and its conclusions of law de novo.” 7
       Under the Antiterrorism and Effective Death Penalty Act of 1996, state
prisoners face strict procedural requirements and a high standard of review. 8
We may not grant habeas relief to a state prisoner “unless . . . the applicant
has exhausted the remedies available in the courts of the State” or state
process is absent or ineffective. 9 “The exhaustion requirement is satisfied when
the substance of the federal habeas claim has been fairly presented to the
highest state court.” 10
                                             B
       Once state remedies are exhausted, AEDPA limits federal relief to cases
where the state court’s decision was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States” or was “based on an unreasonable determination
of the facts in light of the evidence presented.” 11 Ineffective assistance of
counsel is a “mixed question of law and fact.” 12 So the “unreasonable
application” part of the standard applies to reviewing the state court’s decision
here. 13
       Under Strickland, an ineffective-assistance claim has two parts. “First,
the defendant must show that counsel’s performance was deficient. . . . Second,
the defendant must show that the deficient performance prejudiced the




       7 Dorsey v. Stephens, 720 F.3d 309, 314 (5th Cir. 2013).
       8 See 28 U.S.C. § 2254.
       9 Id. § 2254(b)(1).
       10 Soffar v. Dretke, 368 F.3d 441, 465 (5th Cir. 2004).
       11 28 U.S.C. § 2254(d).
       12 Strickland, 466 U.S. at 698.
       13 See Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000).

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                                      No. 17-20040
defense.” 14 To establish prejudice, Adekeye must show “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” 15 “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” 16
       Adekeye alleges an incompetent pretrial investigation. In general,
“counsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.” 17 “[A] particular
decision not to investigate must be directly assessed for reasonableness in all
the circumstances, applying a heavy measure of deference to counsel’s
judgments.” 18 “[A]n attorney must engage in a reasonable amount of pretrial
investigation and ‘at a minimum, . . . interview potential witnesses and . . .
make an independent investigation of the facts and circumstances in the
case.’” 19 One of our decisions categorically states that “counsel’s failure to
interview eyewitnesses to a charged crime constitutes ‘constitutionally
deficient representation.’” 20
       We have explained the prejudice standard in such cases this way: “A
defendant who alleges a failure to investigate on the part of his counsel must
allege with specificity what the investigation would have revealed and how it
would have altered the outcome of the trial.” 21




       14 466 U.S. at 687.
       15 Id. at 694.
       16 Id.
       17 Id. at 691.
       18 Id.
       19 Bryant v. Scott, 28 F.3d 1411, 1415 (5th Cir. 1994) (quoting Nealy v. Cabana, 764

F.2d 1173, 1177 (5th Cir. 1985)).
       20 Anderson v. Johnson, 338 F.3d 382, 391 (5th Cir. 2003) (quoting Bryant, 28 F.3d at

1418).
       21 United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989).

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                                      No. 17-20040
                                             C
      Adekeye exhausted state-court remedies for his pretrial investigation
claim. He presented this claim to the state’s highest court by detailing it in his
state habeas petition, which the Court of Criminal Appeals denied. 22
                                            III
      So we turn to the merits of Adekeye’s claim. And because this is habeas,
not a direct appeal, our focus is narrowed. Federal habeas relief is “not a
substitute for ordinary error correction through appeal.” 23 The habeas hurdle
is high, says the Supreme Court—“because it was meant to be.” 24 We ask
whether the state court’s denial of relief was “so lacking in justification” as to
remove “any possibility for fairminded disagreement.” 25 That is, Adekeye must
show that every fairminded jurist would agree there was prejudice. Applying
this difficult standard, we hold that the state court did not “unreasonabl[y]
appl[y]” Supreme Court precedent by deciding that any deficient pretrial
investigation did not prejudice Adekeye. 26
                                             A
      The Supreme Court standard on prejudice is sharply defined: “It is not
enough for the defendant to show that the errors had some conceivable effect
on the outcome of the proceeding.” 27 Adekeye must show it was “reasonably
likely” the jury would have reached a different result, not merely that it could




      22 See 28 U.S.C. § 2254(b)(1)(A); Soffar, 368 F.3d at 465.
      23 Harrington v. Richter, 562 U.S. 86, 102–03 (2011).
      24 Id. at 102.
      25 Id. at 103.
      26 28 U.S.C. § 2254(d)(1).
      27 Strickland, 466 U.S. at 693.

