Francis Reed, Jr. v. Darrel Vannoy, Warden , 703 F. App'x 264 ( 2017 )


Menu:
  •      Case: 15-30237      Document: 00514092753         Page: 1    Date Filed: 07/28/2017
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 15-30237                                   FILED
    July 28, 2017
    Lyle W. Cayce
    FRANCIS EUGENE REED, JR.,
    Clerk
    Petitioner–Appellant,
    v.
    DARREL VANNOY, WARDEN, LOUISIANA STATE PENITENTIARY,
    Respondent–Appellee.
    Appeal from the United States District Court
    for the Eastern District of Louisiana
    USDC No. 2:13-CV-543
    Before STEWART, Chief Judge, and WIENER and PRADO, Circuit Judges.
    PER CURIAM:*
    Petitioner–Appellant Francis Eugene Reed, Jr. filed this habeas petition
    seeking collateral review of his Louisiana aggravated rape conviction. The
    district court denied habeas relief but granted a certificate of appealability
    (“COA”) on one issue: whether trial counsel was ineffective for failing to
    impeach the victims’ testimony with prior inconsistent statements. For the
    reasons stated below, we AFFIRM.
    * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
    Case: 15-30237        Document: 00514092753         Page: 2    Date Filed: 07/28/2017
    No. 15-30237
    I. BACKGROUND
    A.    The Trial
    Reed was charged with and convicted of aggravated rape of his two minor
    stepdaughters, KP-1 and KP-2. 1 According to the victims, their stepfather
    began abusing them in 2000. The victims both testified that Reed forced them
    to perform oral sex on him and engage in vaginal intercourse with him. Each
    of the victims testified that this abuse occurred about three times per week for
    four or five years.
    According to KP-2’s friend Stephi King, one day in May 2005, she and
    KP-2 went to the victims’ house and found that the front door was locked. KP-
    1 came to the door in a long shirt. It was clear she had been crying. Stephi also
    saw Reed zipping up his fly and noticed a foul odor in the house. After KP-2
    and Stephi stepped inside, KP-1 dropped something; when she picked it up,
    Stephi noticed that KP-1 was not wearing any underwear.
    Based on this incident, Stephi suspected sexual abuse. On the advice of
    Stephi’s stepfather, Robert Jeanfreau, Stephi and her friend Stephanie
    Caballero wrote a letter to KP-2 asking her whether KP-1 was being abused.
    Stephanie testified that KP-2 initially denied the abuse, but shortly thereafter
    wrote the following letter:
    Dear Steph, remember the question you asked me about [KP-1]
    and I, and I said no? No isn’t true. Yes. Yes would be the truthful
    answer, but [KP-1] likes it. She never cries about it. He does it to
    me, too. He makes us do other things, too. He makes us drink
    alcohol, too. I hate it. That’s not the reason she cries when he yelled
    at her. I don’t know that reason. Tell [another friend]. Just tell him
    what happens to me, and go home when my mom is not home. You
    can tell anyone who won’t tell anyone else.
    1   KP-1, the older sister, was born in 1991. KP-2 was born in 1993.
    2
    Case: 15-30237       Document: 00514092753         Page: 3     Date Filed: 07/28/2017
    No. 15-30237
    Stephi gave this letter to Jeanfreau, who testified that he immediately
    notified the authorities. Luanne Mayfield from the Office of Community
    Services testified that she interviewed KP-2 at school shortly thereafter and
    that KP-2 confirmed the allegations of sexual abuse. That day, Mayfield also
    interviewed KP-1, who was home schooled. Although KP-1 was initially
    hesitant to talk, she eventually described the abuse in similar terms as KP-2.
