Fifth Circuit Affirms Habeas Relief Based on Counsel`s Failure to Interview Witness in Murder Case
Finding that defense counsel failed to interview the state`s key witness in a Louisiana murder case, the U.S. Court of Appeals for the Fifth Circuit affirmed the grant of habeas corpus relief, ordering a new trial, despite the state courts denying relief without any reasoned opinion.
George Hughes has been in prison since 2004 for killing his daughter Amy`s boyfriend, Drew Hawkins. The murder happened after Amy called her father and said that Hawkins had attacked her, so Hughes went to her house to confront Hawkins with a gun. There was no question that Hughes shot and killed Hawkins, instead, the question was exactly how it happened. Hughes was charged with second-degree murder and his defense was that he didn`t intentionally shoot Hawkins.
The story Hughes gave was confirmed by a forensic expert: He and Hawkins had a fight and the gun went off when Hawkins gabbed it. But there were two witnesses who said that Hawkins was backing away from Hughes when he shot him. The first witness, his own daughter, was found unreliable when her sister testified at trial that Amy had her back to the incident and didn`t see the shooting. There were also reports that Amy was threatened by Hawkins` family.
And the second witness, the state`s key witness, also testified that she saw Hawkins backing away from Hughes before he was shot. But her testimony didn`t match her statement to the police that she was inside her house when she heard the gunshot. When confronted at trial, the witness said it was an error and that she did see the shooting. Hughes was convicted by a non-unanimous jury and sentenced to life in prison without parole.
After all his appeals were rejected, Hughes filed for state post-conviction relief, claiming ineffective assistance of counsel (IAC) because counsel never interviewed the witness before trial. The court held two hearings and post-conviction counsel found yet another witness: the key witness` roommate, Lee, who testified that they were both inside the house during the shooting. Former defense counsel also testified that he was wrong for not interviewing the witness, because he would have discovered the roommate and discredited the state`s only credible witness against Hughes.
Despite those two hearings and the court commissioner`s findings supporting IAC, the state court denied relief without any reasoning. The appellate court did the same, and the Louisiana Supreme Court entered a one-page order that Hughes hadn`t met the IAC criteria established by the U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984).
Hughes then filed a federal habeas petition, under 28 U.S.C. sec 2254, again raising the IAC claim. Despite his filing being too late, the federal court found that equitable tolling applied to allow timely-filing. The court held that the state court`s “ultimate legal conclusion was objectively unreasonable” and granted relief by ordering a new trial.
The state appealed the grant of relief, arguing that the state courts were owed “deference” under the Antiterrorism and Effective Death Penalty (AEDPA). Under sec 2254(d), a federal court cannot grant habeas relief unless the state court`s decision was “contrary to, or involved and unreasonable application of, clearly established federal law,” or was based on an “unreasonable determination of the facts” presented. The “clearly established federal law” in this case was Strickland, which held that IAC requires showing (1) counsel`s representation fell below an “objective standard of reasonableness” and (2) the error was “prejudicial to the defense.”
Importantly, the Supreme Court has held that an “unreasonable application” means more than just merely wrong, but that the state court decision is “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86 (2011).
This is indeed a high bar to overcome.
The court found that counsel`s performance was deficient because he failed to make any attempts to interview the state`s witness. “Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary,” the Strickland Court said, citing the American Bar Association standards on attorney conduct.
Describing the witness as “the cornerstone” of the state`s case, the court said the witness was a “particularly promising investigation lead” counsel should have pursued. The court rejected that counsel`s cross-examination of the witness at trial, no matter how effective it was, could have cured the error.
The fact that counsel`s cross examination was effective does not necessarily indicate that a reasonable lawyer, viewing the trial ex ante, would have regarded an interview of the eyewitnesses as unnecessary…. Moreover, assuming that counsel`s cross-examination was effective, that is not to say it could not have been improved prior to investigation.
As for prejudice, or showing a difference in the outcome, Hughes had an additional burden. With a failure-to-investigate claim, a habeas petition must also allege with specificity what the investigation would have revealed and how it would have altered the outcome of the trial. Hughes offered that interviewing the witness would have revealed her roommate`s conflicting story, and the court agreed.
Lee testified at the state evidentiary hearing that Allen [the witness] was watching television on the night of the shooting and specifically stated that Allen was sitting in the chair inside her apartment when both of them heard the shot. Lee repeatedly testified that Allen only went outside after hearing the shot: We heard the shot, and Allen jumped up and grabbed the phone. She heard somebody yell `help,` and she went out the door.
The court therefore affirmed the district court`s grant of habeas relief and grant of a new trial. See Hughes v. Vannoy, 2021 U.S. App. LEXIS 23286 (5th Cir. Aug. 5, 2021).
Dale Chappell is the author of hundreds of published articles on the federal criminal justice system, and the Insider`s Guide series of federal post-conviction books. He is a consultant in federal post-conviction procedure and an authority on federal sex offense issues.