IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 for a writ of

habeas corpus. The federal district court subsequently granted the petitioner

habeas relief, determining 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 Orleans police officers responded to a call

about a shooting. They found Kendron Anderson lying on the floor in an

apartment with a gunshot wound. He died at a hospital as the result of a

gunshot wound to the chest. Days later, 14-year-old Ernestine Howard told a

detective that, on the night of the shooting, she was sitting with the victim on

United States Court of Appeals

Fifth Circuit

F I L E D

January 8, 2013

Lyle W. Cayce

Clerk

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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 learned that Benedict Kately may have

been responsible for the shooting. The detective compiled photographs,

including a picture of Kately, and took them to Howard for identification. After

looking through two groups of photographs, Howard identified Kately as the

person who shot the victim. 

The detective, his partner, Howard, and her mother went to the police

station where Howard 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 his companion approached Howard and the victim about marijuana, and

then Kately shot the victim. Howard testified that, after the shooting, she

dreamed about the events and realized she knew the shooter from the

neighborhood. On the witness stand, Howard repeated 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.

Kately applied 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 block from the murder

scene and saw police vehicles. Jordan claimed he was never contacted 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 the events but

never spoke to an attorney.

Devone Mitchell, another one of Kately’s relatives, testified she was

standing near the apartment building when the shooting occurred. Mitchell

stated that seconds before she heard gunshots, 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 the trial, but

Mitchell admitted she was aware that she could be called to the stand.

A third individual, referred to at the hearing as Marvin Blake, failed to

attend the state-court hearing. The court asked counsel what Blake would say

if he were 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. 

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Harry Boyer, Jr. had been Kately’s attorney. He testified that he filed a

notice of intent to call three alibi witnesses at trial. Boyer claimed he learned

Blake’s name did not appear on the alibi witness list. Howard testified that this

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individual left the immediate scene of the crime before Kately and his companion directly

approached Howard and the victim.

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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-examination, Boyer testified that he, an investigator, and cocounsel spoke to Jordan before the trial. Boyer then stated, “The three witnesses

that are on the alibi list, at some point in time – I can’t tell you if it was 10

minutes before they were getting called 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

explained he was worried they “would do more harm to Mr. Kately’s defense

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 investigator and co-counsel.” Without further discussion

about counsel’s investigation, the court then discussed Boyer’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 was asked, “But [did you], in fact, conduct an investigation in this case[?]” 2

Boyer answered, “Sure. Not only did I conduct an investigation, I think we had an investigator

that worked for the Indigent Defense Program, conducting an investigation.”

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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 ineffective assistance of counsel because his

attorneys did not investigate and interview alibi witnesses who would have

testified that Kately did not shoot the victim. 

A magistrate judge issued a report and recommendation to dismiss the

application. The district court 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 district 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 relief – it

would have needed to find that Boyer, in fact, interviewed Mitchell

and Jordan in advance of trial to ascertain their potential

testimony. Such a finding would not be 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 prejudice 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,

 The district court also stated: 3

Although the state court made no specific determination as to whether Boyer

interviewed witnesses and investigated the case, the Court finds that based on

the failure of proof that any such investigation occurred, the state court’s

decision denying post-conviction relief outright was “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)(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 witnesses was arguably a reasonable trial strategy,

but the court concluded that if Boyer had investigated the content of the two

witnesses’ potential testimony, then Boyer’s analysis of whether to call the

witnesses would have been different. 

Thus, considering only the evidence before the state habeas court, the 4

district court held the state court’s judgment resulted in a decision that was

“contrary to, or involved an unreasonable application of, clearly 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 presented [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 court’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 of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be

granted with respect to any claim that was adjudicated on the

The district court expressly stated that it did not base its holding on any failure to

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interview Blake. We need not evaluate the evidence regarding Blake.

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merits in State court proceedings unless the adjudication of the

claim – 

(1) 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

(2) resulted 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 factual 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 rightto effective assistance of counsel in statecourt proceedings. Strickland, 466 U.S. at 684-86. To support a claim for

ineffective assistance of counsel, 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 made an

implicit finding that Boyer actually interviewed Jordan and Mitchell, because

such a finding 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 trial[, and] Boyer did not

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unequivocally testify to the contrary.” The district court granted relief,

determining that the state court’s decision “was based on an unreasonable

determination of the facts in light of the evidence presented in the 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, Jordan testified he did not

speak to an attorney before the trial. Mitchell said she did not know 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 at the 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

state habeas court had evidence of an alibi witness list, which was filed in the

trial court before trial, that contained both Jordan’s and Mitchell’s names and

addresses. In his 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 evidence did not support that

Boyer had interviewed certain witnesses, the court was reweighing the

conflicting evidence. 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. 2004). 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, 849 (2010). There was evidence

from Boyer himself 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 also may grant habeas relief if the state court’s

adjudication “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.” § 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 ‘counsel’s

performance was deficient and 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.” Harrington,

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,

it was error to conclude as the district court did that there was no reasonable

argument that Boyer’s performance was satisfactory. See Bryant, 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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