Leroy Gregory, Jr. v. Rick Thaler, Director, Texas Department of Criminal Justice, Correctional…

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 08-20423
LEROY GREGORY, JR.,
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 Southern District of Texas
Before KING, JOLLY, and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge:
Leroy Gregory, Jr., proceeding pro se, appeals denial of federal habeas
relief from his state court conviction for possession of methamphetamine and
possession of pseudoephedrine with the intent to manufacture
methamphetamine. After exhausting state court proceedings, Gregory filed a
habeas petition in federal court pursuant to 28 U.S.C. § 2254. The district court
denied his petition and his request for a certificate of appealability (COA). We
United States Court of Appeals
Fifth Circuit
F I L E D
March 22, 2010
Charles R. Fulbruge III
Clerk
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granted in part his request for a COA regarding his ineffective assistance of
counsel claim. We AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
In 2003, Gregory and three friends, Clyde Dorsey, Jr., Cody Ray Hamilton,
and Robby Dale Han, were gathered at Dorsey’s home. Montgomery County
deputies proceeded to Dorsey’s residence to serve a felony warrant on Hamilton.
Dorsey gave the deputies permission to enter. Upon entering the residence, the
officers noticed there was “no lighting in the house at all” and smelled an
unfamiliar odor. They further observed Gregory lying on the couch to the left of
the front door. Hamilton was found in a corner in the right-hand back room.
After finding Hamilton, the officers brought everyone outside.
After accompanying Dorsey back into the house upon his request, the
officers found, in plain view, evidence of marijuana use. Officers also saw a clear
bottle with a separated liquid in it which they recognized as a possible
by-product of a methamphetamine lab, and noticed a chemical smell in the
house. The Special Investigative Unit (SIU) for the Drug Task Force was called
to process the scene, primarily because of the odor that was later determined to
be methamphetamine.
SIU detectives recognized that there was a clandestine methamphetamine
laboratory at the residence, with everything needed to manufacture
methamphetamine, including: (1) Ziploc bags, used in distributing the drugs,
containing a powdery substance; (2) a plastic tote box containing gallon-size
solvent cans, sports bottles that had substances in them, and a plastic hose
stained from use; (3) Red Devil lye and sodium hydroxide on the stove; and (4)
a sports bottle containing a blue-colored liquid consistent with a type of solvent;
and (5) large quantities of empty pseudoephedrine boxes and blister packs, the
precursor for manufacturing methamphetamine. Moreover, a latent print was
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Hamilton pleaded guilty to the possession of methamphetamine charge one week1
before Gregory’s trial. Dorsey pleaded guilty approximately one month after the trial.
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obtained from a quart-sized Coca-Cola bottle found on the floor of the back
bedroom on the left side of the house. That print was matched to the ring finger
on Gregory’s right hand and the substance in the bottle tested positive for
ephedrine.
The SIU detectives also recognized that the burn pile outside the house,
with several empty blister packs of cold medication in various stages of
incineration, was consistent with a clandestine methamphetamine lab (where
perpetrators attempt to destroy evidence by burning it). Items removed from
the site, such as coffee filters, solvents, and red phosphorous, are commonly used
in manufacturing methamphetamine. The detectives also identified a crystal
white powder as either processed pseudoephedrine or ephedrine, or finished
methamphetamine. An analysis of most of the recovered samples yielded
positive results for methamphetamine and pseudoephedrine
B. Procedural Background
In 2003, Gregory, Dorsey, Hamilton, and Han were charged in an
indictment with possession of methamphetamine and possession of
pseudoephedrine with the intent to manufacture methamphetamine.1
After a jury trial in January 2004, Gregory was convicted on both counts.
Subsequently, Gregory pleaded true to enhancement allegations in the
indictment regarding his two prior felony convictions for possession of a
controlled substance. As a result, the trial court sentenced him to life
imprisonment on each count; the sentences were ordered to run concurrently.
The conviction was affirmed on direct appeal in March 2005. Gregory v. State,
159 S.W.3d 254, 259-62 (Tex. App.—Beaumont, 2005). In August 2005, the
Texas Court of Criminal Appeals (TCCA) refused Gregory’s subsequent petition
for discretionary review.
