Patrick Davis v. Rick Thaler, Director

Filing 511076744

Case: 08-40450

Document: 00511076744

Page: 1

Date Filed: 04/12/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
April 12, 2010 N o . 08-40450 Lyle W. Cayce Clerk

P A T R I C K DEON DAVIS, P e t it io n e r - Appellant v. R IC K THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, R e s p o n d e n t - Appellee

A p p e a l from the United States District Court for the Eastern District of Texas U S D C No. 6:07-CV-397

B e fo r e JONES, Chief Judge, and BENAVIDES and PRADO, Circuit Judges. P E R CURIAM:* P e t it io n e r Patrick Deon Davis ("Davis"), convicted of attempted murder, a g g r a v a t e d assault, and possession of a firearm by a felon and sentenced to c o n c u r r e n t terms of imprisonment of 40, 30, and 10 years, respectively, appeals t h e denial of federal habeas relief. Davis contends that he received ineffective a s s is ta n c e of counsel based on an alleged conflict of interest with his attorney.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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No. 08-40450 A d d it io n a lly , Davis argues that the district court erred in applying the c o n c u r r e n t sentence doctrine to vacate his aggravated assault conviction and s e n t e n c e and to decline review of whether he received ineffective assistance of c o u n s e l for his counsel's failure to advance a double jeopardy claim during trial o r challenge the indictment as multiplicitous. On March 24, 2009, this Court g r a n te d a Certificate of Appealability ("COA") with respect to these claims. See 2 8 U.S.C. § 2253(c). Davis has not shown an actual conflict or that an actual conflict adversely a ffe c te d him. Nor has Davis shown that the district court's decision to vacate his a g g r a v a t e d assault conviction and sentence was error. Because the conviction fo r both attempted murder and aggravated assault in this case violated the p r o v is io n s of the Double Jeopardy Clause, the district court was correct in v a c a t in g the aggravated assault conviction and denying relief on the attempted m u r d e r charge. I. BACKGROUND T im Owens, his aunt, Demond Owens, and some of their friends drove to S h a r o n Fletcher's house. Upon arrival, Tim and Demond exited their vehicle to g o to the house. Appellant Davis and several other men surrounded and opened fir e on Tim. The resulting shotgun pellets blinded him. At the scene of the s h o o tin g , police recovered spent shell casings, including a spent 20 gauge s h o tg u n shell and several spent .380 shells. Davis was tried before a jury and found guilty on charges of attempted m u r d e r , aggravated assault, and unlawful possession of a firearm by a felon. On M a r c h 11, 2005, Davis was sentenced to concurrent terms of 40 years for a tt e m p te d murder, 30 years for aggravated assault, and 10 years for unlawful p o s s e s s io n of a firearm by a felon. After his state appeal and state habeas remedies were denied, Davis filed t h e instant federal habeas petition. The district court denied habeas corpus 2

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No. 08-40450 r e lie f as to all claims, except the claim of ineffective assistance of counsel based o n trial and appellate counsel's failure to raise double jeopardy claims. S p e c i fic a lly , Davis argued that double jeopardy barred a conviction for both a g g r a v a te d assault and attempted murder. The State conceded that double je o p a r d y barred a conviction for both attempted murder and aggravated assault u n d e r the indictment brought against Davis. Based on the State's concession a n d request, the district court vacated the aggravated assault conviction on the b a s is of the concurrent sentence doctrine and denied relief as to the attempted m u r d e r conviction rather than find a violation and grant relief. This Court g r a n te d Davis's request to issue a COA with respect to whether Davis validly w a iv e d his right to conflict-free representation and, if not, whether Davis r e c e iv e d ineffective assistance of counsel based on the alleged conflict of interest. T h is Court also granted a COA with respect to whether the district court's a p p l ic a t io n of the concurrent sentence doctrine as applied to Davis was error. II. S T A N D A R D OF REVIEW

I n examining requests for federal habeas corpus relief, we review for clear e r r o r the findings of facts made by the district court. Bostick v. Quarterman, 580 F .3 d 303, 306 (5th Cir. 2009) (citing Myers v. Johnson, 76 F.3d 1330, 1333 (5th C ir . 1996)). We review de novo the district court's conclusions of law. See id. P u r s u a n t to the federal habeas statute, as amended by the Antiterrorism and E ff e c t iv e Death Penalty Act of 1996 (AEDPA), we defer to a state court's a d ju d ic a t io n of a petitioner's claims on the merits unless the state court's d e c is io n was: (1) "contrary to, or involved an unreasonable application of, clearly e s ta b l is h e d Federal law, as determined by the Supreme Court of the United S ta te s ;" or (2) "resulted in a decision that was based on an unreasonable d e t e r m in a t io n of the facts in light of the evidence presented in the State court p r o c e e d in g ." 28 U.S.C. § 2254(d); see Avila v. Quarterman, 560 F.3d 299, 304 (5 th Cir. 2009); see also Woodford v. Visciotti, 537 U.S. 19, 27 (2002) (noting that 3

