     Case: 08-40450     Document: 00511076744          Page: 1    Date Filed: 04/12/2010




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

                                                  FILED
                                                                            April 12, 2010

                                       No. 08-40450                         Lyle W. Cayce
                                                                                 Clerk

PATRICK DEON DAVIS,

                                                   Petitioner - Appellant
v.

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

                                                   Respondent - Appellee




                   Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 6:07-CV-397


Before JONES, Chief Judge, and BENAVIDES and PRADO, Circuit Judges.
PER CURIAM:*
        Petitioner Patrick Deon Davis (“Davis”), convicted of attempted murder,
aggravated assault, and possession of a firearm by a felon and sentenced to
concurrent terms of imprisonment of 40, 30, and 10 years, respectively, appeals
the denial of federal habeas relief. Davis contends that he received ineffective
assistance of counsel based on an alleged conflict of interest with his attorney.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-40450      Document: 00511076744   Page: 2   Date Filed: 04/12/2010

                                  No. 08-40450

Additionally, Davis argues that the district court erred in applying the
concurrent sentence doctrine to vacate his aggravated assault conviction and
sentence and to decline review of whether he received ineffective assistance of
counsel for his counsel’s failure to advance a double jeopardy claim during trial
or challenge the indictment as multiplicitous. On March 24, 2009, this Court
granted a Certificate of Appealability (“COA”) with respect to these claims. See
28 U.S.C. § 2253(c).
      Davis has not shown an actual conflict or that an actual conflict adversely
affected him. Nor has Davis shown that the district court’s decision to vacate his
aggravated assault conviction and sentence was error. Because the conviction
for both attempted murder and aggravated assault in this case violated the
provisions of the Double Jeopardy Clause, the district court was correct in
vacating the aggravated assault conviction and denying relief on the attempted
murder charge.
      I. BACKGROUND
      Tim Owens, his aunt, Demond Owens, and some of their friends drove to
Sharon Fletcher’s house. Upon arrival, Tim and Demond exited their vehicle to
go to the house. Appellant Davis and several other men surrounded and opened
fire on Tim. The resulting shotgun pellets blinded him. At the scene of the
shooting, police recovered spent shell casings, including a spent 20 gauge
shotgun shell and several spent .380 shells.
      Davis was tried before a jury and found guilty on charges of attempted
murder, aggravated assault, and unlawful possession of a firearm by a felon. On
March 11, 2005, Davis was sentenced to concurrent terms of 40 years for
attempted murder, 30 years for aggravated assault, and 10 years for unlawful
possession of a firearm by a felon.
      After his state appeal and state habeas remedies were denied, Davis filed
the instant federal habeas petition. The district court denied habeas corpus

                                        2
   Case: 08-40450    Document: 00511076744       Page: 3   Date Filed: 04/12/2010

                                   No. 08-40450

relief as to all claims, except the claim of ineffective assistance of counsel based
on trial and appellate counsel’s failure to raise double jeopardy claims.
Specifically, Davis argued that double jeopardy barred a conviction for both
aggravated assault and attempted murder. The State conceded that double
jeopardy barred a conviction for both attempted murder and aggravated assault
under the indictment brought against Davis. Based on the State’s concession
and request, the district court vacated the aggravated assault conviction on the
basis of the concurrent sentence doctrine and denied relief as to the attempted
murder conviction rather than find a violation and grant relief. This Court
granted Davis’s request to issue a COA with respect to whether Davis validly
waived his right to conflict-free representation and, if not, whether Davis
received ineffective assistance of counsel based on the alleged conflict of interest.
This Court also granted a COA with respect to whether the district court’s
application of the concurrent sentence doctrine as applied to Davis was error.
      II.    STANDARD OF REVIEW
      In examining requests for federal habeas corpus relief, we review for clear
error the findings of facts made by the district court. Bostick v. Quarterman, 580
F.3d 303, 306 (5th Cir. 2009) (citing Myers v. Johnson, 76 F.3d 1330, 1333 (5th
Cir. 1996)). We review de novo the district court’s conclusions of law. See id.
Pursuant to the federal habeas statute, as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), we defer to a state court’s
adjudication of a petitioner’s claims on the merits unless the state court’s
decision was: (1) “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); see Avila v. Quarterman, 560 F.3d 299, 304
(5th Cir. 2009); see also Woodford v. Visciotti, 537 U.S. 19, 27 (2002) (noting that

