     Case: 12-50280       Document: 00512194266         Page: 1     Date Filed: 04/02/2013




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

                                                                            FILED
                                                                            April 2, 2013

                                       No. 12-50280                        Lyle W. Cayce
                                                                                Clerk

GENTRIES THOMAS

                                                  Petitioner-Appellee
v.

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

                                                  Respondent-Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:10-CV-682


Before STEWART, Chief Judge, and SMITH and WIENER, Circuit Judges.
PER CURIAM:*
       This is an appeal from a district court’s grant of prisoner Gentries
Thomas’s petition for a writ of habeas corpus. Thomas was found guilty of
aggravated robbery in Texas court in October 2007 and currently is serving a 30-
year sentence for that crime. After exhausting his remedies in state court,
Thomas filed his 28 U.S.C. § 2254 petition in the United States District Court
for the Western District of Texas alleging, inter alia, ineffective assistance of


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-50280

counsel. That court granted his petition based on his trial counsel’s failure to
object to the prosecutor’s comments about (1) uncalled witnesses being afraid to
testify; and (2) Thomas’s confession to a cousin that was not admitted into
evidence. The State now appeals the district court’s grant of the writ. Satisfied
the state court did not unreasonably conclude that Thomas had failed to
demonstrate ineffective assistance of counsel, we REVERSE and DISMISS the
§ 2254 petition.


                          I. FACTS AND PROCEEDINGS
       This case arises out of a January 2007 robbery for which Thomas was
sentenced to 30 years of imprisonment. The victim, Billy Ray Lott, testified at
trial that on the day of the robbery, he had been driving around with an
acquaintance, Tamara Porter. Lott was carrying a wad of $1500 cash at the
time, which Porter had seen. Porter requested that Lott pull into a rest stop,
and he complied. Shortly thereafter, Thomas arrived and conversed with Porter.
When another car arrived at the rest stop, Porter instructed Lott to drive her
further up the road to another rest stop where she might finish her conversation
with Thomas, and Lott again complied. When Lott and Porter pulled into the
next rest stop, Thomas had already arrived. Porter asked, then insisted, that
Lott exit the car, and when he did, Thomas hit him on the back of the head eight
to ten times with a blunt object.1 Thomas and Porter searched Lott for the wad
of cash and, failing to find it, fled the scene. Lott, who had known Thomas since
he was a child, identified him as the attacker just hours after the incident and
again in the days that followed.
       Shortly after Thomas’s arrest, police obtained a sworn statement from
Porter in which she recounted the events of the robbery and Thomas’s role as the

       1
          Lott originally reported to an investigating officer that he was hit with a bat; later,
he insisted that it was some hard object contained within a sock. No weapon was ever found.

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                                     No. 12-50280

attacker.     Thomas’s cousin, Lavetta Harrison, also provided a statement
recounting Thomas’s confession to her mere days before his arrest. At trial,
however, neither Porter nor Harrison was available to testify, and the State
instead relied primarily on Lott’s testimony identifying Thomas as his attacker.
      At trial, Thomas’s counsel, Mercedes Kutcher, called three alibi
witnesses—Thomas’s wife, mother, and nine-year old daughter—to place him at
home celebrating his daughter’s birthday at the time of the attack. On cross-
examination, the prosecutor questioned Thomas’s mother about whether people
in the community were afraid of her son.              This followed the prosecutor’s
conversation with a juror during voir dire in which the prosecutor suggested that
the State’s witnesses were few because others were afraid to testify. In her
closing statements, the prosecutor again suggested that additional witnesses
might have testified but for their fear of the defendant. Defense counsel did not
object to the remarks during voir dire, cross-examination, or closing statements.
On cross-examination, the prosecutor also asked Thomas’s mother, and later his
wife, whether they would be surprised by Thomas’s confession to his cousin
Lavetta Harrison. Although Harrison’s statement was not in evidence, defense
counsel again did not object. Both witnesses suggested that Harrison was not
telling the truth.
      After deliberating for 74 minutes, the jury found Thomas guilty of
aggravated robbery. The conviction was affirmed in both the intermediate
appellate court and the Court of Criminal Appeals (CCA).2
      Thomas’s trial counsel died three days after the CCA’s mandate issued.
Thomas filed a state habeas petition pro se, contending that his counsel had
provided ineffective assistance by, inter alia, (1) failing to object to the
prosecutor’s questions and remarks about potential witnesses being afraid of


      2
          Thomas was represented by other counsel in these appeals.

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                                       No. 12-50280

