     Case: 15-30237      Document: 00514092753         Page: 1    Date Filed: 07/28/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                      No. 15-30237                                   FILED
                                                                                 July 28, 2017
                                                                                Lyle W. Cayce
FRANCIS EUGENE REED, JR.,
                                                                                     Clerk

              Petitioner–Appellant,
v.

DARREL VANNOY, WARDEN, LOUISIANA STATE PENITENTIARY,

              Respondent–Appellee.




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:13-CV-543


Before STEWART, Chief Judge, and WIENER and PRADO, Circuit Judges.
PER CURIAM:*
       Petitioner–Appellant Francis Eugene Reed, Jr. filed this habeas petition
seeking collateral review of his Louisiana aggravated rape conviction. The
district court denied habeas relief but granted a certificate of appealability
(“COA”) on one issue: whether trial counsel was ineffective for failing to
impeach the victims’ testimony with prior inconsistent statements. For the
reasons stated below, we AFFIRM.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                   I. BACKGROUND
A.    The Trial
      Reed was charged with and convicted of aggravated rape of his two minor
stepdaughters, KP-1 and KP-2. 1 According to the victims, their stepfather
began abusing them in 2000. The victims both testified that Reed forced them
to perform oral sex on him and engage in vaginal intercourse with him. Each
of the victims testified that this abuse occurred about three times per week for
four or five years.
      According to KP-2’s friend Stephi King, one day in May 2005, she and
KP-2 went to the victims’ house and found that the front door was locked. KP-
1 came to the door in a long shirt. It was clear she had been crying. Stephi also
saw Reed zipping up his fly and noticed a foul odor in the house. After KP-2
and Stephi stepped inside, KP-1 dropped something; when she picked it up,
Stephi noticed that KP-1 was not wearing any underwear.
      Based on this incident, Stephi suspected sexual abuse. On the advice of
Stephi’s stepfather, Robert Jeanfreau, Stephi and her friend Stephanie
Caballero wrote a letter to KP-2 asking her whether KP-1 was being abused.
Stephanie testified that KP-2 initially denied the abuse, but shortly thereafter
wrote the following letter:
      Dear Steph, remember the question you asked me about [KP-1]
      and I, and I said no? No isn’t true. Yes. Yes would be the truthful
      answer, but [KP-1] likes it. She never cries about it. He does it to
      me, too. He makes us do other things, too. He makes us drink
      alcohol, too. I hate it. That’s not the reason she cries when he yelled
      at her. I don’t know that reason. Tell [another friend]. Just tell him
      what happens to me, and go home when my mom is not home. You
      can tell anyone who won’t tell anyone else.




      1   KP-1, the older sister, was born in 1991. KP-2 was born in 1993.
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                                       No. 15-30237
       Stephi gave this letter to Jeanfreau, who testified that he immediately
notified the authorities. Luanne Mayfield from the Office of Community
Services testified that she interviewed KP-2 at school shortly thereafter and
that KP-2 confirmed the allegations of sexual abuse. That day, Mayfield also
interviewed KP-1, who was home schooled. Although KP-1 was initially
hesitant to talk, she eventually described the abuse in similar terms as KP-2.
       Rachel Smith of the St. Tammany Parish Sheriff’s Office testified that in
May 2005, the          victims recanted           their story. Additionally,        physical
examinations did not reveal signs of abuse, although Dr. Adriana Jamis
testified at trial that no physical signs were expected given the lapse of time
between the abuse and the examinations. The authorities did find Reed’s
semen on the carpet in KP-1’s and KP-2’s bedrooms. Later, in April 2006, the
victims gave taped interviews at the Children’s Advocacy Center (“CAC”)
during which they again confirmed the sexual abuse. The investigation
culminated in Reed’s indictment on April 25, 2007. Reed pleaded not guilty,
and the case went to trial.
       Both KP-1 and KP-2 testified at trial. On cross-examination, Reed’s
counsel did not impeach the victims based on inconsistent statements in the
CAC tapes. But defense counsel did bring out the fact that both victims initially
denied the abuse to several individuals. 2 At the conclusion of each victim’s
testimony, defense counsel stipulated that the trial testimony was consistent
with the taped CAC interview. The tapes were entered into evidence but not
played for the jury. Reed, testifying in his defense, denied his stepdaughters’
allegations of sexual abuse.


