Bryant v. Scott

• Decision Date: 18 August 1994
• Docket Number: No. 93-1003,93-1003
• Citation: 28 F.3d 1411
• Parties: R.L. BRYANT, Petitioner-Appellant, v. Wayne SCOTT, Director, Texas Dept. of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1411

28 F.3d 1411

R.L. BRYANT, Petitioner-Appellant, v. Wayne SCOTT, Director, Texas Dept. of Criminal Justice Institutional Division, Respondent-Appellee.

No. 93-1003.

United States Court of Appeals Fifth Circuit.

Aug. 18, 1994.

Timothy Crooks, Asst. Federal Public Defender, Ira R. Kirkendoll, Federal Public Defender, Ft. Worth, TX, for appellant.

Stephani A. Stelmach, Asst. Atty. Gen., Dan Morales, Atty. Gen., Austin, TX, for appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before GARWOOD and EMILIO M. GARZA, Circuit Judges, and NOWLIN, ^* District Judge.

EMILIO M. GARZA, Circuit Judge:

Appellant, R. L. Bryant, was convicted of armed robbery and sentenced to life imprisonment by the state district court in Palo Pinto County, Texas. After exhausting state court remedies, Bryant petitioned for federal habeas corpus relief, pursuant to 28 U.S.C. Sec. 2254 (1988), on claims of ineffective assistance of counsel and improper identification procedures. The United States magistrate judge recommended habeas relief based on Bryant's claim of ineffective assistance of counsel. The district court conducted an evidentiary hearing and denied habeas relief, holding that Bryant received effective assistance at trial, and was not subjected to impermissibly suggestive identification procedures. Bryant appeals, arguing that his trial counsel was ineffective for: (a) failing to investigate alibi witnesses; (b) not interviewing eyewitnesses to the robbery; and (c) not interviewing the codefendant who offered to exonerate Bryant. We reverse and remand.

I

On May 14, 1982, two men robbed the North American Phillips Federal Credit Union in Mineral Wells, Texas. The perpetrators stole payroll checks and $2,000 in cash. Cindy Carpenter, the credit union's branch manager, was shot in the elbow during the robbery and later identified the gunman as Bryant. Ronnie Berkins was the other eyewitness to the robbery, who also identified Bryant, and testified that Bryant showed him a gun while leaving the credit union.

Bryant was indicted for armed robbery by a grand jury in Palo Pinto County, Texas. Bryant was later arrested and detained in Oakland, California, for a parole violation unrelated to this case. The State of Texas moved for Bryant's extradition from California, where Paul Trudell, from the Alameda County Public Defender's Office, represented Bryant in the ensuing extradition proceedings. The public defender's office investigated Bryant's whereabouts on the day of the robbery. Several potential alibi witnesses reported that Bryant was in California at or near the time of the robbery. In particular, Stanley Woods, Bryant's employer in California, indicated that Bryant began working for him on May 13 or May 14, 1982 and worked until the end of the month. Woods did not state that he actually saw Bryant on May 14, 1982. Harold Wilson stated that Bryant was in California at the time of the robbery, where Wilson paid him $100 towards the purchase of a car engine. Teresa Wilson also stated that Bryant sold her husband a car engine in California, but she was not sure whether this transaction took place on May 14 or May 15, 1982. At Bryant's first extradition hearing, the Oakland Municipal Court found that Bryant could not have been in Texas on the day of the robbery and, therefore, the court did not extradite him to Texas. However, after a second hearing before the Hayward Municipal Court, Bryant was extradited to Texas to stand trial in this case.

On January 12, 1983, John D. Moore was appointed to represent Bryant. At their first meeting, Bryant told Moore that he wanted to subpoena several "material witnesses" from California and other places outside Texas. Despite requests from Moore, Bryant never disclosed the names of any potential alibi witnesses until the pretrial hearing on Friday, March 18, 1983. At the hearing, Bryant testified that Stanley Woods and "Mr. and Mrs. Wilson" knew he was in California at the time of the robbery. Moore spoke with Judge Fitts about the procedure for subpoenaing out-of-state witnesses, but Moore never contacted any of the potential alibi witnesses before trial.