    Rachel Smith of the St. Tammany Parish Sheriff’s Office testified that in
    May 2005, the          victims recanted           their story. Additionally,        physical
    examinations did not reveal signs of abuse, although Dr. Adriana Jamis
    testified at trial that no physical signs were expected given the lapse of time
    between the abuse and the examinations. The authorities did find Reed’s
    semen on the carpet in KP-1’s and KP-2’s bedrooms. Later, in April 2006, the
    victims gave taped interviews at the Children’s Advocacy Center (“CAC”)
    during which they again confirmed the sexual abuse. The investigation
    culminated in Reed’s indictment on April 25, 2007. Reed pleaded not guilty,
    and the case went to trial.
    Both KP-1 and KP-2 testified at trial. On cross-examination, Reed’s
    counsel did not impeach the victims based on inconsistent statements in the
    CAC tapes. But defense counsel did bring out the fact that both victims initially
    denied the abuse to several individuals. 2 At the conclusion of each victim’s
    testimony, defense counsel stipulated that the trial testimony was consistent
    with the taped CAC interview. The tapes were entered into evidence but not
    played for the jury. Reed, testifying in his defense, denied his stepdaughters’
    allegations of sexual abuse.
    2 In response, both Bethany Case, who conducted the CAC interviews, and Dr. Jamis
    testified that children sometimes recant out of the fear that telling the truth will result in
    negative consequences. KP-2 testified that she recanted because she was afraid Reed might
    hurt her if she told the truth, and KP-1 explained that she too was afraid of what might
    happen if she told the truth.
    3
    Case: 15-30237    Document: 00514092753       Page: 4    Date Filed: 07/28/2017
    No. 15-30237
    The jury convicted Reed of two counts of aggravated rape, for which he
    received two sentences of life imprisonment. The Louisiana appellate court
    affirmed the convictions and amended the sentences to life imprisonment at
    hard labor. State v. Reed, No. 2010-0571, 
    2010 WL 4272897
     (La. Ct. App. Oct.
    29, 2010). Reed did not seek review by the Louisiana Supreme Court.
    B.    Habeas Petitions
    Reed filed his state application for post-conviction relief in November
    2011. This application claimed ineffective assistance of counsel for, among
    other things, failing to impeach KP-1 and KP-2 with prior inconsistent
    statements made during the CAC interviews. The most significant of these
    inconsistencies concerns the day in May 2005 when Stephi first suspected
    sexual abuse. At trial, KP-1 testified:
    I was being abused, and I heard a knock on the door, and it was
    [KP-2]. . . . [Reed] said, don’t worry about it. I said, it’s [KP-2], let
    me go get the door. He said okay, and I opened the door, and it was
    [KP-2], and I know it was Stephi.
    During the CAC interview, however, KP-1 stated that “nothing had happened”
    on that day. KP-1 explained that
    whenever I told them about that day, I was veering around the
    truth because whenever [Stephi] came that day, nothing had
    happened to me. The reason why I was crying is because I got sent
    to my room. And I had a long shirt on and I had shorts underneath
    it. She just thought I had a shirt on. But nothing had happened.
    But I just remember her coming to the door, and I was all hot-faced
    and red . . . .
    INTERVIEWER: You said something about veering around the
    truth or something?
    KP1: Uh-huh. What I mean was I knew what had happened, and,
    you know, I was just kind of, you know, saying, “This—no, this
    didn’t happen. This is what really happened.” You know, I was
    telling the truth, but on part of it, I wasn’t.
    INTERVIEWER: What do you mean?
    4
    Case: 15-30237    Document: 00514092753     Page: 5    Date Filed: 07/28/2017
    No. 15-30237
    KP1: Like I was—whenever I was telling them that nothing
    happened that day that when [Stephi] came to the door, I was
    seriously just upset because I went to my room, you know. I was
    saying nothing happened.
    INTERVIEWER: That day?
    KP1: Nothing happened that day, you know. I was—I wasn’t
    actually saying nothing happened at all.
