### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 12-30077

BENEDICT KATELY, Petitioner - Appellee
v. BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY, Respondent - Appellant

Appeal from the United States District Court for the Eastern District of Louisiana

Before DeMOSS, SOUTHWICK, and HIGGINSON, Circuit Judges. LESLIE H. SOUTHWICK, Circuit Judge: A Louisiana state court denied the petitioner’s application f o r a writ of habeas corpu s . The federal district court subsequently granted the petitioner habeas relief, d e t e r mining that the state court’s decision was based on an unreasonable determination of the facts. We REVERSE.

FACTUAL AND PROCEDURAL BACKGROUND On September 13, 2002, New Orl e a n s police officers responded to a call

ab o u t a s h o oting. They found Kendron Anderson lying on the floor in an apartment with a gunshot wou n d

. H e died at a hospital as the result of a gunshot wound to the chest. Days later, 14-year- o l d E r n e s tine Howard told a detective that, on the night of the shooting, she was sitting with the victim on U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

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the porch when two men approached. One of the men had dreadlocks, and the other wore a towel over his head. The following day, the detective l e arned that Benedict Kately may have been responsible for the shooting. The detective compile d p h o t ographs, including a picture of Kately, and took them to Howard for identification. After looking through two groups of photographs, Howard identified Ka t e l y as the person who shot the victim. The detective, his partner, Howard, and her mother went to th e p o l i ce station w h e r e H o ward gave a recorded statement. For the first time, Howard identified the shooter by name and provided other details about the night of the shooting. After a warrant was issued, Kately surrendered at a police station. Kately was indicted for first-degree murder in Louisiana district court. At trial, Howard testified that while she and the victim were on the porch, Kately and h i s companion approached Howard and the victim about marijuana, and then Kately shot the victim. Howard testified that, after the shooting, she dreamed about th e e v e n t s and realized she knew the shooter from the neighborhood. On the witness stand, Howard r e p eated her identification of Kately as the person who shot the victim. Kately was convicted of first-degree murder and sentenced to life imprisonment. Both the conviction and sentence were affirmed on appeal. Kate l y a pplied for post-conviction habeas relief in state court, claiming that he received ineffective assistance of counsel. At a hearing, Kately’s cousin Tyrone Jordan testified he was with Kately the night of the shooting. Between 9:30 and 10:00 p.m., the two arrived at a location one blo c k from the murder

scene and saw police vehicles. Jordan claimed he was never c o n t a cted by

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Kately’s attorney but did attend the trial and was prepared to testify. Jordan claimed he approached an investigator about his knowledge of t h e e v e n ts but never spoke to an attorney. Devone Mitchell, another on e o f Kately’s relatives, testified she was standing near the apartment building when the shooting occurred. Mitchell stated that seconds before she hea r d gu n s h o ts, two men walked near the building. Mitchell noticed that one of them may have had a towel around his head, but neither of the men were Kately. Mitchell admitted she did not see the shooting. When asked if she were ever contacted by Kately’s attorneys, Mitchell responded, “I never knew who I was speaking with until it was time for court.” Counsel asked Mitchell to repeat what she said, at which point Mitchell said, “I don’t recall speaking to anybody.” Like Jordan, Mitchell attended the trial and was prepared to testify. She claimed she spoke to an attorney at the trial but was not called to testify. Later, Mitchell stated she never spoke to the attorney before the day of t h e t ri a l , but Mitchell admitted she was aware that she could be called to the stand. A third indivi d u a l , r e f erred to at the hearing as Marvin Blake, failed to attend the state-court hearing. The court asked counsel what Blake would say if he we r e present. Counsel replied that Blake would testify he witnessed the shooting and that Kately did not shoot the victim. Opposing counsel countered that Blake left the scene and was not present during the actual shooting. 1 Harry Boyer, Jr. had been Kately’s attorney. He testified that he filed a notice of intent to call three alib i witnesses at trial. Boyer claimed he learned

B l a k e ’ s n ame did not app ear on the alibi witnes s lis t. Ho wa rd tes tif ied that th i s 1 individual lef

t the im me diat e sc ene of the cri me bef ore Ka tel y and his com pani on dir ect ly app roac hed Ho wa rdandt he victi m. 3 Case: 12-30077 Document: 00512104953 Page: 3 Date Filed: 01/08/2013No. 12-30077

of these witnesses through Kately or the police report

. Boyer stated that he personally conducted an investigation. When asked whether he spoke to these 2 individuals “at any point before trial,” Boyer responded, “I’m sure we did. I did, [co-counsel] did. I believe during the trial, I don’t recall who spoke to them.” On cross-examinatio n , B o y e r testified that he, an investigator, and cocounsel spoke to Jordan before the trial. Boyer then stated, “The three witnesses that a r e o n t he alibi list, at some point in time – I can’t tell you if it was 10 minutes before they were ge tt i n g c a l l ed to testify, or the day before, the week before. But I believe there [were] several conversations with those folks.” Boyer further said he interviewed Kately before the trial. When asked about his decision not to call these witnesses at trial, Boyer

