     Case: 14-30469      Document: 00513539052         Page: 1    Date Filed: 06/08/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-30469                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
JOSEPH THOMAS,                                                               June 8, 2016
                                                                           Lyle W. Cayce
              Petitioner - Appellant                                            Clerk

v.

DARREL VANNOY, WARDEN, LOUISIANA STATE PENITENTIARY,

              Respondent - Appellee



                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                              USDC No. 3:13-CV-38


Before DAVIS, JONES, and GRAVES, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
       A Louisiana jury convicted Joseph Thomas of second-degree murder in
the shooting death of Jerron Gasper and sentenced him to life in prison at hard
labor without parole. Thomas has collaterally attacked his conviction through
a federal habeas corpus petition. The federal district court denied him both
habeas relief and a certificate of appealability (“COA”), but we granted him a




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-30469      Document: 00513539052       Page: 2   Date Filed: 06/08/2016




                                     No. 14-30469
COA to pursue a single claim of ineffective assistance of counsel. We now
affirm the district court’s denial of relief.
                                 BACKGROUND
      On the weekend after Thanksgiving in 2004, Gasper traveled to Baton
Rouge from his home in New Orleans. While in Baton Rouge, he received word
that his home had been burglarized. Needing transportation to return to New
Orleans, Gasper stole a car from a nearby gas station.
      In response, Veal contacted several friends of his to assist him in
recovering his car: the petitioner in this case (Thomas), as well as Joshua
Weatherspoon and Emanuel Howard. This group learned that Veal’s car and
Gasper were headed to New Orleans and they followed in pursuit. Thomas
and the others soon located Veal’s car parked on the side of IH-10. They
confronted Gasper, who attempted to run away. As he fled, Thomas and
Howard shot him in the back. Gasper was found dead on the side of the road
by a passerby the following day.
      All four were indicted for second-degree murder, but Veal and
Weatherspoon pled guilty to conspiracy to commit second-degree murder. Both
Veal and Weatherspoon then testified for the state at the trial of Thomas and
Howard. At the beginning of their testimony, the prosecution elicited the fact
that they had pled guilty to the conspiracy charge. On cross-examination, the
defense questioned both about their motivations for pleading guilty and
testifying. Both sides discussed the guilty pleas and the implications for Veal’s
and Weatherspoon’s veracity in opening and closing arguments. Thomas’s
counsel   did   not   request    a    cautionary    instruction   that   Veal’s   and
Weatherspoon’s guilty pleas should not be used as evidence of Thomas’s guilt.
Thomas and Howard were convicted and sentenced to life in prison at hard
labor without parole.
                                          2
    Case: 14-30469     Document: 00513539052      Page: 3   Date Filed: 06/08/2016




                                  No. 14-30469
      Thomas’s conviction and sentence were affirmed on direct appeal. He
petitioned for state habeas relief. The state habeas court held a hearing and
denied relief in an oral ruling from the bench and a subsequent written
judgment. Thomas applied for supervisory writs from the Louisiana Court of
Appeal and the Louisiana Supreme Court, both of which were denied
summarily. Thomas then petitioned for federal habeas relief. The district
court denied him relief and denied him a COA. On Thomas’s motion, this court
granted him a COA as to a single claim: “[W]hether counsel was ineffective for
failing to request that a cautionary jury instruction that evidence of the guilty
pleas of Joshua Weatherspoon and Montreal Veal to conspiracy to commit
second degree murder did not constitute evidence of Thomas’s guilt.”
                                 DISCUSSION
      The federal law of habeas corpus is “a guard against extreme
malfunctions in the state criminal justice systems, not a substitute for ordinary
error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102–03,
131 S. Ct. 770, 786 (2011) (internal quotation marks omitted). To this end,
under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
Thomas is only entitled to habeas relief if the state court’s adjudication of his
ineffective assistance of counsel claim “involved an unreasonable application
of . . . clearly established Federal law, as determined by the Supreme Court of
the United States.” 28 U.S.C. § 2254(d)(1). Under this standard, we must deny
habeas relief unless the state court’s ruling was “so lacking in justification that
there was an error . . . beyond any possibility for fairminded disagreement.”
Burt v. Titlow, 134 S. Ct. 10, 16 (2013) (quoting Harrington, 562 U.S. at 103,
131 S. Ct. at 786–87).     A state court’s application of federal law may be
reasonable under § 2254(d)(1) even though another court has applied or would


