United States Court of Appeals

Fifth Circuit



## FILED

July 8, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 02-61037

__________________________

ROLAND ANDERSON,

Petitioner-Appellee,

versus

ROBERT L. JOHNSON, Commissioner,

Mississippi Department of Corrections

Defendant-Appellant.

___________________________________________________

Appeal from the United States District Court

for the Southern District of Mississippi

___________________________________________________

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

WIENER, Circuit Judge:

Respondent-Appellant Robert L. Johnson, Commissioner of the

Mississippi Department of Corrections (“State”) appeals the

district court’s grant of § 2254 habeas relief to PetitionerAppellee Roland Anderson (“Anderson”). We affirm.

I. FACTS AND PROCEEDINGS

This petition for writ of habeas corpus stems from Roland

Anderson’s 1997 burglary conviction in the Circuit Court of Hinds

County, Mississippi. Anderson was charged and convicted in

connection with the at tempted kidnapping and shooting of Dorothy

Brister, a Mississippi bail bondsman and confidential informant for

the Jackson Police Department and the Drug Enforcement Agency2

(“DEA”). On May 26, 1992, one day before Brister was scheduled to

testify against a suspected drug dealer, an individual posing as a

police officer arrived at her home. The imposter flashed a silver

badge and Brister’s twelve-year old daughter, Fredrika, opened the

door for him. The imposter informed Brister that he was taking her

into protective custody. Although Brister was suspicious, the

imposter eventually coerced her into her rental car outside; when

Brister attempted to flee, the imposter shot her once in the neck.

Brister’s live-in boyfriend, Arthur Gray, witnessed the attack and

attempted, unsucce ssfully, to apprehend the assailant. Brister

remains partially paralyzed in her left hand as a result of the

attack.

Although law enforcement officials showed Brister several

photographs, she was unable to identify her attacker. Three years

later, in Jul y of 1997, while posting a bond at the Hinds County

Detention Center, Brister over heard the voices of three men and

suspected that one was the perpetrato r. When she looked up, she

immediately recognized Roland Anderson as her assailant. Anderson

was arrested and charged with aggravated assault, impersonating a

police officer, and burglary of an occupied dwelling with intent to

kidna p. Both Brister and her daughter, Fredrika, identified

Anderson in a photo line-up prior to trial; investigators did not

ask Arthur Gray to identify Anderson.

Anderson was first tried in February 1997. The jury was1 Anderson v. State , 749 So. 2d 283 (Miss. Ct. App. 1999).

3 unable to reach a verdict, and the judge declared a mistrial.

After a second trial in April 1997, the jury returned a verdict of

guilty on all three charges. Two of the three charges

(impersonating a police officer and assault) were dismissed posttrial as barred by the statute of limitations. Anderson was

sentenced, as a habitual offender, to fifteen years in prison on

the remaining burglary charge.

Anderson timely appealed his conviction, asserting four errors

(1) constitutional and statutory speedy trial violations; (2)

imprope r admission of evidence of other crimes; (3) a verdict

against the weight of the evidence; and (4) improper sentencing as

a habitual offender. In September 1999, the Mississippi Court of

Appeals affirmed his conviction in a written opinion. 1 Anderson

did not pursue discretionary review in the Mississippi Supreme

Court.

In September 2000, Anderson filed, pro se

, a petition for

post-conviction relief in the Mississippi Supreme Court. Between

his original state habeas petition and a supple mental brief,

Anderson asserted a total of nine grounds for relief, including (1)

ineffective assista nce of counsel on appeal; (2) ineffective

assistance of counsel at trial; (3) improper admission of evidence

of other crimes; (4) evidence of “new material facts not previously

presented”; (5) insufficient evidence to support a conviction; (6)4

improper exclusion of evidence relating to the truth and veracity

of a confidential informant; and (7) cumulative error. In February

2001, the Mississippi Supreme Court denied Anderson’s petition and

issued a one-page order concluding that “the issues Anderson raised

on direct appeal are without merit, and appellate counsel was not

ineffective under Strickland v. Washington , 466 U.S. 668 (1984),

for not raising these issues.” The court further held that “the

A pplication for Leave to Proceed in the Trial Court is not well

taken and should be denied.”

