Pondexter v. Quarterman

• Decision Date: 29 July 2008
• Docket Number: No. 06-70048.,06-70048.
• Parties: Willie Earl PONDEXTER, Jr., Petitioner-Appellant, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

537 F.3d 511

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

No. 06-70048.

United States Court of Appeals, Fifth Circuit.

July 29, 2008.

David R. Dow (argued), Houston, TX, for Pondexter.

Stephen M. Hoffman (argued), Austin, TX, for Quarterman.

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

Before BARKSDALE, BENAVIDES and STEWART, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

In 1994, Willie Earl Pondexter was convicted in Texas state court of capital murder and sentenced to death. Although he was denied habeas relief in state court in 1999, the district court granted such relief in September 2002. Our court vacated that relief in 2003, however, and remanded to district court. On remand, habeas relief was denied in September 2006. Pondexter contests that denial.

At issue, pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), is whether the state-court decision denying habeas relief was unreasonable. In that regard, primarily at issue is the state-court denial of one of Pondexter's four ineffective-assistance-of-counsel claims: trial counsel's failure to consult with, and present the testimony of, a pathologist. AFFIRMED.

I.

The pertinent facts concerning the murder were summarized in our 2003 opinion vacating the district court's granting relief:

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 [the victim'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. 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.

Pondexter v. Dretke, 346 F.3d 142, 144 (5th Cir.2003) (emphasis added) (footnote omitted). The victim was 84-years-old.

Pondexter and Henderson were charged with capital murder. Pondexter claims that, while in custody, he told Michael Kendricks (who was in custody on unrelated charges) that he knew the victim was already dead when he shot her. Kendricks provided this information to a State investigator.

Henderson was tried first. Relying on the testimony of co-conspirator Williams, the State established Henderson shot the victim first, through the brain. Henderson was convicted of capital murder and sentenced to death.

At Pondexter's subsequent trial in 1994, the State did not rely on, nor was the jury instructed on, Texas' law of the parties, although such an instruction was presumably available to the State. See id. at 145 n. 3. Instead, the State maintained Pondexter had fired the fatal shot through the brain. Pondexter anchored his defense on two theories. His primary position was that, although he participated in the robbery of the victim, he did not shoot her. His alternative theory was that, because the gunshot, fired by Henderson, into the victim's brain would have killed her instantly, the subsequent shot Pondexter fired into the victim's face was not culpably lethal. Kendricks testified for the State that Pondexter told him he shot the victim in the jaw. (As discussed infra, as two of his ineffective-assistance-of-counsel claims, Pondexter asserts his trial counsel neither consulted a pathologist nor interviewed Kendricks.)

The autopsy report, introduced at trial, identified two gunshot wounds as the cause of death. The medical examiner, Dr. Guileyardo, testified: both wounds were inflicted while the victim was still alive; and either could have killed her. Along that line, Dr. Guileyardo testified: one bullet entered the left side of the victim's face (the autopsy report provided that the bullet entered "at the left aspect of the face, 6 inches below the top of the head and 2-1/2 inches anterior to the left ear canal") and exited below her right ear, perforating her oral cavity, boring a hole through her tongue, and shattering her right jawbone; and the other bullet entered the victim's forehead, traveled through her brain, and exited at the back of her head.

A jury convicted Pondexter of capital murder; he was sentenced to death. The conviction and sentence were affirmed on appeal. Pondexter v. State, 942 S.W.2d 577, 579-80 (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. He maintained, inter alia: (1) his right to effective assistance of counsel was violated by trial counsel's failure (a) to consult with, and call, a pathologist, (b) to interview Kendricks (who allegedly could have provided evidence negating an element of the offense), and (c) to object to the prosecutor's improper jury argument; (2) his right to due process was violated when the State failed to disclose to Pondexter a statement made by Kendricks to law enforcement that Pondexter had told him he knew the victim was dead when he shot her (later, the statement was in an affidavit for habeas purposes); and (3) his right to due process and a fair trial was violated by the prosecution's alleged misstatements of evidence during jury argument in the guilt-innocence phase of trial that advanced a theory of the case inconsistent with all known evidence.

For that state-habeas petition, Pondexter's post-conviction counsel consulted Dr. Bolesta, a pathologist, who examined, inter alia, testimony, witness statements, autopsy photographs, and the autopsy report. Pondexter contested the medical examiner's (Dr. Guileyardo's) testimony, and asserted his alternative defense theory: he shot the victim through the jaw; and that shot did not kill her (cause-of-death claim). Pondexter also challenged the medical examiner's cause-of-death testimony as unreliable, and contended his trial counsel rendered ineffective assistance by failing to retain, and present testimony from, a pathologist to rebut the medical examiner's opinions. The medical examiner's autopsy report, which had been admitted at trial, was included with Pondexter's state-habeas application.

In August 1998, the state-habeas court held a one-day evidentiary hearing to allow Pondexter, inter alia, to expand on his actual-innocence claim. Among other points addressed were the two issues concerning Pondexter's asserted statements to Kendricks.

At the hearing, Dr. Bolesta, on behalf of Pondexter, testified that the first shot—to the victim's forehead—was universally fatal, while the second—to the left side of her face—was only potentially fatal. In response, Dr. Guileyardo, the medical examiner who had performed the autopsy and had testified at trial, again maintained: either of the two gunshot wounds could have caused the death; and the victim most likely died from a combination of the two wounds. Dr. Guileyardo also distinguished brain death from actual death and stated the presence of blood in the victim's mouth and throat indicated her heart was still beating when she was shot in the face.

In October 1998, in a 23-page opinion, addressing 16 claims and containing 168 findings-of-fact and conclusions-of-law, the state-habeas trial court recommended denying habeas relief. For the issues before us, it did so for the following reasons.

It concluded: Dr. Guileyardo's testimony was more credible than Dr. Bolesta's; the trial evidence supported a conclusion that Pondexter shot the victim in the brain; both gunshot wounds contributed to the victim's death; and she was alive when Pondexter shot her.

In addition, the state-habeas trial court made the following recommendations concerning trial counsel's not having a pathologist testify. Recommending trial counsel's performance was not deficient under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the court stated: Dr. Bolesta's testimony admitted both wounds were capable of causing death; Dr. Bolesta's testimony did not differ substantially from Dr. Guileyardo's; and, trial counsel may have strategically planned on not calling a pathologist. (No affidavit was submitted attesting to trial counsel's not consulting with a pathologist.)

The state-habeas trial court recommended denying Pondexter's ineffective-assistance-of-counsel (IAC) claim for trial counsel's not interviewing Kendricks. It concluded that Pondexter failed to establish both deficient performance and prejudice.

It also recommended...