    The Louisiana trial court dismissed Reed’s application in March 2012. In
    addressing counsel’s failure to impeach the victims’ testimony with statements
    made during their CAC interviews, the court noted that:
    Trial counsel often choose not to have the victim’s interview shown
    to the jury, as more often than not any discrepancies between the
    child’s interview and the in court testimony are insignificant as
    weighed against the jury having to hear the child discuss the
    events of offense that occurred years prior.
    The court disagreed with Reed’s “characterization of the CAC tapes as
    materially inconsistent with the victims’ trial testimony,” and “determine[d] it
    was not ineffective assistance of counsel to stipulate to the CAC tapes in order
    to avoid having them played for the jury.” The Louisiana Court of Appeal and
    Supreme Court denied review.
    Reed filed his federal habeas petition in March 2013, alleging ineffective
    assistance of both trial and appellate counsel. The magistrate judge
    recommended dismissing the petition in its entirety. The magistrate judge
    addressed each of the discrepancies between the victims’ CAC interviews and
    trial testimony in turn:
    1. At trial K.P.1 testified that she had never witnessed petitioner
    engage in sexual acts with K.P.2; however, in the CAC
    interview, K.P.1 stated that she witnessed petitioner licking
    K.P.2’s vagina. While this discrepancy is obviously
    consequential, its revelation could easily have been more
    harmful than beneficial to the defense.
    2. At trial K.P.1 testified that she traveled to Biloxi in a separate
    car from petitioner after the allegations became public;
    5
    Case: 15-30237     Document: 00514092753      Page: 6    Date Filed: 07/28/2017
    No. 15-30237
    however, in the CAC interview she stated that they traveled
    together. This discrepancy seems largely inconsequential, and
    it does not appear the revelation would have significantly
    benefitted the defense.
    3. At trial, K.P.2 testified that petitioner had made her swear on
    a Bible not to disclose the abuse; however, she made no such
    statement in the CAC interview. This discrepancy likewise
    seems largely inconsequential, and it does not appear the
    revelation would have significantly benefitted the defense.
    4. At trial, K.P.2 testified she was walking out of her room prior
    to the first incident of abuse; however, in the CAC interview she
    stated that she was in her room watching television or reading
    a book. This discrepancy also seems largely inconsequential,
    and it does not appear the revelation would have significantly
    benefitted the defense.
    5. At trial, K.P.2 did not testify concerning abuse by anyone other
    than petitioner; however, in the CAC interview she stated that
    she had been assaulted by her stepbrother. This was not an
    actual discrepancy, in that she was not questioned at trial about
    abuse by others.
    6. At trial, K.P.1 testified that her friend Stephi King interrupted
    petitioner’s sexual assault on a specific occasion; however, in
    the CAC interview K.P.1 stated that nothing had actually
    happened to her on that day. This discrepancy is arguably
    consequential and seemingly would have been beneficial to the
    defense.
    The magistrate judge reasoned that the benefit of raising this last “seemingly
    significant discrepancy” would be outweighed by “the downside of playing the
    CAC interviews for the jury.” Playing these tapes would have required the jury
    “to sit through yet another recitation of the traumatic abuse . . . , only this time
    as recounted by the purported victims at even younger and more innocent ages
    which, presumably, might have made the abuse seem all the more harrowing.”
    Accordingly, the magistrate judge recommended not second-guessing trial
    counsel’s tactical decision to forego impeaching the victims with this “double-
    edged” evidence.
    6
    Case: 15-30237   Document: 00514092753     Page: 7   Date Filed: 07/28/2017
    No. 15-30237
    The district court adopted the magistrate judge’s recommendation and
    dismissed Reed’s petition with prejudice. On motion, however, the district
    court granted a COA on Reed’s “Sixth Amendment Right to Effective
    Assistance of Counsel related to failure to impeach a witness at trial.” Reed
    timely appealed.
    II. DISCUSSION
    On appeal, Reed argues that trial counsel’s failure to impeach KP-1 and
    KP-2 with the CAC interviews constituted ineffective assistance of counsel.