In May 2001, Anderson filed a petition for writ of habeas

corpus in the United States District Court for the Southern

District of Mississippi. In the petition, Anderson asserted five

claims: (1) ineffective assistance of counsel on ap peal; (2)

ineffective assistance of counsel at trial, “where counsel failed

to pursue an adequate investigation of the case and evidence”; (3)

violation of his right to a speedy trial; (4) improper admission of

evidence of prior bad acts; and (5) ineffective assistance of

counsel at trial relating to sentencing as a habitual offender. In

support of his petition, An derson submitted the affidavit of

Brister’s boyfriend, Arthur Gray, one of two adult eyewitnesses to

the crime. Gray attested that “Roland Anderson was nowhere around

the scene of this shooting” and that “he would ha ve testified on

Mr. Anderson[‘s] behalf in his April 1997 trial if his attorney

would have allowed him.”

The case was referred to a magistrate judge, who ap pointed5

counsel to represent Anderson and, over the State’s objection, set

the matter for an evidentiary hearing. After the hearing, the

magistrate judge issued a report recommending that Anderson’s writ

be granted and that he be retried or relea sed within 120 days

following entry of final judgment. The magistrate judge concluded

that two of Anderson’s five claims were meritorious (1) the alleged

ineffective assistance of trial counsel for failure to investigate,

interview, and call eyewitness Arthur Gray and (2) the alleged

ineffectiveness of appellate counsel for failure to investigate and

raise the Gray issue on appeal an d for failure to assert the

ineffectiveness of trial counsel on direct appeal.

In a detailed report and recommendation, the magistrate judge

held that both trial and appellate counsel were ineffective under

Strickland and that the Mississippi Supreme Court’s finding to the

contrary constituted an unreasonable application of established

federal law. The magistrate judge briefly addressed the State’s

claim that the petition was procedurally barred for failure to

exhaust state remedies, finding that “our analysis should suffice

to establish cause for any procedural default” and that “[t]he

requisite ‘prejudice’ has been discussed throughout this report and

recommendation.”

Aft er d e novo review and consideration of the State’s

objections, the district ju dge adopted the recommendation of the

magistrate judge in its ent irety and entered a final judgment

directing the State to retry Anderson within 120 days or dismiss2 Wilder v. Cockrell

, 274 F.3d 255, 259 (5th Cir. 2001);

Stevens v. Delaware Corr. Ctr. , 295 F.3d 361, 368 (3d Cir. 2002).

6 the charges against him. The State timely appealed. We stayed the

district court’s order pending appeal and heard oral argument on an

expedited basis.

II. ANALYSIS

A. Exhaustion of State Remedies

1. Standard of Review

Whether a federal habeas pet itioner has exhausted state

remedies is a question of law reviewed de novo

. 2

2. Discussion

The threshold issue that we must consider is whether

Anderson’s claims are procedurally barred because he has failed to

exhaust available state remedie s. The State acknowledges that

Anderson had included in his state post-convi ction petition the

same ineffective assistance claims presented in the federal

petition and that Anderson identified both the Strickland standard

and non-testifying eyewitness Arthur Gray by name. The State

contends, however, that Anderson is procedurally barred from

raising this claim in a federal h abeas action because he did not

substanti a te the “conclusory allegations” raised in his state

petition with the affidavit of Arthur Gray.

28 U.S.C. § 2254(b)(1) requir es that federal habeas

petitioners fully exhaust remedies available in state court before3 Section 2254(b)(1) provides in pertinent part:

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 unless it appears that—

(A) the applicant has exhausted the remedies

available in the courts of the State; or

(B)(i) there is an absence of available State

corrective process; or

(ii) circumstances exist that render such

process ineffective to protect the rights of

the applicant.

4 Wilder

, 274 F.3d at 260 (quoting Picard v. Connor

, 404 U.S.

270, 275 (1971)) (emphasis omitted).

5 Nobles v. Johnson

, 127 F.3d 409, 420 (5th Cir. 1997) (citing

Picard v. Connor , 404 U.S. 270, 275-76 (1971)).

6 Id. (citing Anderson v. Harless , 459 U.S. 4, 6-7 (1982)).

7 proceeding in federal court. 3 This longstanding exhaustion

requirement is not jurisd ictional, but “reflects a policy of

federal-sta te comity...designed to give the State an initial

opportunity to pass upon and correct alleged violations of its

prisoners’ federal rights.” 4

To satisfy the exhaustion requirement, “a habeas petitioner

must have fairly presented the substance of his claim to the state

courts.” 5 This requirement is not satisfied if the petitioner

presents new legal theories or factual claims in his federal habeas

petition. 6 We have consistently held that a “petitioner fails to

exhaust state remedies when he presents materia l additional

evidentiary support to the federal court that was not presented to7 Graham v. Johnson , 94 F.3d 958, 968 (5th Cir. 1996)

(emphasis added).

