UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________________________
No. 00-31342 ______________________________
KEVIN ANDERSON,
Appellant
VERSUS
BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,
Appellee
___________________________________________________
Appeal from the United States District Court For the Eastern District of Louisiana (99-CV-1415) ___________________________________________________
December 18, 2001 Before JOLLY and PARKER, Circuit Judges, and MILLS*, District Judge.
PER CURIAM:**
The Appellant, Kevin Anderson (“Anderson”), seeks a writ of
habeas corpus due to ineffective assistance of counsel. He argues
* District Judge of the Central District of Illinois, sitting by designation. ** 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
1 that he lost his trial for armed robbery and attempted murder
because his trial counsel failed to object to the introduction of
certain inadmissible hearsay testimony. We conclude that it was
not unreasonable for the state court to find that Anderson was not
prejudiced by trial counsel’s error. Therefore, we DENY the
petition.
I. FACTS AND PROCEDURAL HISTORY
On February 4, 1993, an Orleans Parish jury convicted Anderson
of the armed robbery and attempted first degree murder of George
Lewis (“Lewis”). The conviction was based upon the following
evidence.
On November 8, 1991, Lewis and his cousin, Patrick Leon
(“Leon”), were riding their bikes. Lewis was stopped by an
individual, armed with a gun, who attempted to rob him of his Los
Angeles Raiders starter jacket. The individual was later
identified by both Leon and Lewis as Brian Bordenave. When Lewis
resisted the robbery, Bordenave opened fire, shooting Lewis in the
hand. As Lewis attempted to escape, Bordenave shot Lewis two more
times. After Lewis collapsed, Bordenave took the jacket. He then
left in a gray-blue station wagon occupied by two other
individuals.
At trial, both Lewis and Leon testified that, when Bordenave
stopped Lewis, a second individual was standing some distance away.
This individual urged Bordenave to “get the jacket” and moved
2 closer to him in a gesture of support. After the shooting and
robbery, the second individual joined the gunman in the station
wagon where they were driven away by a third party. Although Lewis
never could identify this second individual, Leon identified
Anderson as the second individual.
On November 13, 1991, New Orleans Police Officers attempted to
stop the gray-blue station wagon for license plate violations. The
driver of the station wagon tried to escape, but the police trapped
the station wagon. Three individuals quickly exited and attempted
to escape from the police on foot. The police caught two of the
three individuals, Bordenave and Jerome Eggerson. The third
individual escaped. No police officer was ever able to identify
the third individual.
At trial, the State introduced testimony about the November
13, 1991 incident from Officer Kenny Watzke. Officer Watzke
testified that the third individual pointed a gun at him during his
escape. More importantly, he testified that Jerome Eggerson made
an out-of-court statement which identified Anderson as the third
individual involved in the car chase incident.3 This hearsay
3 Eggerson’s identification of Anderson was actually introduced to the jury in an indirect manner. In response to a question about who was in the back seat of the station wagon, Officer Watzke stated that it was Anderson. However, Officer Watzke admitted that he could not personally identify Anderson as the individual in the back seat of the vehicle. He merely relied on Eggerson’s identification of Anderson. It is undisputed that Eggerson did not testify during court. Therefore, it is clear that Officer Watzke’s testimony placing Anderson in the vehicle was hearsay testimony.
3 testimony was not objected to by trial counsel for Anderson.
Finally, the State introduced evidence that the police stopped a
cab in which Anderson was riding on November 15, 1991. Police
officers testified that Anderson attempted to evade police, but was
subsequently apprehended. Anderson was then arrested for
possession of two concealed weapons.
Anderson appealed his conviction to the Louisiana Fourth
Circuit Court of Appeals. The Fourth Circuit reversed Anderson’s
conviction for the attempted first degree murder of Mr. Lewis due
to insufficient evidence and vacated his sentence on that charge.
The appellate court also reversed Anderson’s conviction for armed
robbery because the evidence concerning the November 13 and 15
incidents was inadmissible “other crimes” evidence and its
introduction was not harmless error. The Fourth Circuit concluded
that Leon’s positive identification of Anderson was not so
overwhelming as to establish beyond a reasonable doubt that the
jury verdict would have been the same without the damaging “other
crimes” evidence.
After granting the State’s writ application, the Louisiana
Supreme Court reversed the Fourth Circuit’s decision on the
admissibility of the “other crimes” evidence, and reinstated both
Anderson’s armed robbery conviction and sentence and attempted
murder conviction, albeit modified to attempted second degree
4 murder. After the reinstatement of the convictions, Anderson
sought post-conviction relief in a Louisiana trial court. He
argued that his constitutional right to effective assistance of
counsel had been violated because his trial counsel had not
objected to inadmissible hearsay evidence. The trial court denied
the relief requested. Anderson appealed to the Louisiana Fourth
Circuit Court of Appeals once again.
The Fourth Circuit assessed Anderson’s ineffective assistance
of counsel claim under the two-part test outlined in Strickland v.
Washington, 466 U.S. 668 (1994). The Fourth Circuit determined
that trial counsel’s failure to object to the inadmissible hearsay
evidence was deficient, however, it also found that Anderson was
not prejudiced by the failure to object. It, therefore, denied the
ineffective assistance of counsel claim.
