Richard v. Cain

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 17, 2001
• Docket: 00-30468
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-30468 (Summary Calendar)

CLYDE D. RICHARD,

Petitioner-Appellant,

versus

BURL CAIN, Warden, Louisiana State Penitentiary,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Western District of Louisiana (97-CV-784) -------------------- January 17, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Petitioner-Appellant Clyde D. Richard appeals the district

court’s denial of his 28 U.S.C. § 2254 application. That court

granted a certificate of appealability (COA) to Richard on the

issue whether his counsel was ineffective by allegedly failing to

(1) adequately communicate with Richard; (2) provide Richard with

copies of police reports that were in counsel’s possession; (3)

conduct a timely and adequate investigation; and, generally, (4)

present an adequate defense.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Richard argues that the district court erred when it applied

the subjective “unreasonable application” standard enunciated in

Drinkard v. Johnson, 97 F.3d 751, 755 (5th Cir. 1996), which was

invalidated by the Supreme Court in Williams v. Taylor, 529 U.S.

362 (2000). Richard is correct in noting that we have recognized

that Williams requires an objective analysis of whether a state

court decision involves an unreasonable application of clearly

established federal law. See Moore v. Johnson, 225 F.3d 495, 500-

01 n.1 (5th Cir. 2000). He also notes correctly that the district

court’s determination of counsel’s effectiveness should be reviewed

by this court de novo, and that the district court’s factual

findings should be reviewed for clear error. And he is again

correct that the state court’s factual findings should not be

afforded the presumption of correctness under § 2254(e), although

not for the reasons advanced by Richard. We proceed accordingly.

Several of Richard’s claims and the facts supporting them, as

they were developed in his federal habeas proceeding, were not

raised in the state court proceedings, so the state court thus had

no opportunity to address them. Richard only briefly mentioned the

beard issue in the state court, with no supporting facts, and he

did not mention the Owens alibi issue at all. Neither did he

allege that counsel had failed to discuss the case with him

sufficiently nor that counsel had failed to show him the police

reports. Thus, the state court’s adjudication was not “on the

merits” of the claims as they have been presented and developed by

Richard in federal court. Consequently, the standards of § 2254(d)

2 do not apply. Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000)

(“section 2254(d) applies only to issues that have been adjudicated

on the merits in state court.”). The district court’s factual

findings are reviewed for clear error, and its legal conclusions

are reviewed de novo. Burdine v. Johnson, 231 F.3d 950, 953 (5th

Cir. 2000)(pre-AEDPA case).

Richard argues that trial counsel was ineffective for failing

to communicate with him adequately. He contends that the district

court’s ruling does not address any part of his claim that counsel

met with him only one time prior to trial. He argues that this

failure to communicate resulted in trial counsel’s formulating a

weak alibi theory that placed Richard at work for the entire day

without ever leaving.

Richard’s position that the district court failed to address

this claim is erroneous. Assuming Richard’s trial testimony to be

true, the district court specifically found that Richard told his

attorney that he was at work at the time immediately preceding the

robbery. “Richard’s attorney apparently accepted his client’s

version of the events on the day in question and the version of

events given by the alibi witnesses. A decision not to investigate

further was reasonable under the circumstances.” The district

court found that trial counsel’s strategic decision to present this

alibi defense was reasonable and that counsel did not perform

unreasonably in failing to anticipate that his client had not been

truthful with him. The district court’s conclusion that counsel

was not ineffective in this respect is based on a finding that

3 Richard was not completely truthful with his attorney about

Richard’s activities on the day of the robbery, not that counsel

was ineffective for failing to communicate adequately, hence the

conclusion that “the problem here would seem to be in the facts and

not in the representation.” The district court’s finding, based on

a credibility decision, is not clearly erroneous. See Moran v.

Blackburn, 781 F.2d 444, 445 (5th Cir. 1986) (district court’s

credibility decision after a federal habeas evidentiary hearing is

subject to review under the clearly erroneous standard.).

Richard argues that because of counsel’s failure to show him

the police reports, he was not aware that his facial hair was such

an important issue, and that he did not learn of its importance

until he received a copy of the police reports for the first time

during his post-conviction proceedings while at Angola. Richard

contends that had he known, he may have been able to alert counsel

to the existence of the photograph taken of him with a full beard

13 days after the robbery. Richard attempts to downplay the fact

that he was present in the courtroom when numerous witnesses

testified that he had no beard. He takes issue with the district

court’s finding that the inconsistencies in the various

descriptions of his facial hair seemed insignificant. He argues

that counsel “drummed up” an alibi defense with no investigation of

the identity issue.

The district court found that the inconsistencies in the

various witnesses’ descriptions of the exact amount of facial hair

Richard had seemed generally insignificant. The court stated that

4 in the face of an unhesitating identification by the victim, it was

plausible that the attorney could have chosen not to question the

inconsistencies in the descriptions. The district court noted that

the “striking similarity between Richard’s appearance and the

victim’s description [was] demonstrated by the fact that Sparks

teased Richard about the similarity between his appearance and the

description in the newspaper.” The court stated that it was

apparently counsel’s strategy to rely on the alibi corroborated by

Richard’s co-workers.