                                         3
   Case: 08-40450     Document: 00511076744      Page: 4    Date Filed: 04/12/2010

                                   No. 08-40450

federal habeas relief is merited only if the state court decision is incorrect and
objectively unreasonable).      A state court’s decision is contrary to clearly
established federal law if it reaches a legal conclusion in direct conflict with a
prior Supreme Court decision or if it reaches a different conclusion than the
Supreme Court based on materially indistinguishable facts. See Avila, 560 F.3d
at 304 (citing Williams v. Taylor, 529 U.S. 362, 404-08 (2000)). The state court’s
findings of fact are presumed to be correct. Id. Thus, the petitioner has the
burden to rebut this presumption with clear and convincing evidence. Id. (citing
Valdez v. Cockrell, 274 F.3d 941, 947 (5th Cir. 2001)).
        III.   INEFFECTIVE ASSISTANCE OF COUNSEL
        To establish ineffective assistance of counsel, Davis must show (1) defense
counsel’s performance was deficient and (2) this deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). We
must find that trial counsel “made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment.” Id. The
Supreme Court instructs courts to look at the “norms of practice as reflected in
American Bar Association standards” and to consider “all the circumstances” of
a case. Id. at 688. While “[j]udicial scrutiny of counsel’s performance must be
highly deferential,” Davis can demonstrate deficient performance if he shows
“that    counsel’s   representation    fell   below   an   objective   standard      of
reasonableness.” Id. at 688-89. However, “[t]here is a ‘strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance.’” United States v. Webster, 392 F.3d 787, 793 (5th Cir. 2004) (quoting
Strickland, 466 U.S. at 689).         Strickland’s “prejudice” prong requires a
reasonable probability that, but for the deficient performance of his trial counsel,
the outcome of his trial would have been different. Strickland, 466 U.S. at 694.
“A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Id.

                                          4
   Case: 08-40450     Document: 00511076744      Page: 5    Date Filed: 04/12/2010

                                   No. 08-40450

       Our review of the record provides little support that the district court
erred in finding that Davis waived his Sixth Amendment claim by insisting on
Cargill’s continued representation in the state trial court at a hearing at which
potential conflicts were discussed.      However, we need not rely on waiver.
Rather, Davis’s inability to show that an actual conflict existed and that he was
adversely affected by such conflict dooms his position. A claim for a conflict of
interest based on multiple representation requires the petitioner to show that
i) counsel actively represented conflicting interests and ii) the conflict of interest
adversely affected counsel’s performance. Beets v. Scott, 65 F.3d 1258, 1265-66
(5th Cir. 1995) (en banc); see Cuyler v. Sullivan, 446 U.S. 335, 348-50 (1980).
Multiple representation does not always create an impermissible conflict.
United States v. Culverhouse, 507 F.3d 888, 892 (5th Cir. 2007). A speculative
or potential conflict is not enough; rather, a conflict exists when counsel is
compelled to compromise duties of loyalty to his client. See Bostick, 580 F.3d at
307.
       An actual conflict exists if defense counsel is in a position of divided
loyalties, see United States v. Infante, 404 F.3d 376, 392 (2005), that results in
counsel knowing his clients’ interests diverge and that requires him to choose
between the interests or compromise his duty of loyalty, Culverhouse, 507 F.3d
at 893. If counsel is burdened with an actual conflict of interest, prejudice is
presumed once the applicant shows both that counsel acted under the influence
of the conflict and that counsel’s actions adversely affected the representation.
Id. at 892.     A conclusory allegation of an actual conflict is insufficient for
obtaining habeas corpus relief. Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir.
2000). An “adverse effect” is established with evidence that presents a plausible
defense strategy or tactic that could have been pursued but for the actual
conflict. Id.



                                          5
   Case: 08-40450    Document: 00511076744       Page: 6   Date Filed: 04/12/2010

                                   No. 08-40450

      Davis contends that Cargill’s representation of Gross and Oliver was a
conflict that resulted in Cargill not calling them to testify as witnesses in Davis’s
defense. Prior to Davis’s trial, Oliver had testified at Davis’s parole hearing that
Davis “was not there on the night of the shooting.” Cargill provided an affidavit
with the following response:
      Mr. Davis hired me because I was representing the other
      defendants. I do not believe there existed an actual conflict of
      interest. LaMarvin Gross and Robin Oliver never planned to testify
      that Mr. Davis was not there. In fact, they would have testified to
      the contrary. Mr. Davis admitted to counsel that he was there, but
      not involved in the shooting but wanted to pursue the alibi defense
      to avoid parole revocation.