Anderson subsequently filed his application for writ of habeas
corpus under 28 U.S.C. § 2254 in the United States District Court
for the Eastern District of Louisiana. Anderson made the same
ineffective assistance of counsel argument. The district court
also rejected his contention, finding that trial counsel’s error
was not sufficiently prejudicial under Strickland. Anderson
appealed to our court.
II. JURISDICTION
This is an appeal from the final order of the district court
denying habeas corpus relief. The district court issued a
5 certificate of appealability. We have jurisdiction. See 28 U.S.C.
§ 2253.
III. STANDARD OF REVIEW
Under the 1996 Antiterrorism and Effective Death Penalty Act
(“AEDPA”), we cannot issue a writ of habeas corpus concerning “any
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________________________
No. 00-31342 ______________________________
KEVIN ANDERSON,
Appellant
VERSUS
BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,
Appellee
___________________________________________________
Appeal from the United States District Court For the Eastern District of Louisiana (99-CV-1415) ___________________________________________________
December 18, 2001 Before JOLLY and PARKER, Circuit Judges, and MILLS*, District Judge.
PER CURIAM:**
The Appellant, Kevin Anderson (“Anderson”), seeks a writ of
habeas corpus due to ineffective assistance of counsel. He argues
* District Judge of the Central District of Illinois, sitting by designation. ** 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.
1 that he lost his trial for armed robbery and attempted murder
because his trial counsel failed to object to the introduction of
certain inadmissible hearsay testimony. We conclude that it was
not unreasonable for the state court to find that Anderson was not
prejudiced by trial counsel’s error. Therefore, we DENY the
petition.
I. FACTS AND PROCEDURAL HISTORY
On February 4, 1993, an Orleans Parish jury convicted Anderson
of the armed robbery and attempted first degree murder of George
Lewis (“Lewis”). The conviction was based upon the following
evidence.
On November 8, 1991, Lewis and his cousin, Patrick Leon
(“Leon”), were riding their bikes. Lewis was stopped by an
individual, armed with a gun, who attempted to rob him of his Los
Angeles Raiders starter jacket. The individual was later
identified by both Leon and Lewis as Brian Bordenave. When Lewis
resisted the robbery, Bordenave opened fire, shooting Lewis in the
hand. As Lewis attempted to escape, Bordenave shot Lewis two more
times. After Lewis collapsed, Bordenave took the jacket. He then
left in a gray-blue station wagon occupied by two other
individuals.
At trial, both Lewis and Leon testified that, when Bordenave
stopped Lewis, a second individual was standing some distance away.
This individual urged Bordenave to “get the jacket” and moved
2 closer to him in a gesture of support. After the shooting and
robbery, the second individual joined the gunman in the station
wagon where they were driven away by a third party. Although Lewis
never could identify this second individual, Leon identified
Anderson as the second individual.
On November 13, 1991, New Orleans Police Officers attempted to
stop the gray-blue station wagon for license plate violations. The
driver of the station wagon tried to escape, but the police trapped
the station wagon. Three individuals quickly exited and attempted
to escape from the police on foot. The police caught two of the
three individuals, Bordenave and Jerome Eggerson. The third
individual escaped. No police officer was ever able to identify
the third individual.
At trial, the State introduced testimony about the November
13, 1991 incident from Officer Kenny Watzke. Officer Watzke
testified that the third individual pointed a gun at him during his
escape. More importantly, he testified that Jerome Eggerson made
an out-of-court statement which identified Anderson as the third
individual involved in the car chase incident.3 This hearsay
3 Eggerson’s identification of Anderson was actually introduced to the jury in an indirect manner. In response to a question about who was in the back seat of the station wagon, Officer Watzke stated that it was Anderson. However, Officer Watzke admitted that he could not personally identify Anderson as the individual in the back seat of the vehicle. He merely relied on Eggerson’s identification of Anderson. It is undisputed that Eggerson did not testify during court. Therefore, it is clear that Officer Watzke’s testimony placing Anderson in the vehicle was hearsay testimony.
3 testimony was not objected to by trial counsel for Anderson.
Finally, the State introduced evidence that the police stopped a
cab in which Anderson was riding on November 15, 1991. Police
officers testified that Anderson attempted to evade police, but was
subsequently apprehended. Anderson was then arrested for
possession of two concealed weapons.
Anderson appealed his conviction to the Louisiana Fourth
Circuit Court of Appeals. The Fourth Circuit reversed Anderson’s
conviction for the attempted first degree murder of Mr. Lewis due
to insufficient evidence and vacated his sentence on that charge.
The appellate court also reversed Anderson’s conviction for armed
robbery because the evidence concerning the November 13 and 15
incidents was inadmissible “other crimes” evidence and its
introduction was not harmless error. The Fourth Circuit concluded
that Leon’s positive identification of Anderson was not so
overwhelming as to establish beyond a reasonable doubt that the
jury verdict would have been the same without the damaging “other
crimes” evidence.