8 Caballero v. Keane

, 42 F.3d 738 , 741 (2d Cir. 1994)(citing

Vasquez v. Hillery

, 474 U.S. 254, 260 (1986))(emphasis added); see

also 2 R ANDY H ERTZ & J AMES S. L IEBMAN

, F EDERAL H ABEAS C ORPUS P RACTICE &

P ROCEDURE § 23.3c, at 982 (4th ed. 2001)(“The controlling standard

seems to be that the petitioner exhausts the factual basis of the

claim as long as she did not either ‘fundamentally alter the legal

claim already considered by the state courts’ or ‘attempt[] to

expedite federal review by deliberately withholding essential facts

from the state courts.’”).

9 Demarest v. Price , 130 F.3d 922, 932 (10th Cir. 1997).

10 94 F.3d 958 (5th Cir. 1996).

8 the state court.” 7

Although exhaustion inquiries are fact-specific, as a general

rule “dismissal is not required when evidence presented for the

first time in a habeas proceeding supplements

, but does not

fundamentally alter

, the claim presented to the state courts.” 8

Courts have expla ined that “although a habeas petitioner will be

allowed to present ‘bits of evidence’ to a federal court that were

not presented to the state court,” evidence that “places the claims

in a significantly different legal posture must first be presented

to the state courts.” 9

We have been called on to apply this familiar (though somewhat

nebulous) standard on several occasions. In G raha m v. Johnson

, 10

we rejected, for failure to exhaust, a petitioner’s attempt to

present

—— for the first time in federal habeas proceedings

——

“significant evidentiary support” not previously submitted to the

state court. The “new” evidence at issue in G raham

, offered in11 Id. at 965.

12 Id. at 969.

13 230 F.3d 733 (5th Cir. 2000).

9 support o f the petitioner’s claims of ineffective assistance of

counsel and actual innoce nce, included affidavits of several

eyewitnesses and alibis, a police report, two psychologist reports,

a nd a firearms report. 11 After considering these nine “new”

exhibits, we concluded that, because the petitioner had “presented

significant evidentiary support...that was never presented to the

state courts” he had not exhausted his state remedies and dismissal

of his federal habeas petition was warranted. 12

In Dowthitt v. Johnson

, 13 however, we concluded that two

supplemental affidavits, submitted for the first time in support of

a federal habeas petition, did not render the petitioner’s claims

unexhausted. In Dowthitt , the petitioner asserted, inter alia , a

claim of ineffective assistance of counsel founded largely on his

attorney’s failure to present men tal-illness evidence during the

penalty phase of his trial. In federal habeas proceedings,

Dowthitt introduced the affidavits of two mental health experts in

supp ort of his claims. Even though the affidavits had not been

presented to the state court, we concluded that because the

petitioner “had presented to the state habeas court his assertions

of mental illness,” the “affidavits add[ed] little to those14 Id. at 746.

15 259 F.3d 781 (7th Cir. 2001).

16 Id. at 784.

17 Id. at 787.

18 Id. at 789.

10 claims” 14 and did not warrant dismissal for failure to exhaust state

remedies.

In this regard we deem instructive the Seventh Circuit’s

analysis in Boyko v. Parke

, 15 a case that presented exhaustion

issues strikingly similar to those presented by this case. In

Boyko

, the petitioner had consistently asserted that his trial

counsel was ineffective in failing to consider and raise particular

d efenses, including the fact that he was suffering from post

traumatic stress disorder (“PTSD”). 16 After the state court denied

his petition, Boyk o pursued federal habeas relief, again urging

ineffective assistance of counsel. In the federal proceedings,

however, he attempted to introduce “new” evidence

—— the transcript

of a juvenile hearing that ostensibly would have alerted an

effective attorney to the potential PTSD defense. 17

The Seventh Circuit concluded that Boyko had exhausted his

state remedies “even though [he] did not base his arguments in the

state court on trial counsel’s failure to obtain the transcript.” 18

The appellate court emphasized that the petitioner was not seeking

to “present a ground of ine ffectiveness that is entirely19 Id.

