McFarland v. Lumpkin ( 2022 )

Case: 19-70011 Document: 00516201510 Page: 1 Date Filed: 02/14/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 14, 2022
No. 19-70011
Lyle W. Cayce
Clerk
George E. McFarland,
Petitioner—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent—Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CV-3916
Before Higginbotham, Southwick, and Willett, Circuit Judges.
Per Curiam:
George McFarland has been on death row for almost 30 years. After
exhausting his state remedies, he filed a petition for a writ of habeas corpus
in federal district court. The district court denied the petition. This Court
granted McFarland’s application for a certificate of appealability (COA) as
to his claims of ineffective assistance of counsel, a violation of his Sixth
Amendment rights, and a Brady claim. We affirm the district court’s denial
of federal habeas relief.
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I
In November 1991, George McFarland and an accomplice robbed
Kenneth Kwan, a grocery store owner, when Kwan and his security guard
returned to the store with cash for the payroll. 1 McFarland’s accomplice
pressed a gun against the security guard’s head and Kwan ran towards the
store. The guard dropped his weapon; McFarland or the accomplice then
fatally shot Kwan. Only McFarland was prosecuted.
The State offered two key witnesses. Carol Bartie was the only
eyewitness to identify McFarland as the shooter. 2 At the scene, she told
officers that “It all happened so fast that I don’t think that I will be able to
identify either one of the guys who robbed the store.” However, Bartie later
identified McFarland as the shooter in a photo spread in December, in a
police line-up in January, and at trial. On January 2, 1992, a magistrate judge
issued a warrant for McFarland’s arrest. Bartie identified McFarland in a
police lineup the next day conducted without counsel present. On January 4,
a formal criminal complaint was filed charging McFarland with capital
murder.
The State’s other key witness was Craige Burks, McFarland’s
nephew, who called the local Crime Stoppers hotline to turn in his uncle.
However, there were several inconsistencies between Craige’s testimony at
trial and his testimony before the grand jury about who shot Kwan and where
McFarland was when he admitted to the crime. At trial, Craige testified that
McFarland admitted to shooting Kwan while riding alone in a car with
1
There was possibly a third accomplice acting as the driver.
2
James Powell, the security guard, testified that he was not sure who shot Kwan.
Another eyewitness testified that he could not tell who shot Kwan as at least one of the men
had on a ski mask.
2
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Craige. However, Craige testified before the grand jury that McFarland told
him at a family member’s house that the accomplice was the shooter and that
his father heard McFarland’s admission. But Walter Burks, Craige’s father,
testified before the grand jury that McFarland never admitted to killing
Kwan.
II
During trial, the judge confronted a problem. McFarland’s retained
counsel, John Benn was sleeping throughout significant portions of the trial
and otherwise presented as unprepared. Concerned, the trial judge decided
to appoint additional counsel. McFarland refused to sign a request form to
appoint counsel, but the judge appointed Sanford Melamed to serve as
“second chair.” Melamed was an experienced criminal defense lawyer but
he had yet to try a capital case. The trial judge instructed Melamed that Benn
was to serve as the “lead lawyer” in this case and that “Benn was to be in
charge.” While the trial judge repeatedly asked McFarland whether he
wanted to continue with Benn as primary counsel, it is unclear that the trial
judge ever expressly told McFarland that he was concerned with Benn’s trial
preparation and competence. Each time, McFarland affirmed that he wanted
to keep Benn as counsel because he believed that Melamed was appointed to
“sabotage his case.”
III
Benn and Melamed’s contact before trial was “virtually non-
existent.” Without a joint trial strategy, Melamed prepared and filed motions
on his own “as if [he] was going to have to do everything.” Melamed hired
an investigator to try to locate eyewitnesses aside from the State’s witnesses,
photograph the crime scene, and review ballistic reports. However, neither
Melamed or Benn ever interviewed the State’s key witnesses, the other
alleged accomplice in the robbery, or Walter Burks.
3
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Following the determination of McFarland’s guilt at trial, Melamed
visited McFarland to seek potential mitigation witnesses. McFarland
requested that Melamed not contact his family members, and Melamed
honored McFarland’s wishes. Benn claimed he would lead the sentencing
phase, so Melamed assumed that Benn would make preparations for the
mitigation case, including discussing potential witnesses with McFarland.
However, Melamed’s direct examination of three mitigation witnesses in this
phase totaled fifteen minutes, and Melamed had secured all of the witnesses
despite his constrained role. The jury convicted McFarland of capital murder
during the course of a robbery and sentenced him to death in 1992.
