Mcafee v. Thaler

• Decision Date: 06 January 2011
• Docket Number: No. 08–41230.,08–41230.
• Parties: Charles Franklin MCAFEE, Jr., Petitioner–Appellant,v.Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

630 F.3d 383

Charles Franklin MCAFEE, Jr., Petitioner–Appellant,

v.Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Defendant–Appellee.

No. 08–41230.

United States Court of Appeals, Fifth Circuit.

Jan. 6, 2011.

Charles Franklin McAfee, Jr., Richmond, TX, pro se.Arthur Cleveland D'Andrea, Office of Sol. Gen., Lori Brodbeck, Cara Hanna, Asst. Atty. Gen., Postconviction Lit. Div., Austin, TX, for Thaler.Appeal from the United States District Court for the Southern District of Texas.Before HIGGINBOTHAM, SMITH and ELROD, Circuit Judges.PER CURIAM:

Charles Franklin McAfee, Jr., Texas prisoner # 1207010, was convicted in state court of aggravated robbery and sentenced to twenty-eight years of imprisonment. This court granted a certificate of appealability to allow McAfee's appeal from the district court's denial of habeas relief on the following two issues: (1) whether McAfee's trial counsel was constitutionally ineffective during McAfee's hearing on his motion for new trial, and (2) whether the state district court denied McAfee a fair hearing by failing to grant his motion to dismiss trial counsel until after the hearing on the motion for new trial. We AFFIRM.

I

McAfee was convicted of robbing a cashier, Raye Ann Clark, with a knife, at the Rush–In Grocery, a convenience store in Santa Fe, Texas, on Saturday, June 8, 2002 at 5:20 A.M. At trial, the state presented the testimony of one eyewitness, Clark, the victim. Clark testified that McAfee entered the store and began looking at oil while she waited on another customer. After the customer exited the store, McAfee brought the oil up to the counter. As Clark examined the oil to locate its price, McAfee pulled out a knife and asked her if she had ever been robbed. McAfee then jumped up onto the counter, asked Clark to open the cash drawer, and ordered her to go to the cooler. As McAfee left the store, Clark saw a Ford Bronco exit the driveway. She then called the police.

Several members of the Santa Fe police department arrived at the convenience store. Clark gave the officers a description of the robber and the vehicle. She testified that, when giving the police a description of the robber, she was indecisive because she was “traumatized and in shock,” stating “I thought he had dark hair or he had a mustache or had a goatee. I wasn't real sure.” Captain G. Keith Meenen, one of the responding officers, testified at trial that Clark described the robber as a white male, approximately six feet tall, blond to brown hair, with a mustache. Clark also described the vehicle as a two-tone Ford Bronco 2 but could not recall the colors. Sergeant O'Briant, also a responding officer, attested that he took prints off the counter and the door but they were not readable.

Almost six months later,¹ McAfee became a suspect when a patrol officer pulled him over in a two-tone Ford Bronco 2 for a traffic violation. The officer noted the similarities between the description of the robber and the vehicle to McAfee and his car. A short time later, Clark identified McAfee out of a six-person photographic lineup. She also identified him in the courtroom at trial. The state also submitted a videotape from the convenience store security camera into evidence.

McAfee's counsel presented two witnesses at trial, McAfee and his friend Blaine Carmichael. Carmichael asserted that he was McAfee's neighbor in Houston, Texas. He recalled how, on the night of June 7, 2002, he celebrated his birthday with his friends. Among those friends was McAfee. Carmichael attested that McAfee joined the party at around midnight at Duster's Saloon, and drank with him until the bar closed at around 2:15 A.M. on June 8, 2002. They then all drove to Carmichael's home to continue the festivities, with McAfee following them in his car. However, upon arriving at Carmichael's home at around 2:45 A.M., McAfee retired for the evening and went into his house, which was a trailer behind Carmichael's home. Carmichael testified that he and his friends stayed out in front of his house drinking till 4:30 A.M., although one of his friends, Chad Jones, left at 3:30 A.M. Carmichael indicated that he did not see McAfee leave the property,² and indeed, saw him around 8:00 or 9:00 A.M., when McAfee pounded on Carmichael's door requesting a pot of coffee.³ Carmichael also attested that McAfee had a mole on his face and that he sported a goatee and not a moustache, and that it took approximately one hour to drive from his home in Houston to the Santa Fe area.