e xplained he was worried they “would do more harm to Mr. Kately’s de f e n s e than good” because the State’s only eyewitness remembered the shooter’s name in a dream. Boyer further reasoned that the alibi witnesses did not witness the crime, and their uncorroborated testimonies were ultimately not “strong enough to overcome the possibility that they would hurt [Kately’s] case.” The state habeas court issued a written judgment. It provided, in part, “Kately’s trial counsel, Harry Boyer, testified that he did interview all potential witnesses, as did his i nv e stigator and co-counsel.” Without further discussion about counsel’s investigation, the court then discussed Bo y e r ’s decision not to call any witnesses, concluding Boyer’s assistance as counsel was not ineffective under Strickland v. Washington , 466 U.S. 668 (1984). Therefore, the state habeas court denied Kately’s application for post-conviction relief.

Boyer wa s a s k e d, “But [did you], in fac t, cond uct an inves tigat ion in this cas e[? ]” 2 Boyer ans we red , “Su re. Not only did I cond uct an inves tigat ion, I think we had an inves tigat or thatw ork ed fort he IndigentD efe nsePr ogram , cond uct ing aninvest igatio n.” 4 Case: 12-30077 Document: 00512104953 Page: 4 Date Filed: 01/08/2013No. 12-30077

Kately filed an application for a writ of habeas corpus in the United States District Court for the Eastern District of Louisiana. See 28 U

. S

. C

. § 2254. Kately claimed he received ineffe c tive assistance of counsel because his attorneys did not investiga t e and interview alibi witnesses who would have testified that Kately did not shoot the victim. A magistrate judge issued a report and r e c o mmendation to dismiss the application. The district c ourt disagreed. The court granted Kately’s habeas relief, concluding that “Boyer’s performance was deficient if he did not interview [Jordan and Mitchell] prior to trial.” Noting the state judgment’s brevity as to Boyer’s investigation, the di s t rict court questioned whether the state habeas court found as a matter of fact that Boyer questioned these two alibi witnesses. The district court concluded that for the state court to reach the decision it did – denying r e l i e f

– it would have needed to find that Boyer, in fact , interviewed Mitchell and Jordan in advance of trial to a scertain their potential testimony. Such a finding would notbe supported by the evidence adduced at the evidentiary hearing [before the state court]. 3

The district court also determined there was a reasonable probability that Kately suffered actual p r ej u dice because of counsel’s deficiency: Had Boyer interviewed these two alibi witnesses, Boyer would have been able to develop a defense to the State’s evidence, which rested on a single eyewitness’s testimony,

Thedist ric t cour t als o s tat ed: 3

Altho ugh the st ate cou rt m a d e no sp ecif ic det erm inati on as to wh ethe r Boyer inte rview ed wi tnes se s and inves tigat ed the cas e, the Court find s that bas ed on the fai lure o f pr oof that any suc h inves tigat ion occ urr ed, the st ate cour t’s dec isi on denyi ng pos t- convic tio n reli ef outr ight wa s “a dec isi on that wa s bas ed
on an unrea so nable det erm inati on of the fac ts in light of the evide nce pr es ente d in the Sta te court pr oce edi ng.” 28 U .S .C. § 2254( d) (2)

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that “would have led the jury to conclude that the State had not met its burden of proof beyond a reasonable doubt.” The district court noted Boyer’s decision to refrain from calling these witne s s e s w a s arguably a reasonable trial strategy, but the court conc l u d e d t h a t if Boyer had investigated the content of the two witnesses’ p o t e n t i al testimony, then Boyer’s analysis of whether to call the witnesses would have been different. Thus, considering only the evidence before the stat e h ab eas court, the 4 district court held the state court’s judgment resulted in a de c i s i o n that was “contrary to, or involved an unreasonable application of, clea rl y established Supreme Court precedent under Title 28 U.S.C. § 2254(d)(1).” According to the highly deferential test articulated in Harrington v. Richter , 131 S. Ct. 770, 788 (2011), the district court held there was “no reasonable argument that, based on the evidence pr e s e n t e d [to the state habeas court], trial counsel satisfied Strickland’s demands.” The State timely appealed to this court, and the district court granted the State’s motion for a stay pending this appeal. DISCUSSION We review the district court’s factual findings for clear error and its legal conclusions de novo . Salts v. Epps , 676 F.3d 468, 473 (5th Cir. 2012). We apply “the same standards to the state c o u rt’s decision as did the district court.” Id. A federal court is limited in its ability to provide habeas relief: An application for a writ o f h ab e as corpus on behalf of a person in c u s t ody pursuant to the judgment of a State court shall not be granted with respect to any claim that was a d j u di cated on the