                                        3
     Case: 14-30469       Document: 00513539052         Page: 4     Date Filed: 06/08/2016




                                       No. 14-30469
have applied the same law to the same facts in a different manner. See
Harrington, 562 U.S. at 101–02, 131 S. Ct. at 785–86.
       To show that his trial counsel was constitutionally ineffective in state
habeas proceedings, Thomas was required to demonstrate that 1) his counsel’s
performance was so deficient that they were no longer “functioning as the
counsel guaranteed the defendant by the Sixth Amendment” and 2) he was
prejudiced by these deficiencies because “there is a reasonable probability that,
but for [the] errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064,
2068 (1984). “Judicial scrutiny of counsel’s performance [under this standard]
must be highly deferential” and recognizes that there “are countless ways to
provide effective assistance in any given case.” Id. at 689, 104 S. Ct. at 2065.
But in federal habeas proceedings another layer of deference is added and the
“pivotal question is whether the state court’s application of the Strickland
standard was unreasonable.” Harrington, 562 U.S. at 101, 131 S. Ct. at 785.
Any “reasonable argument that counsel satisfied” the “highly deferential”
Strickland standard will bar federal habeas relief. Id. at 105, 131 S. Ct. at 788.
       Under these standards, we conclude that the district court did not err in
holding that the state habeas court’s adjudication of Thomas’s ineffective
assistance claim was reasonable. 1
       First, even assuming deficient performance, the state court reasonably
concluded that Thomas was not prejudiced by the failure to request a
cautionary jury instruction.            As the Supreme Court has repeatedly



       1 In evaluating Thomas’s claims under AEDPA, we “‘look through’ the Louisiana
Supreme Court’s summary denial of [Thomas’s] petition for review and evaluate the state
trial court’s reasoned decision.” Brumfield v. Cain, 135 S. Ct. 2269, 2276 (2015) (citing Ylst
v. Nunnemaker, 501 U.S. 797, 806, 111 S. Ct. 2590, 2596 (1991)).
                                              4
    Case: 14-30469     Document: 00513539052     Page: 5   Date Filed: 06/08/2016




                                  No. 14-30469
emphasized, Strickland’s prejudice inquiry “asks whether it is reasonably
likely the result would have been different” without counsel’s deficient
performance. Harrington, 562 U.S. at 111, 131 S. Ct. at 792. This inquiry
necessarily examines the strength of the other evidence in the case weighed
against the egregiousness of counsel’s error.      See Berghuis v. Thompkins,
130 S. Ct. 2250, 2264 (2010).
      Most importantly, the trial evidence against Thomas was strong. The
only three eyewitnesses to the shooting—Thomas’s co-conspirators—were in
agreement that Thomas shot Gasper and then threw his gun (or told Veal he
threw his gun) into the woods along the highway. Veal and Weatherspoon both
testified to this series of events during the trial itself. The jury also heard an
audio recording of Howard’s statement to detectives in which he described
these basic facts. Corroborating this damning testimony was video evidence
and disinterested witness testimony tying Thomas to Veal, Weatherspoon, and
Howard immediately before the shooting. The jury was shown a video of
Thomas and his three co-conspirators at a Shell station where Veal learned
that his car was on the way to New Orleans. The jury was told that a Shell
station employee identified that group as having a gun.
      The Supreme Court has found a similar amount of evidence to eliminate
any prejudice from counsel’s failure to request a jury instruction, even under
de novo review.      In Berghuis v. Thompkins, defendant’s counsel failed to
request a jury instruction regarding evidence that an accomplice (and witness
for the defendant) had been acquitted at a separate trial. Id. at 2257–58. The
defendant’s trial strategy was to pin the murder on the accomplice—an angle
somewhat complicated by the accomplice’s acquittal.               Id. at 2257.
Nevertheless, counsel did not request an instruction that the accomplice’s
acquittal should be used to judge his own credibility, not the defendant’s
                                        5
    Case: 14-30469     Document: 00513539052        Page: 6    Date Filed: 06/08/2016




                                    No. 14-30469
substantive guilt, and the defendant claimed this was ineffective assistance.
The Court used de novo review and held that there was no prejudice. One
eyewitness—supported      by    a    surveillance    photograph—identified        the
defendant as the shooter. Id. at 2265. Another witness testified that the
defendant confessed to the murder after the fact.             Finally, the defendant
appeared to have taken steps to destroy evidence. Id. at 2265. Given this
evidence, the Court concluded that “it was not reasonably likely that the
instruction would have made any difference in light of all the other evidence of
guilt.” Id. Likewise, here it was reasonable for the state court to find that a
comparable amount of evidence precluded finding prejudice.
      Moreover, the jury was instructed on the permissible use of the guilty
pleas: Veal and Weatherspoon “may be discredited by showing that [they] will
benefit in some way by the defendant’s conviction . . . or that [they have] any
other reason or motive for not telling the truth.”    In a case that Thomas relies
upon in his briefing, this court described a similar instruction as “sufficient to
avoid jury consideration of [the accomplice’s] plea as relevant to [the
defendant’s] guilt or innocence.” United States v. King, 505 F.2d 602, 609 (5th
Cir. 1974). Further, a state court could reasonably consider the guilty plea
instruction somewhat cumulative. The jury was also instructed that they were
to consider the guilt of each defendant separately, and they were informed that
it would be possible to find Thomas guilty, but Howard not guilty or vice versa.
Juries are presumed to follow their instructions. See Zafiro v. United States,
506 U.S. 534, 540, 113 S. Ct. 933, 939 (1993). Surely a jury that understood
and followed those instructions would understand that they should also
separate Veal’s and Weatherspoon’s guilt from that of Thomas. It is well
established that jury instructions must be evaluated holistically, rather than
in isolation. See Cupp v. Naughten, 414 U.S. 141, 146–47, 94 S. Ct. 396, 400
                                         6
     Case: 14-30469       Document: 00513539052          Page: 7     Date Filed: 06/08/2016




