Anaya v. Lumpkin

• Decision Date: 25 September 2020
• Docket Number: No. 18-11203,18-11203
• Citation: 976 F.3d 545
• Parties: David Abram ANAYA, Petitioner—Appellant, v. Bobby LUMPKIN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent—Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

976 F.3d 545

David Abram ANAYA, Petitioner—Appellant,

v.Bobby LUMPKIN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent—Appellee.

No. 18-11203

United States Court of Appeals, Fifth Circuit.

FILED September 25, 2020

Adele Marie El-Khouri, Ginger Anders, Munger, Tolles & Olson, L.L.P., Washington, DC, for Petitioner - Appellant.

Matthew Hamilton Frederick, Deputy Solicitor General, Lanora Christine Pettit, Office of the Attorney General, Office of the Solicitor General, Jon Rodney Meador, Assistant Attorney General, Office of the Attorney General, Criminal Appeals Division, Austin, TX, for Respondent - Appellee.

Before Barksdale, Haynes, and Willett, Circuit Judges.

Don R. Willett, Circuit Judge:

David Anaya was charged with murder and aggravated assault. He rejected the State's plea deal and opted instead for a jury trial. He didn't deny that he shot the victim. He insisted instead that he fired in self-defense. But Anaya's lawyer did not tell Anaya that, because he was a felon in possession of a weapon, the jury could consider his failure to retreat under Texas law. So now Anaya brings a habeas claim for ineffective assistance of counsel. The district court denied Anaya relief. Because of the rigorous deference we owe the state court's judgment on collateral review, we AFFIRM.

I

Late one night in Potter County, Texas, a group of five teenagers heard gunshots as they were leaving a club. They ran to their car, where they found a man, beaten and bloody, leaning up against it. One of the teens threw the man off the car so they could leave.

David Anaya left the same club at about the same time. He noticed a crowd in the parking lot and saw "flashes of a gun in the air." A group was "pounding on somebody with their feet." Anaya went to investigate. By the time Anaya got close enough to the scene, he found his brother on the ground, brutally beaten, wounded

, and bleeding. Anaya gathered his brother, put him in the front seat of his car, and put his brother's gun in the console. Anaya wanted to leave before police arrived because he was on parole.

While driving down Amarillo Boulevard, Anaya pulled up alongside the car full of teens from the club. One of the teens testified that Anaya accused them of attacking his brother. Anaya says that the front passenger in the other car was making "aggressive gestures" and that someone in the back seat pointed a gun at Anaya through the window. Anaya then fired his brother's gun at them, he claims, in self-defense. One of the teen passengers was struck in the temple and died. The police recovered a black toy gun from the teenagers’ car, but the owner of the toy gun denied having brandished it. An investigator testified that the toy gun resembled a semi-automatic gun—its blue and orange coloring had been scratched off to make it look real.

The State offered Anaya a plea bargain: 30 years for murder and 15 years for aggravated assault. Anaya did not deny the underlying facts in the indictment but claimed he was acting in self-defense. So Anaya's discussions with his lawyer, Rus Bailey, centered on the viability of a self-defense claim at trial. That was Anaya's only defense. The State provided Bailey with a list of Anaya's convictions and made clear it planned to use those convictions at trial to enhance Anaya's punishment. Because of those prior convictions, at the time of the shooting, Anaya was a felon in possession of a firearm. This meant that the jury could consider Anaya's failure to retreat in evaluating the reasonableness of his actions.¹

The jury convicted Anaya of both assault and felony murder. He was sentenced to 40 and 99 years, respectively. Anaya appealed, and the state intermediate appellate court affirmed. The Texas Court of Criminal Appeals refused Anaya's petitions for review. And he did not seek certiorari from the Supreme Court of the United States.

Anaya pursued an ineffective assistance of counsel claim in three state habeas proceedings, the last dismissed as successive. The TCCA denied relief, and the Supreme Court denied certiorari.² All of Anaya's state habeas petitions were denied without written orders. Anaya applied to the federal district court for habeas relief.³ The district court adopted the magistrate judge's written findings, conclusions, and recommendation—the only written opinion in Anaya's habeas proceedings—and denied a Certificate of Appealability. We granted Anaya a COA on one issue: Anaya's ineffective assistance of counsel claim that his counsel misdescribed the law of self-defense, which impaired Anaya's ability to make an informed decision on the viability of his only defense and the State's plea offer.

