Shaun Lee Thomas v. United States

596 F. App'x 808
CourtCourt of Appeals for the Eleventh Circuit
DecidedJanuary 5, 2015
Docket13-14680
StatusUnpublished
Cited by7 cases

This text of 596 F. App'x 808 (Shaun Lee Thomas v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shaun Lee Thomas v. United States, 596 F. App'x 808 (11th Cir. 2015).

Opinion

PER CURIAM:

Shaun Lee Thomas, a federal prisoner, appeals the district court’s denial of his 28 U.S.C. § 2255 motion to vacate sentence, alleging that his trial counsel provided ineffective assistance because: (1) they failed to object to a witness’s testimony, which improperly bolstered the credibility of the victim; and (2) they failed to call two defense witnesses. After careful review, we affirm.

In a § 2255 proceeding, we review a district court’s legal conclusions de novo and factual findings for clear error. Devine v. United States, 520 F.3d 1286, 1287 (11th Cir.2008). We review de novo a claim of ineffective assistance of counsel, which is a mixed question of law and fact. Payne v. United States, 566 F.3d 1276, 1277 (11th Cir.2009). A district court’s denial of an evidentiary hearing is reviewed for abuse of discretion. Winthrop-Redin v. United States, 767 F.3d 1210, 1215 (11th Cir.2014). Under § 2255, “[a] petitioner is entitled to an evidentiary hearing if he alleges facts that, if true, would entitle him to relief.” Id. at 1216 (quotation omitted). However, an eviden-tiary hearing is not required if the allegations are “patently frivolous, based upon unsupported generalizations, or affirmatively contradicted by the record.” Id. (quotations omitted).

To establish ineffective assistance of counsel, a movant must show that: (1) counsel’s performance was deficient; and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the first prong, the movant must demonstrate that counsel’s performance was unreasonable under prevailing professional norms. Id. at 688, 104 S.Ct. 2052. Our review of counsel’s performance is highly deferential, and we apply a “strong presumption” that counsel’s performance was reasonable and that all significant decisions were made in the exercise of reasonable professional judgment. Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir.2000) (en bane). We conduct an objective inquiry into the reasonableness of counsel’s performance, such that “a petitioner must establish that no competent counsel would have taken the action that his counsel did take.” Id. at 1315. “[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052.

A movant may satisfy the prejudice prong of the Strickland test by showing a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694,104 S.Ct. 2052. The Supreme Court has elaborated that “[t]he likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112, 131 S.Ct. 770, 792, 178 L.Ed.2d 624 (2011). The defendant must affirmatively prove prejudice because attorney errors are as likely to be “utterly harmless” as they are to be prejudicial. Gilreath v. Head, 234 F.3d 547, 551 (11th Cir.2000) (quotation omitted).

A defendant is guilty of aggravated sexual abuse of a child under 12 if he “crosses *810 a State line with intent to engage in a sexual act with a person who has not attained the age of 12 years, or [while] in the special maritime and territorial jurisdiction of the United States ... knowingly engages in a sexual act with another person who has not attained the age of 12 years.” 18 U.S.C. § 2241(c).

In Snowden v. Singletary, a 28 U.S.C. § 2254 case, we held that an expert witness’s testimony bolstering the credibility of the victim was improper and denied the petitioner due process. 185 F.3d 732, 737-38 (11th Cir.1998). There, the expert had testified that 99.5% of children tell the truth and that he, in his own experience with children, had not encountered an instance where a child had invented a lie about abuse. Id. at 737. We determined that the credibility-bolstering testimony constituted a denial of fundamental fairness because the case was based almost entirely upon the testimony of the victim and two other children, without any significant physical evidence, and the prosecutor relied heavily upon the credibility testimony in closing argument. Id. at 738.

However, in Dorsey v. Chapman, involving another § 2254 petition, we denied relief despite the witness’s improper credibility-bolstering testimony. 262 F.3d 1181, 1186 (11th Cir.2001). In that case, we held that the testimony was improper, but that the petitioner failed to demonstrate prejudice because trial counsel used the credibility testimony to discredit the state’s expert witness, and the state presented other evidence that supported the conviction. Id.

Here, Thomas has failed to meet his burden of showing that trial counsel provided ineffective assistance by failing to object to the testimony of defense witness Karen Delano, when she observed on redirect examination that the victim appeared to be credible. To begin with, Thomas has not overcome the “strong presumption” that counsel’s performance was reasonable. As the record shows, trial counsel previously had successively objected to another witness’s credibility-bolstering testimony on the basis that it was improper, and obtained a jury instruction that only the jury could determine the credibility of witnesses. Further, trial counsel used Delano’s observation that she found the victim credible to elicit testimony from Delano that the victim’s prior viewing of pornographic film covers at her grandfather’s house “could explain some things.” Trial counsel then argued, in closing, that the victim was not credible, relying in part on that testimony. As a result, counsels’ decision not to object to Delano’s testimony appears to be a reasonable, strategic choice made in the exercise of their professional judgment.

As for Thomas’s claim that we must conclude that trial counsels’ reason for failing to object was not reasonable or strategic, since the district court did not hold an evidentiary hearing, we disagree. The test is whether counsels’ representation fell below an objective standard of reasonableness, not whether counsel could provide some explanation for their actions. Cf. Strickland,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
596 F. App'x 808, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shaun-lee-thomas-v-united-states-ca11-2015.