IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50494
ROBERT DALE COX, Petitioner-Appellee,
versus
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellant.
Appeal from the United States District Court For the Western District of Texas
March 6, 2003
Before HIGGINBOTHAM and DAVIS, Circuit Judges, and HUDSPETH,* District Judge.
PER CURIAM:**
A Texas jury found Robert Dale Cox guilty of felony theft of
property valued over $750 and under $20,000 for stealing a 1940
John Deere H tractor from eighty-six year old Gertrude Klunkert.
In July 1994, Klunkert agreed to pay Cox $1900 to build a carport.
Cox offered to take the tractor as payment for his labor, but
* Senior District Judge of the Western District of Texas, 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Klunkert refused and stated that she would not sell it to him for
any price due to its sentimental value to her. With the help of
his brother-in-law, Cox stole the tractor.
At trial, Klunkert testified that she believed the tractor was
worth $1500. The state also called an expert in antique tractors,
Gustav Schlender. Schlender explained that antique tractors have
two types of value, a “utility value” and a “collector-type value.”
Schlender testified that he had inspected the tractor and that in
his opinion its fair market value as a collectible was at least
$750, and could probably be sold at a price between $800 and $1000.
Cox called Maurice Hilbert, a John Deere dealer, to testify to
the value of the tractor. Hilbert testified that the utility value
of the tractor was $200 to $300 at the most. He admitted he did
not know its value as an antique or collectible, but stated that
“somebody who collects tractors for restoration might offer more
for it.” He also admitted that “I don’t know what the antique
market is. I don’t follow the antique market ....” Cox did not
call any expert regarding the tractor’s collectible value.
The jury found Cox guilty of theft of property valued between
$750 and $20,000. Because Cox had five prior felony convictions,
he was sentenced to seventy-five years’ imprisonment.
Cox moved for a new trial on the basis of new evidence and was
granted a hearing. He called three experts to testify to the
collectable value of the tractor, none of whom valued the tractor
over $250. He also unsuccessfully attempted to enter into evidence
-2- the affidavits of three other collectible tractor experts, none of
whom valued the tractor over $350. After the hearing, the trial
court denied Cox’s motion.
Cox’s conviction was affirmed on direct appeal. He then filed
two state applications for writs of habeas corpus; the first
application was denied without written order, and the second was
dismissed for abuse of the writ. Cox filed his federal petition in
February 2000. In it he urged that his trial attorney’s failure to
obtain expert testimony regarding the collectible value of the
tractor constituted ineffective assistance of counsel, that he
received ineffective assistance because his attorney did not
request a jury instruction on his defense of “mistake of fact,” and
that his sentence amounted to cruel and unusual punishment. The
magistrate judge to whom the case was assigned held an evidentiary
hearing, and afterwards recommended that the district court deny
his claims for relief on the mistake of fact and Eighth Amendment
issues, but grant relief on the ineffectiveness claim based on
failure to find a collectible value expert. In April 2002 the
district court accepted the magistrate judge’s report and
recommendation and granted the writ, finding Cox’s ineffective
assistance of counsel claim meritorious. The Director appeals.
I
The Director first argues that the district court erred in
determining that Cox’s ineffective assistance claim based on the
-3- collectible value of the tractor was not procedurally defaulted.
The district court accepted the magistrate judge’s finding that Cox
brought this claim in his first state court petition and that it
was disposed of on the merits, thereby exhausting the claim and
allowing the district court to consider it notwithstanding that
Cox’s second state habeas application was dismissed for abuse of
the writ.1 The Director disputes this conclusion, arguing that the
ineffectiveness issue raised in the first state petition was
substantially different from that pursued in the second state
1 See TEX. CODE CRIM. P. ANN. Art. 11.071 § 5 (Vernon 2002). This section provides:
(a) If a subsequent application for a writ of habeas corpus is filed after filing an initial application, a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that:
(1) the current claims and issues have not been and could not have been presented previously in a timely initial application or in a previously considered application filed under this article or Article 11.07 because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application;
(2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt; or
(3) by clear and convincing evidence, but for a violation of the United States Constitution no rational juror would have answered in the state’s favor one or more of the special issues that were submitted to the jury in the applicant’s trial under Article 37.071 or 37.0711.
