Ray Hooks v. Rick Thaler, Director

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Ray Hooks v. Rick Thaler, Director

Doc. 0

Case: 08-40923

Document: 00511220994

Page: 1

Date Filed: 08/31/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
August 31, 2010 N o . 08-40923 Lyle W. Cayce Clerk

R A Y DALE HOOKS, P e t it io n e r - Appellant v. R I C K THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL J U S T I C E , CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee

A p p e a l from the United States District Court for the Eastern District of Texas USDC No. 2:04-CV-389

B e fo r e CLEMENT, SOUTHWICK, and HAYNES, Circuit Judges. P E R CURIAM:* A p p e lla n t Ray Dale Hooks ("Hooks") appeals the district court's denial of h is federal petition for habeas corpus. We hold that Hooks has failed to

d e m o n s t r a t e the necessary prejudice to sustain his claim of ineffective assistance o f counsel and, thus, we AFFIRM the district court's denial of Hooks's habeas p e titio n .

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Case: 08-40923

Document: 00511220994

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Date Filed: 08/31/2010

No. 08-40923 I . FACTUAL & PROCEDURAL BACKGROUND A . Factual Background O n the evening of March 14, 1999, Roger Carney ("Carney") was last seen a liv e walking along the concrete shoulder of the eastbound side of U.S. Highway 8 0 after an argument with his wife. His wife returned a short time later to c o n v in c e Carney to accept a ride home and found him lying dead on the shoulder o f the road. The medical examiner later determined that Carney had been s t r u c k from behind by an automobile. A Department of Public Safety ("DPS") officer arrived on the scene shortly t h e r e a ft e r and instructed other first responders to follow a trail of anti-freeze le a d in g away from the scene of the accident. The trail ultimately led them to H o o k s who was taken into custody. Blood alcohol tests revealed that Hooks had a blood alcohol concentration of 0.29 grams of alcohol per 100 milliliters of blood a t the time of his arrest. The state offered expert testimony at trial that a c o n c e n t r a t io n of 0.29 at 11:46 p.m. meant Hooks's blood alcohol level at the time o f the accident was as high as 0.35. Hooks was charged by way of grand jury indictment in Harrison County, T e x a s , with intoxication manslaughter and leaving the scene of an accident.1 At t r ia l, the state alleged that Hooks had swerved onto the shoulder of the road and h it Carney. In support of its theory, the state offered testimony from two DPS o ffic e r s to support the conclusion that Carney was on the shoulder of the road w h e n he was struck. Hooks's trial counsel, Kevin McCarter ("McCarter"), stated in an affidavit t h a t he adopted a strategy of trying to discredit the state's experts' opinions in a n effort to support the alternative theory that Hooks struck Carney in the

The only remaining argument in the case addresses counsel's alleged ineffectiveness with respect to the intoxication manslaughter charge. Hooks has not contended that counsel was ineffective regarding the leaving the scene charge.

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No. 08-40923 r o a d w a y rather than on the shoulder of the road such that Hooks's obvious in t o x ic a t io n did not "cause" Carney's death.2 McCarter intensively cross-

e x a m in e d both officers. In his cross-examination of Officer Hitt, McCarter e lic it e d testimony that undercut the factual basis given by one of the DPS o ffic e r s for the ultimate conclusion reached by the other. Additionally, McCarter u s e d the cross examinations of both witnesses to set out Hooks's alternative t h e o r y of the case, although neither officer expressly adopted the view that C a r n e y was in fact on the roadway. McCarter did not call any witnesses. H o o k s was convicted of both counts. The jury assessed a punishment of life imprisonment on the intoxication manslaughter charge and twenty years' im p r is o n m e n t on the charge of leaving an accident scene. B. Procedural History H o o k s 's conviction was affirmed by the intermediate appellate court, H o o k s v. State, 44 S.W.3d 607 (Tex. Ct. App. 2001), and the Texas Court of C r im in a l Appeals denied discretionary review. The Supreme Court denied H o o k s 's petition for certiorari on May 20, 2002. Hooks v. Texas, 535 U.S. 1085 (2 0 0 2 ). Hooks filed his state court habeas petition on May 9, 2003. Hooks's p e t it io n was remanded to the district court for the resolution of several factual is s u e s . The trial court entered fourteen separate findings of fact and four c o n c lu s io n s of law. The Texas Court of Criminal Appeals denied Hooks's petition o n the findings of the trial court without written order and without a hearing. Ex Parte Hooks, No. 56,185-01 (Tex. Crim. App. Sept. 22, 2004).

Hooks claims that if Carney was on the road when hit such evidence would prove that he was "actually innocent," and that Carney's intoxication would be deemed the cause of his own death. We note that a conclusion that Carney was struck on the roadway would not be wholly exonerative as a jury could find that Hooks's intoxication made him less able to avoid the accident than if he had been sober. See TEX. PENAL CODE ANN. § 6.04(a) (2010). Hooks's argument that a juror would find "the cause of Carney's death was the fact that he was in the road at the time of the accident," ignores the fact that a driver cannot simply hit whatever is in the roadway.