On Monday, May 21, 1983, the trial court denied Bryant's pro se motion for continuance ¹ and convicted him of armed robbery. The Texas Court of Appeals at Eastland affirmed Bryant's conviction, and Bryant did not seek discretionary review from the Texas Court of Criminal Appeals. Responding to one of Bryant's state petitions for a writ of habeas corpus, the Texas Court of Criminal Appeals ordered the trial court to develop additional facts in connection with Bryant's claim of ineffective assistance of counsel. The trial court found that Bryant had not supplied enough specific information about alibi witnesses before trial and concluded that Moore was effective as counsel.

After exhausting state remedies, Bryant petitioned for federal habeas corpus relief, pursuant to 28 U.S.C. Sec. 2254 (1988). The United States magistrate judge recommended that Bryant be granted habeas relief on his claim of ineffective assistance of counsel and did not reach the claim of impermissible identification procedures. The magistrate judge held that Moore breached his "duty to investigate [Bryant's] alibi witnesses which [Bryant] has consistently maintained from his pre-trial hearing in 1983 throughout all his pro se pleadings to the present." The district court conducted an evidentiary hearing on Bryant's claims of ineffective assistance of counsel and improper identification. The district court held that Moore was "not ineffective in failing to discover Bryant's potential alibi witnesses, considering that Bryant refused to provide the necessary information to allow them to even begin to search until less than 72 hours before trial." The district court, therefore, denied habeas relief. Bryant appeals, contending that he received ineffective assistance of counsel.

II

Bryant argues that the district court erred in holding that he received effective assistance of counsel at trial. Bryant alleges that his appointed counsel, John D. Moore, was ineffective because he failed to interview or investigate crucial witnesses in the case, including: (a) alibi witnesses; (b) eyewitnesses to the crime; and (c) the codefendant who offered to exonerate Bryant. ² "[A] state court's ultimate conclusion that counsel rendered effective assistance is not a fact finding to which a federal court must grant a presumption of correctness under 28 U.S.C. Sec. 2254(d), but instead is a mixed question of law and fact." Black v. Collins, 962 F.2d 394, 401 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 2983, 119 L.Ed.2d 601 (1992). We therefore independently decide whether counsel's conduct passes constitutional muster. ³ Nealy v. Cabana, 764 F.2d 1173, 1176-77 (5th Cir.1985).

We review Bryant's claim of ineffective assistance of counsel under the standards announced by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "First, a defendant must demonstrate that 'counsel's representation fell below an objective standard of reasonableness,' with reasonableness being judged under professional norms prevailing at the time counsel rendered assistance." Black, 962 F.2d at 401 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. at 2064). Second, if counsel was ineffective, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. A claim of ineffective assistance of counsel will only merit habeas relief when a petitioner satisfies both prongs of the Strickland test. See id. at 687-97, 104 S.Ct. at 2064-69. The district court concluded that Moore effectively represented Bryant and, therefore, did not reach the question of prejudice.

In reviewing Bryant's ineffective assistance claim we must "judge[ ] the conduct of the defense according to the objective standard of the reasonable attorney," Kyles v. Whitley, 5 F.3d 806, 819 (5th Cir.1993), cert. granted, --- U.S. ----, 114 S.Ct. 1610, 128 L.Ed.2d 338 (1994), and "give great deference to counsel's assistance, strongly presuming that counsel has exercised reasonable professional judgment." Ricalday v. Procunier, 736 F.2d 203, 206 (5th Cir.1984). Accordingly, 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." Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. We also observe that the reasonableness of an attorney's investigation may critically depend on the information forwarded by the defendant and the defendant's own strategic decisions about his representation. See id. (stating that "when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable"). However, 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." Nealy, 764 F.2d at 1177. The failure to interview eyewitnesses to a crime may strongly support a claim of ineffective assistance of counsel, see Gray v. Lucas, 677 F.2d 1086, 1093 n. 5 (5th Cir.1982) (noting that attorney's failure to investigate crucial witness may constitute inadequate performance), cert. denied, 461 U.S. 910, 103 S.Ct. 1886, 76 L.Ed.2d 815 (1983), and when alibi witnesses are involved, it is unreasonable for counsel not to try to contact the witnesses and "ascertain whether their testimony would aid the defense."...