Id.
-4- application and federal petition. We disagree.
In his first state petition, Cox presented a dual claim
consisting of his argument that he was actually innocent of felony
theft, because the tractor was worth less than $750, and that his
counsel had rendered ineffective assistance by failing to
investigate the tractor’s collectible value and proffer such
evidence at trial. In discussing his ineffectiveness argument, Cox
cited the basic law governing such claims, including Cronic2 and
Strickland.3 He explained that “[c]laims of ineffectiveness must
overcome a strong presumption that counsel’s representation was
within the expansive range of reasonable performance, and
demonstrate that the attorney’s performance fell below prevailing
professional norms.” Cox further noted that “Strickland also
requires a showing that, but for counsel’s errors or omissions, the
result of the proceeding probably would have been different.”
In particular, he urged that his counsel’s failure to
sufficiently investigate the collectible value of the tractor
prejudiced him. He explained that during the hearing on his motion
for new trial, “three experts on antique tractors were presented,
and they testified without contradiction[] that Klunkert’s tractor
was worth nowhere near $750.” He asserted, “[h]ad trial counsel
investigated[,] he would have found more than enough tractor
2 United States v. Cronic, 466 U.S. 648 (1984). 3 Strickland v. Washington, 466 U.S. 668 (1984).
-5- experts who were willing to testify regarding the worthlessness of
Klunkert’s tractor. Had he done so, it is more likely than not
that the jury would have acquitted him.”
Although Cox’s ineffectiveness argument was intertwined with
his actual innocence claim in his first state petition, it was
fairly presented in that application, and therefore is not
procedurally barred by the Texas Court of Criminal Appeals’
dismissal of his second application for abuse of the writ.4 The
claim presented in his first state petition was nearly identical in
all relevant aspects to that asserted in his second state petition,
4 The Director argues that Cox argued ineffectiveness in an attempt to have the state courts consider his actual innocence claim, and that therefore he was not asking for relief due to ineffective assistance of counsel, but was rather asking for relief on the basis that he was actually innocent. However, the first state claim actually reveals the opposite – Cox’s counsel was operating under the mistaken view that he needed to show his client was actually innocent in order to present the ineffectiveness claim. In the petition, his attorney asserted, “[i]f the habeas court is convinced that new facts exist raising doubt about the defendant’s guilt, ... [this] ‘threshold showing of innocence would justify a review of the merits of the constitutional claims.’” Thus, Cox’s actual innocence argument was presented merely as “‘a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.’”
Unfortunately, Cox’s attorney was applying the federal law applicable to successive habeas petitions in the context of Cox’s first habeas petition. See Schlup v. Delo, 513 U.S. 298, 314 (1995). His constitutional claim of ineffective assistance of counsel was not a “barred claim” in his initial habeas application, but would only have become barred if he failed to raise it in his first petition. Id. However, that Cox’s attorney misapprehended the law was of no matter, because the actual innocence discussion was merely superfluous, and did not negate the presentation of his ineffectiveness claim.
-6- which again cited Cronic and Strickland and summarized Strickland’s
two-pronged ineffectiveness test. Like his first state petition,
the latter application also argued that his trial attorney fell
below an objective standard of reasonable performance in failing to
investigate and proffer at trial evidence on the collectible value
of the tractor. Both his first and second state application ended
its discussion of this claim with the charge, “[h]ad counsel
properly investigated, he would have obtained the same overwhelming
testimony presented at” the hearing on the motion for new trial,
“which conclusively established that, even as a ‘collectible,’ the
tractor was not worth anywhere near $750.”5 Cox therefore did not
procedurally default on his ineffectiveness claim, which was
rejected on the merits in his first state habeas petition.
