UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

KEVIN DION HARVEY,

Petitioner,

VS.

DOUGLAS DRETKE, Director, Texas

Department of Criminal Justice,

Correctional Institutions Division,

Respondent.

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) CIVIL ACTION NO.

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) 3:04-CV-1125-G

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MEMORANDUM OPINION AND ORDER

Before the court is a petition for habeas corpus relief brought by a state inmate,

Kevin Dion Harvey (“Harvey”), pursuant to 28 U.S.C. § 2254. For the reasons set

forth below, Harvey’s petition is denied. 

I. BACKGROUND

The facts of the offense are set forth in the opinion of the state court of

appeals: 

[Harvey] testified that, on February 11, 1999, he was a

passenger in his red Jeep driven by “Vic.” Vic pulled the

 

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car over, and [Harvey] saw Michael Jones, the decedant,

standing outside and staring into the vehicle. Jones had his

right hand behind his back, and the other passengers in the

vehicle said Jones had a gun. [Harvey] rolled his window

down and took a gun from the middle console and placed

the gun under his leg. Jones walked toward [Harvey] and

pointed a gun at him. Vic began driving in reverse, and

[Harvey] ducked down and fired three or four shots in

Jones’ direction. [Harvey] thought that he heard gunshots

from Jones. The vehicle hit a telephone pole, and [Harvey]

saw Jones fall before the vehicle drove away. On crossexamination, [Harvey] testified he had confronted Jones on

three previous occasions and had shot at Jones’ house in

December 1998.

Audrey Jones, decedent’s wife, testified that, on the

afternoon of the shooting, “Courtney” came to the Jones’

house, and Jones gave Courtney an automatic handgun. 

Jones appeared worried and left the house and returned

several times. Mrs. Jones heard someone call her husband’s

name and then three gunshots. As she ran to the front of

the house, she heard what sounded like a car accident. 

Mrs. Jones looked out and saw a red Jeep drive by and

recognized [Harvey] in the front passenger seat. Mrs.

Jones heard someone in the Jeep say, “I killed him. 

Motherfuckers, are you happy?” However, Mrs. Jones did

not know which of the passengers made the statement. 

When the Jeep was gone, Mrs. Jones ran over to her

husband where he lay in the street. Mrs. Jones saw

nothing lying in the street near her husband. Jones said,

“G shot me. Courtney has the gun.” Mrs. Jones did not

know which gun Jones was talking about, but she knew

[Harvey] as “G.” Id. 

Tina Alcius testified that she was Courtney Buckingham’s

mother. After the shooting, at approximately 2 a.m.,

Alcius’ daughter picked up Courtney. When Courtney

came in, he had a gun which Jones had given to him. 

Alcius told Courtney to put the gun in a jewelry box, and

she turned the gun in to police the next day. 

 

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Morton Alcius testified he saw [Harvey] walking and

apparently drunk when a red Jeep he recognized as

[Harvey]’s approached. The Jeep pulled up, Jones turned

around, and Alcius heard four shots. Jones had a fortyounce beer bottle in his hands. Jones fell, and when Alcius

got to him, the bottle was next to him, but there was no

gun on the ground. Courtney Davis also testified there was

no gun next to Jones’ body. 

Paul Reddick testified he heard gunshots and saw

[Harvey]’s Jeep hit a pole and drive away. He realized

someone was on the ground and saw that it was Jones. 

Reddick saw a gun lying about twelve inches from Jones’

hand. Reddick did not mention the presence of the gun in

his statement to police because they did not ask, and he

did not think of it because, “when [he] came back to the

body, the weapon was gone.” Nevertheless, Reddick

testified the gun was near Jones’ body as if he had been

trying to pick it up before he hit the ground. 

Vicki Hall, a trace evidence analyst at the Southwestern

Institute of Forensic Science, testified she examined

handwipings taken from Jones. As a result of her

examination, Hall concluded Jones had not fired a weapon,

had not had his hands close to a discharging weapon, or

that the weapon involved did not leave high amounts of

residue. 

Harvey v. State, No. 05-00-00610-CR (Tex. App.--Dallas 2001, pet ref’d), located in

Ex parte Harvey, Application No. 57,741-01, at 82-84.

Harvey was charged by indictment with murder. Ex parte Harvey, Application

No. 57,741-01, at 88. Upon his plea of not guilty, Harvey was tried by a jury and

ultimately convicted. Id. at 92-95. The jury sentenced Harvey to ninety-nine years

imprisonment and a $10,000 fine. Id. at 92. On July 30, 2001, the Court of Appeals

 

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for the Fifth District of Texas affirmed Harvey’s conviction. See Harvey v. State, No.

