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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

AKIO MONTRAIL SMITH, §

Petitioner, §

§ No. 3:05-CV-2125-P

v. § ECF

§

NATHANIEL QUARTERMAN, Director, §

TDCJ-CID, §

Respondent. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. 

§ 636(b) and a standing order of reference from the district court. The Findings, Conclusions

and Recommendation of the Magistrate Judge are as follows:

I. Background

On August 22, 2003, Petitioner was convicted of first degree murder. State of Texas v.

Akio Montrail Smith, F-0175868-LU (291st Dist. Ct., Dallas County, Tex., Aug. 22, 2003). 

Petitioner was sentenced to forty-eight years confinement. On April 20, 2004, the Fifth District

Court of Appeals affirmed the conviction. Smith v. State, No. 05-03-01292-CR (Tex. App.–

Dallas, 2004). Petitioner did not file a petition for discretionary review. 

On January 20, 2005, Petitioner filed a state petition for writ of habeas corpus. Ex parte

Smith, Application No. 62,309-01. On August 17, 2005, the Court of Criminal Appeals denied

the petition without written order on the findings of the trial court. Id. at cover.

On October 4, 2005, Petitioner filed this federal petition. Petitioner argues he received

 

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ineffective assistance of counsel when counsel:

(1) failed to question witnesses before trial; 

(2) failed to investigate:

(a) evidence seized by police officers;

(b) evidence regarding the scene of the incident;

(c) the victim’s reputation for violence and his criminal, psychological, and

gang history;

(d) witnesses’ criminal history;

(3) failed to prepare and present a coherent self-defense argument;

(4) failed to present all available evidence regarding self-defense to the jury; and

(5) failed to seek suppression of state witnesses’ testimony.

II. Discussion

1. Factual Background

The following statement is taken from the court of appeals decision:

The record contains evidence that, on the evening of October 19, 2001, [Corey]

Jones and Beverly Shinn drove to an apartment building in Dallas. Jones walked up to a

third floor apartment to discuss selling a stereo to Devan Lawrence, who was among

those in the apartment. [Petitioner] arrived thereafter. Shortly after [Petitioner] arrived,

Jones went downstairs to get into the car and leave. Lawrence testified that [Petitioner]

followed Jones and “had words” with Shinn, who was sitting in the passenger seat. 

Lawrence observed [Petitioner] reach into the car and remove the keys from the ignition. 

Then Jones got out of the car, and Jones and [Petitioner] “had words.” [Petitioner] asked

Lawrence to hold his gun, but Lawrence refused. Jones and [Petitioner] walked up the

steps and stood on the balcony in front of the apartment, arguing about the keys. 

According to Lawrence, Jones was trying to get the keys and was about to leave. 

[Petitioner] and Jones moved into the apartment, still arguing and “tussling,” that is,

Jones was trying to get the keys from [Petitioner’s] pocket, but Lawrence told them to

leave. According to Lawrence, Jones did not have a gun, and [Petitioner] and Jones were

not punching or swinging at each other. Lawrence heard Jones say something to

[Petitioner], although Lawrence did not hear what Jones said. Then [Petitioner] said to

 

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Jones, “You threatening me?” and immediately pulled out a “metallic silver, grayish

color” nine millimeter automatic handgun and shot Jones. Jones grabbed Lawrence, and

Lawrence pulled him into the apartment and closed the door because [Petitioner] was still

“aiming the gun” at the apartment. Jones later died from a single gunshot wound. After

the shooting, [Petitioner] left the scene.

Kenley Holloman, a friend of [Petitioner’s], testified that [Petitioner] had been

with Holloman at Holloman’s house earlier that day, and Holloman had seen [Petitioner]

with a chrome gun which Holloman thought was a nine millimeter. Holloman testified

that, after the incident, [Petitioner] told Holloman that [Petitioner] and Jones had “got

into it over some car keys.”