II
The Director also asserts that the magistrate judge erred in
granting Cox an evidentiary hearing, because Cox failed to develop
5 The Director contends that Cox’s ineffectiveness allegations differed in his first and second state petitions, because in his first petition he only argued that his counsel failed to investigate the value of the tractor, while in his second state petition he asserted that his trial attorney failed to investigate the tractor’s collectible value and present such evidence at trial. However, this argument splits hairs. In both applications, the gravamen of Cox’s ineffectiveness argument is the same: his trial attorney failed to adequately investigate the collectible value of the tractor; had he done so, he could have presented substantial evidence that the tractor’s antique value was under $750 and the jury would not have convicted Cox.
-7- the factual basis for his claim in state court.6 “[A] petitioner
cannot be said to have ‘failed to develop’ a factual basis for his
claim unless the undeveloped record is a result of his own decision
or omission.”7 Thus, “a failure to develop the factual basis of a
claim is not established unless there is a lack of diligence, or
some greater fault, attributable to the prisoner or the prisoner’s
counsel.”8 Although the state court rejected Cox’s request for a
hearing, the Director argues that Cox must still be held
accountable for failure to develop the record because he did not
provide the state courts with affidavits supporting his
allegations. However, Cox sufficiently developed the record in
state court by presenting the transcript of the hearing on his
motion for new trial, which contained the testimony of three
antique tractor experts that the tractor was not worth $750.
Additionally, he submitted the affidavits of three other antique
tractor experts who opined that the tractor was not worth $750. He
relied on both the transcript of the motion hearing and these
affidavits to support his ineffectiveness allegations in his first
state habeas petition. We find that Cox’s reference to this
evidence in his first petition, coupled with his unsuccessful
request for an evidentiary hearing, satisfied his obligation to
6 See 28 U.S.C. § 2254(e)(2). 7 McDonald v. Johnson, 139 F.3d 1056, 1059 (5th Cir. 1998). 8 (Michael) Williams v. Taylor, 529 U.S. 420, 432 (2000).
-8- develop the factual bases for his ineffectiveness claim.9
III
The Director last argues that the district court erred in
determining that Cox’s trial counsel rendered ineffective
assistance. Before reaching this issue, however, we must take up
the question whether the district court applied the appropriate
legal standard to any implicit findings of fact and conclusions of
law made by the state courts.
AEDPA restricts the ability of federal courts to grant relief
to those cases in which the state court’s adjudication on the
merits “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 “resulted
in a decision that was based upon an unreasonable determination of
the facts in light of the evidence presented in the state court
9 The Director complains that Cox proffered evidence at the federal hearing different from that provided in the affidavits and transcripts given to the state courts. During the hearing, Cox called his trial attorney, Stork, and an attorney expert, Forsythe, to testify on the ineffectiveness claim. He had not presented affidavits by these witnesses along with his first state petition. However, the district court determined before allowing the hearing that Cox did not fail to develop sufficiently his claim in state court, and we concur with that determination. Once the district court reached that conclusion, it was allowed to grant a hearing and expand the record of evidence at the evidentiary hearing. See, e.g., Rule 7 of the Rules Governing § 2254 Cases (“If the petition is not dismissed summarily the judge may direct that the record be expanded by the parties by the inclusion of additional materials relevant to the determination of the merits of the petition.”).
