Kately v. Cain et al

Filing 24

ORDERED that Petitioner's Request for an evidentiary hearing is GRANTED. IT IS FURTHER ORDERED that, in interest of justice, counsel shall be appointed to assist Petitioner. A status conference shall be set after counsel is appointed. Signed by Judge Carl Barbier on 5/27/11.(sek, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KATELY

CIVIL ACTION

VERSUS

NO: 10-1057

CAIN ET AL.

SECTION: "J” (3)

ORDER
Before the Court is Benedict Kately’s Petition for Writ of
Habeas Corpus (Rec. Doc. 3). The Government filed a response
(Rec. Docs. 11 and 21). Kately argues that his counsel, Harry
Boyer, was ineffective for failure to call two witnesses at trial
and for failure to investigate and interview other witnesses. In
his Report and Recommendations (Rec. Doc. 22), the Magistrate
Judge recommended dismissal of Kately’s petition.
The Report and Recommendations correctly summarized the law
governing ineffective assistance of counsel claims in habeas writ
application. In addition to the extremely deferential standard
pronounced in Strickland v. Washington, the United States Supreme
Court recently clarified that § 2254(d) “preserves authority to

issue the writ in cases where there is no possibility fairminded
jurists could disagree that the state court’s decision conflicts
with this Court’s precedents.” Harrington v. Richter, __ U.S. __,
131 S.Ct. 770, 786 (2011). The Court also stressed that the state
prisoner must demonstrate that “the state court’s ruling on the
claim being presented in federal court was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. at 786-87. Thus, when reviewing
ineffective assistance of counsel claims under § 2254(d), a court
“must guard against the danger of equating unreasonableness under
Strickland with unreasonableness under § 2254(d). When § 2254(d)
applies, the question is not whether counsel’s actions were
reasonable. The question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential
standard.” Id. at 788.
Recommending denial of Kately’s writ, the Magistrate Judge
could not “say that the state court’s decision rejecting
petitioner’s claim was so beyond the pale that it was not
entitled to deference” (Rec. Doc. 22, at 19). The Magistrate
reasoned as follows:
On the contrary, as petitioner notes in his federal
application, the evidence against him was hardly
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conclusive, in that there was no physical evidence
connecting him to the crime and his identification was
based on a single eyewitness whose testimony was based
in part on a dream. In light of those facts, counsel
opted to try to discredit the state’s case rather than
taking the chance of alienating the jury by presenting
the testimony of Jordan and Mitchell. Counsel was
unsure those witnesses could be relied upon to testify
convincingly. Moreover, it was likely that their
testimony would have been viewed by the jury with
suspicion because they were both closely related to
petitioner and, therefore, hardly disinterested. See,
e.g., Ball v. United States, 271 Fed. App’x 880, 884
(11th Cir. 2008) (Petitioner’s wife, brothers, and
cousin “were all close family members with a strong
motive to fabricate an alibi defense for him. As such,
their testimony would not have been particularly
compelling and would have been subjected to vigorous
impeachment. If trial counsel had called these alibi
witnesses and the jury had disbelieved them, the jury
also could have inferred that [petitioner] was in fact
the [perpetrator].”); Lewis v. Cain, Civ. Action No.
09-2848, 2009 WL 3367055, at *11 (E.D. La. Oct. 16,
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2009) (noting that petitioner’s “grandmother’s
testimony would have been of limited value because her
close familial relationship to the petitioner would
have made her testimony inherently suspect”); Sholes v.
Cain, 2008 WL 2346151, at *15 (E.D. La. June 6, 2008)
(noting that petitioner’s girlfriend would be an
inherently suspect alibi witness); Talley v. Cain, Civ.
Action No. 08-3542, 2009 WL 916331, at *11 (E.D. La.
Apr. 6, 2009) (noting that alibi testimony from the
petitioner’s mother would have been inherently
suspect); United States ex rel. Emerson v. Gramley, 902
F.Supp. 143, 147 (N.D. Ill.1995) (noting that
petitioner’s mother was an “interested witness” and,
therefore, “would not have provided persuasive evidence
of an alibi”), aff’d, 91 F.3d 898 (7th Cir. 1996).
(Rec. Doc. 22, ay 19-20). The Magistrate then emphasized
that balancing such factors and making such a decision was
clearly within the acceptable range of representation.
Even if the Court agreed with the Magistrate’s reasoning
with regard to counsel’s failure to call witnesses, the Report
and Recommendations does not address the second part of Kately’s
claim: that his counsel was ineffective for failure to interview
the witnesses and investigate the case. Specifically, the
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petition alleges that counsel failed to interview two alibi
witnesses and several eyewitnesses to the murder.
The prosecution’s case was dependent on the testimony of a
14-year girl, who identified Petitioner as the murderer several
days after the crime, after she saw petitioner in a dream. The
state did not have any corroborating evidence. Prosecution’s main
witness Ms. Howard testified that immediately prior to the
murder, there were three people on the stairway where the murder
occurred, including the murder victim. It appears from the record
that defense counsel, Harry Boyer, put no effort into trying to
locate the third person, Marvin Blake.1 There were several other
witnesses near the murder scene, none of whom appear to have been
interviewed by Kately’s trial counsel.
Additionally, the two witnesses that waited outside of the
courtroom testified that Harry Boyer never once saw them before
trial. In fact, they learned about the trial from relatives of
Defendant. There is no record of subpoenas being issued for these
witnesses. Harry Boyer did bring up their names during his
opening statement. However, he did state one name wrong and did
not pronounce the full name of the other, which may be an
indication that he was not familiar with them at all. No mention
1