Beverly Shinn testified she and Jones were about to leave the apartment building

parking lot, when [Petitioner] came down from the apartment and started beating on the

front passenger window. [Petitioner] looked “crazy” to Shinn. Shinn told Jones to leave,

but Jones got out of the car to talk to [Petitioner]. Then [Petitioner] went to the driver’s

side, jumped into the seat, tried to drive away, and grabbed the key when the car would

not move. According to Shinn, [Petitioner] and Jones began arguing, but were not

“punching each other.” [Petitioner] yelled to a man on the balcony to come and get his

gun. Shinn heard them arguing while they were going up the stairs, and then she heard a

gunshot. According to Shinn, Jones did not own a gun, and did not have either a gun or a

knife on the night of the incident.

Kevin Brown was also in the apartment. He testified that [Petitioner] went down

to Jones’s car and argued with Shinn. Brown also observed [Petitioner] and Jones

arguing. According to Brown, [Petitioner] asked Lawrence to hold his gun, and

Lawrence refused. Jones and [Petitioner] continued to argue as they walked up the stairs

to the apartment. Jones tried to get his key from [Petitioner], who pushed Jones away. 

Brown and Lawrence tried to break up the verbal argument and the “tussling” over the

keys. According to Brown, [Petitioner] and Jones were on the balcony when [Petitioner]

was saying he was “going to knock him (i.e., Jones) out.” Then Jones said, “If you put

your hands on me, then I’m going to kill you.” Brown heard [Petitioner] say “You

threatening me?” and then saw [Petitioner] pull out a grey nine millimeter handgun and

shoot Jones. Brown never saw Jones with a gun or knife, and he did not see Jones

swinging at [Petitioner].

[Petitioner] testified that, on the night of the incident, he went to the apartment to

buy drugs, but he did not see Shinn, did not go downstairs until after he shot Jones, and

did not have a gun. [Petitioner] testified that he owned a .45 caliber handgun, but did not

own a nine millimeter handgun. According to [Petitioner] he and Jones were arguing

over Jones’s speaking of [Petitioner’s] cousin who was in jail after shooting and killing

Jones’s mother, an event that had happened ten or eleven years previously, when

[Petitioner] was a little boy, and had never previously been mentioned between

[Petitioner] and Jones. [Petitioner] testified that Jones said to him, “On my mama, I’m

 

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fixing to kill you just like your cousin killed my mama.” [Petitioner] asked Jones if Jones

was threatening him. Then, according to [Petitioner], Jones reached down his pants for a

chrome or black gun, “fumbling, just like he was drunk,” but Jones’’s gun caught on a

belt loop. According to [Petitioner], Brown was standing next to [Petitioner], holding a

nine millimeter. [Petitioner] reached to the side, grabbed the gun from Brown and,

without aiming, shot towards Jones. [Petitioner] testified that Jones dropped his gun.

A police officer testified that he found a cartridge casing from a nine millimeter

semi-automatic handgun on the ground under the stairwell leading to the apartment. No

guns were recovered from the scene.

Smith v. State, No. 05-03-01292-CR, slip op. at 2-3.

2. Standard of Review

The pertinent terms AEDPA state:

(d) An application for 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 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 a State court proceeding.

28 U.S.C. § 2254(d). Under the “contrary to” clause, a federal habeas court may grant the writ

of habeas corpus if the state court arrives at a conclusion opposite to that reached by the United

States Supreme Court on a question of law or if the state court decides a case differently from the

United States Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor,

529 U.S. 362, 380-84 (2000). Under the “unreasonable application” clause, a federal court may

grant a writ of habeas corpus if the state court identifies the correct governing legal principle

from the United States Supreme Court’s decisions, but unreasonably applies that principle to the

facts of the prisoner’s case. Id.

 

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This amendment applies to all federal habeas corpus petitions which are adjudicated on

the merits in state court after April 24, 1996. See Lindh, 521 U.S. at 336. The petition in this

case is subject to review under the AEDPA.

3. Ineffective Assistance of Counsel

Petitioner claims his counsel was ineffective because she: (1) failed to investigate; (2)

failed to prepare and present a coherent self-defense argument; (3) failed to present all available

evidence to support self-defense; (4) failed to question witnesses before trial; and (5) failed to

seek suppression of witness testimony before trial.