Thomas, and (2) failing to object to the prosecutor’s questions regarding
Thomas’s confession.         To support his ineffective assistance claim, Thomas
attached excerpts of the trial transcript to his petition and requested an
evidentiary hearing. The State did not respond to the petition and the trial court
did not act on it, so the application was transmitted to the CCA pursuant to a
state law equating a trial court’s silence with a finding that no controverted and
unresolved material facts remained.3 The CCA denied the habeas petition
without reasons.
      Thomas then filed a substantially similar habeas petition in the district
court and again requested an evidentiary hearing. The court found no merit in
contentions not relevant to this appeal, but granted Thomas’s petition after
concluding that he had established ineffective assistance based on his defense
counsel’s failure to object to the prosecutor’s questions and remarks about absent
witnesses’ fear of Thomas and his confession to his cousin.
      The State now appeals the district court’s grant of Thomas’s habeas
petition.     It contends that Thomas failed to establish that he received
constitutionally ineffective assistance, and that even if he had shown a
constitutional violation, he nevertheless failed to surmount the Antiterrorism
and Effective Death Penalty Act’s (AEDPA) relitigation bar.


                                     II. ANALYSIS
A.    Standard of Review
      In reviewing a grant of habeas relief, we examine the district court’s
factual findings for clear error and issues of law de novo.4 As this case is subject


      3
          See TEX. CODE OF CRIM. P. Art. 11.07, § 3(c).
      4
          Barrientes v. Johnson, 221 F.3d 741, 750 (5th Cir. 2000).

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to the AEDPA’s strictures, we review de novo whether the district court afforded
appropriate deference to the CCA’s decision.


B.     AEDPA Deference
       To establish a cognizable claim of ineffective assistance of counsel, a
claimant must satisfy both prongs of Strickland v. Washington’s5 two-part test,
viz., that (1) counsel’s performance was deficient and (2) that deficient
performance caused actual prejudice to the petitioner’s defense. The district
court is not to consider the question de novo, however, when a state court has
already adjudicated the claim on the merits. Rather, AEDPA’s relitigation bar
requires that the petition be denied unless the state’s adjudication (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.”6 The question under AEDPA “is not whether a federal court
believes the state court’s determination was incorrect but whether that
determination was unreasonable—a substantially higher threshold.”7 And
because Strickland and § 2254(d) both impose highly deferential standards,
“when the two apply in tandem, review is ‘doubly’ so[.]”8




       5
           466 U.S. 668 (1984).
       6
           28 U.S.C. § 2254(d).
       7
           Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
       8
        Harrington v. Richter, 131 S. Ct. 770, 788 (2011) (quoting Knowles v. Mirzayance, 556
U.S. 111, 123 (2009)).

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       The Supreme Court recently emphasized in Harrington v. Richter the way
that a federal court is to consider an ineffective assistance of counsel claim
raised in a habeas petition subject to AEDPA’s strictures:
       The pivotal question is whether the state court’s application of the
       Strickland standard was unreasonable. This is different from
       asking whether defense counsel’s performance fell below
       Strickland’s standard. Were that the inquiry, the analysis would be
       no different than if, for example, this Court were adjudicating a
       Strickland claim on direct review of a criminal conviction in a
       United States district court. Under AEDPA, though, it is a
       necessary premise that the two questions are different. For
       purposes of § 2254(d)(1), “an unreasonable application of federal law
       is different from an incorrect application of federal law.” A state
       court must be granted a deference and latitude that are not in
       operation when the case involves review under the Strickland
       standard itself.9

The Richter Court criticized the Ninth Circuit for failing to disentangle the
constitutional question under Strickland from “the only question that matters
under § 2254(d)”10—whether fairminded jurists could disagree that any
arguments or theories that supported, or even could have supported, the state
court’s decision are inconsistent with a prior holding of the Supreme Court.11
       The district court in this case performed its analysis just as did the Ninth
Circuit in Richter: It considered Thomas’s claim under the two-pronged
Strickland test and, finding merit in some of Thomas’s contentions, concluded


       9
            Id. at 785 (quoting Williams v. Taylor, 529 U.S. 362, 410 (2000)).
       10
            Id. at 786 (quoting Lockyer v. Andrade, 538 U.S. 63, 71 (2003)).
       11
          See id. (concluding that it was “not apparent how the Court of Appeals’ analysis
would have been any different without AEDPA[,]” since that court “explicitly conducted a de
novo review, and after finding a Strickland violation, [] declared, without further explanation,
that the state court’s decision to the contrary constituted an unreasonable application of
Strickland”) (internal quotation marks omitted).