20 Id. ; see also Stevens v. Delaware Corr. Ctr.

, 295 F.3d 361,

370 (3d Cir . 2002) (concluding that petitioner’s submission of

affidavits in support of failure to investig ate claim did not

render claims unexhausted because the “new” evidence “presented no

new facts but rather mer ely recite[d] facts already submitted to

state courts”).

21 Joyner v. King , 786 F.2d 1317, 1320 (5th Cir. 1986).

22 Exhaustion requires only that the federal claim has been

fairly presented to the state’s highest court before a petitioner

pursues federal relief, either via direct appeal or s tate postconviction proceedings. Orman v. Cain

, 228 F.3d 616, 620 (5th Cir.

2000).

11 independent of the grounds presented in the state courts” and that

Boyko had argued consistently that his counsel was ineffective in

failing to pursue a PTSD defense. 19 The transcript, the court

reasoned, di d “not change the substance of these arguments” but

“merely supplies an additional piece of evidence that counsel would

have found had he pursued” the relevant theories. 20

In this ca se, Anderson’s claims are unquestionably in a

comparatively “st ronger evidentiary posture” than they were in

state court. 21 Nevertheless, several facts militate in favor of

exhaustion in this admittedly close case. First, the portion of

Anderson’s state post-conviction brief dedicated to ineffective

assistance is remarkably detailed in both fact and law. 2 2 Citing

Strickland

, Anderson argued to the state court that he was “denied

effective assistance of counsel where counsel failed to pursue an

adequate inves tigation of [the] case and evidence against

petitioner.” Anderson further explained that “counsel has a duty23 Demarest , 130 F.3d at 932.

24 This result is not meant to overrule our holdings in Joyner

v. King

, 786 F.2d 1317, 1320 (5th Cir. 1986); Brown v. Estelle

, 701

F.2d 494, 496 (5th Cir. 1983); and Hart v. Estelle , 634 F.2d 987,

988 (5th Cir. 1981). First, as these decisions were issued prior to

12 to interview potential witnesses and to make an i ndependent

investigation of the facts and circumstances of the case...Arthur

Gray, who was the boyfriend of Ms. Dorothy McKee [Brister] at the

time she was shot was eyewitness [sic] and could have identified

the shooter.” Significantly, in his state petition, Anderson

stated unequivoca lly that “[i]f Mr. Anderson’s trial counsel had

interviewed and subp[oenaed] him to trial, Mr. Gray would have

identified the petitioner as not the person that he...know as the

shooter [sic].”

Anderson has argued diligen tly that his attorneys were

constitutionally ineffective in failing to investigate and

interview Arthur Gray. He has consistently asserted that if Gray

had been interviewed and called to testify at trial, he would have

exonerated Anderson. The “new” evidence (Gray’s affidavit) does

not “fundamentally alter” Anderson’s state claim; it merely

confirms what he has been asserting all along. In light of all

this, we conclude that the affidavit of Gray is a “supplement” to

the recor d presented to the state court, but does not “place the

claims in a significantly different legal posture.” 23 As such, we

hold as a matter of law that Anderson’s claims were exhausted in

state court. 24(or soon after and wit hout reference to) the Supreme Court’s

decision in Vasquez v. Hillery

, they are of limited relevance here.

In Vasquez

, the Cour t explained that supplemental evidence that

does not “fundamentally alter the legal claim already considered by

the state courts” does not “require that the [habeas petitioner] be

remitted to state court for consideration of th at evidence.”

Vasquez

, 474 U.S. at 622. Second, we emphasize that whether

evidence “fundamentally alters” or merely “supplements” the state

petition is an inquiry that is, by necessity, case and fact

specific.

25 Vasquez

, 474 U.S. at 260; see also 2 H ERTZ & L IEBMAN § 23.3c,

at 982 n.57 (explaining that “[i]n general, the courts apply the

‘factual similarity’ requirement in a less stringent manner when

the ‘new’ facts at issue were discovered during federal proceedings

and were not easily discoverable before then”).