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have reached a different result. The Court reaffirmed this point in Richter:
“The likelihood of a different result must be substantial, not just conceivable.” 28
                                             B
       Now layer on top of that the habeas lens of reasonableness. 29 Because the
state court has already adjudicated Adekeye’s ineffective-assistance claim on
the merits, he must show that the court’s no-prejudice decision is “not only
incorrect but ‘objectively unreasonable.’” 30 Put differently, Adekeye must show
that every reasonable jurist would conclude that it is reasonable likely that
Adekeye would have fared better at trial had his counsel conducted a sufficient
pretrial investigation. “It bears repeating,” the Supreme Court emphasized in
Richter, “that even a strong case for relief does not mean the state court’s
contrary conclusion was unreasonable.” 31
       Adekeye contends that if Lawal had competently investigated, “[h]e may
also have uncovered damning evidence to contradict the state’s affirmative
case.” But Adekeye does not present a single piece of evidence that could have
changed the trial’s outcome. He identifies a list of uninterviewed potential
witnesses, but he only speculates as to what they would have testified. Our
cases finding prejudice, in contrast, relied on concrete evidence that counsel
should have uncovered but did not. For example, in Soffar v. Dretke, we found
prejudice because defense counsel never contacted or interviewed a witness
who had already given extensive statements tending to exculpate the
defendant. 32 And in Anderson v. Johnson, we found prejudice because defense



       28 Richter, 562 U.S. at 112.
       29 See Id. at 100–01.
       30 Maldonado v. Thaler, 625 F.3d 229, 236 (5th Cir. 2010) (quoting Renico v. Lett, 559

U.S. 766, 778 (2010)).
       31 562 U.S. at 102 (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)).
       32 368 F.3d at 479.

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counsel never interviewed a witness who later averred that the defendant was
not at the crime scene. 33 In short, Adekeye does not allege with specificity what
any witness would testify to. 34 And he certainly presents no evidence of it. 35
       Adekeye also does not say exactly what Supreme Court precedent was
unreasonably applied. The prejudice section of his brief cites only Strickland
from the Supreme Court’s decisions. Of course, a cite to Strickland, combined
with similar facts to cases finding prejudice under its standard, may be
sufficient. But the facts here are not similar to cases finding prejudice based
on a deficient pretrial investigation. And because there was no prejudice, we
need not analyze deficiency. 36 In sum, Adekeye does not identify any “clearly
established Federal law, as determined by the Supreme Court of the United
States” that the state court unreasonably applied. 37 He thus has failed to carry
his heavy burden of showing that the court’s no-prejudice finding reflects an
unreasonable application of Strickland.
                                             C
       Adekeye’s brief raises other alleged deficiencies in his counsel’s
performance. He contends these are within the COA because an adequate
pretrial investigation must include both law and fact. But the COA order
distinguished factual investigation, such as interviewing witnesses, from




       33  338 F.3d at 394.
       34  See Green, 882 F.2d at 1003.
        35 See Ross v. Estelle, 694 F.2d 1008, 1011–12 (5th Cir. 1983) (requiring record

evidence, not “conclusory allegations,” to raise ineffectiveness issue).
        36 See Strickland, 466 U.S. at 697 (“[T]here is no reason for a court deciding an

ineffective assistance claim . . . to address both components of the inquiry if the defendant
makes an insufficient showing on one.”).
        37 28 U.S.C. § 2254(d)(1).

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Adekeye’s other arguments. 38 It did not grant review of the other arguments,
so we cannot reach them. 39
                                     *      *      *
      The district court properly declined to issue a writ of habeas corpus, and
we AFFIRM its judgment.




      38  Order, Adekeye v. Davis, No. 17-20040 (5th Cir. June 4, 2018).
      39 See Lackey, 116 F.3d at 151 (“COAs are granted on an issue-by-issue basis, thereby
limiting appellate review to those issues alone.”).
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