                                       No. 14-30469
(1973). The state court could reasonably decide that these jury instructions as
a whole lessened any possible prejudice from the omission of the guilty plea
instruction.
       Finally, the information that Veal and Weatherspoon had pled guilty
was itself cumulative: “[T]hat these witnesses had pleaded guilty would add
little to their admissible testimony as to the conspiracy and their role in it.”
United States v. Pettigrew, 77 F.3d 1500, 1518 (5th Cir. 1996). Veal and
Weatherspoon testified vividly about their and Thomas’s decisive roles in the
conspiracy to kill Gasper. That they pled guilty—a fact that the jury likely
would have surmised because they were testifying for the prosecution and
admitting serious crimes—added little more of substance to the case against
Thomas.
       In sum, it was reasonable under Strickland for the state court to
conclude that there was no prejudice in this case: the evidence offered against
Thomas at trial was very strong and the conceivable effect of omitting a single
jury instruction comparatively weak.
       Turning to Strickland’s performance inquiry, Thomas’s counsel did not
render deficient performance.           Because the state court did not explicitly
address the deficient performance inquiry, this issue is arguably not entitled
to AEDPA deference. 2 But Thomas cannot show deficient performance under



       2  This court’s precedent holds that where the state court decided the ineffective
assistance claim only by finding there was no prejudice but “did not adjudicate [Strickland’s
performance] prong on the merits, we review the deficient performance prong of Strickland
de novo and the prejudice prong under the more deferential [AEDPA] standard.” White v.
Thaler, 610 F.3d 890, 899 (5th Cir. 2010) (citing Henderson v. Cockrell, 333 F.3d 592, 601
(5th Cir. 2003)); see also Loden v. McCarty, 778 F.3d 484, 494 (5th Cir. 2015) (same in dicta).
It is questionable if this line of precedent comports with our court’s earlier-in-time en banc
decision in Neal v. Puckett where we concluded that the focus of our inquiry under AEDPA
“should be on the ultimate legal conclusion that the state court reached and not on whether
                                              7
     Case: 14-30469       Document: 00513539052          Page: 8     Date Filed: 06/08/2016




                                       No. 14-30469
a less deferential de novo standard, either. See Berghuis, 130 S. Ct. at 2265
(“Courts can . . . deny writs of habeas corpus under § 2254 by engaging in de
novo review where it is unclear whether AEDPA deference applies, because a
habeas petitioner will not be entitled to a writ of habeas corpus if his or her
claim is rejected on de novo review.”).
       As an initial matter, at his evidentiary hearing before the state habeas
court, Thomas presented no testimony from his trial counsel explaining why
there was no request for a jury instruction. 3 From this silence, Thomas urges
us to infer that counsel was simply too incompetent to ask for the instruction.
But this conclusion flies in the face of Strickland. The Supreme Court has,
time and again, “specifically command[ed] that a court must indulge the strong
presumption that counsel made all significant decisions in the exercise of
reasonable professional judgment.” Cullen v. Pinholster, 563 U.S. 170, 196,
131 S. Ct. 1388, 1407 (2011) (internal quotation marks and brackets omitted)
(quoting Strickland, 466 U.S. at 689–90, 104 S. Ct. at 2065–66). The mere
absence of the instruction neither overcomes this presumption nor satisfies
Thomas’s burden to show deficient performance. See Burt, 134 S. Ct. at 17. 4



the state court considered and discussed every angle of evidence.” 286 F.3d 230, 246 (5th Cir.
2002) (en banc) (per curiam).
        Nonetheless, since Thomas’s counsel did not perform deficiently under any standard
of review, we—like the state habeas court—need not consider further an issue that has no
bearing on the ultimate outcome of this case. See Berghuis, 130 S. Ct. at 2265.

       3 Counsel was appointed to represent Thomas in state habeas proceedings at least
eight months before his state habeas evidentiary hearing, thus there was ample time for
counsel to obtain this testimony if it would have been favorable to Thomas.

