Nealy v. Cabana

• Decision Date: 12 July 1985
• Docket Number: No. 83-4274,83-4274
• Citation: 764 F.2d 1173
• Parties: James NEALY, Petitioner-Appellant, v. Donald A. CABANA, Superintendent of Mississippi State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1173

764 F.2d 1173

James NEALY, Petitioner-Appellant, v. Donald A. CABANA, Superintendent of Mississippi State Penitentiary, Respondent-Appellee.

No. 83-4274.

United States Court of Appeals Fifth Circuit.

July 12, 1985.

Wendell Hobdy Bryan, II, (Court-appointed), Amory, Miss., for petitioner-appellant.

Wm. A. Allain, Atty. Gen., Bill Patterson, Robert L. Gibbs, Asst. Attys. Gen., Jackson, Miss., for respondent-appellee.

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

Before RUBIN, WILLIAMS, and DAVIS, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

James Nealy appeals from his conviction and life sentence for the murder of Leo Davis. Nealy contends that his trial attorney failed to secure the testimony of three persons whose testimony might have established an alibi for him, thereby depriving him of the effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution. Because the trial boiled down to a swearing match between a prosecution witness, who admitted committing the crime, and Nealy, who denied any part in it, and because the missing testimony might have affected the jury's appraisal of the truthfulness of the state's witness and its evaluation of the relative credibility of the conflicting witnesses, Nealy has stated a claim for ineffective assistance of counsel. We, therefore, reverse the decision of the district court denying Nealy's petition for writ of habeas corpus and remand for entry of an order granting him a new trial.

I.

Leo Davis was murdered in his grocery store located in Clay County, Mississippi, in 1976. A post-mortem examination revealed that he had been stabbed a number of times, slashed across his throat, and struck on his head and jaw with a blunt instrument. The examining physician concluded that any one of these injuries would have caused Davis' death.

After the police discovered Davis' body, they arrested Wiley Ewing and charged him with Davis' murder. Ewing confessed to the killing, and assisted the police in recovering a pair of gloves, a knife, and a sawed-off shotgun used in the murder. Ewing also admitted taking some money from Davis' cash register and two $100 bills from his billfold. Ewing stated that he had travelled to and from Davis' store in a car borrowed from Nealy, and that he had hidden the $100 bills in the hubcaps of Nealy's car. Nealy was present when Ewing was arrested. He allowed the police to search his car, and two $100 bills were found inside a hubcap. Ewing did not implicate anyone else in the crime, and Nealy was not arrested at this time.

Several days later, however, after conferring with his attorney, Ewing gave a statement to the police in which he again confessed to the crime, but in addition, implicated both Nealy and T.L. Cunningham. According to Ewing, the three men had visited the home of Dorothy Belk where they stayed for five to fifteen minutes. From there, they set out in Nealy's car, and, after beginning their ride, decided to rob Davis' store. They parked approximately a quarter-mile from the store and walked to it, arriving between 8:00 and 9:00 p.m. Cunningham entered the store first in order to distract Davis. Ewing and Nealy then came in, and Nealy struck Davis across the face with the shotgun. After Davis fell to the floor, Ewing began to stab him, and, in the course of the melee, Nealy again struck Davis with the gun, Cunningham kicked him, and Ewing cut his throat.

After the men returned to Nealy's car, Ewing asserted, they drove to a country store and pool hall operated by Tom Bill Avant, arriving between 8:30 and 9:00. No other customers were there. The three men shot pool and left at approximately 9:30. After Ewing drove Cunningham and Nealy home, he borrowed the car from Nealy and drove himself home.

At trial, Ewing appeared for the prosecution and repeated his version of the facts. In addition, Tom Bill Avant, testifying for the state, related that he saw Nealy, Cunningham, and Ewing shooting pool at his place around 9:00 p.m. He further testified that two of the three pool tables were busy when the three men arrived, but he could not remember any of the other customers.