To sustain a claim of ineffective assistance of counsel, Petitioner must show that: (1)

counsel’s performance was deficient; and (2) the deficient performance prejudiced the defense so

gravely as to deprive Petitioner of a fair trial. Strickland v. Washington, 466 U.S. 668, 687

(1984). In Strickland, the Court stated that “[j]udicial scrutiny of counsel’s performance must be

highly deferential” and “every effort [must] be made to eliminate the distorting effects of

hindsight.” Strickland, 466 U.S. at 689. Courts, therefore, must “indulge a strong presumption

that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id.

Even if counsel is proven deficient, a petitioner must prove prejudice. To prove such

prejudice, Petitioner must show “a reasonable probability that the result of the proceedings

would have been different but for counsel’s unprofessional errors.” Crane v. Johnson, 178 F.3d

309, 312 (5th Cir. 1999) (citing Strickland, 466 U.S. at 694). “[T]he mere possibility of a

different outcome is not sufficient to prevail on the prejudice prong.” Id. “Rather, the defendant

must demonstrate that the prejudice rendered sentencing ‘fundamentally unfair or unreliable.’”

Id. (quoting Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)).

 

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(a) Failure to Question Witnesses

Petitioner argues his counsel failed to question witnesses prior to trial concerning issues

meaningful to his defense. On state habeas review, Petitioner’s counsel filed an affidavit stating

that she interviewed two of the state’s witnesses, Beverly Shinn and Kenley Holloman, prior to

trial. Ex parte Smith, No. 62,309-01 at 44-45. Petitioner’s counsel also stated that two of the

state’s other witnesses, Devon Lawrence and Kevin Brown, were not willing to speak to her or

her investigator prior to trial. Id. Petitioner does not state which witnesses his counsel failed to

interview or what specific questions or information counsel should have obtained from any

witnesses. Petitioner’s conclusory allegations are insufficient to warrant habeas relief. See

Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985) (stating “for the appellant to

demonstrate the requisite Strickland prejudice, the appellant must show not only that this

testimony would have been favorable, but also that the witness would have testified at trial.”);

see also Martin v. McCotter, 796 F.2d 813, 819 (5th Cir. 1986) (finding “hypothetical or

theoretical testimony will not justify the issuance of a writ . . . .”). Petitioner’s claim should be

denied.

(b) Failure to Investigate and Present Evidence

Petitioner raises numerous claims alleging that his counsel failed to properly investigate

the case and failed to present all available evidence to the jury.

(i) Gun Evidence

Petitioner alleges his counsel failed to investigate a gun that was discovered in a

different apartment four days after the incident, but was not allowed to be mentioned during the

trial. The record shows, however, that defense counsel raised the gun issue before trial and

 

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attempted to have evidence regarding the gun admitted. (Trial Tr. Vol. 3 at 10-12). Petitioner’s

ineffective assistance claim regarding the gun evidence is without merit and should be denied.

(ii) Apartment Evidence

Petitioner argues his counsel failed to investigate Petitioner’s claims that the

apartment were the incident occurred was a drug house. Petitioner argues this evidence would

have discredited the state’s witnesses who testified that no drugs were sold from the apartment. 

He also states the evidence would support his claim of self-defense since drug houses are known

to contain guns.

On state habeas review, defense counsel submitted an affidavit stating that many of the

state’s witnesses testified that they used drugs in the apartment on the day of the incident. Ex

parte Smith, No. 62,309-01 at 44-45. Some of the state’s witnesses also admitted to removing

drugs from the apartment after the shooting, but prior to the arrival of the police. (Id). Although

Petitioner argues that counsel should have questioned the apartment manager and the police to

determine if the apartment was a drug house, Petitioner has failed to show that either the

apartment manager or the police would have testified that the apartment was a drug house. See

Martin, 796 F.2d at 819 (finding “hypothetical or theoretical testimony will not justify the

issuance of a writ . . . .”). Petitioner’s claim should be denied.

(iii) Victim’s History

Petitioner argues his counsel failed to investigate the victim’s criminal history,

psychological history, gang affiliation, and reputation for being violent. He contends his counsel

should have obtained the victim’s past jail records, parole or probation records, school records

and any arrest records. Petitioner, however, has failed to show that such an investigation would

 

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have revealed information favorable to the defense. Petitioner’s claims are conclusory and

should be denied.