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Gregory filed a state habeas application challenging his conviction,
arguing, inter alia, that trial counsel was ineffective for failing to call Dorsey and
Hamilton as witnesses because both would have testified that Gregory did not
know about the drugs in the residence. In support of the application, Gregory
submitted affidavits from Dorsey and Hamilton regarding the content of their
favorable testimony and their willingness to testify if they had been called as
witnesses. Upon the court’s order, Gregory’s trial counsel submitted a response
affidavit stating that he did not call Dorsey or Hamilton because (1) they were
accomplices whose testimony is considered inherently unreliable under Texas
law, (2) neither Dorsey nor Hamilton came forward with statements favorable
to Gregory either before the trial or within a month of the trial or sentencing;
and (3) a review of the prosecution’s files on the cases against Dorsey and
Hamilton did not reveal any statements supporting the claims made in the
affidavits. Without a hearing, the state trial court issued findings of fact and
conclusions of law denying Gregory’s application. The TCCA denied Gregory’s
application, without written order, based on the findings of the trial court.
Gregory then filed this § 2254 habeas petition in which he effectively
raised the same claims that he asserted in his state application. Specifically,
Gregory asserted that trial counsel was ineffective because he failed to
investigate or call Dorsey or Hamilton as potential witnesses. The district court
dismissed the petition and granted Respondent’s motion for summary judgment,
finding, in relevant part, that Gregory did not “present probative summary
judgment evidence that counsel’s professional judgment regarding the potential
use of the accomplices as witnesses was unreasonable under the circumstances.”
The district court sua sponte denied Gregory a COA.
In March 2009, we granted Gregory’s request for a COA as to one issue:
whether his trial counsel was ineffective for not interviewing Dorsey and
Hamilton and for not calling them as witnesses at trial. We denied his request
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for a COA on the remaining issues. Gregory timely filed his appeal, asserting
the ineffective assistance claim.
II. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), we
cannot grant Gregory’s habeas application with respect to any claim that was
adjudicated on the merits in state court unless the adjudication of the claim:
(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.
28 U.S.C. § 2254(d)(1)-(2).
Claims of ineffective assistance of counsel involve mixed questions of law
and fact and are governed by § 2254(d)(1). See Briseno v. Cockrell, 274 F.3d 204,
206-08 (5th Cir. 2001). The state court’s decision is “contrary to” the Supreme
Court’s clearly established precedent if the state court either “applies a rule that
contradicts the governing law set forth in [Supreme Court] cases,” or “confronts
a set of facts that are materially indistinguishable from a decision of [the
Supreme Court] and nevertheless arrives at a [different result].” Penry v.
Johnson, 532 U.S. 782, 792 (2001) (internal quotations and citations omitted).
The state court’s decision is “an unreasonable application” of the Supreme
Court’s clearly established precedent if it “correctly identifies the governing legal
rule but applies it unreasonably to the facts of a particular prisoner’s case.” Id.
(internal quotations and citations omitted). The state court’s factual
determinations “shall be presumed to be correct,” and the petitioner “shall have
the burden of rebutting the presumption of correctness by clear and convincing
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evidence.” Wesbrook v. Thaler, 585 F.3d 245, 251 (5th Cir. 2009) (citing § 2254(e)(1)).
In reviewing the denial of habeas relief, the court examines factual
findings for clear error, and it reviews, de novo, questions of law and mixed
questions of law and fact. Carty v. Thaler, 583 F.3d 244, 252-53 (5th Cir. 2009).
III. DISCUSSION
“In all criminal prosecutions, the accused shall enjoy the right . . . to have
the Assistance of Counsel for his defence.” U.S. CONST. amend VI. Under the
well-established Strickland test, Gregory must show (1) that his counsel’s
performance was deficient, and (2) that the deficient performance prejudiced his
defense. Strickland v. Washington, 466 U.S. 668, 689-94 (1984).
To establish deficient performance, Gregory must demonstrate that
“counsel’s representation ‘fell below an objective standard of reasonableness.’”
Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting Strickland, 466 U.S. at 688).
Counsel “is strongly presumed to have rendered adequate assistance and made
all significant decisions in the exercise of reasonable professional judgment.”
Strickland, 466 U.S. at 690. “[T]o establish prejudice, a defendant must show
that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Wiggins, 539 U.S.
at 534 (citation omitted). “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
An applicant “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.” United States v. Green, 882 F.2d
999, 1003 (5th Cir. 1989). To prevail on an ineffective assistance claim based
upon uncalled witnesses, an applicant must name the witness, demonstrate that
the witness would have testified, set out the content of the witness’s proposed
testimony, and show that the testimony would have been favorable. See
Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985).