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summarily: “The state courts’ determination that Thomas was not denied the
effective assistance of counsel is contrary to and amounted to an unreasonable
application of clearly-established federal law.” Although the court cited Richter
in setting out its standard of review, it provided no substantive analysis of the
reasonableness of the CCA’s adjudication. As the Richter Court noted, “AEDPA
demands more.”12 Thus, after we consider the merits of Thomas’s constitutional
claim under Strickland, we then answer AEDPA’s statutory question whether
the CCA’s denial of habeas was reasonable.13


C.     Strickland Standard
       A petitioner fails to show a constitutional violation under Strickland
unless he demonstrates both that his counsel’s performance was deficient and
that the deficient performance actually prejudiced his defense. Satisfying the
former prong requires that “counsel’s representation fell below an objective
standard of reasonableness.”14 Courts must apply a “strong presumption that
counsel      performed      adequately       and    exercised    reasonable       professional
judgment[,]”15 making every effort to “eliminate the distorting effects of


       12
            Id.
       13
           We consider Thomas’s ineffective assistance claim through the lens of § 2254(d),
cognizant that (1) AEDPA deference applies only to those claims previously “adjudicated on
the merits” in state court proceedings, and (2) the CCA in this case denied Thomas’s habeas
petition without reasons. “Where a state court's decision is unaccompanied by an explanation,
the habeas petitioner's burden still must be met by showing there was no reasonable basis for
the state court to deny relief.” Id. at 784. Indeed, a state court need not cite or even be aware
of Supreme Court case law to receive § 2254(d) deference. Id. (citing Early v. Packer, 537 U.S.
3, 8 (2002) (per curiam)).
       14
            Strickland, 466 U.S. at 688.
       15
            Titsworth v. Dretke, 401 F.3d 301, 310 (5th Cir. 2005) (citing Strickland, 466 U.S.
at 689).

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                                      No. 12-50280

hindsight[.]”16 Thus, a “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.”17
       As the State asserts, the district court in this case failed to indulge the
possibility that counsel’s silence during voir dire, cross-examination, and closing
remarks might have been based on calculated trial strategy. Indeed, panels
from this court have recognized that deciding whether to object before a jury is
a quintessential matter of trial strategy not to be second-guessed.18 Here,
counsel’s decision to forgo objection to the prosecutor’s remarks about her client’s
confession to his cousin was not unreasonable: No confession had been admitted
into evidence, and counsel could have reasoned that objecting would have
sharpened the jury’s focus on the prosecutor’s fleeting remarks. Objecting also
might have appeared to jurors to be an effort to hide the ball, a devastating
consequence for a defense relying largely on jurors’ assessments of the veracity


       16
          United States v. Harris, 408 F.3d 186, 189 (5th Cir. 2005) (quoting Strickland, 466
U.S. at 689).
       17
          Virgil v. Dretke, 446 F.3d 598, 608 (5th Cir. 2006) (quoting Johnson v. Dretke, 394
F.3d 332, 337 (5th Cir. 2004)).
       18
           See, e.g., Hernandez v. Thaler, 463 F. App’x 349, 356 (5th Cir. 2012) (counsel’s
decision not to object to prosecutor’s statement during closing that suggested the victims’
families would want a death sentence was not an unreasonable trial strategy when voicing an
objection might, for example, undermine the legitimacy of the lawyer’s own emotional appeals
to spare his client’s life); Charles v. Thaler, 629 F.3d 494, 502 (5th Cir. 2011) (counsel’s
decision not to object to adverse witness testimony was not an unreasonable trial strategy
when doing so would draw undue attention to that harmful testimony); Hernandez v. Thaler,
398 F. App’x 81, 87 (5th Cir. 2010) (counsel’s decision not to object to the prosecutor’s
mischaracterization of witness testimony during closing argument was not unreasonable
strategy when objecting would draw undue attention to that testimony); see also Drew v.
Collins, 964 F.2d 411, 423 (5th Cir. 1992) (noting, in a pre-AEDPA case, that a “decision not
to object to a closing argument is a matter of trial strategy”).

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                                          No. 12-50280

of alibi witnesses and the narrative created by defense counsel.19 Likewise,
Thomas’s counsel did not act unreasonably in failing to object to the prosecutor’s
suggestions that additional witnesses were unavailable to testify because they
were afraid of the defendant: Knowing the jury would hear from Thomas’s
mother, wife, and daughter, his counsel might have reasoned that their
supporting presence and alibi stories would dispel any notion of Thomas as a
frightening man. In such a case, objecting might have harmed the defense.
       Even were we to conclude that these were unreasonable trial tactics,
affirming the district court would require that we conclude additionally that
jurists of reason could not disagree with us. As the Supreme Court has noted,
“[i]f this standard is difficult to meet, that is because it was meant to be.”20
Having found that the CCA’s decision was not unreasonable, we need not
consider the prejudice prong under Strickland.


