Higgins v. Cain

720 F.3d 255

Shawn HIGGINS, Petitioner–Appellant

v.Burl CAIN, Warden, Louisiana State Penitentiary, Respondent–Appellee.

No. 11–30641.

United States Court of Appeals, Fifth Circuit.

June 18, 2013.

William Sothern, Esq., Law Office of William M. Sothern, New Orleans, LA, for Petitioner–Appellant.

Juliet Lee Clark, Esq., Assistant District Attorney, District Attorney's Office, Gretna, LA, for Respondent–Appellee.

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

Before HIGGINBOTHAM, SMITH, and ELROD, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

The district court granted Shawn Higgins a certificate of appealability (“COA”) regarding his claim that his appellate counsel was ineffective in not raising three Batson-related arguments on direct appeal. Persuaded that the state court did not unreasonably apply clearly established federal law in rejecting that claim, we affirm the district court's judgment denying habeas relief.

I. BACKGROUND AND PROCEDURAL HISTORY

Higgins was convicted of the second degree murder of Carl Jackson and sentenced to life in prison without parole. His conviction was affirmed on direct appeal. Higgins then sought and was denied post-conviction relief in state court. In addition to numerous other post-conviction claims, Higgins raised an ineffective assistance of appellate counsel claim.¹ He argued that his appellate counsel was ineffective because he neither requested nor obtained a transcript of the voir dire proceedings, despite minute entries from that date indicating that trial counsel made two Batson objections, both of which were denied. The state court denied Higgins's request for post-conviction relief on that claim without a hearing or a copy of the voir dire transcript. Higgins, through counsel, then filed his 28 U.S.C. § 2254 application in federal court. In addition to numerous other arguments, Higgins asserted that the state court's rejection of his ineffective assistance of appellate counsel claim was contrary to or an unreasonable application of clearly established federal law. The magistrate judge recommended that the writ be granted on Higgins's claim of ineffective assistance of appellate counsel. The district court rejected that recommendation but granted Higgins a COA on the following question: “Whether the state court unreasonably applied clearly established federal law when it determined that petitioner's appellate counsel did not render ineffective assistance when he failed to raise issues with respect to Batson on direct appeal.” Higgins timely appealed and then moved to expand the COA to include the issues of (1) whether the state court's ruling on his claim of ineffective assistance of appellate counsel was a ruling on the merits and (2) whether under a de novo standard of review he received ineffective assistance of appellate counsel. The district court and this Court denied the motion. Accordingly, the only issue presently before us is that presented in Higgins's original COA.

II. STANDARD OF REVIEW

This habeas proceeding is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), and we have jurisdiction because, as stated above, the district court granted Higgins a COA.² In a habeas corpus appeal, we review the district court's findings of fact for clear error and its conclusions of law de novo.³ Under AEDPA, we may not grant habeas relief on a claim that the state courts have adjudicated on the merits unless that adjudication resulted in a decision that was either (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) “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” ⁴ A state court's decision is “contrary to” clearly established federal law if “the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.” ⁵ A state court's decision involves an “unreasonable application of clearly established federal law” if the state court “identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.” ⁶ The state court's factual findings are “presumed to be correct” unless the habeas petitioner rebuts the presumption “by clear and convincing evidence.” ⁷

III. DISCUSSION

To make out a claim for ineffective assistance of appellate counsel, a defendant must show (1) “that counsel's performancewas deficient” and (2) “that the deficient performance prejudiced the defense.” ⁸ The state post-conviction court rejected Higgins's ineffective assistance of appellate counsel claim, leaving uncertain whether its rejection rested on Strickland v. Washington 's deficiency prong or its prejudice prong. But that issue is of no moment given the Supreme Court's recent decision in Johnson v. Williams.⁹ Under Williams, when a state court rejects some of the defendant's claims but does not expressly address a particular federal claim, a federal habeas court reviewing under § 2254(d) must presume, subject to rebuttal, that the federal claim was adjudicated on the merits. There being no rebuttal here, we assume that the state court adjudicated both the deficiency and prejudice prongs on the merits.

In considering whether the state court's decision constituted an unreasonable application of clearly established federal law, “a federal habeas court is authorized by Section 2254(d) to review only a state court's ‘decision,’ and not the written opinion explaining that decision.” ¹⁰ Thus, the focus of the “unreasonable application” inquiry is “on the ultimate legal conclusion that the state court reached,” and “the only question for a federal habeas court is whether the state court's determination is objectively unreasonable.” ¹¹ In conducting that inquiry, “a habeas court must determine what arguments or theories supported or, ... could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme Court].” ¹² Here, because we are persuaded that “there [was] a reasonable justification for the state court's decision,” ¹³ we must deny relief.

A.

Higgins first contends that his appellate counsel was ineffective because he failed to obtain a copy of the voir dire transcript, which would have revealed three Batson-related issues, despite minute entries indicating that defense counsel made two Batson objections during voir dire, both of which were denied.¹⁴ This failure-to-investigate argument fails because Higgins has not met his burden of demonstrating prejudice. To demonstrate prejudice, “[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.” ¹⁵ That standard is not met here because, as we explain below, even had Higgins's appellate counsel investigated the Batson objections, Higgins cannot show that such investigation would have led to solid, meritorious arguments based on directly controlling precedent which his counsel should have brought to the appellate court's attention. Moreover, Higgins offered no evidence that his appellate counsel had failed to investigate the Batson objections in some other way. For example, we do not know whether appellate counsel contacted trial counsel, inquired about the Batson objections, decided those arguments would not succeed on direct appeal, and thus did not request the transcript. For all these reasons, Higgins failed to show that the state habeas court was unreasonable in rejecting his failure-to-investigate argument.

B.

We now turn to Higgins's second group of arguments—that appellate counsel was ineffective because he failed to raise three specific Batson-related arguments on direct appeal. We can meaningfully address those arguments only by considering the voir dire transcript, which was not part of the record before the state post-conviction court, notwithstanding the diligent efforts of Higgins's attorney in that proceeding. As a threshold matter, we must decide whether Cullen v. Pinholster¹⁶ precludes consideration of the voir dire transcript. Pinholster teaches that “evidence introduced in federal court has no bearing on § 2254(d)(1) review.” ¹⁷ “It would be contrary to th[e] purpose [of the federal habeas scheme] to allow a petitioner to overcome an adverse state-court decision with new evidence introduced in a federal habeas court and reviewed by that court in the first instance....” ¹⁸

Despite that categorical holding, by which we are bound, we conclude that consideration of the voir dire transcript is not barred by Pinholster, because the transcript is not “new evidence” introduced in federal court “in the first instance.” ¹⁹ In reaching that result, we follow a recent case from a sister circuit addressing a similar Batson claim. In Jamerson v. Runnels,²⁰ the Ninth Circuit considered “enlarged driver's license photographs that Jamerson submitted to show the race of each venire member,” even though “the state appellate court, which issued the last reasoned opinion in this case, did not know the race of every venire member.” The Ninth Circuit explained,

Pinholster 's concerns are not implicated here. The driver's license photographs depicting the racial composition of Jamerson's jury venire do not constitute new evidence of which the state courts were completely unaware when deciding his Batson [ ] claims. Instead, these photographs reconstruct physical attributes that were visible to the state court that originally ruled on Jamerson's Batson [ ] motions.[ ²¹]

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