-9- proceeding.”10 Claims of ineffective assistance of counsel are
mixed questions of law and fact,11 and a federal court may grant
relief for such claims only if the state court’s denial rested on
“an unreasonable application of[] clearly established Federal law,
as determined by the Supreme Court,” to the facts of the case.12
Furthermore, AEDPA “requires us to presume state court
findings of fact to be correct unless the petitioner rebuts that
presumption by clear and convincing evidence.”13 This presumption
of correctness applies not only to explicit factual findings, but
also “to those unarticulated findings which are necessary to the
state court’s conclusions of mixed law and fact.”14
Although the district court correctly applied the
“unreasonable application” standard to the state court’s denial of
Cox’s ineffectiveness claim, it refused to apply the presumption of
correctness to any factual findings supporting this conclusion,
because the state courts had made no explicit factual findings on
the issue. The magistrate judge’s report and recommendation
explains, “[g]iven that no evidentiary hearing was held, and no
findings of fact were made by the trial court or the Court of
10 28 U.S.C. § 2254(d). 11 Moore v. Cockrell, 313 F.3d 880, 881 (5th Cir. 2002). 12 Nobles v. Johnson, 127 F.3d 409, 416 (5th Cir. 1997). 13 Valdez v. Cockrell, 274 F.3d 941, 947 (5th Cir. 2001); § 2254(e)(1). 14 Id. at 948.
-10- Criminal Appeals, there are no factual findings to which this Court
must – indeed can – defer.” Thus, the only factual findings it
relied upon in its determination were those it made after holding
an evidentiary hearing.
In so doing, the district court did not abide by the Supreme
Court’s instruction that, in habeas proceedings, “if no express
findings of fact have been made by the state court, the District
Court must initially determine whether the state court has
impliedly found material facts.”15 This case presents particular
circumstances that complicate a court’s determination of whether
the state courts made implicit factual findings, because neither
the trial court nor the Texas Court of Criminal Appeals made any
explicit legal conclusions, and Cox’s first state petition was
denied without written order.
In Goodwin v. Johnson, we reasoned that “[t]he case law of
this circuit demonstrates that some indication of the legal basis
for the state court’s denial of relief on a federal claim is
generally necessary to support a conclusion that the state court
has made an implied fact-finding as to a factual issue underlying
the claim.”16 However, it also noted, “[i]n a few instances, we
15 Townsend v. Sain, 372 U.S. 293, 314 (1963); see also Weeks v. Snyder, 219 F.3d 245 (3d Cir. 2000) (same). 16 Goodwin v. Johnson, 132 F.3d 162, 184 (5th Cir. 1998). Although this case applied pre-AEDPA law, its reasoning in regard to implied factual findings was adopted in the AEDPA context in Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir. 2001) (citing
-11- have held that a state court’s bare legal ruling without
accompanying conclusions of law may form a basis for implying
findings of fact that support the ruling.”17 It limited these
circumstances to those “in which the state court’s ruling addressed
a discrete issue and the factual basis for the ruling was extremely
clear based on the ruling’s limited nature.”18 As examples, the
Goodwin court cited cases in which we have held that a state
court’s refusal to dismiss a juror for cause after a defendant
argued that the juror was partial gave rise to an implied factual
finding that the juror was not biased,19 that a trial court’s denial
of the defendant’s motion to suppress evidence from an out-of-court
identification implied that the court had credited the identifying
witness’s testimony that the out-of-court identification was not
unduly suggestive,20 and that the state court’s denial of the
defendant’s motion for mistrial based on pretrial publicity
contained the implicit fact-finding that the publicity had not
Goodwin in support of its statement that “[t]he presumption of correctness ... applies to those unarticulated findings which are necessary to the state court’s conclusions of mixed law and fact” and describing Goodwin as holding that “findings of fact can be implied from explicit conclusions of law”). 17 Id. at 185 n.16. 18 Id. 19 See Jones v. Butler, 864 F.2d 348, 362 (5th Cir. 1988). 20 See Lavernia v. Lynaugh, 845 F.2d 493, 499-500 (5th Cir. 1988).
-12- created “the kind of ‘wave of public passion’ that would have made
a fair trial unlikely.”21
Although the district court here should have determined
whether the state courts’ denial of Cox’s ineffectiveness claim
entailed implicit factual findings, we conclude that its failure to
do so was harmless in this instance because, under Goodwin, no such
findings can be gleaned from their summary rejection of the claim.