With separate post-trial counsel, McFarland appealed, but the Texas
Court of Criminal Appeals (TCCA) affirmed McFarland’s conviction and
sentence on direct appeal. 3 McFarland then filed a state habeas petition. The
TCCA denied habeas relief. 4
State remedies exhausted, McFarland filed a habeas petition in federal
court. The district court denied relief. This Court then granted McFarland’s
COA on four issues: whether he was denied effective assistance of counsel
under Cronic; whether he was denied effective assistance of counsel under
Strickland; whether he was improperly denied counsel under the Sixth
Amendment during the police line-up; and whether there was a Brady
violation. 5
3
McFarland v. State, 928 S.W.2d 482, 524 (Tex. Crim. App. 1996) (per curiam).
4
See Ex parte McFarland, 163 S.W.3d 743, 760 (Tex. Crim. App. 2005) (per
curiam).
5
McFarland v. Davis, 812 F. App’x 249, 250 (5th Cir. 2020) (per curiam).
4
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IV
In reviewing a district court’s denial of a writ of habeas corpus, we
review de novo the district court’s disposition of issues of law and mixed
issues of law and fact. 6 We review the district court’s factual determinations
for clear error. 7
The rules are now rote. Under 28 U.S.C. § 2254(d)(1), federal courts
may not grant habeas relief to a person in state custody unless the state
court’s decision was “contrary to” or an “unreasonable application of”
“clearly established Federal law, as determined by the Supreme Court of the
United States.” 8 Federal courts must also presume that the state court’s
factual findings are correct unless the petitioner rebuts that presumption by
clear and convincing evidence. 9
V
McFarland presents two claims that he was denied effective assistance
of counsel. He argues that he was constructively denied assistance of counsel
and prejudice should be presumed under United States v. Cronic;
alternatively, that his counsel was ineffective by the metric of Strickland v.
Washington due to his counsel’s deficient performance in preparing for trial;
cross-examining the State’s key witnesses; performing the sentencing phase
of trial; and presenting closing remarks to the jury at the sentencing phase.
To succeed on a claim of ineffective assistance of counsel under
Strickland, the petitioner must show that counsel’s performance was
6
Lee v. Cain, 519 F. App’x 869, 876 (5th Cir. 2013).
7
Id.8
28 U.S.C. § 2254(d)(1).
9
28 U.S.C. § 2254(e)(1); Valdez v. Cockrell, 274 F.3d 941, 948 (5th Cir. 2001).
5
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deficient and this deficiency prejudiced the petitioner. 10 However, under
Cronic, prejudice may be presumed when there is actual or constructive
denial of assistance of counsel. 11 A constructive denial of effective assistance
of counsel arises “when although counsel is available to assist the accused
during trial, the likelihood that any lawyer, even a fully competent one could
provide effective assistance is so small that a presumption of prejudice is
appropriate without inquiry into the actual conduct of the trial.” 12 We review
the district court’s analysis of McFarland’s Strickland and Cronic claims
under AEDPA in turn.
A
McFarland first argues that the TCCA’s rejection of his Cronic claim
was contrary to or an unreasonable application of clearly established Supreme
Court precedent. In determining whether a state habeas decision was
contrary to or an unreasonable application of clearly established Supreme
Court precedent under AEDPA, the first inquiry is whether there is clearly
established Supreme Court precedent. 13 We have interpreted Cronic to
require a presumption of prejudice when a defendant’s attorney repeatedly
slept through a critical stage of the criminal proceeding. 14 The TCCA
acknowledged that “the applicant did not have Mr. Benn’s active assistance”
10
Strickland v. Washington, 466 U.S. 668, 687–88 (1984).
11
Id. at 692; see also United States v. Cronic, 466 U.S. 648, 659–66 (1984).
12
Cronic, 466 U.S. at 659–60.
13
Evans v. Davis, 875 F.3d 210, 216 (5th Cir. 2017).
14
Burdine v. Johnson, 262 F.3d 336, 349 (5th Cir. 2001) (en banc).
6
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during critical stages of trial, 15 but it nevertheless denied McFarland’s Cronic
claim because McFarland “was never without counsel.” 16
We are aware of no case where a sleeping co-counsel alone triggers
Cronic’s presumption of prejudice. McFarland cannot show that his counsel
failed to function in any meaningful sense because, at every stage of trial, he
also enjoyed effective assistance by Melamed. As such, the TCCA’s
decision is not contrary to or an unreasonable application of clearly
established Supreme Court precedent. The district court properly denied
habeas relief as to McFarland’s Cronic claim.
B
McFarland next challenges the TCCA’s reading of the record and
argues that the TCCA’s rejection of his Strickland claim was contrary to or
an unreasonable application of clearly established Supreme Court precedent.