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No. 08-40450 fe d e r a l habeas relief is merited only if the state court decision is incorrect and o b je c tiv e ly unreasonable). A state court's decision is contrary to clearly

e s t a b lis h e d federal law if it reaches a legal conclusion in direct conflict with a p r io r Supreme Court decision or if it reaches a different conclusion than the S u p r e m e Court based on materially indistinguishable facts. See Avila, 560 F.3d a t 304 (citing Williams v. Taylor, 529 U.S. 362, 404-08 (2000)). The state court's f in d in g s of fact are presumed to be correct. Id. Thus, the petitioner has the b u r d e n to rebut this presumption with clear and convincing evidence. Id. (citing V a ld ez v. Cockrell, 274 F.3d 941, 947 (5th Cir. 2001)). III. I N E F F E C T I V E ASSISTANCE OF COUNSEL

T o establish ineffective assistance of counsel, Davis must show (1) defense c o u n s e l's performance was deficient and (2) this deficient performance p r e ju d ic e d the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). We m u s t find that trial counsel "made errors so serious that counsel was not f u n c t io n in g as the `counsel' guaranteed . . . by the Sixth Amendment." Id. The S u p r e m e Court instructs courts to look at the "norms of practice as reflected in A m e r ic a n Bar Association standards" and to consider "all the circumstances" of a case. Id. at 688. While "[j]udicial scrutiny of counsel's performance must be h ig h ly deferential," Davis can demonstrate deficient performance if he shows "that counsel's representation fell below an objective standard of

r e a s o n a b le n e s s ." Id. at 688-89. However, "[t]here is a `strong presumption that c o u n s e l 's conduct falls within the wide range of reasonable professional a s s i s t a n c e . '" United States v. Webster, 392 F.3d 787, 793 (5th Cir. 2004) (quoting S t r ic k la n d , 466 U.S. at 689). Strickland's "prejudice" prong requires a

r e a s o n a b le probability that, but for the deficient performance of his trial counsel, th e outcome of his trial would have been different. Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in t h e outcome." Id. 4

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No. 08-40450 O u r review of the record provides little support that the district court e r r e d in finding that Davis waived his Sixth Amendment claim by insisting on C a r g ill's continued representation in the state trial court at a hearing at which p o t e n t ia l conflicts were discussed. However, we need not rely on waiver.

R a th e r , Davis's inability to show that an actual conflict existed and that he was a d v e r s e ly affected by such conflict dooms his position. A claim for a conflict of in t e r e s t based on multiple representation requires the petitioner to show that i) counsel actively represented conflicting interests and ii) the conflict of interest a d v e r s e ly affected counsel's performance. Beets v. Scott, 65 F.3d 1258, 1265-66 (5 th Cir. 1995) (en banc); see Cuyler v. Sullivan, 446 U.S. 335, 348-50 (1980). M u lt ip le representation does not always create an impermissible conflict. U n ite d States v. Culverhouse, 507 F.3d 888, 892 (5th Cir. 2007). A speculative o r potential conflict is not enough; rather, a conflict exists when counsel is c o m p e lle d to compromise duties of loyalty to his client. See Bostick, 580 F.3d at 307. An actual conflict exists if defense counsel is in a position of divided lo y a ltie s , see United States v. Infante, 404 F.3d 376, 392 (2005), that results in c o u n s e l knowing his clients' interests diverge and that requires him to choose b e tw e e n the interests or compromise his duty of loyalty, Culverhouse, 507 F.3d a t 893. If counsel is burdened with an actual conflict of interest, prejudice is p r e s u m e d once the applicant shows both that counsel acted under the influence o f the conflict and that counsel's actions adversely affected the representation. I d . at 892. A conclusory allegation of an actual conflict is insufficient for

o b ta in in g habeas corpus relief. Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir. 2 0 0 0 ). An "adverse effect" is established with evidence that presents a plausible d e fe n s e strategy or tactic that could have been pursued but for the actual c o n flic t. Id.