    Reed focuses on the incident in May 2005 when KP-2 and Stephi allegedly
    interrupted his abuse of KP-1. Reed does not meaningfully contest the
    magistrate judge’s findings that the other discrepancies were either
    insignificant, harmful to the defense, or not actually inconsistent with trial
    testimony. Accordingly, we confine our review to the discrepancy involving the
    May 2005 incident.
    A.    Standard of Review
    In a habeas case, this Court reviews the district court’s legal conclusions
    de novo and its factual findings for clear error. Ladd v. Cockrell, 
    311 F.3d 349
    ,
    351 (5th Cir. 2002). A federal court may not grant relief to a habeas petitioner
    on a claim adjudicated on the merits by a state court unless the state court’s
    decision “was contrary to, or involved an unreasonable application of, clearly
    established Federal law, as determined by the Supreme Court,” 
    28 U.S.C. § 2254
    (d)(1), or “was based on an unreasonable determination of the facts in
    light of the evidence presented in the State court proceeding,” § 2254(d)(2).
    Under § 2254(d)(1), a 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 “confronts facts that are materially
    indistinguishable from a relevant Supreme Court precedent” and comes to the
    opposite result. Williams v. Taylor, 
    529 U.S. 362
    , 405 (2000). A decision
    7
    Case: 15-30237     Document: 00514092753    Page: 8   Date Filed: 07/28/2017
    No. 15-30237
    unreasonably applies clearly established federal law “if the state court
    identifies the correct governing legal rule from [the Supreme] Court’s cases but
    unreasonably applies it to the facts” or “either unreasonably extends a legal
    principle from [Supreme Court] precedent to a new context where it should not
    apply or unreasonably refuses to extend that principle to a new context where
    it should apply.” 
    Id. at 407
    .
    Review of a claim of ineffective assistance of counsel under § 2254(d) is
    “doubly” deferential. Harrington v. Richter, 
    562 U.S. 86
    , 105 (2011) (quoting
    Knowles v. Mirzayance, 
    556 U.S. 111
    , 123 (2009)). “When § 2254(d) applies, the
    question is not whether counsel’s actions were reasonable. The question is
    whether there is any reasonable argument that counsel satisfied Strickland’s
    deferential standard.” Id.
    B.      Analysis
    To establish ineffective assistance of counsel in violation of the Sixth
    Amendment, a petitioner must show both that “counsel’s performance was
    deficient” and that this “deficient performance prejudiced the defense.”
    Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984). We address each prong in
    turn.
    On the first prong of the Strickland test, courts apply “a strong
    presumption that counsel’s conduct falls within the wide range of reasonable
    professional assistance.” 
    Id. at 689
    . The petitioner “must show that counsel’s
    representation fell below an objective standard of reasonableness.” 
    Id. at 688
    .
    Counsel’s “conscious and informed decision on trial tactics and strategy cannot
    be the basis of constitutionally ineffective assistance of counsel unless it is so
    ill chosen that it permeates the entire trial with obvious unfairness.” Pape v.
    Thaler, 
    645 F.3d 281
    , 291 (5th Cir. 2011) (quoting Richards v. Quarterman,
    
    566 F.3d 553
    , 564 (5th Cir. 2009)).
    8
    Case: 15-30237    Document: 00514092753     Page: 9   Date Filed: 07/28/2017
    No. 15-30237
    The district court held that trial counsel’s failure to impeach the victims
    with their CAC interviews was strategic. “[T]he trial strategy,” according to
    the district court, was likely “to prevent those CAC interviews from being
    shown because of their potential harm to petitioner’s defense at trial.” This
    Court has held in the mitigation context that “a tactical decision not to pursue
    and present potential mitigating evidence on the grounds that it is double-
    edged in nature is objectively reasonable.” Rector v. Johnson, 
    120 F.3d 551
    , 564
    (5th Cir. 1997). In Pape, this Court applied a similar “double-edged evidence”
    rule in the impeachment context. 
