Banks v. Warden, Attorney General of the State of Alabama , 576 F. App'x 905 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-15931
Non-Argument Calendar
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D.C. Docket No. 7:12-cv-02874-RDP-TMP
WILLIE LEON BANKS,
Petitioner - Appellant,
versus
WARDEN,
ATTORNEY GENERAL OF THE STATE OF ALABAMA,
Respondents - Appellees.
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Appeal from the United States District Court
for the Northern District of Alabama
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(August 12, 2014)
Before WILSON, JORDAN and ANDERSON, Circuit Judges.
PER CURIAM:
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Willie Banks, a pro se Alabama state prisoner, appeals the district court’s
denial of his habeas petition. See 28 U.S.C. § 2254. The district court granted Mr.
Banks a certificate of appealability as to “whether he received ineffective
assistance of trial counsel when counsel failed to discover and marshal evidence
indicating that [he] was incarcerated during the time the victim testified she was
raped by him, even though [Mr. Banks] never advised trial counsel that he was
incarcerated.” See D.E. 23 at 1.
Mr. Banks argues on appeal that a reasonable investigation would have
uncovered that he could not have committed the rape because he was incarcerated
in a secure state prison. We affirm the district court’s denial of § 2254 relief.
Mr. Banks was convicted of rape in the first degree on April 25, 2007,
following a jury trial, and the trial court sentenced him as a habitual offender to life
in prison without possibility of parole. At trial and at sentencing, he was
represented by attorney Tessie Clements. Mr. Banks appealed his conviction,
asserting that the trial court had erred in denying his motion for acquittal based
upon insufficiency of the evidence. The Alabama Court of Criminal Appeals
affirmed, and the Alabama Supreme Court denied his petition for certiorari.
In 2009, Mr. Banks filed a petition pursuant to Alabama Rule of Criminal
Procedure 32, claiming that Ms. Clements rendered ineffective assistance for
failing to conduct a proper investigation that would have led to evidence that he
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was incarcerated at the time of the alleged rape. The trial court appointed counsel
for Mr. Banks, and held several hearings on the petition. The trial court denied the
petition, emphasizing that Mr. Banks never told counsel that he was in custody at
the time that the victim testified she was raped. The Alabama Court of Appeals
affirmed the denial of the Rule 32 petition, and the Alabama Supreme Court
declined review.
On August 31, 2012, Mr. Banks filed the instant pro se § 2254 petition. The
district court denied Mr. Banks’ petition, agreeing with the unwillingness of the
state court to impose an independent duty to research Mr. Banks’ prior
incarceration history. The district court also ruled that “even if that duty existed,
[Mr. Banks] failed to demonstrate prejudice because he . . . failed to show that his
‘custody’ was more confining than a type of work release, which still left him with
sufficient freedom to commit the rape.” D.E. 11 at 7.
Federal courts cannot grant habeas relief unless the state court’s decision
was (1) contrary to, or an unreasonable application of, clearly established federal
law as defined by Supreme Court precedent, or (2) based on an unreasonable
determination of the facts in light of the evidence. See 28 U.S.C. § 2254(d). We
review the district court’s decision de novo, but “owe deference to the final state
habeas judgment.” See Hall v. Thomas, 611 F.3d 1259, 1284 (11th Cir. 2010).
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In order to succeed on an ineffective assistance of counsel claim, a petitioner
must show both (1) that his “counsel’s performance was deficient” and (2) that
“the deficient performance prejudiced the defense.” See Strickland v. Washington,
466 U.S. 668, 687 (1984). “[C]ounsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment.” Id. The Strickland analysis is not applied de novo, “but
rather through the additional prism of AEDPA deference.” See Lawrence v Sec’y,
Fla. Dep’t of Corr., 700 F.3d 464, 477 (11th Cir. 2012).
Mr. Banks has not demonstrated that his trial counsel performed deficiently
in failing to discover evidence that would establish that he was incarcerated in
spring of 2001, the time at which the victim testified the rape occurred. Under a
Strickland analysis, “the defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial strategy.” Id.
at 689. Indeed, “[d]efense counsel are allowed a considerable breadth to choose
their trial strategies.” Fleming v. Kemp, 748 F.2d 1435, 1451 (11th Cir. 1984).
“The reasonableness of counsel’s actions may be determined or substantially
influenced by the defendant’s own statements or action. Counsel’s actions are
usually based . . . on information supplied by the defendant.” Strickland, 466 U.S.
at 691. Here, Mr. Banks did not tell Ms. Clements that he was incarcerated during
the time of the attack; rather, he told her that he was on a work release program or
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in a halfway house or group home. See, e.g., Holladay v. Haley, 209 F.3d 1243,
1251-52 (11th Cir. 2000) (“Counsel have a duty to investigate but this duty is
confined to reasonable investigation); Funchess v. Wainwright, 772 F.2d 683, 689-
90 (11th Cir. 1985) (finding counsel was not ineffective for failing to investigate a
defendant’s prior mental health difficulties because he never told counsel of any
problems and the competency evaluation did not indicate that any problems
existed).
Additionally, Ms. Clements would not have known prior to trial that the
victim would specifically testify that she was raped in the spring of 2001, because
the victim had previously given conflicting dates as to the date of the attack. In
light of this conflicting information, Ms. Clements testified in the Rule 32 hearings
that she had decided to challenge the victim’s credibility, rather than trying to
establish Mr. Banks’ whereabouts at the time of the attack. This decision was
reasonable trial strategy. See Strickland, 466 U.S. at 689.
Even if we were to reach the prejudice prong of Strickland, Mr. Banks
cannot demonstrate that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id.
at 694. The evidence presented at the Rule 32 hearing indicates that even if Ms.
Clements had investigated, she would have discovered that Mr. Banks was in a
halfway house or work release program and, therefore, could have had sufficient
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ability to rape the victim. Given this information and the fact that the victim
testified that Mr. Banks raped her, there is no reasonable probability that, but for
Ms. Clements’ actions, the result would have been different. Mr. Banks therefore
cannot demonstrate prejudice.
In sum, the state court’s decision was not an unreasonable application of
federal law or an unreasonable determination of the facts. Accordingly, we affirm
the district court’s denial of § 2254 relief.
AFFIRMED.
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