D.     Evidentiary Hearing
       We note, finally, that no court has granted Thomas an evidentiary hearing
to develop his ineffective assistance claim. Thomas requested such a hearing
before the state habeas court, yet his request was denied without reasons given,
as was his petition itself. Thomas then submitted a lengthy letter to the federal
district court reiterating his request for a hearing to develop his claim. The
district court granted Thomas’s habeas petition without a hearing, based on
counsel’s performance as manifest in the trial transcript alone. Although the


       19
           See, e.g., Rivas v. Thaler, 432 F. App’x 395, 404 (5th Cir. 2011) (state habeas court
was not unreasonable in determining that lawyer’s decision to “object as little as possible on
cross-examination in order to appear open and honest with the jury” was not unreasonable
trial strategy).
       20
            Richter, 131 S. Ct. at 786.

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                                        No. 12-50280

parties do not brief the issue, we consider whether, in reversing the district
court’s grant of a writ of habeas corpus, we should remand to that court for an
evidentiary hearing. We conclude that remand is not warranted.
       Following the Supreme Court’s 2011 decision in Cullen v. Pinholster,21
federal habeas review under 2254(d)(1) “is limited to the record that was before
the state court that adjudicated the claim on the merits[,]”22 even when a federal
court evidentiary hearing is not otherwise barred by § 2254(e). Although the
state habeas court declined to hold a hearing before denying Thomas’s petition,
Thomas had not presented, by affidavit or otherwise, evidence of his counsel’s
ineffective assistance aside from the trial transcript itself.23
       Indeed, just what evidence even could have supported his ineffective
assistance claim once his lawyer died is itself uncertain. The Supreme Court has
directed that we “indulge the strong presumption that counsel made all
significant decisions in the exercise of reasonable professional judgment[,]”24 i.e.,
that we “not simply . . . give the attorney[] the benefit of the doubt, but . . .


       21
            131 S. Ct. 1388 (2011).
       22
          Id. at 1398. Our review in this case comes through the lens of 2254(d)(1) only
because we are instructed to assume that the CCA’s denial without reasons constitutes an
“adjudication on the merits.” See Richter, 131 S. Ct. at 784-85 (“When a federal claim has been
presented to a state court and the state court has denied relief, it may be presumed that the
state court adjudicated the claim on the merits in the absence of any indication or state-law
procedural principles to the contrary.”).
       23
          Even if we were not limited by Pinholster to the state court record, Thomas’s right
to a hearing under § 2254(e)(2) would be doubtful at best, given his failure to present evidence
to the state court in support of his claim of ineffective assistance of counsel. See Dowthitt v.
Johnson, 230 F.3d 733, 758 (5th Cir. 2000) (merely requesting evidentiary hearings in state
habeas proceedings does not excuse failure to develop those claims under § 2254(e)(2);
petitioner did not present affidavits from family members in state court habeas petition or
show that they could not be obtained absent an order for discovery or a hearing).
       24
            Pinholster, 131 S. Ct. at 1407 (internal quotation marks and brackets omitted).

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                                          No. 12-50280

affirmatively entertain the range of possible reasons [Thomas’s] counsel may
have had for proceeding as [she] did[.]”25 The Court has read Strickland as
“call[ing] for an inquiry into the objective reasonableness of counsel’s
performance, not counsel’s subjective state of mind[,]”26 in the same opinion that
it purported to affirm that a court still “may not indulge ‘post hoc rationalization’
for counsel’s decisionmaking that contradicts the available evidence of counsel’s
actions[.]”27 Reconciling those statements is no easy task, and it is unclear how,
short of a candid admission that he was unfamiliar with the law, a lawyer might
be deemed to have provided ineffective assistance for failing to raise an objection
when strategy could conceivably justify silence. As Thomas’s deceased lawyer
cannot provide answers, the reasons for her decisions at trial—if indeed they
were “decisions” at all—will remain forever unknown.                       A federal court
evidentiary hearing would do little good, if any, even if the facts there discovered
could be considered.


E.     Conclusion
       Because the trial transcript—the only evidence of deficient performance
in the state and federal court records—does not indicate that defense counsel
acted unreasonably in failing to object to the prosecutor’s remarks, the CCA was
not unreasonable in denying Thomas’s petition. We therefore REVERSE the
judgment of the district court and DISMISS Thomas’s § 2254 petition.




       25
            Id. (internal quotation marks and brackets omitted).
       26
            Richter, 131 S. Ct. at 790.
       27
            Id. (quoting Wiggins v. Smith, 539 U.S. 510, 526-27 (2003)).

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