Cox’s ineffectiveness claim differs from the discrete issues
confronted in those few cases in which we have derived implicit
factual findings from a state court’s summary denial of a claim.
In this instance, we cannot gather from the state courts’ decision
whether they denied the ineffectiveness claim because they found
Cox’s attorney sufficiently investigated the case, or because they
found that any testimony proffered by the defense on the
collectible value of the tractor would not have affected the jury
verdict, or both. Therefore, this case does not fall within those
limited cases in which “the factual basis for the ruling was
extremely clear based on the ruling’s limited nature.” Because we
find no error in the district court’s refusal to apply the
presumption of correctness to any implicit factual findings made by
the state courts, we finally address the merits of Cox’s
ineffectiveness claim.
IV
21 See Wicker v. McCotter, 783 F.2d 487, 495 (5th Cir. 1986).
-13- A
Ineffective assistance is a mixed question of law and fact,
and we therefore review de novo the district court’s grant of
habeas, “while crediting the district court’s express or implied
findings of discrete historical fact that are not clearly
erroneous.”22 The familiar tenets of Strickland v. Washington
control and set out a two-pronged test to analyze whether a
defendant received ineffective assistance of counsel:
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.23
To establish that counsel’s performance was deficient, a
defendant must show that it is objectively unreasonable under
prevailing professional norms.24 We apply a strong presumption that
trial counsel’s conduct fell within a wide range of reasonable
professional assistance or that the challenged conduct might be
22 United States v. Mullins, 315 F.3d 449, 453 (5th Cir. 2002). 23 466 U.S. 668, 687 (1984). 24 Id. at 688-89.
-14- considered a trial strategy.25 The defendant must also show
prejudice, which requires demonstrating that there is a reasonable
probability that, but for counsel’s errors, the result of the
proceeding would have been different.26 “A reasonable probability
is a probability sufficient to undermine confidence in the
outcome.”27
After the magistrate judge conducted the evidentiary hearing,
he made numerous factual findings. He found that Cox’s trial
counsel, Stork, admitted that the value of the tractor was “the
issue at trial,” but despite this knowledge never requested funds
from the court to retain an expert on the tractor’s collectible
value. Additionally, he determined that the one expert Stork did
call to speak on tractor valuation, Hilbert, was not qualified to
offer an opinion on the value of the item as an antique, which was
the theory Stork knew the prosecution planned on pursuing at trial.
The court also found that Stork had not written down the names
of any other potential experts he had allegedly considered using.
It determined that the numerous clubs of tractor enthusiasts and
magazines devoted exclusively to antique tractors would have
assisted Cox’s counsel in locating an appropriately qualified
expert. The court concluded that, had Stork attempted to engage an
25 Id. at 689. 26 Id. at 687. 27 Id.
-15- antique tractor expert, he would have had “a more than ample supply
of experts to demonstrate that the value of the tractor, even for
a collector, was well less than $750.”
Applying the law to the facts, the magistrate judge concluded
that Cox’s attorney rendered deficient performance that prejudiced
the defense. He reasoned:
The evidence shows that [Cox’s attorney] was on notice that the value of the tractor as a collectible was the crucial issue in Petitioner’s trial. If Petitioner was convicted of theft of [over $750], he faced sentencing as a habitual offender, and was thereby exposed to a sentencing maximum of life imprisonment. [His counsel] likewise knew the expert he intended to present on the issue of value was not qualified to value the tractor as a collectible, yet he failed to take the steps necessary to secure such an expert. Had counsel done even a minimal amount of investigation into the collectible value issue, he would have obtained the same overwhelming testimony presented at the hearing on Petitioner’s motion for new trial.
It determined that Stork’s failures prejudiced Cox’s case
because “the jury sent out a note indicating it was deadlocked
between a conviction for a misdemeanor and a felony, meaning they
were having difficulty in determining whether the value of the
tractor was more than $750.” Given the closeness of the issue, and
the wealth of testimony of the tractor’s low collectible valuation
presented by Cox in his post-conviction proceedings, the court
concluded that there was a reasonable probability that, but for
Cox’s attorney’s errors, the result of the proceeding would have
been different.
