Williams v. Cain ( 2004 )

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                                                     United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS            January 5, 2004
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-30917
Summary Calendar
JOSHUA WILLIAMS,
Petitioner-Appellant,
versus
BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,
Respondent-Appellee.
* * * * * * * * * *
DUANE HENRY,
Petitioner-Appellant,
versus
BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,
Respondent-Appellee.
Appeals from the United States District Court
for the Eastern District of Louisiana
(02-CV-640-I) & (02-CV-643-I)
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges
PER CURIAM:*
Joshua Williams and Duane Henry, Louisiana prisoners #345191
and #345189, convicted of second degree murder, appeal, pro se, the
*
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this opinion should not be published and is not precedent except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.
denial of habeas relief under

28 U.S.C. § 2254

.                     A certificate of
appealability was granted on the materiality of Detective Jansen’s
report, which was either not disclosed to Williams and Henry or
disclosed but not used by their attorneys at trial.                       (The parties
were    also    directed      to   address    the    timeliness      of    the   §   2254
petitions, which were filed more than a year after the convictions
became final by direct review.                Petitioners claim an exception
based on claimed late discovery of the report.                    We need not rule on
the time bar vel non, because the denial of relief is affirmed.)
The report indicated that Romesee Washington, who was also
shot by the perpetrators, initially described them as short, with
one    having    two   gold    teeth.        (On    the   other    hand,    Washington
testified at trial that:           one of the shooters was short; the other
was tall; and both had gold teeth, with the shorter one having
more.)    The report also stated that Washington attempted to commit
suicide on the day before the shootings.
Williams and Henry contend: had the report been introduced at
trial, there is a reasonable probability that the outcome of the
trial would have been different because the report would have
discredited Washington’s identification of them.                          They assert:
their convictions were in violation of Brady v. Maryland,

373 U.S. 83

 (1963), if the report was not disclosed; or in violation of
Strickland v. Washington,

466 U.S. 668

, 688, 694 (1984), if it was
disclosed but not used by their attorneys at trial.
The tests for materiality for a Brady claim and for prejudice
for an ineffective assistance of counsel claim are the same:              a
reasonable probability that the       outcome of the proceedings would
have been different had the evidence been disclosed and used at
trial.   Johnson v. Scott,

68 F.3d 106

, 109-10 (5th Cir. 1995).           An
evidentiary hearing was not necessary to determine whether the
report was disclosed because the materiality of the report can be
determined from the record.      Lawrence v. Lensing,

42 F.3d 255

, 259
(5th Cir. 1994).
The state habeas courts did not state reasons for denying the
state habeas applications.      Reviewing Williams’ and Henry’s claims
de novo, see Nobles v. Johnson,

127 F.3d 409

, 416 (5th Cir. 1997),
we agree with the district court that:      the report was not material
under Brady;   and,   if   it   was   disclosed,   petitioners    were   not
prejudiced by their attorneys’ not using it at trial.
Detective Jansen’s report entry indicating that Washington had
described the shooters as short was based upon his interview with
Washington after she awoke from surgery (following being shot).
Washington’s handwritten responses to Jansen’s questions during
that interview were introduced and discussed at trial.           Other than
the indication that both shooters were short and the inference that
only one had gold teeth, the report’s description of the offense is
very similar to Washington’s testimony.            Washington positively
identified both Williams and Henry from a photographic line up and
3
in court.    Also, circumstantial evidence connected Henry to the
offense.    The report entry of Washington’s initial description of
the   shooters   was   not    material,    because     Detective    Jansen’s
interpretation   of    what   Washington   said   is   not   as    useful    as
Washington’s testimony and handwritten notes introduced at trial.
See Duncan v. Cain,

278 F.3d 537

, 539 (5th Cir.), cert. denied,

537 U.S. 829

 (2002); Wilson v. Whitley,

28 F.3d 433

, 440-43 (5th Cir.
1994).
With respect to the report entry discussing Washington’s
suicide attempt the day before the shooting, Williams and Henry
contend that such information would have demonstrated Washington’s
drug use, which would have affected her ability to accurately
identify the shooters.        Evidence was introduced at trial that
Washington had taken medication and drugs the day before the
shooting.   Williams and Henry have not shown that, had the report
been introduced at trial, there is a reasonable probability that
the outcome would have been different.            Given the evidence at
trial, the report information would have had only a marginal or
cumulative effect on Washington’s credibility.               See    Kyles v.
Whitley,

514 U.S. 419