(iv) Witnesses’ History

Petitioner argues his counsel failed to investigate the criminal histories of the state’s

witnesses. At trial, state’s witness Devan Lawrence testified that he was on probation for

aggravated assault. (Trial Tr. Vol. 3 at 80). He also testified that he was previously convicted in

1992 for theft and unauthorized use of a motor vehicle. (Id.). State’s witness Beverly Shinn

testified that she was currently incarcerated for burglary of a habitation. (Id. at 115). She also

testified that she was convicted of forgery in 1994, theft in 1998, possession of a controlled

substance and theft in 2000, and fraud and theft in 2002. (Id. at 115-16). State’s witness Kevin

Brown testified that at the time of the incident, he had been in the apartment smoking marijuana. 

(Id. at 161). He testified that before the police arrived, he left the apartment with a box of

marijuana. (Id.). He also testified that he was convicted of theft, unauthorized use of a motor

vehicle and burglary of a habitation in 1996 and was convicted of possession of a controlled

substance in 2001. (Id.). Petitioner has not shown that a further investigation would have

revealed any additional offenses. Petitioner’s claim is conclusory and should be denied.

(c) Coherent Defense

Petitioner argues his counsel failed to present a coherent self-defense argument. At trial,

Petitioner testified that the victim threatened him by saying: “If you put your hands on me, I’ll

kill you.” (Trial Tr. Vol. 4 at 58-59). Petitioner also testified that the victim stated: “On my

mama I’m going to kill you just like your cousin killed my mama.” (Id. at 51). Petitioner

testified that he saw the victim reach for a gun, pull out a gun, drop the gun after he was shot and

 

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then try to reach for the gun again. (Id. at 51-53, 61). 

Defense counsel argued that Petitioner’s testimony was corroborated by Kevin Brown. 

Brown testified that he heard the victim say to Petitioner, “If you put your hands on me I’ll kill

you.” (Trial Tr. Vol. 4 at 127-28). Defense counsel attempted to discredit other testimony from

state’s witnesses by pointing out their criminal histories and by arguing that they had tampered

with the crime scene. (Id. at 128-29). Petitioner’s conclusory allegations fail to show his

counsel was ineffective.

(d) Failed to Suppress Testimony

Petitioner argues his counsel failed to seek pre-trial suppression of the state’s witnesses’

testimony. It appears Petitioner is arguing that the state’s witnesses lacked credibility because

they conspired to remove evidence from the crime scene and conspired to defeat his self-defense

claim. Petitioner has stated no basis for suppressing these witnesses’ testimony. Petitioner’s

counsel was not required to file frivolous motions or objections. See United States v. Gibson, 55

F.3d 173, 179 (5th Cir. 1995). Petitioner’s claim should be denied. 

4. Summary

Petitioner is lawfully restrained because he has failed to prove that he has been denied a

constitutionally protected interest. Accordingly, the state courts’ decision to deny relief is not

contrary to or does not involve an unreasonable application of clearly established federal law and

is not based on an unreasonable determination of the facts in light of the evidence presented in

the state court proceedings.

 

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RECOMMENDATION

This Court recommends that the petition for writ of habeas corpus pursuant to 28 U.S.C.

§ 2254 be DENIED.

Signed this 19th day of December, 2006.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO OBJECT

The United States District Clerk shall serve a copy of these findings and

recommendations on the parties. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to

object to these findings and recommendations must file and serve written objections within ten

(10) days after being served with a copy. A party filing objections must specifically identify

those findings and recommendations to which objections are being made. The District Court

need not consider frivolous, conclusory or general objections. The failure to file such written

objections to these proposed findings and recommendations shall bar that party from a de novo

determination by the district court. See Thomas v. Arn, 474 U.S. 140 (1985). Additionally, the

failure to file written objections to proposed findings and recommendations within ten (10) days

after being served with a copy shall bar the aggrieved party from appealing the factual findings

and legal conclusions of the Magistrate Judge that are accepted by the District Court, except

upon grounds of plain error. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th

Cir. 1996) (en banc).

 

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