26 We recognize that the Tenth and Fourth Circuits have arrived

a t contrary results when confronted with somewhat analogou s (but

distinguishable) facts. In Demarest v. Price

, the habeas petitioner

13 In reaching this conclusion, we note also that An derson did

not “attempt[] to expedite federal review by deliberately

withholding essential facts from the state courts.” 25 On the

contrary, as noted by the magistrate judge, any failure to develop

the facts in support of his petition was not the result of his lack

of diligence; “th e constitutional violation itself prevented the

discovery of Gray’s testimony,” and there is no evidenc e that

Anderson intentionally withheld this evidence until he reached a

more receptive forum. Furthermore, if the state court had held an

evidentiary hearing, Gray’s exculpatory testimony likely would have

been elicited, as it was in the federal proceedings. Accordingly,

we agree with the district court’s determination that Anderson has

exhausted his available state remedies, so we proceed t o address

the merits of his federal habeas petition. 26introduced, in support of his federal pe tition, the testimony of

several new witnesses as evidence of his contention that “more

thorough preparation by [trial counsel] would have uncovered

evidence that very significantl y strengthened” his defense. 130

F.3d 922, 936 (10th Cir. 1997). The Tenth Circuit, reversing the

district court, held that because the new evidence “does not merely

supplement evidence in the state court record” but “is more like a

180 degree turn,” dismissal was warranted. We agree, as evidenced

by our holding in Graham , that substantial new evidence rising to

the l evel of a “180 degree turn” renders a claim unexhausted. In

Demarest

, as in Graham

, the petitioner sought to introduce new

factual allegations, including, for the first t ime, the names of

several exculpatory witnesses. In contrast, Anderson has

consistently identified one eyewitness, Arthur Gray, and seeks only

to supplement his petition with Gray’s affidavit. In W ise v.

Warden, Maryland Penitentiary , 839 F.2d 1030 (4th Cir. 1988), the

petitioner alleged, in both state and federal proceedings, that the

State had withheld critical exculpatory evidence

— an immunity

agreement between a key prosecution witness and the State. In

support of his federal petition, however, the petitioner offered,

for the first time, the actual agreement, i.e., “direct proof” of

his claims. Id. at 1034. The Fourth Circuit concluded that “[t]he

new evidence significantly alter[ed] the posture of [h is] claim”

and that the state court “must be given an opportunity to evaluate

the claim in its new posture and to make relevant findings of fact

to which the federal courts must in turn defer.” Id. We rejected

such a per se rule in Dowthitt

, where some supplemental “proof” of

a claim was added in the federal proceeding s, but the claim was

nevertheless considered exhausted. Today we abide by the Supreme

Court’s rule in V asquez ; Anderson has exhausted state remedies

because the supplemental evidence submitted in federal proceedings

does not “fundament ally alter” the claim previously presented to

the state court.

27 Catalan v. Cockrell , 315 F.3d 491, 492 (5th Cir. 2002).

14 B. Ineffective Assistance of Counsel

1. Standard of Review

In a habeas corpus appeal, we review findings of fact for

clear error and issues of law de novo using the same standards as

the district court. 27 Because Anderson’s petition for habeas relief

was filed in 2001, the Anti-Terrorism and Effective Death Penalty28 28 U.S.C. § 2254(d)(1). The statute provides in pertinent

part:

(d) 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 merits in State court

proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary t o, 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.

29 529 U.S. 362 (2000).

30 Id. at 409. The Cour t also explained that a state court

decision is “ contrary to our clearly established precedent if the

state court applies a rule that contradicts the governing law set

forth in our cases” or “if the state court confronts a set of facts

that are materially indistinguishable from a decision of this Court

and nevertheless arrives at a result different from our precedent.”

Id. at 405-06 (emphasis added).

15 Act (“AEDPA”) governs this appeal. Under the AEDPA, we cannot

grant habeas relief to a state prisoner “with respect to any claim

that was adjudicated on the merits in State court proceedings”

unless the state decision “wa s contrary to, or involved an

unreasonable application of, clearly established [f]ederal law.” 28

The Supreme Court has recently offered direction for courts

assessing “unreasonable applications” of federal law. In W illiams

v. Taylor

, 29 the Court instructed lower courts to ask whether “the

state court’s a pplication of clearly established federal law was

objectively unreas onable.” 3 0 The Court emphasized, and we have

since reiterated, the “critical distinction” between an

“unreasonable application” of federal law and an erroneous or31 Neal v. Puckett

, 286 F.3d 230, 236 (5th Cir. 2002) (e n

banc).

32 Williams , 529 U.S. at 411.

33 Neal

, 286 F.3d at 246 (explaining that “our focus should be

on the ultimate legal conclusion that the state court reached and

not on whether the state court considered and discussed every angle

of the evidence.”). Compare Lindh v. Murphy

, 96 F.3d 856, 871 (7th

Cir. 1996) (en banc).