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No. 08-40450 D a v i s contends that Cargill's representation of Gross and Oliver was a c o n fl ic t that resulted in Cargill not calling them to testify as witnesses in Davis's d e fe n s e . Prior to Davis's trial, Oliver had testified at Davis's parole hearing that D a v is "was not there on the night of the shooting." Cargill provided an affidavit w it h the following response: M r . Davis hired me because I was representing the other d e f e n d a n t s . I do not believe there existed an actual conflict of in te re st. LaMarvin Gross and Robin Oliver never planned to testify t h a t Mr. Davis was not there. In fact, they would have testified to t h e contrary. Mr. Davis admitted to counsel that he was there, but n o t involved in the shooting but wanted to pursue the alibi defense to avoid parole revocation. While Davis asserts that Gross and Oliver would have testified on his behalf if a s k e d , he does not support his assertion. See Boyd v. Estelle, 661 F.2d 388, 390 (5 t h Cir. 1981) (stating that uncalled witness complaints are not favored because o f the speculative nature of the alleged testimony and trial strategy that occurs). D a v i s also did not provide affidavits executed by either of the two co-defendants s ta tin g their willingness to testify and the content of their testimony. C o n c lu s o r y assertions of a conflict are not enough for habeas relief. See Perillo, 2 0 5 F.3d at 781; Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983). By failing t o present evidence that establishes a plausible defense strategy or tactic that c o u ld have been pursued but for the actual conflict, Davis has not shown an a c t u a l conflict that adversely affected him. Habeas relief based on his conflict c la im is denied. IV. C O N C U R R E N T SENTENCE DOCTRINE

W e also granted a COA to determine whether the district court's decision to apply the concurrent sentence doctrine and to decline review of whether Davis r e c e iv e d ineffective assistance of counsel for his counsel's failure to advance a d o u b le jeopardy claim during trial or challenge the indictment as multiplicitous

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No. 08-40450 w a s error. The concurrent sentence doctrine is a tool of judicial economy.

U n ited States v. Stovall, 825 F.2d 817, 824 (5th Cir. 1987) (citing Benton v. M a r y la n d , 395 U.S. 784, 791 (1969)). Under this doctrine, the existence of one v a lid sentence makes unnecessary the review of other sentences that run c o n c u r r e n tly with it. Id. We have applied this doctrine in a variety of cases, in c lu d in g cases with claims of Double Jeopardy violations. See id.; see also Scott v . Louisiana, 934 F.2d 631, 633-35 (5th Cir. 1991); Williams v. Maggio, 714 F.2d 5 5 4 , 555-56 (5th Cir. 1983) ("even assuming that he could [prevail on the merits o f his double jeopardy claim for duplicative convictions], the maximum habeas r e lie f available would be the invalidation of one of the sentences . . ."); Dennis v. H o p p e r , 548 F.2d 589, 590 (5th Cir. 1977); Rogers v. Wainwright, 394 F.2d 492, 4 9 3 (5th Cir. 1968) (per curiam). Davis's central claim against the use of the concurrent sentence doctrine is that his case should be remanded for resentencing rather than having his a g g r a v a t e d assault conviction and sentence vacated because his counsel failed t o raise a double jeopardy claim in the trial court. The State concedes, and we a g r e e , that the conviction was an unreasonable application of federal law and a v io la tio n of double jeopardy: Here, Davis' indictment alleged that he committed both the a tt e m p te d murder and aggravated assault counts by shooting Tim O w e n s with a firearm. Ex Parte Davis, at 81-83. This is clearly the s a m e conduct: thus, Davis' aggravated assault offense was included in the attempted murder offense, and his convictions and sentences fo r both offenses are jeopardy-barred under Texas law. Our review of the record and the State's concession demonstrate that Davis is n o t entitled to further relief. We need not determine whether the doctrine is a p p lic a b le for a state court conviction after AEDPA because the remedy in both fe d e r a l and Texas state courts for a defendant subjected to multiple p u n is h m e n t s for the same conduct is to affirm the conviction for the most serious 7

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No. 08-40450 o ffe n s e and vacate the other included convictions.1 See, e.g., Bigon v. State, 252 S .W .3 d 360, 372 (Tex. Crim. App. 2008). The most serious offense is the offense in which the greatest sentence was assessed. Id. at 373. Davis's attempted m u r d e r conviction carried the greatest sentence. Thus, Davis received the

m a x i m u m habeas relief available when the district court vacated his aggravated a s s a u lt conviction. See Scott, 934 F.2d at 633; Williams, 714 F.2d at 555-56; D en n is , 548 F.2d at 590; Rogers, 394 F.2d at 493. B e c a u s e the vacatur of the aggravated assault conviction was proper for th e instant double jeopardy conviction, the judgment of the district court is A F F IR M E D .

Similarly, in federal court, when a defendant is improperly convicted for a lesser included offense, we have held that the proper remedy is to leave the c o n v i ct io n and sentence for the greater offense intact and vacate the conviction a n d sentence on the lesser included offense. United States v. Buckley, 586 F.2d 4 9 8 , 505 (5th Cir. 1978). If the included convictions do not lead the trial court to im p o s e a harsher sentence than it would have in the absence of such convictions, r e m a n d for resentencing is unnecessary. See id. (citing United States v. Slutsky, 4 8 7 F.2d 832, 845-46 n.18 (2d Cir. 1973)). 8

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