       2 In response, both Bethany Case, who conducted the CAC interviews, and Dr. Jamis
testified that children sometimes recant out of the fear that telling the truth will result in
negative consequences. KP-2 testified that she recanted because she was afraid Reed might
hurt her if she told the truth, and KP-1 explained that she too was afraid of what might
happen if she told the truth.
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                                   No. 15-30237
      The jury convicted Reed of two counts of aggravated rape, for which he
received two sentences of life imprisonment. The Louisiana appellate court
affirmed the convictions and amended the sentences to life imprisonment at
hard labor. State v. Reed, No. 2010-0571, 2010 WL 4272897 (La. Ct. App. Oct.
29, 2010). Reed did not seek review by the Louisiana Supreme Court.
B.    Habeas Petitions
      Reed filed his state application for post-conviction relief in November
2011. This application claimed ineffective assistance of counsel for, among
other things, failing to impeach KP-1 and KP-2 with prior inconsistent
statements made during the CAC interviews. The most significant of these
inconsistencies concerns the day in May 2005 when Stephi first suspected
sexual abuse. At trial, KP-1 testified:
      I was being abused, and I heard a knock on the door, and it was
      [KP-2]. . . . [Reed] said, don’t worry about it. I said, it’s [KP-2], let
      me go get the door. He said okay, and I opened the door, and it was
      [KP-2], and I know it was Stephi.
During the CAC interview, however, KP-1 stated that “nothing had happened”
on that day. KP-1 explained that
      whenever I told them about that day, I was veering around the
      truth because whenever [Stephi] came that day, nothing had
      happened to me. The reason why I was crying is because I got sent
      to my room. And I had a long shirt on and I had shorts underneath
      it. She just thought I had a shirt on. But nothing had happened.
      But I just remember her coming to the door, and I was all hot-faced
      and red . . . .
      INTERVIEWER: You said something about veering around the
      truth or something?
      KP1: Uh-huh. What I mean was I knew what had happened, and,
      you know, I was just kind of, you know, saying, “This—no, this
      didn’t happen. This is what really happened.” You know, I was
      telling the truth, but on part of it, I wasn’t.
      INTERVIEWER: What do you mean?

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                                 No. 15-30237
      KP1: Like I was—whenever I was telling them that nothing
      happened that day that when [Stephi] came to the door, I was
      seriously just upset because I went to my room, you know. I was
      saying nothing happened.
      INTERVIEWER: That day?
      KP1: Nothing happened that day, you know. I was—I wasn’t
      actually saying nothing happened at all.
      The Louisiana trial court dismissed Reed’s application in March 2012. In
addressing counsel’s failure to impeach the victims’ testimony with statements
made during their CAC interviews, the court noted that:
      Trial counsel often choose not to have the victim’s interview shown
      to the jury, as more often than not any discrepancies between the
      child’s interview and the in court testimony are insignificant as
      weighed against the jury having to hear the child discuss the
      events of offense that occurred years prior.
The court disagreed with Reed’s “characterization of the CAC tapes as
materially inconsistent with the victims’ trial testimony,” and “determine[d] it
was not ineffective assistance of counsel to stipulate to the CAC tapes in order
to avoid having them played for the jury.” The Louisiana Court of Appeal and
Supreme Court denied review.
      Reed filed his federal habeas petition in March 2013, alleging ineffective
assistance of both trial and appellate counsel. The magistrate judge
recommended dismissing the petition in its entirety. The magistrate judge
addressed each of the discrepancies between the victims’ CAC interviews and
trial testimony in turn:
      1. At trial K.P.1 testified that she had never witnessed petitioner
         engage in sexual acts with K.P.2; however, in the CAC
         interview, K.P.1 stated that she witnessed petitioner licking
         K.P.2’s vagina. While this discrepancy is obviously
         consequential, its revelation could easily have been more
         harmful than beneficial to the defense.
      2. At trial K.P.1 testified that she traveled to Biloxi in a separate
         car from petitioner after the allegations became public;
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                                  No. 15-30237
         however, in the CAC interview she stated that they traveled
         together. This discrepancy seems largely inconsequential, and
         it does not appear the revelation would have significantly
         benefitted the defense.
      3. At trial, K.P.2 testified that petitioner had made her swear on
         a Bible not to disclose the abuse; however, she made no such
         statement in the CAC interview. This discrepancy likewise
         seems largely inconsequential, and it does not appear the
         revelation would have significantly benefitted the defense.
      4. At trial, K.P.2 testified she was walking out of her room prior
         to the first incident of abuse; however, in the CAC interview she
         stated that she was in her room watching television or reading
         a book. This discrepancy also seems largely inconsequential,
         and it does not appear the revelation would have significantly
         benefitted the defense.
      5. At trial, K.P.2 did not testify concerning abuse by anyone other
         than petitioner; however, in the CAC interview she stated that
         she had been assaulted by her stepbrother. This was not an
         actual discrepancy, in that she was not questioned at trial about
         abuse by others.
      6. At trial, K.P.1 testified that her friend Stephi King interrupted
         petitioner’s sexual assault on a specific occasion; however, in
         the CAC interview K.P.1 stated that nothing had actually
         happened to her on that day. This discrepancy is arguably
         consequential and seemingly would have been beneficial to the
         defense.
The magistrate judge reasoned that the benefit of raising this last “seemingly
significant discrepancy” would be outweighed by “the downside of playing the
CAC interviews for the jury.” Playing these tapes would have required the jury
“to sit through yet another recitation of the traumatic abuse . . . , only this time
as recounted by the purported victims at even younger and more innocent ages
which, presumably, might have made the abuse seem all the more harrowing.”
Accordingly, the magistrate judge recommended not second-guessing trial
counsel’s tactical decision to forego impeaching the victims with this “double-
edged” evidence.