He was subpoenaed to appear at Kately’s post conviction hearing but failed to appear.
When Kately’s post conviction counsel requested that the Judge issue a capias, the Judge
refused.
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was made of Marvin Blake.
The Fifth Circuit has a long line of well-established
precedent holding that failure to investigate and interview
witnesses cannot constitute counsel’s reasonable professional
conduct. In Nealy v. Cabana, 764 F.2d 1173 (5th Cir. 1985), Judge
Alvin Rubin opined that petitioner’s counsel’s failure to contact
potential alibi witness and locate witnesses who could have
corroborated petitioner’s testimony was ineffective assistance of
counsel. Underscoring the Fifth Circuit’s recognition that
effective counsel must conduct a reasonable amount of pretrial
investigation, Judge Rubin stated that “at a minimum, counsel has
the duty to interview potential witnesses and to make an
independent investigation of the facts and circumstances of the
case.” Id. at 1177 (citing Bell v. Watkins, 692 F.2d 999, 1009
(5th Cir.1982); Rummel v. Estelle, 590 F.2d 103, 104 (5th
Cir.1979)).
In Bryant v. Scott, 28 F.3d 1411 (5th Cir. 1994), the Fifth
Circuit reversed the district court’s denial of a state
prisoner’s petition for habeas relief, concluding that counsel
was ineffective for failing to investigate and interview alibi
witnesses made known to counsel three days before trial, failing
to interview eyewitnesses, and failing to interview a codefendant
who maintained that petitioner was not a perpetrator of the
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robbery. The Court noted that “an attorney’s strategic choices,
usually based on information supplied by the defendant and
gathered from a thorough investigation of the relevant law and
facts, ‘are virtually unchallengeable.’” Id. at 1415 (citing
Strickland, 466 U.S. at 691). Nonetheless, “an attorney must
engage in a reasonable amount of pretrial investigation and ‘at a
minimum, . . . interview potential witnesses and . . . make an
independent investigation of the facts and circumstances in the
case.’” Id. (citing Nealy, 764 F.2d at 1177). The Court then held
that “[b]ecause there was no physical evidence connecting
[petitioner] with the crime, the eyewitness identification of
[petitioner] at the crime scene was the cornerstone of the
state’s case in chief,” and that “failure to interview
eyewitnesses to the crime was constitutionally deficient
representation.” Id. at 1418.
More recently, in Anderson v. Johnson, 338 F.3d 382 (5th
Cir. 2003), the Fifth Circuit once again emphasized that trial
counsel’s failure to interview an eyewitness rose to the level of
a constitutionally deficient performance, which prejudiced the
defendant. The Court reviewed Fifth Circuit precedent that
“rejected the notion that ‘vigorous’ cross-examination of
eyewitnesses at trial can ‘cure’ counsel’s failure to interview
the witnesses before trial.” Id. at 391 (citing Bryant, 28 F.3d
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at 1419). Further, the Court noted that the Fifth Circuit
“squarely rejected the argument . . . that a failure to interview
witnesses is excusable as ‘a strategic decision’ if the witnesses
would not have been credible.” Id. at 392. Noting that the “fact
that trial counsel was marginally successful in some respects
does not excuse his complete failure to investigate and prepare
before trial,” the Court found that “there [was] no evidence that
counsel’s decision to forego investigation was reasoned at all,
and [was] far from reasonable. Counsel’s failure to investigate
was not ‘part of a calculated trial strategy’ but is likely the
result of either indolence or incompetence.” Id. at 393.
Applying the standard pronounced by the United States
