United States v. Jimmy Whitehead ( 2010 )

Case: 09-10617 Document: 00511216958 Page: 1 Date Filed: 08/27/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 27, 2010
No. 09-10617
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JIMMY WHITEHEAD, also known as Jimmy Mark Edward Whitehead,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:09-CV-260
Before REAVLEY, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Jimmy Whitehead appeals the district court’s denial of his 28 U.S.C.
§ 2255 motion challenging his conviction and sentence for bank robbery and
using and carrying a firearm during a crime of violence. The district court
denied Whitehead’s ineffective assistance of counsel claims on the ground that
Whitehead failed to assert that he was prejudiced by any of his counsel’s
behavior. We granted Whitehead a certificate of appealability as to whether the
district court prematurely denied Whitehead’s § 2255 motion without allowing
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10617 Document: 00511216958 Page: 2 Date Filed: 08/27/2010
No. 09-10617
him the opportunity to state his claims more precisely than he did on the § 2255
form he filed.
In reviewing a district court’s denial of a § 2255 motion, this court reviews
the district court’s factual findings for clear error and its legal conclusions de
novo. United States v. Cavitt, 550 F.3d 430, 435 (5th Cir. 2008). “There is no
clear error if the district court’s finding is plausible in light of the record as a
whole.” United States v. Armstrong, 550 F.3d 382, 404 (5th Cir. 2008) (internal
citation omitted).
To prevail on an ineffective assistance claim, a movant must show “that
counsel’s performance was deficient” and “that the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). A
movant's claim of ineffective assistance of counsel must be stated with
specificity; conclusory allegations are insufficient to raise a constitutional issue.
Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990). A movant’s claim will fail if
he does not establish both deficient performance and prejudice. Strickland, 466
U.S. at 687.
Whitehead alleged in his § 2255 motion that his counsel was ineffective
before trial for failing to interview and subpoena potential defense witnesses
Hugh Masters and George Whitehead; failing to call potential alibi witness Lisa
Wright; failing to hire a DNA expert to conduct independent analysis to impeach
the Government's DNA expert testimony; and failing to obtain the suppression
of Whitehead's statement to police about the gloves and ski mask; and because
counsel had an unspecified conflict of interest. He argued that counsel was
ineffective at trial for failing to request a hearing to investigate the conduct of
a juror who communicated with a Government witness; failing to impeach
Edward Crain, an unindicted coconspirator, or bring forth prior exculpatory
statements made by Crain; and failing to call alibi witness Wright because
counsel believed he would obtain a judgment of acquittal without her testimony.
He contended that counsel was ineffective at sentencing for failing to review his
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No. 09-10617
prior convictions and relevant caselaw to argue for mitigation; failing to address
the issue whether his prior convictions were consolidated for sentencing
purposes; and failing to object to the application of the career offender guideline
in light of the sentence imposed on Crain. He asserted that counsel was
ineffective on appeal for failing to raise any issues arising from his second trial;
failing to raise juror misconduct; and failing to raise prosecutorial misconduct
because the Government falsely told the jury that Crain would be prosecuted by
federal authorities despite knowing that charges against Crain would be
dismissed. Although Whitehead failed to allege prejudice with any specificity,
he did allege that Strickland governed his claim. Six days after Whitehead filed
his § 2255 motion, the district court summarily dismissed it.
Habeas applications filed by pro se prisoners are entitled to liberal
construction, and pleading errors do not bar consideration of the claims of pro
se habeas applicants. Guidroz v. Lynaugh, 852 F.2d 832, 834 (5th Cir. 1988); see
also Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Furthermore, “Strickland
requires that prejudice be proved, not pleaded.” Petty v. McCotter, 779 F.2d 299,
302 (5th Cir. 1986); United States v. Martinez, 181 F.3d 627, 628-29 (5th Cir.
1999) (holding that the defendant’s conclusory assertion that he told his counsel
he wanted to testify, but that counsel failed to call him as witness was
insufficient to require a hearing or a response from government, but the
defendant should have been allowed an opportunity to state his claim with
greater specificity). We VACATE and REMAND so that Whitehead can state
with greater specificity his complaints regarding ineffective assistance. If he is
unable to provide more than his present conclusory statements, summary
dismissal of his petition will be appropriate.
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