II

When a state court denies a habeas application without a written order—as is the case here—that decision is an adjudication on the merits subject to deference under 28 U.S.C. § 2254(d).⁴ When a district court denies a § 2254 application, we review the district court's findings of fact for clear error and its conclusions of law de novo, "applying the same standard of review to the state court's decision as the district court."⁵ We also review mixed questions of law and fact de novo.⁶

To obtain relief under § 2254(d), Anaya must establish that the state court's adjudication of his claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "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."⁷

III

The Sixth Amendment right to counsel extends to the plea-bargaining process, where defendants are "entitled to the effective assistance of competent counsel."⁸ In fact, we have "observed that providing counsel to assist a defendant in deciding whether to plead guilty is ‘one of the most precious applications of the Sixth Amendment.’ "⁹ That's because the overwhelming majority of federal and state convictions are the result of guilty pleas.¹⁰ The Supreme Court has repeatedly reminded us that, because our criminal justice system has become "for the most part a system of pleas, not a system of trials," the "critical point for a defendant" is often plea negotiation, not trial.¹¹ And because "horse trading between prosecutor and defense counsel determines who goes to jail and for how long," plea bargaining "is not some adjunct to the criminal justice system; it is the criminal justice system."¹²

Anaya's ineffective assistance of counsel claim—based on Bailey's advice at plea bargaining—is governed by the two-part test established in Strickland v. Washington .¹³ Under Strickland , a defendant who claims ineffective assistance of counsel must show: (1) "that counsel's representation fell below an objective standard of reasonableness,"¹⁴ and (2) that the deficiency was "prejudicial to the defense."¹⁵ The inquiry is highly deferential to counsel.¹⁶ And in the habeas context, we do not start with a clean slate but must give deference to the state court under § 2254(d).¹⁷ We address each Strickland prong in turn, applying the requisite "doubly deferential" standard of review "that gives both the state court and the defense attorney the benefit of the doubt."¹⁸

A

First, the performance prong. To show deficient performance under Strickland , Anaya must show that Bailey "made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment."¹⁹ We must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."²⁰ But counsel's "[s]ilence" "on matters of great importance, even when answers are readily available," is "fundamentally at odds with the critical obligation of counsel to advise the client of ‘the advantages and disadvantages of a plea agreement.’ "²¹ To be sure, in the habeas world of double deference, " ‘the question is not whether counsel's actions were reasonable,’ but ‘whether there is any reasonable argument that counsel satisfied Strickland ’s deferential standard.’ "²² Anaya claims that Bailey was silent on a matter of great importance—Anaya's entire defense—that would have radically altered his plea decision. We agree, and conclude there is no reasonable argument to the contrary.

Under Texas's self-defense statute, juries are generally prohibited from considering a defendant's failure to retreat in assessing the reasonableness of his belief that deadly force was necessary.²³ But there are important caveats to that general rule. Relevant here, it only applies if the actor was "not engaged in criminal activity at the time the deadly force [wa]s used."²⁴ If the actor was not engaged in criminal activity, the jury "may not consider whether the actor failed to retreat,"²⁵ and the actor's belief that deadly force was necessary is "presumed to be reasonable ."²⁶ In contrast, if the defendant is engaged in criminal activity at the time force is used, the jury can consider his failure to retreat before using deadly force.²⁷ And such a person's belief that deadly force was necessary is no longer presumed reasonable.²⁸

At the time of the shooting, Anaya was engaged in criminal activity because he was a felon in possession of a firearm. As a result: (1) The jury was permitted to consider his failure to retreat and (2) his belief that deadly force was necessary was not presumed to be reasonable. The State made Anaya's failure to retreat central to its case, contending that, because Anaya was driving a car when he fired his gun, he could have easily retreated.

Anaya claims that his decision to reject the State's plea offer turned on the viability of his self-defense claim. He admitted from the get-go that he shot the victim, so his whole theory rested on self-defense. Anaya claims that Bailey told him he had a "viable defense"—that Bailey would argue Anaya's conduct was reasonable because Anaya...