05-00-00610, 2001 WL 849749, *1 (Tex. App.--Dallas July 30, 2001, pet. ref’d). 

The Texas Court of Criminal Appeals refused Harvey’s petition for discretionary

review (“PDR”) on May 29, 2002. Harvey v. State, PDR No. 0123-02; Petition for

Writ of Habeas Corpus By A Person in State Custody (“Petition”) at 3. 

On May 7, 2003, Harvey filed his state habeas petition challenging his

conviction. See generally Ex parte Harvey, Application No. 57,741-01, at 2. The

Texas Court of Criminal Appeals denied the application without written order on the

findings of the trial court on March 3, 2004. See id. (cover sheet). On May 25,

2004, Harvey filed the instant petition for writ of habeas corpus in this court. See

generally Petition. 

II. ANALYSIS

A. Exhaustion of State Court Remedies

In his answer to the petition, respondent Doug Dretke, Director, Texas

Department of Criminal Justice, Correctional Institutions Division (“Dretke”), admits

that Harvey has satisfactorily exhausted all available state court remedies as required

by 28 U.S.C. § 2254(b) and (c). Respondent [Dretke]’s Answer with Brief in

Support (“Answer”) at 4. Accordingly, Dretke does not seek dismissal of the

application for writ of habeas corpus on that basis. 

 

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B. Standard of Review

Harvey’s petition was filed May 25, 2004, subsequent to the April 24, 1996

effective date of the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”). Therefore, the standards of review set forth in AEDPA apply to this

case. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Williams v. Cain, 125 F.3d 269,

274 (5th Cir. 1997), cert. denied, 525 U.S. 859 (1998). Consequently, the petitioner

may not obtain relief in this court with respect to any claim adjudicated on the merits

in the 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). 

A state court decision may be “contrary to” Supreme Court precedent in two

ways. First, the state court may arrive at a conclusion opposite to that reached by the

Supreme Court on a question of law. Williams v. Taylor, 529 U.S. 362, 405 (2000). 

Second, the state court may confront “facts that are materially indistinguishable from

a relevant Supreme Court precedent” and arrive at an opposite conclusion. Id. (citing

Green v. French, 143 F.3d 865, 869-70 (4th Cir. 1998), cert. denied, 525 U.S. 1090

(1999)). To determine whether a state court decision involves an “unreasonable

 

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application” of federal law, a federal habeas court’s “inquiry should ask whether the

state court’s application of clearly established federal law was objectively

unreasonable.” Id. at 409. “[A] federal habeas court may not issue the writ simply

because that court concludes in its independent judgment that the relevant statecourt decision applied clearly established federal law erroneously or incorrectly. 

Rather, that application must also be unreasonable.” Id. at 411. Further, all factual

determinations made by a state court shall be presumed to be correct and such

presumption can only be rebutted by clear and convincing evidence presented by the

petitioner. 28 U.S.C. § 2254(e)(1). 

C. Harvey’s Ground for Relief: Ineffective Assistance of Counsel

A criminal defendant has a constitutional right to the effective assistance of

counsel. See U.S. CONST. amends. VI, XIV; Evitts v. Lucey, 469 U.S. 387, 393-95

(1985); Strickland v. Washington, 466 U.S. 668, 688 (1984). An ineffective assistance

claim is governed by the standards set forth in Strickland. 466 U.S. at 668. To

establish ineffective assistance of counsel, a petitioner must show: (1) that counsel’s

performance fell below an objective standard of reasonableness, and (2) that but for

counsel’s deficient performance, the result of the proceeding would have been

different. Id. at 687-88. 

When applying this standard, a court must indulge a strong presumption that

counsel’s conduct fell within the wide range of reasonable professional assistance or

 

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sound trial strategy. Id. at 688-89. Judicial scrutiny of counsel’s performance must

be highly deferential and every effort must be made to eliminate the distorting effects

of hindsight. Id. at 689. “A conscious and informed decision on trial tactics and

strategy cannot be the basis for constitutionally ineffective assistance of counsel

unless it is so ill chosen that it permeates the entire trial with obvious unfairness.” 

Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997) (quoting Garland v. Maggio,

717 F.2d 199, 206 (5th Cir. 1983)). 

To satisfy the prejudice prong of Strickland, Harvey must show that his

counsel’s errors were so serious as to deprive the defendant of a fair trial. Strickland,

466 U.S. at 687. Harvey must also show that as a result of trial counsel’s

unprofessional errors, there exists a reasonable probability that the result of the trial

would have been different. Id. at 694; see Carter v. Johnson, 131 F.3d 452, 463 (5th

Cir. 1997) (“In evaluating claims of ineffective assistance during the guilt stage of the

trial, the petitioner must show a ‘reasonable probability’ that the jury would have

otherwise harbored a reasonable doubt concerning guilt.”), cert. denied, 523 U.S. 1099

(1998); Armstead v. Scott, 37 F.3d 202, 207 (5th Cir. 1994) (finding that the showing

of prejudice must be “rather appreciable” because a mere allegation of prejudice is not

sufficient to satisfy the prejudice prong of Strickland), cert. denied, 514 U.S. 1071

(1995). Since a convicted defendant must satisfy both prongs of the Strickland test, a

failure to establish either deficient performance or prejudice makes it unnecessary to

 

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examine the other prong. Strickland, 466 U.S. at 697; Black v. Collins, 962 F.2d 394,

401 (5th Cir.), cert. denied, 504 U.S. 992 (1992). 

In this case, Harvey claims that his counsel: (1) failed to conduct a prompt

and proper investigation; (2) failed to interview and subpoena eyewitnesses and the

person who removed the gun from the scene; and (3) prevented him from presenting

a complete and meaningful defense. See Petition at 3, 7; Memorandum of Law in

Support of Kevin Dion Harvey’s Application for the Writ of Habeas Corpus (2254)

(“Harvey’s Memorandum”) at 5. Harvey’s ineffective assistance claims have been

reviewed on the merits under the Strickland standard and have been denied by the

state courts. Accordingly, federal habeas relief may be granted only if the state

court’s decision was contrary to or involved an unreasonable application of Strickland,

or if the state court’s decision is based on an unreasonable determination of the facts

in light of the evidence presented. Bell v. Cone, 535 U.S. 685, 698-99 (2002); Haynes

v. Cain, 298 F.3d 375, 379-82 (5th Cir.), cert. denied, 537 U.S. 1072 (2002). Under

this standard, the state court’s application of Strickland must be shown to be not only

erroneous, but also objectively unreasonable. Yarborough v. Gentry, 540 U.S. 1, 5

(2003). According to § 2254(e)(1), state court factual findings are presumed correct

unless the habeas petitioner can establish by clear and convincing proof that they are

incorrect. See 28 U.S.C. § 2254(e)(1). The court recognizes that ineffective

assistance of counsel claims involve mixed questions of law and fact and that the

 

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standards of § 2254(d)(1) apply to the ultimate determination of whether the state

court’s findings that Harvey received effective assistance is due deference on federal

habeas review. Carter v. Collins, 918 F.2d 1198, 1202 (5th Cir. 1990). Nevertheless,

background fact findings made in the course of determining the issue of ineffective

assistance of counsel are subject to the presumption of correctness of § 2254(e)(1)

and may be rebutted only by clear and convincing proof. See Perillo v. Johnson, 79

F.3d 441, 445-46 (5th Cir. 1996). 

Harvey raised his ineffective assistance claim in his state habeas application. 

Harvey’s counsel contended, however, that he did investigate and interview witnesses. 

Specifically, in his affidavit, Harvey’s counsel stated:

To address the issues raised by Mr. Harvey; first, I have no

knowledge of anyone by the name of Kenny Ray Davis. 

My investigation never led me to him, nor was I ever given

his name.

As for Weldon Venters, my investigator David Wells made

attempts to locate Mr. Venters. Although to the best of

my knowledge he never spoke personally with Mr. Wells,

Mr. Venters expressed a concern about being charged as a

party through other individuals and he further went on to

state he was not going to testify. My telephone number

and address were left with individuals and places we

thought Mr. Venters would be; he never contacted me. I

understand it was my job to find him, but we exhausted

our sources.

As for Corey Buckingham, I did speak with him. In fact, I

spoke with him with Mr. Harvey’s mother. Yes, Mr.

Buckingham admitted to moving the gun; but he also

stated that Mr. Harvey fired first and initiated the

 

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altercation. The statement he [Harvey] has attached to the

writ is completely contrary to what he told me. I made the

tactical decision to try to get the fact out a gun was found

and moved through other witnesses, which I feel I did. 

Because Mr. Buckingham’s testimony as to what he saw

would have been very damaging to Mr. Harvey’s case, I

chose not to call him. 

Ex parte Harvey, Application No. 57,741-01, at 80-81. 

The state trial court issued findings of fact rejecting Harvey’s allegations and

concluding that he failed to prove deficient performance on the part of counsel or

that the result of his trial would have been different but for counsel’s alleged

deficiencies. Id. at 76-79. In particular, the state court found that Harvey’s counsel

was a trustworthy individual and that Harvey was represented by counsel who

exercised all of the skill and expertise which one could reasonably expect of counsel. 

Id. at 77-78. Based on this testimony, the state trial court made a credibility

determination to believe the testimony of Harvey’s counsel. 