The dis tri ct cour t expr es sly st ated that it did not bas e its holding on any fai l u r e t o 4 inte rviewBlak e. Wene ed not evaluat e t he evide nce regar ding Blak e. 6 Case: 12-30077 Document: 00512104953 Page: 6 Date Filed: 01/08/2013No. 12-30077

merits in State court pro c e edings unless the adjudication of the claim – (1) resulted in a decision that was contrary to, or involved an unreasonable application of, c l e arly established Federal law, as determined by the Supreme Court of the United States; or (2 ) r e s u l ted 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). We must presume the state court’ s f a c t u al findings are correct, and the applicant bears the burden to rebut that presumption with clear and convincing evidence. § 2254(e)(1). Criminal defendants have a ri ght to ef f e ctive assistance of counsel in statecou rt p roceedings. Strickland , 466 U.S. at 684-86. To support a claim for ineffective assistance of co u n s e l , the defendant must make two showings: (1) “counsel’s performance was deficient,” and (2) “the deficient performance prejudiced the defense.” Id. at 687. A defendant may show counsel’s assistance was deficient if the attorney failed to make a reasonable investigation into the

case before trial. Bryant v. Scott , 28 F.3d 1411, 1415 (5th Cir. 1994). Counsel must, “at a minimum,

. . . interview potential witnesses and

. . . make an independent investigation of the facts and circumstances in the case.” Id. The district court stated that the state court’s analysis of Kately’s claim based on Boyer’s investigation and interviewing of alibi witnesses was “terse at most.” The district court concluded that the state court must have m a d e a n implicit finding that Boyer actually intervi e wed Jordan and Mitchell, because such a f i nding was necessary to the decision the state court reached, but that this implied finding was error inasmuch as “Jordan and Mitchell both testified that they did not speak to Boyer prior to the t ri a l [ , and] Boyer did not

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unequivocally tes ti f

y t o the contrary.” The district court granted relief, determining that the state cour t ’ s decision “was based on an unreasonable determination of the facts in light of the evidence presented in t he State court proceeding.” § 2254(d)(2). Both parties also construe the state court decision as containing an implicit finding that Boyer interviewed Jordan and Mitchell. We accept that construction and evaluate whether such a finding was unreasonable. At the hearing before the state habeas court, Jord a n t e s tified he did not speak to an attorney before the trial. Mitchell said she did n o t k n o w to whom she spoke until it was time for court, then stated she did not remember speaking to anybody, and later testified she spoke to an attorney a t t h e trial. Attorney Boyer’s testimony was somewhat ambiguous, but he explicitly stated that he investigated this case and interviewed these witnesses before trial. Further, the

s t a t e h ab eas court had evidence of an alibi witness list, which was filed in th e tri al court before trial, that contained both Jordan’s and Mitchell’s names and addresses. In h is opening statement at the murder trial, Boyer told jurors he would likely call both Jordan and Mitchell as witnesses and provided details of each witness’s potential testimonies. When the district court determined the evide n c e di d n ot support that Boyer had interviewed certain wi t nesses, the court was reweighing the conflicti n g e vidence. It should not have. A federal court is to presume a state habeas court’s factual findings are correct absent clear and convincing evidence to the contrary. Young v. Dretke , 356 F.3d 616, 629 (5th Cir

. 2 0 0 4). It is not enough that the federal court “would have reached a different conclusion in the first instance.” Wood v. Allen , 130 S. Ct. 841, 8 4 9 (2010). There was evidence from Boy e r h i m self that he interviewed the relevant witnesses. The evidence

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was contradicted and was not as clearly stated as it could have been, but the state habeas court was entitled to credit it. Based on these facts, we cannot say the state habeas court’s finding was unreasonable. A federal court al s o m a y grant habeas relief if the state court’s adjudication “resulted in a d e c ision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” § 2254(d)(1). The relevant established law concerns ineffective assistance of counsel under Strickland

. “[A] defendant must meet the standard established in Strickland by showing that ‘c o u n sel’s performance was defici e nt an d that the deficiency prejudiced the defense.’” Pape

v. Thaler , 645 F.3d 281, 288 (5th Cir. 2011) (quoting Wiggins v. Smith , 539 U.S. 510, 521 (2003)) (emphasis added). When we apply the standard in Section 2254(d)(1) to a claim for ineffective assistance of counsel, “ [t]he question is whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Harr i n gton , 131 S. Ct. at 788. The state habeas court’s finding that Boyer interviewed the alibi witnesses was not an unreasonable determination of the facts. Therefore, i t w a s error to conclude as the district court did that there was no reaso n ab l e argument that Boyer’s performance was satisfactory. See B r y a n t , 28 F.3d at 1415. We thus do not need to reach the issue of prejudice. We REVERSE the district court’s judgment granting habeas relief.

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