    645 F.3d at 290
    . There, impeaching the
    credibility of the defendant’s wife would have allowed the state to introduce
    evidence of the defendant’s other crimes (namely, possession of child
    pornography). 
    Id.
     Because impeachment could have been more harmful than
    helpful to the defendant, this Court held that the state habeas court did not
    unreasonably apply Strickland in finding that counsel’s choice not to impeach
    the wife’s credibility was reasonable. 
    Id.
    Here, as in Pape, impeachment could have led to an adverse outcome—
    the state playing the CAC tapes for the jury. As the magistrate judge found,
    doing so would have forced the jury “to sit through yet another recitation of the
    traumatic abuse . . . , only this time as recounted by the purported victims at
    even younger and more innocent ages which, presumably, might have made
    the abuse seem all the more harrowing.” Moreover, the CAC interviews did not
    contain any exculpatory evidence. Cf. Beltran v. Cockrell, 
    294 F.3d 730
    , 734
    (5th Cir. 2002) (finding counsel’s failure to impeach was deficient because the
    impeachment evidence “had significant exculpatory value”). Even regarding
    the one significant discrepancy between the interview and the trial, KP-1 made
    it clear in her interview that she “wasn’t actually saying nothing happened at
    all”; she meant that no abuse occurred on one specific day. Thus, it is at least
    reasonably arguable that counsel’s stipulation to the CAC interviews’
    9
    Case: 15-30237     Document: 00514092753     Page: 10   Date Filed: 07/28/2017
    No. 15-30237
    consistency with trial testimony and his concomitant failure to impeach the
    victims with these interviews were reasonable tactical decisions. See Richter,
    
    562 U.S. at 105
    . The district court did not err in denying habeas relief on this
    ground.
    On the second prong of the Strickland test, which neither the state
    habeas court nor the district court addressed, “a challenger must demonstrate
    ‘a reasonable probability that, but for counsel’s unprofessional errors, the
    result of the proceeding would have been different. A reasonable probability is
    a probability sufficient to undermine confidence in the outcome.’” Richter, 
    562 U.S. at 104
     (quoting Strickland, 
    466 U.S. at 694
    ). “The likelihood of a different
    result must be substantial, not just conceivable.” Id. at 112.
    Reed has not demonstrated a reasonable probability that impeaching the
    victims with their CAC interviews would have changed the outcome. First, the
    CAC tapes themselves largely corroborated the victims’ trial testimony.
    Second, as discussed above, playing the CAC tapes could have been harmful to
    the defense. This Court has held that similarly double-edged evidence cannot
    support a showing of prejudice under Strickland. See Dowthitt v. Johnson, 
    230 F.3d 733
    , 745 (5th Cir. 2000). Third, the victims likely would have appeared
    credible even if trial counsel had emphasized the discrepancies between their
    CAC interviews and trial testimony. The victims described their abuse to the
    jury in painful and convincing detail. Their descriptions were consistent with
    KP-2’s letter as well as Mayfield’s and Officer Smith’s accounts of what the
    victims stated in May 2005. And the only impeachment evidence introduced by
    defense counsel consisted of easily explainable denials and recantations. In
    light of these facts, the discrepancies in the CAC interviews would not have
    10
    Case: 15-30237      Document: 00514092753        Page: 11     Date Filed: 07/28/2017
    No. 15-30237
    sown sufficient doubt about the victims’ credibility in the minds of the jurors. 3
    Thus, trial counsel’s failure to impeach was not prejudicial.
    III. CONCLUSION
    For the foregoing reasons, the judgment of the district court is
    AFFIRMED.
    3 Moreover, some physical evidence supported the victims’ accounts: Reed’s semen was
    found on the carpet in KP-1’s and KP-2’s bedrooms.
    11