Supreme Court in Harrington, 131 S.Ct. at 788, the inquiry in
this case is “whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.” A thorough
review of state court record reveals that the issue of failure to
investigate and interview witnesses, although raised by
Defendant, was only marginally addressed during the postconviction hearing. In fact, Tyrone Jordan testified during the
post-conviction hearing that neither Mr. Boyer nor any other
attorney that may have represented Kately ever contacted him
(Rec. Doc. 17, at 6). Similarly, Devone Mitchell testified that
she did not recall speaking to anybody until it was time for
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court (Rec. Doc. 17, at 15). Furthermore, during the postconviction hearing the trial judge denied Kately’s counsel’s
request that a capias be issued on the third witness, Marvin
Blake (Rec. Doc. 20). Kately’s post-conviction counsel witnessed
Marvin Blake receive the subpoena to testify at Kately’s postconviction hearing. However, Blake did not show up.
Although Harry Boyer was questioned about his decision not
to call the two witnesses at trial, it is unclear what effort, if
any, Mr. Boyer applied in independently investigating the case
and interviewing witnesses. Mr. Boyer mentioned that he was sure
he spoke with Jordan and Mitchell before trial, but could not
“say specifically” whether he investigated Marvin Blake (Rec.
Doc. 17, at 29). The trial judge then refused to issue a capias
on Marvin Blake (Rec. Doc. 17, at 32). This ended the postconviction court’s inquiry into Mr. Boyer’s efforts to
investigate and interview witnesses. Thus, it is unclear whether
Marvin Blake was ever interviewed by Harry Boyer. Furthermore,
prosecution’s witness Ms. Howard testified that there were other
people in the immediate vicinity of the crime scene at the time
the victim was shot–Jack, Jared, and Aaron (Trial Transcript, at
p. 132). There is no indication that Harry Boyer interviewed
those witnesses either.
Applying the statutory presumption of correctness to the
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state court’s factual determinations and viewing the claims
actually ruled upon through the deferential lens of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”), the
decision to grant to a state prisoner an evidentiary hearing is
within the discretion of the federal district court. Murphy v.
Johnson, 205 F.3d 809, 815 (5th Cir. 2000). Under 28 U.S.C. §
2254(e)(2), a court may grant an evidentiary hearing if
petitioner’s “claim relies on . . . a factual predicate that
could not have been previously discovered through the exercise of
due diligence; and . . . the facts underlying the claim would be
sufficient to establish by clear and convincing evidence that but
for constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.” Because
the Court now concludes that petitioner did not receive a full
and fair evidentiary hearing in a state court, the Court deems it
necessary to conduct an evidentiary hearing, the purpose of which
shall be to establish whether Harry Boyer failed to investigate
and interview witnesses, which “would be sufficient to establish
by clear and convincing evidence that but for constitutional
error, no reasonable factfinder would have found the applicant
guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2).
Accordingly, IT IS ORDERED that Petitioner’s Request for an
evidentiary hearing is GRANTED. IT IS FURTHER ORDERED that, in
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interest of justice, counsel shall be appointed to assist
Petitioner. A status conference shall be set after counsel is
appointed.
New Orleans, Louisiana this the 27th day of May, 2011.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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