34 466 U.S. 668 (1984); Neal

, 286 F.3d at 235 (“It is past

question that the rule set forth in Strickland qualifies as

‘ clearly established [f]ederal law, as determined by the S upreme

Court of the United States.”)(quoting Williams , 529 U.S. at 391).

16 incorrect application of federal law. 31 “[A] federal habeas court

may not issue the writ simply because the court concludes in its

independent judgment that the relevant state-court decision applied

clearly established federal law erroneously or incorrectly...that

application must also be unreasonable.” 32 In this circuit, a

federal habeas court reviews “only a state court’s ‘decision,’ and

not the written opinion explaining that decision.” 33

2. Discussion

The “clearly established federal law” applicable to Anderson’s

claim is the familiar two-prong test of Strickland v. Washington

. 34

Under Strickland

, Anderson must demonstrate both tha t his

attorney’s performance was deficient (“cause”) and that this

deficiency prejudiced his defense (“prejudice”). Anderson contends

that bo th his trial and appellate counsel were constitutionally

ineffective: trial counsel in failing to investiga te, interview

eyewitnesses, and call exculpatory witness Arthur Gray to testify;35 Strickland , 466 U.S. at 688.

36 Id. at 690.

37 Id.

38 Id. at 691. The Supreme Court recently clarified these

familiar standards in Wiggins v. Smith

, No. 02-311, 2003 WL

21467222, at *8(U.S. June 26, 2003) (explaining that in Strickland

“we defined the deference owed such strategic judgments in terms of

the adequacy of the investigations supporting those judgments” and

emphasizing that the court’s focus in failure to investigate claims

is “whether the investigation supporting counsel’s decision . . .

was itself reasonable ”).

17 appellate counsel in failing to uncover and argue both trial

counsel’s errors and Arthur Gray’s exculpatory testimony.

a. Cause

To establish a threshold deficient performance, Anderson must

first demonstra te that “counsel’s representation fell below an

objective standard of reasonableness.” 35 Courts “judge the

reasonableness of counsel’s challenged conduct on the facts of the

particular case, viewed as of the time of counsel’s conduct.” 36 In

Strickland

, the Court specifically addressed so-called “failure to

investigate” claims, explaining that “strategic choices made after

thorough investigation of law and facts relevant to plausible

options are virtually unchallengeable.” 3 7 The Court further

explained, however, that “strategic choices made after less than

complete investigation are reasonable precisely to the extent that

reasonable professional judgments support the limitations on

investigation.” 38 In short, “counsel has a duty to make reasonable

investigations or to make a reasonable decision that makes39 Id. (emphasis added).

40 Bryant v. Scott , 28 F.3d 1411, 1418 (5th Cir. 1994).

41 Id.

42 Id. ; see also Thomas v. Lockhart , 738 F.2d 304, 308 (8th

Cir. 1984) (finding ineffective assistance where counsel’s

“investigation of the case consisted of reviewing the investigative

f ile of the prosecuting attorney” and holding that th e

“investigation fell short of what a reasonably competent attorney

would have done”).

18 particular investigations unnecessary.” 39

Guided by Strickland , we have held that counsel’s failure to

interview eyewitnesses to a charged crime constitutes

“constitutionally deficient representation.” 40 In B ryant v. Scott

,

the defense attorney failed to interview two eyewitnesses and

“restricted his pretrial investigat ion to discussions with [the

defendant], review of the indictment against [the defendant], and

examination of the prose cutor’s file.” 4 1 We concluded that

“information relevant to [the] defense might have been obtained

through better pretrial investigation of the eyewitnesses , and a

reasonable lawyer would have made s ome effort to investigate the

eyewitnesses’ testimony.” 42

Notably, in Bryant

, we express ly rejected the notion that

“vigorous” cross-examination of e yewitnesses at trial can “cure”

counsel’s failure to interview the witnesses before trial. We

pointed to the obvious fact that effective cross-examination “does

not necessarily indicate that a reasonabl e lawyer, viewing the

trial ex ante

, would have regarded an interview of the eyewitnesses43 Id. at 1419.

44 Id.

45 Id. ; see also Wiggins

, 2003 WL 21467222, at *10 (“[T]he

‘strategic decision’ the state courts and respondents all invoke to

justify counsel’s limited pursuit of mitigating evidence resembles

more a post-hoc rationalization of counsel’s conduct than an

accurate description of their deliberations prior to sentencing.”).