First, that Melamed could not locate McFarland’s suggested witnesses,
including for the guilt phase. 17 McFarland claims Melamed never asked for a
list of potential witnesses for the guilt phase; rather, that he provided a list of
witnesses at the sentencing phase but asked Melamed not to contact them.
As to his first point, the record evidence as to when in the proceedings
Melamed asked for a list of witnesses is conflicting. McFarland also
challenges the TCCA’s reading that he refused to allow Melamed to call
witnesses “to challenge the competency and credibility of Craige Burks—
one of the State’s star witnesses;” 18 rather, McFarland claims he only
rejected Melamed’s suggestion that he challenge Craige’s mental
15
Ex parte McFarland, 163 S.W.3d at 752.
16
Id. at 753.
17
Id. at 754–55.
18
Id.7
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competency to testify, not that he objected to impeaching Craige. 19 But the
TCCA acknowledged that McFarland rejected calling a witness to challenge
Craige’s competence. 20 McFarland failed to provide clear and convincing
evidence to rebut the TCCA’s reading of the record. 21
McFarland next challenges the district court’s review of the TCCA
under AEDPA as well as the TCCA’s underlying determination. We
address each in turn. McFarland claims that the district court erred by
“review[ing] only the state outcome for reasonableness.” To the extent that
McFarland is asserting that the district court improperly applied its own
reasoning for that of the TCCA, our review of the district court’s opinion
confirms that the district court did review the reasons given by the TCCA.
To the extent McFarland challenges the district court’s review of the TCCA
decision, our review of the state habeas court likewise confirms that
McFarland cannot show that the TCCA’s decision was contrary to or an
unreasonable application of clearly established Supreme Court precedent.
“Review of Strickland claims is always deferential, and when we
review a state court determination under AEDPA, review is ‘doubly
deferential.’” 22 As such, McFarland faces a high burden to show that he is
entitled to federal habeas relief on his Strickland claim.
We find that McFarland fails to meet this high burden for each of his
counsel’s purported deficiencies. As to McFarland’s claim that his counsel
was deficient in their pretrial preparation, McFarland cannot show that it was
19
Craige was previously institutionalized for depression.
20
Ex parte McFarland, 163 S.W.3d at 755.
21
28 U.S.C. § 2254(e)(1); Valdez, 274 F.3d at 948.
22
Smith v. Davis, 927 F.3d 313, 334 (5th Cir. 2019) (quoting Burt v. Titlow, 571 U.S.
12, 15 (2013)); see also Thomas v. Lumpkin, 995 F.3d 432, 446–47 (5th Cir. 2021).
8
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“objectively unreasonable for the state habeas court to conclude that defense
counsel’s representation . . . was constitutionally adequate.” 23 The TCCA
found that Melamed made a strategic decision not to interview the State’s
eyewitnesses, instead choosing to use his limited resources to attempt to find
other, potentially more cooperative witnesses. 24 Melamed either could not
locate McFarland’s suggested witnesses or McFarland refused to allow
Melamed to call certain witnesses. 25 McFarland also failed to demonstrate
how the failure to conduct additional pretrial investigation prejudiced him. 26
The district court did not err in denying federal habeas relief on this ground.
As to McFarland’s claim that his counsel was deficient in its cross-
examination of key witnesses, McFarland cannot show that the TCCA’s
decision was unreasonable. The TCCA found that counsel’s “failure to
cross-examine the witnesses on certain discrepancies did not fall below an
objective standard of reasonableness” because “cross-examination is
inherently risky, and a decision not to cross-examine a witness is often”
strategic.27 Counsel did cross-examine Craige and Bartie and challenge their
testimony, just not on the grounds that McFarland wanted. 28 McFarland fails
here to show prejudice. 29 The district court did not err in denying federal
habeas relief on this ground.
23
Thomas, 995 F.3d at 446–47.
24
Ex parte McFarland, 163 S.W.3d at 754.
25
Id. at 754–55.
26
Id. at 755.
27
Id. at 756.
28
Id.29
Id.9
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Finally, as to McFarland’s claim that his counsel was deficient in its
performance at the sentencing phase of trial, McFarland cannot show that
the TCCA’s decision was unreasonable. The TCCA found that counsel’s
failure to call additional mitigation witnesses did not constitute ineffective
assistance of counsel as McFarland told Melamed not to contact potential
mitigation witnesses. 30 Because McFarland only offered one potential
mitigation witness in his writ—a lawyer who previously represented
McFarland for a separate robbery—the TCCA also found that McFarland
could not show prejudice as the State’s cross-examination of that witness
would not have produced positive testimony. 31 As to Benn’s closing
statement that “killing one man is not going to bring back the life of another
man,” it could have been viewed as acceptance of “what the jury had already
decided” rather than an admission of guilt; and Melamed had already
provided his own separate closing statement. 32 The district court did not err
in denying federal habeas relief on this ground.