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                                 No. 15-30237
      The district court adopted the magistrate judge’s recommendation and
dismissed Reed’s petition with prejudice. On motion, however, the district
court granted a COA on Reed’s “Sixth Amendment Right to Effective
Assistance of Counsel related to failure to impeach a witness at trial.” Reed
timely appealed.
                              II. DISCUSSION
      On appeal, Reed argues that trial counsel’s failure to impeach KP-1 and
KP-2 with the CAC interviews constituted ineffective assistance of counsel.
Reed focuses on the incident in May 2005 when KP-2 and Stephi allegedly
interrupted his abuse of KP-1. Reed does not meaningfully contest the
magistrate judge’s findings that the other discrepancies were either
insignificant, harmful to the defense, or not actually inconsistent with trial
testimony. Accordingly, we confine our review to the discrepancy involving the
May 2005 incident.
A.    Standard of Review
      In a habeas case, this Court reviews the district court’s legal conclusions
de novo and its factual findings for clear error. Ladd v. Cockrell, 311 F.3d 349,
351 (5th Cir. 2002). A federal court may not grant relief to a habeas petitioner
on a claim adjudicated on the merits by a state court unless the state court’s
decision “was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court,” 28 U.S.C.
§ 2254(d)(1), or “was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding,” § 2254(d)(2).
Under § 2254(d)(1), a decision is contrary to clearly established federal law if
the state court “arrives at a conclusion opposite to that reached by [the
Supreme] Court on a question of law” or “confronts facts that are materially
indistinguishable from a relevant Supreme Court precedent” and comes to the
opposite result. Williams v. Taylor, 529 U.S. 362, 405 (2000). A decision
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                                  No. 15-30237
unreasonably applies clearly established federal law “if the state court
identifies the correct governing legal rule from [the Supreme] Court’s cases but
unreasonably applies it to the facts” or “either unreasonably extends a legal
principle from [Supreme Court] precedent to a new context where it should not
apply or unreasonably refuses to extend that principle to a new context where
it should apply.” Id. at 407.
        Review of a claim of ineffective assistance of counsel under § 2254(d) is
“doubly” deferential. Harrington v. Richter, 562 U.S. 86, 105 (2011) (quoting
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)). “When § 2254(d) applies, 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.
B.      Analysis
        To establish ineffective assistance of counsel in violation of the Sixth
Amendment, a petitioner must show both that “counsel’s performance was
deficient” and that this “deficient performance prejudiced the defense.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). We address each prong in
turn.
        On the first prong of the Strickland test, courts apply “a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 689. The petitioner “must show that counsel’s
representation fell below an objective standard of reasonableness.” Id. at 688.
Counsel’s “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 it permeates the entire trial with obvious unfairness.” Pape v.
Thaler, 645 F.3d 281, 291 (5th Cir. 2011) (quoting Richards v. Quarterman,
566 F.3d 553, 564 (5th Cir. 2009)).


