Pondexter v. Dretke

• Citation: 346 F.3d 142
• Decision Date: 16 September 2003
• Docket Number: No. 02-41543.,02-41543.
• Parties: Willie Earl PONDEXTER, Jr., Petitioner-Appellee, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

346 F.3d 142

Willie Earl PONDEXTER, Jr., Petitioner-Appellee, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellant.

No. 02-41543.

United States Court of Appeals, Fifth Circuit.

Filed September 16, 2003.

David R. Dow (argued), University of Houston Law Center, Houston, TX, for Petitioner-Appellee.

Gena Blount Bunn, Asst. Atty. Gen. (argued), Austin, TX, for Respondent-Appellant.

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

Before BARKSDALE, DeMOSS and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Petitioner Willie Earl Pondexter, Jr., (Pondexter) was convicted of capital murder in Texas and sentenced to death. After exhausting his remedies in state court, Pondexter filed a petition for federal habeas corpus in district court. In an unpublished opinion, the district court granted relief with respect to the claim that trial counsel rendered ineffective assistance by failing to consult with and offer the testimony of a pathologist during the guilt-innocence phase of trial. The Director appeals from this judgment. Concluding that the district court failed to afford proper deference to the state court's decision, we hold that the state court did not unreasonably apply clearly established federal law and vacate the judgment of the district court and remand for further proceedings not inconsistent with this opinion.

I. BACKGROUND¹

On the night of October 28, 1993, Ricky Bell, James Bell, Deon Williams, and Pondexter met at an apartment and discussed robbing "an old lady." Following this discussion, the group walked to a corner store, and then to Martha Lennox's house where they checked to see what kind of car she owned. The group then walked to a trailer park, and then to a friend's house. Once there, they met with James Henderson.² Pondexter borrowed a car and all five drove to Annona to buy beer and go to a club. During the drive to and from Annona, the five talked about robbing "the old lady," and about "crips and bloods and stuff." Specifically, they discussed which crip "had the heart" to do what they were planning to do to "the old lady." On the way to the victim's house, the group stopped at a store where they talked about which crip had the heart to knock out a man who happened to be getting gas. Although Williams and Henderson did get out of the car, no harm was actually done to the man. The group drove to the victim's house, but parked the car a few blocks away. On their first attempt to enter the house, they were scared away by the sight of a patrolling police car. Four of the five ran back to the car, but James Bell ran in another direction and was not seen by the rest of the group again that night. Pondexter, Henderson, Williams, and Ricky Bell went back to the victim's house where Pondexter kicked in the front door. All four proceeded up the stairs and into the bedroom where the victim was sitting on her bed.

Once all four were in the bedroom, Williams took the seven dollars that was in the victim's coin purse. Immediately thereafter, Henderson shot the victim in the head and handed the gun to Pondexter. Pondexter also shot the victim in the head, stating "that's how you smoke a bitch." The four drove to Dallas and were arrested in the victim's car.

During the guilt-innocence phase of trial, Dr. Guileyardo, the Chief Medical Examiner for Dallas County, testified that he performed the autopsy on the victim. He testified that she had been shot twice and that the cause of death was "gunshot wounds to the head." One bullet entered "through the [left] side of her skull, it went into her mouth, it went through her tongue, it went down and struck her jawbone on the right side and shattered that jawbone on the right side and then the bullet came out beneath her right ear...." Another bullet entered through the forehead and "went all the way through the brain and came out the back of her head." Although Dr. Guileyardo could not determine the order of the gunshots, he concluded that the one that shattered her jawbone was fired from a closer range than the other shot. He opined that "[b]oth of these [wounds] are killing wounds. Both could be fatal wounds. Either one of these [wounds] could have killed her." When asked whether it could be determined if Martha Lennox was dead at the time either wound was inflicted, Dr. Guileyardo testified that the gunpowder stippling marks on both gunshot wounds were red and had the appearance of inflammation, indicating a vital reaction, not a postmortem reaction. A vital reaction occurs when the skin is injured, and the wound is red because of the blood flowing through the skin. Dr. Guileyardo further testified that if a dead person's skin is injured, the wound is "sort of a yellow, dry appearance, because there is no blood flow going through the skin." Thus, based on the appearance of the wounds, Dr. Guileyardo believed that the victim was alive at the time of each gunshot. On cross-examination, Dr. Guileyardo admitted that it was possible to survive the face wound and that his autopsy report did not report any hemorrhaging from the wound caused by the bullet that entered her face.

During closing argument at the guilt-innocence phase, Pondexter's counsel first argued that Williams, the accomplice who testified that Pondexter fired the second shot into the victim, was not credible. Instead, counsel argued that Rhoda Briley's testimony that Pondexter participated in the burglary/robbery but did not shoot the victim was more credible. Counsel argued that Williams was biased because he was a convicted felon who had participated in this crime and received a deal for his testimony. Unlike Williams, Briley was not charged with the instant crime. In the alternative, defense counsel argued that if the jury believed Williams's testimony, the jury should find that the victim had instantly died from the first shot and thus Pondexter's shot did not kill her, absolving him of any responsibility for her death.³

The jury found Pondexter guilty of capital murder. Tex. Penal Code § 19.03. After the punishment phase of the trial, the jury affirmatively answered the special issues set forth in Article 37.071(b) of the Texas Code of Criminal Procedure, and the trial court sentenced Pondexter to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence. Pondexter v. State, 942 S.W.2d 577 (Tex. Crim.App.1996), cert. denied, 522 U.S. 825, 118 S.Ct. 85, 139 L.Ed.2d 42 (1997).

Pondexter filed a state habeas petition challenging his conviction and death sentence. After conducting an evidentiary hearing, the state trial court entered findings of fact and conclusions of law recommending that relief be denied. The Court of Criminal Appeals adopted the findings of fact and conclusions of law and denied relief. Ex parte Pondexter, No. 39,706-01 (Tex.Crim.App. Jan. 27, 1999). Thereafter, Pondexter filed the instant federal habeas petition raising twenty claims. The district court granted relief concluding that trial counsel's failure to consult with and offer the testimony of a pathologist deprived Pondexter of the effective assistance of counsel.⁴ The Director now appeals.

II. STANDARD OF REVIEW

Pursuant to the federal habeas statute, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d), we defer to a state court's adjudication of a petitioner's claims on the merits unless the state court's decision was: (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or (2) "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." A state court's decision is deemed contrary to clearly established federal law if it reaches a legal conclusion in direct conflict with a prior decision of the Supreme Court or if it reaches a different conclusion than the Supreme Court based on materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1519-20, 146 L.Ed.2d 389 (2000). A state court's decision constitutes an unreasonable application of clearly established federal law if it is objectively unreasonable. Id. at 1521. Additionally, pursuant to section 2254(e)(1), state court findings of fact are presumed to be correct, and the petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. See Valdez v. Cockrell, 274 F.3d 941, 947 (5th Cir.2001).

III. EFFECTIVE ASSISTANCE OF COUNSEL

The only issue before us is whether the district court erred in granting federal habeas relief based upon Pondexter's claim of ineffective assistance of counsel. The Supreme Court has recently reaffirmed the familiar two-prong test for ineffective assistance of counsel:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious 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.

(Terry) Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1511, 146 L.Ed.2d 389 (2000) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). To demonstrate that counsel was ineffective, a petitioner must establish that counsel's representation fell below an objective standard of reasonableness. See id. To show prejudice, he must show that there is a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. See id. at 1511-12.

Here, the district court held that trial counsel rendered...