While Davis asserts that Gross and Oliver would have testified on his behalf if
asked, he does not support his assertion. See Boyd v. Estelle, 661 F.2d 388, 390
(5th Cir. 1981) (stating that uncalled witness complaints are not favored because
of the speculative nature of the alleged testimony and trial strategy that occurs).
Davis also did not provide affidavits executed by either of the two co-defendants
stating their willingness to testify and the content of their testimony.
Conclusory assertions of a conflict are not enough for habeas relief. See Perillo,
205 F.3d at 781; Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983). By failing
to present evidence that establishes a plausible defense strategy or tactic that
could have been pursued but for the actual conflict, Davis has not shown an
actual conflict that adversely affected him. Habeas relief based on his conflict
claim is denied.
      IV.    CONCURRENT SENTENCE DOCTRINE
      We also granted a COA to determine whether the district court’s decision
to apply the concurrent sentence doctrine and to decline review of whether Davis
received ineffective assistance of counsel for his counsel’s failure to advance a
double jeopardy claim during trial or challenge the indictment as multiplicitous



                                         6
   Case: 08-40450    Document: 00511076744       Page: 7   Date Filed: 04/12/2010

                                    No. 08-40450

was error.   The concurrent sentence doctrine is a tool of judicial economy.
United States v. Stovall, 825 F.2d 817, 824 (5th Cir. 1987) (citing Benton v.
Maryland, 395 U.S. 784, 791 (1969)). Under this doctrine, the existence of one
valid sentence makes unnecessary the review of other sentences that run
concurrently with it. Id. We have applied this doctrine in a variety of cases,
including cases with claims of Double Jeopardy violations. See id.; see also Scott
v. Louisiana, 934 F.2d 631, 633-35 (5th Cir. 1991); Williams v. Maggio, 714 F.2d
554, 555-56 (5th Cir. 1983) (“even assuming that he could [prevail on the merits
of his double jeopardy claim for duplicative convictions], the maximum habeas
relief available would be the invalidation of one of the sentences . . .”); Dennis v.
Hopper, 548 F.2d 589, 590 (5th Cir. 1977); Rogers v. Wainwright, 394 F.2d 492,
493 (5th Cir. 1968) (per curiam).
      Davis’s central claim against the use of the concurrent sentence doctrine
is that his case should be remanded for resentencing rather than having his
aggravated assault conviction and sentence vacated because his counsel failed
to raise a double jeopardy claim in the trial court. The State concedes, and we
agree, that the conviction was an unreasonable application of federal law and a
violation of double jeopardy:
      Here, Davis’ indictment alleged that he committed both the
      attempted murder and aggravated assault counts by shooting Tim
      Owens with a firearm. Ex Parte Davis, at 81-83. This is clearly the
      same conduct: thus, Davis’ aggravated assault offense was included
      in the attempted murder offense, and his convictions and sentences
      for both offenses are jeopardy-barred under Texas law.

Our review of the record and the State’s concession demonstrate that Davis is
not entitled to further relief. We need not determine whether the doctrine is
applicable for a state court conviction after AEDPA because the remedy in both
federal and Texas state courts for a defendant subjected to multiple
punishments for the same conduct is to affirm the conviction for the most serious


                                         7
   Case: 08-40450    Document: 00511076744      Page: 8     Date Filed: 04/12/2010

                                  No. 08-40450

offense and vacate the other included convictions.1 See, e.g., Bigon v. State, 252
S.W.3d 360, 372 (Tex. Crim. App. 2008). The most serious offense is the offense
in which the greatest sentence was assessed. Id. at 373. Davis’s attempted
murder conviction carried the greatest sentence.          Thus, Davis received the
maximum habeas relief available when the district court vacated his aggravated
assault conviction. See Scott, 934 F.2d at 633; Williams, 714 F.2d at 555-56;
Dennis, 548 F.2d at 590; Rogers, 394 F.2d at 493.
      Because the vacatur of the aggravated assault conviction was proper for
the instant double jeopardy conviction, the judgment of the district court is
AFFIRMED.




      1
       Similarly, in federal court, when a defendant is improperly convicted for
a lesser included offense, we have held that the proper remedy is to leave the
conviction and sentence for the greater offense intact and vacate the conviction
and sentence on the lesser included offense. United States v. Buckley, 586 F.2d
498, 505 (5th Cir. 1978). If the included convictions do not lead the trial court to
impose a harsher sentence than it would have in the absence of such convictions,
remand for resentencing is unnecessary. See id. (citing United States v. Slutsky,
487 F.2d 832, 845-46 n.18 (2d Cir. 1973)).


                                         8