After granting the State’s writ application, the Louisiana
Supreme Court reversed the Fourth Circuit’s decision on the
admissibility of the “other crimes” evidence, and reinstated both
Anderson’s armed robbery conviction and sentence and attempted
murder conviction, albeit modified to attempted second degree
4 murder. After the reinstatement of the convictions, Anderson
sought post-conviction relief in a Louisiana trial court. He
argued that his constitutional right to effective assistance of
counsel had been violated because his trial counsel had not
objected to inadmissible hearsay evidence. The trial court denied
the relief requested. Anderson appealed to the Louisiana Fourth
Circuit Court of Appeals once again.
The Fourth Circuit assessed Anderson’s ineffective assistance
of counsel claim under the two-part test outlined in Strickland v.
Washington, 466 U.S. 668 (1994). The Fourth Circuit determined
that trial counsel’s failure to object to the inadmissible hearsay
evidence was deficient, however, it also found that Anderson was
not prejudiced by the failure to object. It, therefore, denied the
ineffective assistance of counsel claim.
Anderson subsequently filed his application for writ of habeas
corpus under 28 U.S.C. § 2254 in the United States District Court
for the Eastern District of Louisiana. Anderson made the same
ineffective assistance of counsel argument. The district court
also rejected his contention, finding that trial counsel’s error
was not sufficiently prejudicial under Strickland. Anderson
appealed to our court.
II. JURISDICTION
This is an appeal from the final order of the district court
denying habeas corpus relief. The district court issued a
5 certificate of appealability. We have jurisdiction. See 28 U.S.C.
§ 2253.
III. STANDARD OF REVIEW
Under the 1996 Antiterrorism and Effective Death Penalty Act
(“AEDPA”), we cannot issue a writ of habeas corpus concerning “any
claim that was adjudicated on the merits in State court
proceedings” unless the state court’s adjudication of that claim
unreasonably applied clearly established federal law. A decision
is an unreasonable application of federal law “if the state court
identifies the correct governing legal principle . . . but
unreasonably applies that principle to the facts of the prisoner’s
case.” Williams v. Taylor, 529 U.S. 362, 413 (2000). Factual
findings of the state court are presumed to be correct unless they
were based on an unreasonable determination of the facts in light
of the evidence presented in the state court proceeding. Chambers
v. Johnson, 218 F.3d 360, 363 (5th Cir. 2000). Anderson’s claim is
a mixed question of law and fact. See Pratt v. Cain, 142 F.3d 226,
230 (5th Cir. 1998)(determinations regarding the adequacy of
counsel’s performance and prejudice are mixed questions of law and
fact).
IV. DISCUSSION
Ineffective assistance of counsel claims are governed by
Strickland. To obtain federal habeas relief, Anderson must prove
two components: (1) deficient performance on the part of his trial
6 counsel; and (2) that he was prejudiced by the deficient
performance. Strickland, 466 U.S. at 687. To prove deficient
performance, Anderson must show that counsel’s actions “fell below
an objective standard of reasonableness.” Id. at 698. To prove
prejudice, he must demonstrate “that there is a reasonable
probability that but for counsel’s unprofessional errors, the
result . . . would have been different.” Id. at 694. “A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id.
A. Deficient Performance
The Fourth Circuit’s post-conviction opinion implicitly finds
that trial counsel’s performance was deficient under the first
prong of the Strickland test. This finding is correct. Eggerson’s
out-of-court hearsay statement was the critical piece of evidence
in the case as it allowed the “other crimes” evidence to be
admissible. Louisiana courts have held that the failure to object
to the introduction of such damaging hearsay evidence “presents a
textbook unprofessional error.” State v. Sanders, 648 So. 2d 1272,
1292 (La. 1994). Therefore, Anderson has satisfied the first prong
of the Strickland test.
B. Prejudice
Anderson argues that he was prejudiced by the failure to
object to the hearsay testimony. We disagree. The trial court
record establishes that Leon positively identified Anderson as a
7 perpetrator of the armed robbery/attempted second degree murder in
a photographic lineup and at trial. Leon testified that he heard
Anderson say, “Get the jacket. Get the jacket. Let’s go.”
Moreover, Leon testified that he had a good look at both
Bordenave’s face and Anderson’s face during the commission of the
crime because they were only a few feet away from him when the
incident occurred. Finally, we note that Leon completed part of his
testimony by stating that he was certain Anderson was the “other
man” involved in the shooting.
V. CONCLUSION
Based upon the strength of Leon’s identification, we conclude
that it was not unreasonable for the Fourth Circuit to find that
Anderson was not prejudiced by his counsel’s failure to object to
the inadmissible hearsay.4 Consequently, the district court’s
judgment is AFFIRMED.
4 Anderson contends that the Fourth Circuit’s post-conviction determination that he was not prejudiced conflicts with its earlier direct appeal decision which found that the Leon identification was “not so overwhelming as to establish beyond a reasonable doubt that the verdict would have been the same absent the error.” We express no opinion as to whether there is a conflict between these two decisions. Instead, we simply note that the Fourth Circuit applied the Strickland prejudice prong to the facts of this case in a manner that was not unreasonable.