       4 At the state court evidentiary hearing, Thomas seemed to testify that his counsel
requested the guilty plea jury instruction but was rebuffed by the trial judge. However,
Thomas’s testimony is not entirely clear on this point, the exchange is nowhere in the trial
court record, and the state habeas judge did not find or rely on this fact in his habeas ruling.

                                               8
    Case: 14-30469          Document: 00513539052        Page: 9     Date Filed: 06/08/2016




                                        No. 14-30469
This alone could decide this case, but there are substantial reasons to believe
that counsel’s performance was competent.
      There are at least three reasonable justifications for not requesting the
instruction. Most important, such an instruction is double-edged: it effectively
informs the jury, right before deliberations, about the most damning inference
they could draw from Veal’s and Weatherspoon’s guilty pleas.                       As Judge
Easterbrook has explained: “You can’t instruct ‘Do not draw inference X’
without informing the jurors that X is one possible conclusion from the
evidence. To tell jurors not to do something is to ensure they will do it, at least
for a while. . . . [R]easonable persons may differ about whether the good such
an instruction does with a thoughtful juror will outweigh the harm it can do
by fastening attention on a link that may have been overlooked or forgotten.”
United States v. Myers, 917 F.2d 1008, 1010–11 (7th Cir. 1990). In the related
context of lesser-included offense instructions, this court has recognized that
counsel’s choice not to request an instruction is a matter of strategy and subject
to reasonable debate. See Druery v. Thaler, 647 F.3d 535, 539–40 (5th Cir.
2011). 5
      Second, and relatedly, such an instruction might have distracted the jury
from the strength of Thomas’s most powerful argument: that Veal and
Weatherspoon were lying to save themselves.                    Counsel’s opening, cross-
examination,        and    closing    were    unremitting      in   accusing       Veal   and
Weatherspoon of lying to get a good deal. The only instruction that addressed
their guilty pleas told the jury that Veal and Weatherspoon might be
discredited by the fact they stood to gain from the testimony. In King this court
pointed to this problem: “One legitimate defense consideration might be a


      5    See also Adams v. Bertrand, 453 F.3d 428, 435 (7th Cir. 2006) (same).
                                               9
    Case: 14-30469    Document: 00513539052       Page: 10   Date Filed: 06/08/2016




                                  No. 14-30469
concern . . . that a corrective instruction might call more attention to a witness’
guilty plea than the witness’ admission [that he had a motive to lie].” 505 F.2d
at 608 n.12. Put simply, Thomas’s counsel might have reasonably concluded
that there was no reason to mention the guilty pleas at all.
      Third, counsel may have wanted the jury to consider how Veal’s and
Weatherspoon’s guilty pleas reflected on Thomas’s guilt. The prosecution’s
theory of the case was that Thomas pulled the trigger. But it was Veal’s car
that was stolen. Multiple witnesses told police that Veal was enraged by the
theft. The Shell station employee told police she saw Veal with a gun before
the shooting. As counsel repeatedly emphasized to the jury, it simply defied
common sense that, despite all of this evidence, Thomas pulled the trigger.
Reasonable counsel might well have wanted the jury to reflect on the guilty
pleas, decide that Veal and Weatherspoon (Veal’s cousin) killed Gasper
themselves, and acquit Thomas.
      Finally, Thomas’s counsel rendered reasonable competence throughout
the trial. See Harrington, 562 U.S. at 111, 131 S. Ct. at 791 (“[I]t is difficult to
establish ineffective assistance when counsel’s overall performance indicates
active and capable advocacy.”). Far from being asleep at the wheel as the court
formulated the jury instructions, he both successfully objected to a proposed
instruction and requested a rather novel instruction regarding accomplice
testimony. Furthermore, Thomas’s counsel sharply cross-examined the state’s
key witnesses, casting doubt on the veracity of the main police detective and
relentlessly highlighting Veal’s and Weatherspoon’s motivations to lie.
Thomas’s counsel’s jury arguments were extended and effective. In other
words, at every other turn, Thomas’s counsel lived up to the Sixth
Amendment’s guarantee of reasonable advocacy. See Yarborough v. Gentry,
540 U.S. 1, 8, 124 S. Ct. 1, 6 (2003) (per curiam).
                                        10
   Case: 14-30469    Document: 00513539052    Page: 11   Date Filed: 06/08/2016




                               No. 14-30469
     Thomas offers no evidence to rebut the presumption of his counsel’s
competence or the evidence of his counsel’s actual competence, nor to explain
away the reasonable justifications for why counsel might have forgone the
instruction. Even under a de novo standard, we find no deficient performance.
                              CONCLUSION
     For the foregoing reasons, the judgment of the district court denying
Thomas relief under 28 U.S.C. § 2254 is AFFIRMED.




                                     11