B
-16- The Director first attacks the district court’s determination
on the basis that trial counsel cannot be ineffective for failing
to call a better expert. She argues that Hilbert, the witness
called by Cox’s counsel at trial, was “a knowledgeable tractor
dealer,” and asserts that defense attorneys are not required to
shop around for experts who will provide better opinions.
However, we concur with the district court’s analysis on this
point. It reasoned that Cox’s attorney “was not deficient for
calling an expert who performed poorly,” but rather “was deficient
for not taking the steps necessary to locate and call an expert on
the issue actually before the court and jury – the value of the
tractor as a collectible item.” The court compared the scenario to
one in which “a defense attorney call[ed] a ballistics expert when
the defense attorney knew that the prosecution was going to tie a
gun to the defendant on the basis of fingerprints, not ballistics
identification.” This situation is not, as the Director urges,
akin to one in which a defendant claims his expert did not prepare
as thoroughly as would have been desirable,28 or that his expert,
although qualified, did not correctly diagnose his psychological
28 See Fisher v. Lee, 215 F.3d 438, 449-452 (4th Cir. 2000) (rejecting the petitioner’s complaint that his court-appointed medical expert began his evaluation of the petitioner too late to be sufficiently prepared to present effective testimony); McQueen v. Scroggy, 99 F.3d 1302, 1312 (6th Cir. 1996) (rejecting the petitioner’s claim that his attorney was ineffective because he did not sufficiently prepare the psychiatric expert).
-17- disorder.29 Rather, here the issue is not one of degree – whether
Hilbert or another expert could have proffered better testimony as
to the utility value of the tractor – but one of kind – whether
Stork was deficient in failing to locate an expert on the
collectible value of the tractor. In this case, hiring Hilbert,
who could speak only to the utility value of the tractor, was
tantamount to hiring no expert at all.
C
The Director also asserts that, contrary to the district
court’s finding, Cox’s counsel did not render deficient
performance. She argues that his attorney conducted a reasonable
investigation, “speaking to ten or twelve people total,” and went
to tractor dealerships and an antique flea market that displayed
antique tractors. She additionally asserts that Cox’s attorney
testified that he asked Hilbert for recommendations of other
potential expert witnesses, but was given only the name of the
prosecution’s witness. Finally, the Director contends that Cox’s
counsel “found people he thought he could qualify as experts, but
they told him they did not want to get involved.” Thus, in his
professional opinion he decided to call the utility valuation
expert, rather than witnesses who could potentially be hostile to
29 See McQueen, 99 F.3d at 1312-13 (rejecting the petitioner’s argument that his counsel was ineffective because his psychiatric expert testified that the defendant had a sociopathic personality and became acclimated to heavy drinking and drug use); Poyner v. Murray, 964 F.2d 1404, 1419 (4th Cir. 1992).
-18- his case.
Contrary to the Director’s contentions, we, like the district
court, are persuaded that the actions of Cox’s counsel were
objectively unreasonable. As noted by the magistrate judge in his
recommendation, Stork was aware that the crucial issue in this case
was the value of the tractor. If the state could prove that the
tractor was worth $750, Cox faced a felony conviction and a
possible life sentence; if not, Cox was facing only a few years for
misdemeanor theft. Stork knew that the state intended to prove the
value of the tractor as an antique or collectible. Stork also knew
that his expert, Hilbert, by his own admission, was not qualified
to testify as to the tractor’s collectible value. Rather,
Hilbert’s area of expertise was in valuing tractors as functional
pieces of farm equipment.
Stork apparently made some strides in locating experts to
testify on the issue of collectible value, but he never hired one.
Stork stopped by a flea market displaying an antique tractor and
talked to several people who gave him helpful opinions regarding
the value of these collectibles. He also recalled going to a
tractor dealership and a tractor sale. However, the individuals he
talked to expressed an unwillingness to get involved, and Stork
made no attempt to persuade them to do so.