Richard’s testimony at the evidentiary hearing on whether he

was aware of the importance of the facial hair issue is

contradictory. He alternates between testimony that (1) he did not

realize the importance of the beard issue, and (2) he told counsel

that he had always worn a beard and which witnesses could confirm

that fact. It is also important to note that although Richard

testified that he realized the importance of this issue when he

received copies of the police reports during his post-conviction

proceedings, he mentioned this issue only in passing in his 1992

state post-conviction application, and that it was not until 1996

and 1997 he procured affidavits from the alleged witnesses in

Cleveland who could testify about his beard.

The district court’s finding that the alleged inconsistencies

in the witnesses’ testimonies about the exact amount of Richard’s

facial hair were insignificant is not clearly erroneous. See Jones

v. Cain, 227 F.3d 228, 230-31 and n.9 (5th Cir. 2000) (discrepancy

between description of perpetrator as 5'10" tall and with no scars,

5 and defendant’s description of himself as 5'6" with two facial

scars approached inanity). As the district court correctly

concluded, in the face of the testimony by Sparks that he teased

Richard about the striking similarity between Richard’s appearance

and the victim’s description in the newspaper, and the victim’s

unhesitating identification, it was a plausible strategy for trial

counsel to focus on the alibi defense rather than any minor

discrepancies in the description.

Richard further argues that trial counsel failed to conduct an

adequate investigation, urging that a more thorough investigation

would have revealed the fact that Richard stuttered. He contends

that counsel failed to investigate and discover the best available

alibi witness, Lucious Owens. He argues that inadequate

investigation led counsel to use weak and damaging alibi testimony;

that he has always claimed an alibi in Owens; that the district

court ignored Owens’s full testimony; and that its findings are

clearly erroneous.

Assuming Richard’s trial testimony to be true, the district

court noted that Richard told his attorney that he was at work at

the time immediately prior to the robbery. “Richard’s attorney

apparently accepted his client’s version of the events on the day

in question and the version of events given by the alibi witnesses.

A decision not to investigate further was reasonable under the

circumstances.” The district court found that trial counsel’s

strategic decision to present this alibi defense was reasonable,

that counsel did not perform unreasonably in failing to anticipate

6 that his client had not been truthful with him, and that there was

no reason to believe that there could be another alibi in Lucious

Owens in light of Richard’s representations. “It would also appear

that the defendant is now trying, years after the fact, to put

together a new alibi which he failed to bring forth initially and

which is contrary to his original statements to counsel and to the

jury.”

Richard never mentioned Owens’s alleged alibi testimony in his

state post-conviction application. By Richard’s own testimony,

Ballard dropped him off at a fish market, then another friend

picked him up and took him to Owens’s house. If Richard was with

Sparks and Ballard at 7:00 p.m., he would have arrived at Owens’s

house significantly later than the time needed to establish an

alibi for the time of the robbery. Owens’s deposition testimony

put Richard at his house between 6:00 and 7:00 p.m., which

contradicts the trial testimony. Owens testified in his deposition

about Richard’s selling him an air tank, a fact that Richard never

testified to at trial. If the jury rejected the alibi testimony of

Sparks and Ballard that Richard was with them at the exact time of

the robbery, why would Owens’s testimony to the effect that Richard

came to his house some time later (assuming that he would have

testified at trial consistently with Richard’s testimony) impress

the jury as being any more believable?

Regarding the stutter defense, counsel testified in his

deposition that he had known Richard for quite some time, knew that

he stuttered a little bit but had never known Richard’s speech to

7 be that much of a problem, and knew that Richard had always spoken

straight with him. The best evidence of Richard’s stutter would be

during his own testimony at trial. The jury could determine for

itself if Richard stuttered so badly that the victim should have

mentioned it in her description. Counsel cannot be considered

ineffective for failing to investigate and call witnesses to

testify about the stutter.

Richard further argues that the district court ignored the

fact that counsel committed a very serious error in opening the

door to Richard’s misdemeanor record. Richard is correct that the

district court failed to address the issue of the admission of the

misdemeanor convictions after Johnson opened the door. The

magistrate judge’s second report also fails to address this issue.

Richard never objected to the magistrate judge’s report and in fact

urged the district court to adopt it. Richard’s application for a

certificate of appealability did not request a COA on this issue,

and the district court’s grant of a COA did not include it. Thus,

we do not have jurisdiction to consider this issue for which a COA

was not granted. See Whitehead v. Johnson, 157 F.3d 384, 387-88

(5th Cir. 1998)(lack of a ruling on a COA in the district court on

an issue causes this court to be without jurisdiction to consider

it).

Richard has not demonstrated deficient performance or

prejudice. Strickland v. Washington, 466 U.S. 668, 687-94 (1984).

The two claims to which he attributes the most importance, one

grounded in the question of the beard and the other in Owens’s

8 alibi, appear to be defenses of recent fabrication. The district

court’s denial of habeas relief is AFFIRMED.