McAfee testified that after the party moved to Carmichael's property, he drove to the trailer behind Carmichael's home and did not leave until he asked Carmichael for a pot of coffee the following morning. McAfee denied traveling to Santa Fe in the early morning of June 8, 2002 and robbing the Rush–In Grocery.

After deliberating, the jury found McAfee guilty as charged. The court sentenced McAfee to twenty-eight years of imprisonment. McAfee immediately informed the state district court that he wanted to file a motion for new trial. McAfee's counsel, Michael Donahue, noted that he would file the motion but would not represent McAfee on appeal.

On June 13, 2003, over a month before his hearing on the motion for new trial, McAfee filed a motion to dismiss his court-appointed counsel, Donahue. McAfee asserted that Donahue “has failed and continues to fail to represent the defendant in an effective, concerned, independent manner.” McAfee specifically listed “conflict of interest” as one of his complaints regarding Donahue's representation, and he stated that Donahue had “misled” him. He requested that his counsel be dismissed, and he sought the appointment of new counsel. The motion also included McAfee's declaration of his intent to file a formal grievance with the State Bar of Texas. McAfee also filed a pro se notice of appeal, leaving blank the name and address of the defense attorney on appeal.

On the same day that McAfee filed his motion to dismiss court-appointed counsel, Donahue filed a motion for new trial on the grounds that the evidence was insufficient to support the conviction, and for reasons which were listed on Exhibit A. Exhibit A consisted of a handwritten list of McAfee's complaints about his trial, including a claim that Donahue had provided ineffective assistance of counsel. Exhibit A did not address the reasons underlying McAfee's allegations regarding Donahue's ineffectiveness, as the document stated that listing them would “cause conflict of interest.” The document instead referred to the motion to dismiss counsel.

The state court declined to rule on McAfee's motion to dismiss Donahue, prior to the hearing on McAfee's motion for new trial, and Donahue supposedly represented McAfee at the hearing on August 5, 2003. At the hearing, McAfee contended that Donahue had rendered ineffective assistance of counsel at trial for, among other things, failing to call witnesses. McAfee stated that he had “affidavits from people you told not to show up in Court,” and alleged that Donahue had showed potential witnesses video from the convenience store security camera and asked repeatedly, “Isn't that Charles,” thereby discouraging them from coming to court to testify on McAfee's behalf.⁴

The transcript of the motion-for-new-trial hearing reads like a primer on what not to do as an attorney. Donahue attacked McAfee's ineffectiveness claim throughout the hearing by vigorously defending his representation. He also accused his client of lying many times throughout the hearing, “As far as me saying I didn't know what to do, that's nonsense. That's nonsense. That's a complete lie ... a total lie;” he referred to McAfee's testimony at the hearing as a “bold faced lie;” and interrupted McAfee with barbs like, “That is not correct. That's not true.” He impugned the merits of the case, “This case had a real troubling strategy problem,” and repeatedly referred to the motion for new trial as “Mr. McAfee's motion,” or “your motion.” The court even sustained two of McAfee's objections to the testimony of his own counsel, Donahue, once on the ground that it was hearsay, and once on the ground that it was privileged. Donahue interrupted McAfee numerous times, refusing to let McAfee testify on the motion. Indeed, Donahue's conduct compelled the state court to admonish him multiple times, stressing that his testimony was inappropriate because he was still acting as McAfee's counsel, “Wait a minute, Mr. Donahue. If you say anything in conflict with your client's defense .... You are still his attorney. Anything you say doesn't help his case .... There is an attorney-client privilege and you cannot breach that privilege, even if he has said he had ineffectual counsel.”

Halfway through the hearing, McAfee conducted his own cross-examination of a state witness, with Donahue doing the re-direct, attempting to undermine McAfee's motion and arguments. Finally, the court, exasperated by Donahue's behavior, issued an ultimatum towards the end of the hearing, “One more time, if you interrupt another witness while they are arguing, while they are testifying or making an argument, I am going to ask you to leave the courtroom and when they are done you can come back in and read the transcript, because you are just being rude to everybody. Just stop.”

After the hearing, the state district court granted the motion to remove counsel as attorney of record and denied the motion for new trial. McAfee subsequently filed a grievance with the State Bar of Texas—the Grievance Committee reprimanded Donahue, noting that by attempting to “defend the ineffective assistance of counsel allegations at the Hearing on the Motion for New Trial,” Donahue “thwarted his client's attempt to obtain a new trial.”

On direct appeal, McAfee sought relief on grounds that the state district court erred in granting the State's request to amend the indictment on the day...