Stork did not subpoena any of these witnesses, though he
admitted that they were neutral to Cox and had no reason to slant
the truth. Stork also failed to file a motion for court approval
-19- of funds for an appropriately qualified expert, which might have
remedied these individuals’ concerns that attending court would be
time consuming or costly. During the evidentiary hearing, Andrew
Forsythe, an “attorney performance expert,” testified that Stork
should have sought funds from the court. Forsythe opined that a
reasonably effective attorney would have sought such funds, which
could reduce a witness’s reluctance to testify.
Cox provided further evidence that Stork could have located a
qualified expert who was willing to testify had he moved for funds
to hire one. Curtis Johnson, an antique tractor enthusiast,
testified to the ease of finding such experts, and described the
many clubs around the state for tractor enthusiasts, the magazines
devoted to the hobby, and meetings and shows at which experts could
have been found. Six favorable opinions of antique tractor experts
were submitted by Cox demonstrating the facility with which such
opinions could be obtained. In sum, the Director’s contention that
the actions of Cox’s attorney were not unreasonable is unsupported
by the record.
D
The Director further argues that Cox was not prejudiced by his
attorney’s performance. The district court found that the jury’s
note indicated it was deadlocked on the felony versus misdemeanor
issue. The Director downplays the importance of the note by
-20- pointing out that the jury also requested the portion of the trial
transcript in which Klunkert testified that Cox had been willing to
accept the tractor in lieu of $1900, indicating that the jury based
its felony determination on the amount at which Cox himself had
valued the tractor.
However, in pursuing this argument the Director overlooks the
all too likely possibility that, had Cox put on some evidence as to
the collectible value of the tractor, it would have greatly
diminished the jury’s reliance on other, weaker indicia of the
tractor’s value, such as the arbitrary amount Cox was willing to
forgo for it. Strickland requires that there be a reasonable
probability that, but for Cox’s attorney’s errors, he would have
prevailed at trial. This standard is met in this case. The
complete absence of any evidence proffered by the defense on the
most critical issue of the case – the collectible value of the
tractor – rendered the proceeding “unreliable” such that it
undermines confidence in the verdict.
E
Concluding, in our independent judgment, that Cox proved
ineffective assistance does not alone resolve this matter, however.
To uphold the district court’s grant of habeas relief, we must also
conclude that the state court’s denial of Cox’s petition “involved
an unreasonable application of clearly established Federal law, as
-21- determined by the Supreme Court of the United States.”30 It is
well-settled that the rule set forth in Strickland qualifies as
“clearly established Federal law.”31 Therefore, for Cox to prevail
the state courts must have applied Strickland unreasonably. As the
Supreme Court has instructed, “[u]nder the ‘unreasonable
application’ clause, a federal habeas court may grant the writ if
the state court identifies the correct governing legal principle
from [the Supreme] Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.”32
The district court did not err in concluding that the state
courts’ application of Strickland to the facts presented was
unreasonable. As Cox’s trial counsel conceded, and as is apparent
from the record, whether Cox presented a collectible tractor expert
was critical to his attempt to receive a misdemeanor instead of a
felony conviction. His attorney knew this, but despite this
knowledge failed to make reasonable efforts to secure such an
expert. To find that this did not constitute ineffective
assistance of counsel is not only incorrect, but unreasonable.
30 28 U.S.C. § 2254(d)(1). 31 (Terry) Williams v. Taylor, 529 U.S. 362, 391 (2000). 32 Id. at 413. Although the magistrate judge acknowledged that Cox’s claim should be analyzed under the “unreasonable application” prong of § 2254(d)(1), it incorrectly applied the standard applicable to the “contrary to” prong, which looks to whether the state courts decided the claim “differently than ... [the Supreme Court] has on a set of materially indistinguishable facts.”
-22- AFFIRMED.
-23-