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Claims of uncalled witnesses are disfavored, especially if the claim is
unsupported by evidence indicating the witnesses’s willingness to testify and the
substance of the proposed testimony. See Harrison v. Quarterman, 496 F.3d 419,
428 (5th Cir. 2007). The decision whether to present a witness is considered to
be essentially strategic, and “speculations as to what [uncalled] witnesses would
have testified is too uncertain.” Alexander, 775 F.2d at 602.
In this case, Gregory’s federal habeas petition included a brief paragraph
stating the following:
Petitioner submits that his trial counsel failed to investigate or call
Clyde Dorsey or Cody Hamilton as potential witnesses, providing
ineffective assistance of counsel, as had he called Dorsy [sic], he
would have testified that petitioner had simply slept over at his
house where the drugs and other paraphernalia had been discovered
and had no knowledge of same. Hamilton would have testified to
the same facts.
However, Gregory’s conclusory statements regarding the content of the uncalled
witnesses testimony are insufficient to demonstrate ineffective assistance. See
Green, 882 F.2d at 1003. In his pro se state habeas application, Gregory
attached Dorsey and Hamilton’s affidavits. In his pro se federal habeas petition,
however, he failed to include the affidavits for consideration by the district court.
We will not ordinarily enlarge the record on appeal to include material not
before the district court. See United States v. Flores, 887 F.2d 543, 546 (5th Cir.
1989). As the district court noted, Gregory’s failure to provide “competent
summary judgment evidence”—i.e., exhibits or affidavits—is fatal to his claim.
Even assuming the affidavits were included with Gregory’s federal habeas
petition, Gregory cannot meet his burden under AEDPA. “In any ineffectiveness
case, 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.” Strickland, 466 U.S. at 691. Here, the state court
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Indeed, our review of the record amply supports this result. To prevail on his claim,2
Gregory must demonstrate that Dorsey and Hamilton would have been available to testify.
See Alexander, 775 F.2d at 602. In order to help Gregory, however, Dorsey and Hamilton
would have had to testify about their own involvement in the methamphetamine lab and
would thereby have inculpated themselves in their own trials. It is therefore unlikely that
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assessed the affidavit that trial counsel submitted in response to Gregory’s
claims. In the affidavit, trial counsel stated that Dorsey and Hamilton were
accomplices who, under Texas law, would have been deemed corrupt and whose
testimony would have been inherently suspect, citing Virts v. State, 739 S.W.2d
25, 27 (Tex. Crim. App. 1987). He also stated that neither Dorsey nor Hamilton
had provided exculpatory statements or evidence prior to Gregory’s trial. Based
on this affidavit, the state court made a factual finding that the affidavit was
credible and that Gregory’s trial counsel concluded that Dorsey and Hamilton’s
testimony would be harmful to Gregory’s defense. Under AEDPA, we presume
the state court’s factual findings are correct unless Gregory presents clear and
convincing evidence to the contrary. See Westbrook, 585 F.3d at 251. As noted,
Gregory has not presented any evidence to rebut the presumption.
In addition, the state court concluded that Gregory failed to prove by a
preponderance of the evidence that: (1) he was denied his right to the effective
assistance of counsel and (2) trial counsel’s decision not to pursue the
co-defendants as witnesses prejudiced the outcome of the trial. Under AEDPA,
we review with deference “the ultimate legal conclusion that the state court
reached.” Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002). Without “the
distorting effects of hindsight,” Strickland, 466 U.S. at 689, the state court found
that trial counsel’s strategic decision to omit Dorsey and Hamilton’s potentially
harmful testimony was not deficient. Similarly, “consider[ing] the totality of the
evidence before the jury,” Strickland, 466 U.S. at 695, the state court concluded
that the outcome of Gregory’s trial was not undermined by trial counsel’s
decision. Our review of the record does not compel a different result.2
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either witness would have been available to testify on Gregory’s behalf.
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Accordingly, viewed through AEDPA’s deferential lens, the state court’s rulings
regarding trial counsel’s decision not to call Dorsey and Hamilton were not
contrary to or an unreasonable application of Strickland. See § 2254(d)(1).
IV. CONCLUSION
Based on the foregoing, Gregory has not shown that he is entitled to
habeas relief. Accordingly, we AFFIRM the district court.
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