Harvey has failed to present clear and convincing proof to rebut the state

court’s factual findings. The state court found the testimony of Harvey’s counsel

credible, and this credibility determination is entitled to a presumption of correctness. 

See Carter v. Johnson, 131 F.3d at 463-64; Carter v. Collins, 918 F.2d at 1202. As a

result, this court will presume the facts contained in Harvey’s counsel’s affidavit --

and found credible by the state habeas court -- to be correct. Accordingly, the court

now turns to the issue of whether, under these circumstances, the state court’s

 

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ultimate findings that counsel rendered effective assistance was contrary to, or

involved an unreasonable application of, Strickland principles. 

It is well established that a defense attorney has a duty to conduct a reasonable

amount of pretrial investigation. See Lockhart v. McCotter, 782 F.2d 1275, 1282 (5th

Cir. 1986), cert. denied, 479 U.S. 1030 (1987); Nealy v. Cabana, 764 F.2d 1173, 1177

(5th Cir. 1985). The duty includes seeking out and interviewing potential witnesses. 

Lockhart, 782 F.2d at 1282. To succeed on a claim, however, the petitioner must

show that had counsel investigated the claim, he would have found witnesses to

support the defense, that such witnesses were available, and had counsel located and

called these witnesses, their testimony would have been favorable and they would

have been willing to testify on his behalf. Alexander v. McCotter, 775 F.2d 595, 602

(5th Cir. 1985). “(C)omplaints of uncalled witnesses are not favored, because the

presentation of testimonial evidence is a matter of trial strategy and because

allegations of what a witness would have testified are largely speculative.” Boyd v.

Estelle, 661 F.2d 388, 390 (5th Cir. 1981) (quoting Buckelew v. United States, 575 F.2d

515, 521 (5th Cir. 1978) (alteration in original); United States v. El-Zoubi, 993 F.2d

442 (5th Cir. 1993) (holding that a decision not to call certain witnesses during trial

was a matter of trial strategy). Therefore, under Strickland, even where trial counsel

has failed to adequately investigate a case, a defendant must demonstrate that he has

 

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been prejudiced by his counsel’s failure. See Theriot v. Whitley, 18 F.3d 311, 315 (5th

Cir. 1994); Nealy, 764 F.2d at 1178-80.

Based on the facts set forth in the affidavit of Harvey’s counsel, which carries a

presumption of correctness, the court finds that counsel’s investigation and the

decision not to pursue Buckingham as a witness comported with Strickland standards. 

In particular, Harvey’s counsel cannot be faulted for failing to investigate Davis, given

that Harvey himself failed to supply him with Davis’ name in a timely manner. 

Harvey’s counsel also attempted to locate Venters to interview him; however, he was

unable to accomplish this after thoroughly exhausting his resources. Furthermore,

after interviewing Buckingham, Harvey’s counsel concluded that not only could

Buckingham not provide credible testimony for Harvey on the theory of self-defense,

but that Buckingham’s testimony might actually benefit the state. Under these

circumstances, Harvey’s counsel’s failure to use the testimony of Buckingham

constituted a rational decision, warranting a heavy measure of deference. For these

reasons, Harvey has failed to show that his counsel’s actions were constitutionally

deficient. 

Additionally, Harvey’s ineffective assistance claims should be denied because

he has not satisfied the prejudice prong of the Strickland test. The evidence adduced

at trial conclusively established his guilt of murder. Harvey did not deny shooting

Jones. Rather, Harvey argued only that he acted in self-defense when Jones aimed a

 

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gun at him and shot him. However, no gun was ever recovered from the scene of the

shooting. Moreover, handwipings taken from Jones indicated that Jones had not fired

a gun, had not had his hands close to a discharging weapon, or that the weapon

involved did not leave high amounts of residue. As a result, Harvey has not shown

that the result of the trial would have been different had his counsel acted differently. 

See Wilkerson v. Whitley, 16 F.3d 64, 68 (5th Cir. 1994) (finding that if facts adduced

at trial point so overwhelmingly to the defendant’s guilt that even the most

competent counsel would be unlikely to have obtained an acquittal, the defendant’s

ineffective assistance of counsel claim must fail), cert. denied, 513 U.S. 1085 (1995). 

In sum, after reviewing Harvey’s claims and giving appropriate deference to the

state court’s adjudication of these claims, the court cannot say that the state court’s

application of the Strickland attorney-performance standard was erroneous or

objectively unreasonable. See Bell, 535 U.S. at 698-99. 

III. CONCLUSION

For the reasons discussed above, Harvey’s petition for a writ of habeas corpus

is DENIED. 

SO ORDERED.

June 28, 2005.

 

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