46 United States v. Gray , 878 F.2d 702, 711 (3d Cir. 1989).

19 as unnecessary.” 43 The panel also noted that even if crossexamination was effective, “that is not t o say it could not have

been improved by prior investigation.” 44

Moreover, in Bryant

, we squarely rejected the argument made by

the State here

—— that a failure to interview witnesses is

excusable as “a strategic decision” if the witnesses would not have

been credible. Acknowledging that a lack of credibility might

support a strategic decision not to c all a witness to t estify at

trial, we explained that a witness’s character flaws cannot support

a failure to investigate

. Without so much as contacting a witness,

much less speaking with him, counsel is “ill-equipped to assess his

credibility or persuasiveness as a witness.” 45

Not surprisingly, other courts have also concluded that the

“failure to conduct any pretrial investigation generally

constitutes a clear instance of ineffectiveness.” 46 Although they

remain mindful that “the range of reasonable professional judgments

is w ide,” courts recognize that “[i]neffectiveness is generally

clear in the context of a complete failure to investigate because47 Id. (citing Strickland , 466 U.S. at 690-91).

48 United States v. Drones

, 218 F.3d 496, 500 (5th Cir. 2000).

20 counsel can hardly be said to have made a strategic choice against

pursuing a certain line of investigation when [he] has not yet

obtained the facts on which such a decision could be made.” 4 7

Strickland simply “does not require...defer[ence] to decisions that

are uninformed by an adequate investiga tion into the controlling

facts and law.” 48

In this case, Anderson has conclusively established that trial

counsel was deficient, i.e., that his “representation fell below an

objective standard of reasonableness.” During the evidentiary

hearing, Anderson’s trial counsel, who was disbarred in 1999,

explained the “reasons” underlying his decision n ot to interview

Arthu r Gray: “There was nothing in the discovery that I was

provided from the police and from the D.A.’s office tha t gave me

any indication that he [Gray] would be a favorable witness to

Roland Anderson.” Counsel further explained that “ordinarily,”

once he was provided discovery from the District Attorney that

indicated a witness was “not favorable,” he would not independently

interview that witness. According to counsel, he “probably”

realized the week before trial that the State would not call Arthur

Gray to testi fy and attempted to highlight Gray’s absence to

Anderson’s advantage at trial.

We co nclude that trial counsel’s admitted failure to49 Bryant , 28 F.3d at 1418.

21

investigate under these circu mstances rises to the level of a

constitutionally deficient performance. Counsel conceded that he

relied exclusively on the investigative work of the State and based

his own pretrial “investiga tion” on assumptions divined from a

review of the State’s files. Given the gravity of the charges, and

the fact that there were only two adult eyewitnesses to the crime,

it is evident that “a reasonable lawyer would have made some effort

t o investigate the eyewitnesses’ testimony” 4 9 and that trial

counsel’s representation was deficient.

The State’s attempts to characterize trial counsel’s

representation as “effective” are feckless. The State emphasizes

that (1) trial counsel did mount a defense, calling both Anderson’s

ex-wife and a wedding photographer to testify about his appearance

at the time of the crime; (2) counsel “vigorously cross-examined”

the State’s witnesses; (3) the decision not to interview Gray was

reasonable based on the State’s discovery, which indicated that

Gray’s description of the assailant matched that of Brister and her

daughter; (4) trial counsel effectively used the State’s decision

not to call Gray to Anderson’s “strategic” advantage; and (5) trial

counsel successfully moved, p ost-trial, for the dismissal of two

counts.

Each of these rationalizations misses the mark. The fact that

trial counsel was marginally successful in some respects does not50 Drones

, 218 F.3d at 500 (citing Strickland

, 466 U.S. at 690-

91).

51 Nealy v. Caba na , 764 F.2d 1173, 1178 (5th Cir. 1985); s ee

also Loyd v. Whitley

, 977 F.2d 149, 158 (5th Cir. 1992) (explaining

that “[w]hether counsel’s omission served a strategic purpose is a

pivotal point in Strickland and its progeny” and that this “crucial

distinction between strategic judgment calls and pla in omissions

has echoed in the judgments of this court”).

52 We agree with the magistrate judge’s observation that

“[w]hen the State confirmed it would not call Gray, this should

have been a ‘red flag’ alerting defense counsel that Gray may have

been useful to the defense.”