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                                 No. 15-30237
      The district court held that trial counsel’s failure to impeach the victims
with their CAC interviews was strategic. “[T]he trial strategy,” according to
the district court, was likely “to prevent those CAC interviews from being
shown because of their potential harm to petitioner’s defense at trial.” This
Court has held in the mitigation context that “a tactical decision not to pursue
and present potential mitigating evidence on the grounds that it is double-
edged in nature is objectively reasonable.” Rector v. Johnson, 120 F.3d 551, 564
(5th Cir. 1997). In Pape, this Court applied a similar “double-edged evidence”
rule in the impeachment context. 645 F.3d at 290. There, impeaching the
credibility of the defendant’s wife would have allowed the state to introduce
evidence of the defendant’s other crimes (namely, possession of child
pornography). Id. Because impeachment could have been more harmful than
helpful to the defendant, this Court held that the state habeas court did not
unreasonably apply Strickland in finding that counsel’s choice not to impeach
the wife’s credibility was reasonable. Id.
      Here, as in Pape, impeachment could have led to an adverse outcome—
the state playing the CAC tapes for the jury. As the magistrate judge found,
doing so would have forced the jury “to sit through yet another recitation of the
traumatic abuse . . . , only this time as recounted by the purported victims at
even younger and more innocent ages which, presumably, might have made
the abuse seem all the more harrowing.” Moreover, the CAC interviews did not
contain any exculpatory evidence. Cf. Beltran v. Cockrell, 294 F.3d 730, 734
(5th Cir. 2002) (finding counsel’s failure to impeach was deficient because the
impeachment evidence “had significant exculpatory value”). Even regarding
the one significant discrepancy between the interview and the trial, KP-1 made
it clear in her interview that she “wasn’t actually saying nothing happened at
all”; she meant that no abuse occurred on one specific day. Thus, it is at least
reasonably arguable that counsel’s stipulation to the CAC interviews’
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                                 No. 15-30237
consistency with trial testimony and his concomitant failure to impeach the
victims with these interviews were reasonable tactical decisions. See Richter,
562 U.S. at 105. The district court did not err in denying habeas relief on this
ground.
      On the second prong of the Strickland test, which neither the state
habeas court nor the district court addressed, “a challenger must demonstrate
‘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.’” Richter, 562
U.S. at 104 (quoting Strickland, 466 U.S. at 694). “The likelihood of a different
result must be substantial, not just conceivable.” Id. at 112.
      Reed has not demonstrated a reasonable probability that impeaching the
victims with their CAC interviews would have changed the outcome. First, the
CAC tapes themselves largely corroborated the victims’ trial testimony.
Second, as discussed above, playing the CAC tapes could have been harmful to
the defense. This Court has held that similarly double-edged evidence cannot
support a showing of prejudice under Strickland. See Dowthitt v. Johnson, 230
F.3d 733, 745 (5th Cir. 2000). Third, the victims likely would have appeared
credible even if trial counsel had emphasized the discrepancies between their
CAC interviews and trial testimony. The victims described their abuse to the
jury in painful and convincing detail. Their descriptions were consistent with
KP-2’s letter as well as Mayfield’s and Officer Smith’s accounts of what the
victims stated in May 2005. And the only impeachment evidence introduced by
defense counsel consisted of easily explainable denials and recantations. In
light of these facts, the discrepancies in the CAC interviews would not have




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                                     No. 15-30237
sown sufficient doubt about the victims’ credibility in the minds of the jurors. 3
Thus, trial counsel’s failure to impeach was not prejudicial.
                                 III. CONCLUSION
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




      3 Moreover, some physical evidence supported the victims’ accounts: Reed’s semen was
found on the carpet in KP-1’s and KP-2’s bedrooms.
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