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No. 08-40923 H o o k s filed his federal habeas petition pro se on October 29, 2004. After a p p o in t m e n t of counsel, Hooks submitted a report from Brent Munyon (" M u n y o n "), an accident reconstruction expert, with his supplemental m e m o r a n d u m in support of his petition. The report supported Hooks's allegation t h a t Carney was in the road at the time of the accident. Munyon was not r e t a in e d until after the conclusion of Hooks's state proceedings. Notably,

M u n y o n 's résumé states that he did not become certified in accident r e c o n s tr u c t io n until 2005. He was serving as a police officer at the time of H o o k s 's 1999 trial. The petition was initially dismissed as time-barred, but this court vacated t h e dismissal and remanded for further consideration. Hooks v. Quarterman, 2 2 4 F. App'x 352 (5th Cir. 2007). The magistrate judge assigned to the case s u b s e q u e n t ly issued his report and recommendations finding, insofar as is r e le v a n t here, that Hooks properly exhausted his ineffective assistance claim but t h a t he was not entitled to habeas relief on the merits of that claim. Hooks t im e ly raised objections challenging, among other things, the magistrate judge's c o n c lu s io n that his counsel was not ineffective for failing to call an accident r e c o n s tr u c t io n expert. Appellee filed a timely objection challenging the

m a g is tr a t e judge's conclusion that Hooks had exhausted his claim. The district c o u r t adopted the magistrate judge's report and recommendations, denied H o o k s 's petition, and denied a certificate of appealability ("COA") sua sponte. Hooks timely sought a COA from this court on a variety of issues. The c o u r t granted a COA on Hooks's ineffective assistance claim flowing from M c C a r t e r 's failure to call an accident reconstruction expert. The court also in s t r u c t e d the parties to brief the exhaustion issue. II. DISCUSSION H o o k s 's only remaining habeas claim arises from his trial counsel's failure t o call an expert witness to rebut the accident reconstruction testimony offered 4

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No. 08-40923 b y the state through the DPS officers. Hooks contends that McCarter was o b lig a t e d to call an expert because the reliability of the scientific evidence offered b y the state represented a crucial aspect of his case. Further, he contends that t h e outcome of his trial would have been different had McCarter presented M u n y o n 's conflicting report. We hold that Hooks has failed to "affirmatively p r o v e " he was prejudiced by McCarter's failure to call an expert witness as r e q u ir e d by Strickland v. Washington, 466 U.S. 668, 693 (1984).3 C la im s of ineffective assistance of counsel are analyzed in light of S tr ic k la n d . Strickland established a two-prong test for deciding ineffective a s s is t a n c e claims, under which the petitioner must show that trial counsel's p e r fo r m a n c e was deficient and that the deficient performance prejudiced the d e fe n d a n t . Id. at 687. In order to prove prejudice, "[t]he defendant must show t h a t there is a reasonable probability that, but for counsel's unprofessional e r r o r s , the result of the proceeding would have been different." Id. at 694. The p e t it io n e r must "affirmatively prove," not just allege, prejudice. Id. at 693. If t h e petitioner fails to prove the prejudice component, the court need not address t h e question of counsel's performance. Id. at 697. "We can affirm on any ground s u p p o r t e d by the record." Fisher v. Texas, 169 F.3d 295, 299 (5th Cir. 1999). A s Hooks raises an ineffective assistance claim premised on his counsel's fa ilu r e to call a witness, he is required by the precedent of this court to "name t h e witness, demonstrate that the witness was available to testify and would h a v e done so, set out the content of the witness's proposed testimony, and show t h a t the testimony would have been favorable to a particular defense." Day v. Q u a r te r m a n , 566 F.3d 527, 538 (5th Cir. 2009). We require "this showing for

Because we hold that Hooks has failed to satisfactorily demonstrate ineffective assistance, we need not address whether Hooks properly exhausted his claim in the state courts. See Richardson v. Quarterman, 537 F.3d 466, 474 n.3 (5th Cir. 2008) (pretermitting the question of exhaustion), cert. denied, 129 S.Ct. 1355 (2009).

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No. 08-40923 c la im s regarding uncalled lay and expert witnesses alike." Id. We have

su bseq u en tly clarified that the seemingly technical requirements of affirmatively s h o w in g availability and willingness to testify "[are] not a matter of formalism." Woodfox v. Cain, 609 F.3d 774, 808 (5th Cir. 2010). Rather, a petitioner must p r e s e n t evidence on these points as part of the burden of proving that trial c o u n s e l could have found and presented a favorable expert. Id. In contravention of Day and Woodfox, Hooks did not offer any evidence to t h e district court, nor has he pointed to any evidence in his appellate papers, for t h e proposition that Munyon was available and willing to testify at the original t r ia l. See Day, 566 F.3d at 538 ("[T]he petitioner must . . . demonstrate that the w it n e s s was available to testify and would have done so . . . ."); Woodfox, 609 F .3 d at 808 (experts required to state that they could and would have testified a t original trial even where they otherwise state they would be willing to testify in future proceedings). Given this complete lack of necessary evidence, Hooks c a n n o t establish prejudice under Strickland. III. CONCLUSION F o r the reasons set forth above, we AFFIRM the judgment of the district c o u r t denying Hooks's habeas corpus petition.

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