22 excuse his complete failure to investigate and prepare before

trial. More importantly, there is no evidence that counsel’s

decision to forego investigation was reasoned at all, and it is, in

our opinion, far from reasonable

. 50 Counsel’s failure to

investigate was not “part of a calculated trial strategy” but is

likely the result of either indolence or incompetence. 51 Finally,

the State’s attempt to distinguish Bryant by emphasizing that the

overlooked eyewitnesses in that case were “the cornerstone of the

State’s case,” is feeble at best. In a claim grounded in failure

to interview, the “quality” and potential persuasiveness of the

eyewitness is largely imm aterial; indeed, i f trial counsel had

interviewed Gray, he might well have proven to be the “cornerstone”

of the defense. 52

b. Prejudice

Under Strickland ’s second prong, Anderson must establish

“prejudice” —— a “reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been53 Strickland , 466 U.S. at 694.

54 Id.

55 The State grossly mischaracterizes the evidence against

Anderson as “overwhelming.” The record indicates that the State

called six witnesses in its case-in-chief: Dorothy an d Fredrika

Brister, Dexter Patrick, Anderson’s former cellmate (a jai lhouse

informant), and three law enforcement officials.

23 different.” 53 A “reasonable probability” is “a probability

sufficient to undermine confidence in the outcome.” 54 Under the

discrete facts of this case, we conclude that Anderson has met this

“substantial burden.”

At trial, the State’s case rested primarily on the eyewitness

testimony of t he victim and her daughter. The victim’s

identification was based on her fortuitous encounter with Anderson

some three years after the crime; the daughter was a child when she

witnessed the i ncident three years earlier. The record reflects

that no other eyewitnesses testified at tri al and, apparently,

there was no physical evidence linking Anderson to the crime. In

light of this relatively “weak” case, 55 there is a reasonable

probability that “but for” trial counsel’s failure to interview and

call Arthur Gray to testify, the result of the proceeding would

have been different. As noted, Gray was one of only two adults to

witness the events. Certainly his testimony would have been a

powerful rebuttal to that of the victim and her minor daughter.

Anderson had been tried once before, on the same charges and

presumably on the same evidence, and the jury was unable to reach56 As we conclude that trial counsel was ineffective, we do not

reach the issue of appellate counsel’s performance. C atalan

, 315

F.3d at 493 n.2 (“ Because we find ineffective assistance with

respect to [trial counsel] we do not reach the issue of appellate

counsel’s performance.”).

57 Neal , 286 F.3d at 246.

58 In a one-pa ge order denying state habeas relief the

Mississippi Supreme Court explained

Anderson alleges that he received ineffective assistance

o f counsel on direct appeal in that counsel fai led to

raise certain issues on appeal. Anderson also a lleges

there is newly discovered evidence which raises doubt

about the validity of his conv iction. After due

consideration the panel finds that the issues An derson

would have raised on direct appeal are without merit, and

appellate counsel was not ineffective under Strickland v.

Washington

, 466 U.S. 668 (1984), for not rais ing these

issues. The panel further find s that the unsigned

affidavit relied on by Anderson does not amount to newly

discovered evidence, and the Application for Le ave to

Proceed in the Trial Court is not well taken and should

be denied.

24 a verdict. Accordingly, we conclude that Anderson has established

the requisite cause and prejudice required to establish ineffective

assistance of trial counsel. 56

This does not, however, end our analysis; this constitutional

failing must be assessed through the prism of the AEDPA’s highly

deferential standards. N eal instructs that courts are to look only

to the “ultimate legal conclusion that the state court reached and

not [to] whether the state court considered and discussed every

angle of the evidence.” 57 The Mississippi Supreme Court ruled on

Anderson’s claims in a one-paragraph order, without speci fically

addressing the ineffectiveness of trial counsel. 58 Given counsel’sThe affidavit referenced in the court’s order is not that of Arthur

Gray, but was in support of Anderson’s unrelated claim of “newly

discovered evidence.”

59 See

, e.g.

, C atalan , 315 F.3d at 492 n.3 (“assuming” that

state court applied Strickland

, because the parties briefs focused

on Strickland

, even though the state court did not issue a written

opinion).

25 admitted failure to investigate and interview at least one crucial

eyewitnesses, and assuming the Mississippi court applied

Strickland

, 59 we conclude that Anderson has established a Strickland

violation and that the Mississippi state court’s “ultimate legal

conclusion” to the contrary was objectively unreasonable.

III. Conclusion

For the foregoing reasons, the judgment of the district court

is AFFIRMED.