In sum, the district court properly denied habeas relief as to
McFarland’s Cronic and Strickland claims.
VI
McFarland next argues that he was denied his Sixth Amendment right
to counsel because he did not have counsel present during a police lineup. A
defendant’s right to counsel under the Sixth Amendment attaches when
“adversary judicial proceedings have been initiated against him.” 33 Once the
right to counsel attaches, the defendant is entitled to the presence and
30
Id. at 758.
31
Id. at 757–58.
32
Id.33
Kirby v. Illinois, 406 U.S. 682, 688 (1972).
10
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assistance of counsel at critical stages of prosecution, including
postindictment police line-ups. 34 We again review McFarland’s claim under
the confines of AEDPA.
McFarland’s claim turns on when McFarland’s right to counsel
attached: before the police line-up (when the arrest warrant and affidavit
establishing probable cause for the arrest were issued on January 2, 1992) or
sometime after the police line-up (when the State filed a criminal complaint
against McFarland on January 4, 1992). Attachment is determined by state
law. 35 There is no bright-line rule under Texas state law to determine when
adversarial proceedings are initiated giving rise to right to counsel. 36 A
defendant does not have a right to counsel under the Sixth Amendment when
he is arrested on a warrant, taken before a magistrate judge, and is in jail at
the time of the line-up before formal charges have been filed. 37 A defendant
does have a Sixth Amendment right to counsel when a formal complaint and
information are filed. 38
The TCCA held that “[a]lthough prior precedent has not distinctly
identified the point at which formal adversarial proceedings have begun, we
may glean enough from the cases to say with confidence that appellant’s
Sixth Amendment right to counsel had not attached at the time of his line-
up.” 39 A formal complaint or indictment had yet to be filed against
34
United States v. Wade, 388 U.S. 218, 237 (1967).
35
See, e.g., Green v. State, 872 S.W.2d 717, 720 (Tex. Crim. App. 1994) (looking to
state law to determine when the right to counsel attached); see also Moore v. Illinois, 434
U.S. 220, 228 (1977).
36
Id.37
Garcia v. State, 626 S.W.2d 46, 53 (Tex. Crim. App. 1981).
38
McCambridge v. State, 712 S.W.2d 499, 502 (Tex. Crim. App. 1986).
39
McFarland, 928 S.W.2d at 507.
11
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McFarland at the time of the lineup, nor had he been taken before a
magistrate judge for an Article 15.17 hearing. 40 McFarland’s federal habeas
claim arising under the Sixth Amendment fails because he cannot show that
the TCCA’s finding that his arrest warrant was not a formal criminal
complaint giving rise to his right to counsel was contrary to or an
unreasonable application of Supreme Court precedent. The district court
properly denied habeas relief as to McFarland’s Sixth Amendment claim.
VII
Finally, McFarland argues that the State suppressed exculpatory
evidence, specifically Walter’s grand jury testimony that McFarland did not
admit to the murder. Under Brady v. Maryland, a petitioner must show that
there is favorable evidence, such as exculpatory or impeaching evidence; the
evidence was willfully or inadvertently suppressed by the State; and the lack
of disclosure prejudiced the petitioner. 41 We review the district court’s
analysis of McFarland’s claim under AEDPA.
The state habeas record is ambiguous as to whether the State failed to
disclose this evidence to defense counsel. Melamed was permitted to view
the State’s file and take notes but was not allowed to take copies from the file.
Melamed also took notes on Craige’s grand jury testimony. McFarland
nevertheless contends that Melamed’s lack of recollection of receiving
Walter’s grand jury testimony coupled with the importance of this
exculpatory evidence is “highly probative evidence that the State did not
disclose [the exculpatory evidence].”
40
Id.41
Brady v. Maryland, 373 U.S. 83, 87 (1963); Banks v. Dretke, 540 U.S. 668, 691
(2004).
12
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Federal habeas review is limited to the record that was before the state
court that adjudicated the petitioner’s claim on the merits. 42 The TCCA
determined that “the prosecution did not fail to disclose. The State’s file
containing the information was available to appellant’s trial attorneys.” 43
The district court properly denied habeas relief as to this claim.
VIII
McFarland’s federal habeas claims do not withstand the high
deference afforded to state court decisions adjudicated on the merits under
AEDPA. We AFFIRM the district court’s denial of federal habeas relief.
42
Cullen v. Pinholster, 563 U.S. 170, 180 (2011).
43
McFarland, 928 S.W.2d at 511.
13