The state also called Mary Sanders, Davis' landlady and next door neighbor. She explained that her home was "within hollering distance" of Davis' store, and in addition, that a microphone located in the store transmitted to a speaker in her home. On the night of the murder, she said, she heard voices in the store between 8:00 and 9:00 p.m. and saw a car leaving the store around 8:00. On cross-examination, however, she added that her "talker" was on "real low" that night, and that her television was on extremely loud "to where you could hear it on the road." Therefore, she could not recognize the number of voices she heard on her loudspeaker or their identity. She also said that she went to bed at 9:00 that evening and did not hear any other voices or cars at the store that night.

Nealy testified on his own behalf. He claimed that the three men (Ewing, Cunningham, and he) went to Dorothy Belk's home shortly after 8:00 p.m. and stayed for fifteen or thirty minutes. They left about 8:30 and went to Avant's pool hall, arriving at approximately 9:00. He testified that other people were at Avant's when he arrived, including Richard and "Duck" Jones. He stated that the three men and the two Jones brothers left together shortly after 9:20, and that, after he drove Cunningham and the Joneses home, he drove himself home and lent Ewing his car. He denied complicity in the crime.

The jury convicted Nealy of the murder of Leo Davis and sentenced him to life imprisonment. His conviction was affirmed on direct appeal. ¹ After exhausting all available state remedies, Nealy sought federal habeas corpus relief on the ground that he was denied effective assistance of counsel when his attorney, Richard Burdine, failed to investigate and secure the testimony of Dorthy Belk (otherwise known as Dorthy Cummings) and the Jones brothers.

A U.S. Magistrate held an evidentiary hearing on this claim. He found that Burdine was aware that Belk was a potential alibi witness because Nealy contended that he was at her house with Ewing and Cunningham at approximately the time Ewing stated the murder took place. Moreover, Burdine knew Belk personally because they had worked together in the same legal services office. Nonetheless, Belk did not testify at Nealy's trial because Burdine was unable to communicate with her. Burdine spoke with Belk's grandmother who supplied him with a telephone number for Belk in Wisconsin. He tried to call her there, and left messages for her to return the calls. He made no effort, however, to discover her address or to secure her attendance at trial. Burdine also made no attempt to obtain her presence through the use of the Uniform Witness Attendance Law. ²

The Magistrate further found that Nealy had told Burdine about the Jones brothers because Burdine's line of questioning at trial strongly indicated that he was aware that the brothers could corroborate at least a portion of Nealy's version of the facts. Burdine testified that he had made no effort to reach the Joneses, claiming at the evidentiary hearing that he did not remember Nealy telling him about them.

Belk appeared at the hearing before the Magistrate. She testified that she met Ewing, Nealy, and Cunningham at a neighbor's house "around 6:00 or maybe 6:30" and left them at her house "around 7:00, or it could have been 7:30." On cross-examination, she said that she left her home "probably around 8:00." Later, she said that she left her house "between 7:30 and 8:00."

The Jones brothers also testified at the evidentiary hearing. They both remembered seeing Nealy, Ewing and Cunningham at Avant's place, and catching a ride home with them. Neither could remember with certainty whether this occurred on the night of the murder, but both thought that their memories might have been more clear if they had been questioned earlier.

II.

The Magistrate concluded that, even if Burdine's failure both to take more vigorous steps to interview Belk and to interview the Jones brothers constituted incompetent representation, Nealy was not prejudiced by these failures. Burdine's conduct, therefore, did not constitute ineffective assistance of counsel in derogation of the sixth amendment. The district court expressly adopted these findings.

The scope of our review is governed by Strickland v. Washington. ³ In Strickland, the Supreme Court noted that "although District Court findings are subject to the clearly erroneous standard of Fed.Rules Civ.Proc. 52(a) ... the ineffectiveness inquiry [involves] mixed questions of law and fact." ⁴ This is consistent with a long line of Fifth Circuit cases holding that whether a defendant has received effective assistance of counsel is a mixed question of fact and law rather than purely a question of fact. ⁵

"This Court must," therefore, "make an independent evaluation based on those subsidiary findings in determining whether counsel's representation satisfied the standards dictated by the sixth and fourteenth amendments." ⁶ We are required to make our own determination whether Burdine's representation passes constitutional muster, ⁷ and do not defer to the district court's conclusion.

III.

In Strickland, the Supreme Court enunciated the two-component standard to be applied when reviewing a claim of ineffective assistance of counsel. The Court held:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes...