Banister v. Lumpkin ( 2022 )

Case: 17-10826 Document: 00516151714 Page: 1 Date Filed: 01/03/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 17-10826 January 3, 2022
Lyle W. Cayce
Clerk
Gregory Dean Banister,
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 Northern District of Texas, Lubbock Division
USDC No. 5:14-cv-00049
Before Wiener, Graves, and Ho, Circuit Judges.
Per Curiam:*
In May 2002, Petitioner Gregory Banister struck and killed a bicyclist
while driving. The State of Texas indicted Banister on one count of
aggravated assault with a deadly weapon, with the indictment alleging that he
had fallen asleep at the wheel as a result of cocaine use. Banister was found
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 17-10826
guilty, and the trial court sentenced him to 30 years of imprisonment—an
enhanced sentence based on a prior conviction of trafficking cocaine.
This appeal is from the federal district court’s dismissal of Banister’s
28 U.S.C. § 2254 habeas petition. On appeal, Banister raises three claims of
ineffective assistance of trial counsel and one claim of ineffective assistance
of appellate counsel. We affirm.
I.
A.
The Antiterrorism and Effective Death Penalty Act (AEDPA)
significantly limits the scope of federal review of state criminal proceedings
by requiring that certain strict conditions be met. 28 U.S.C. § 2254. Relevant
here is the § 2254(d) requirement that the state court adjudication either
“resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court” or “resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.”
“Section 2254(d) sets forth a ‘highly deferential standard for
evaluating state-court rulings . . . . ’” Miller v. Thaler, 714 F.3d 897, 901 (5th
Cir. 2013) (quoting Cullen v. Pinholster, 563 U.S. 170, 181 (2011)). This
deferential standard “stops short of imposing a complete bar on federal-court
relitigation of claims already rejected in state proceedings” and requires the
state prisoner to show that the state court’s ruling “was so lacking in
justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.”
Harrington v. Richter, 562 U.S. 86, 102–03 (2011).
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B.
Ineffective assistance of counsel (IAC) claims are governed by Strick-
land v. Washington, 466 U.S. 668 (1984).
For trial counsel IAC claims, a petitioner must show “(1) that his trial
counsel rendered deficient performance, and (2) that the deficient perfor-
mance resulted in actual prejudice.” King v. Davis, 883 F.3d 577, 586 (5th
Cir. 2018) (citing Strickland, 466 U.S. at 687). The first prong “sets a high
bar” and a lawyer has “discharged his constitutional responsibility so long as
his decisions fall within the ‘wide range of professionally competent assis-
tance.’” Buck v. Davis, 137 S. Ct. 759, 775 (2017) (quoting Strickland, 466
U.S. at 690).
For appellate counsel IAC claims, the same Strickland standard gov-
erns: To demonstrate deficiency, a petitioner must show that appellate coun-
sel “unreasonably failed to discover nonfrivolous issues and to file a merits
brief raising them.” Halprin v. Davis, 911 F.3d 247, 260 (5th Cir. 2018)
(cleaned up). To demonstrate prejudice, a petitioner must establish “a rea-
sonable probability” that, but for appellate counsel’s deficiency, “he would
have prevailed on his appeal.” Id. (emphasis added) (cleaned up).
II.
A.
Banister claims that trial counsel was ineffective for not objecting to
expert witness testimony about the “cocaine crash” phenomenon. “Cocaine
crash” was at the crux of the government’s case: It refers to severe
exhaustion that follows and results from a cocaine high. Trial counsel did, in
fact, object to the testimony several times, but Banister claims that trial
counsel erred by not re-urging the objection at the end of the government’s
case-in-chief.
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Banister relies on Fuller v. State for the proposition that trial counsel
must renew objections to evidence that had been conditionally admitted in
order to properly preserve the argument for appeal. 829 S.W.2d 191, 196–
199 (Tex. Crim. App. 1992). This case, however, is distinguishable because
the record shows that the expert witness testimony was conditionally
excluded. The trial judge’s condition was that the government lay a proper
foundation and connect the cocaine crash theory to Banister. When the
government met this condition, the trial judge admitted the testimony
despite trial counsel’s objections. Thus, trial counsel did not need to object
again at the end of the government’s case-in-chief to preserve the argument.
Additionally, the second prong of Strickland is not met: “The
defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. Even without the expert testimony,
there was direct evidence in the form of a blood sample and testimony that
Banister took cocaine. Accident reconstruction evidence indicated that the
crash resulted from erratic driving. Moreover, there were several witnesses
who testified that Banister fell asleep at the wheel, and one witness said that
Banister did not attempt any evasive action to avoid hitting the bicyclist,
supporting the inference of a cocaine crash.
B.
Banister claims that trial counsel was deficient for failing to investigate
the weather conditions on the day of the crash. Banister’s theory is that the
strong winds pushed the bicyclist into his lane, causing the crash. This claim
fails the first prong of Strickland.
After several witnesses testified that it was not windy on the day of the
accident, Banister gave trial counsel a copy of a weather report from
underground.com that indicated that the wind speed was 25.3 mph at the
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time of the crash. The trial judge, questioning the reliability of the website,
refused to admit the report into evidence. Banister argues that, had trial
counsel investigated the wind conditions in advance, a more reliable source
could have been found and admitted into evidence.
It is clear from the record that trial counsel was not deficient. Trial
counsel explained in her affidavit that her strategy was to cross-examine the
state’s witnesses on weather conditions in order to leave doubt in the jurors’
minds, rather than to enter into evidence a weather report that would allow
the state to counter and dispel such doubt. Such a trial strategy has been
recognized by the Supreme Court. See Harrington, 562 U.S. at 109.
C.
Banister argues that trial counsel was constitutionally inadequate for
failing to object to jury instructions that referenced extraneous offenses.
Banister is unable to show prejudice under the second prong of Strickland.
See Strickland, 466 U.S. at 697 (“[A] court need not determine whether
counsel’s performance was deficient before examining the prejudice suffered
by the defendant as a result of the alleged deficiencies.”).
At trial, Banister’s counsel obtained a favorable ruling to exclude any
evidence of his prior conviction for drug trafficking. Later, during the
presentation of jury instructions, the trial court said the following:
You are instructed that certain evidence was admitted before
you in regard to the defendant’s having been charged and
convicted of offenses other than the one for which he is now on
trial. You are instructed that such evidence cannot be
considered by you against the defendant as any evidence of
guilt in this case. Said evidence was admitted before you for
the purpose of aiding you, if it does aid you, in passing upon the
credibility of the defendant as a witness for himself in this case,
and to aid you, if it does aid you, in deciding upon the weight
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you will give to him as such witness, and you will not consider
the same for any other purpose. (emphasis added)
This instruction should not have mentioned that Banister had been
“charged and convicted” of other offenses. The extraneous language,
though, does not result in prejudice. Banister relies on cases in which the
jury learned of a defendant’s actual conviction from improper admission of
documentary evidence. Cf. Lyons v. McCotter, 770 F.2d 529 (5th Cir. 1985)
(admission of previous conviction of aggravated robbery). But there are no
cases where a court found counsel ineffective for failing to object to the
mentioning of generic convictions.
Additionally, the instructions directed the jury not to consider other
convictions in determining Banister’s guilt in the case. “A jury is presumed
to follow its instructions.” Weeks v. Angelone, 528 U.S. 225, 234 (2000)
(citation omitted). The instructions did say that the jury could use other
convictions to the extent that it was necessary to determine Banister’s
credibility as a witness. And there may have been confusion given that the
instructions mentioned Banister’s testimony even though he did not testify.
But that, too, was cured by specific jury instructions that clearly reinforced
the defendant’s right to remain silent.
Moreover, given the evidence of cocaine use and erratic driving,
Banister cannot show that it is “‘reasonably likely’ the result would have
been different” had trial counsel properly objected. Harrington, 562 U.S. at
111 (quoting Strickland, 466 U.S. at 696). Thus, he cannot credibly claim that
the extraneous instruction “deprive[d] [him] of a fair trial.” Strickland, 466
U.S. at 687. Banister’s claim fails to show prejudice necessary to meet the
second prong of Strickland.
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D.
Banister raises one claim of ineffective assistance of appellate counsel.
He claims appellate counsel was constitutionally ineffective by only attacking
the admission of testimony and evidence, while failing to challenge either the
legal or factual sufficiency of the evidence once admitted.
For purposes of testing legal and factual sufficiency, Texas courts
must “consider all the evidence in the light most favorable to the verdict and
determine whether, based on that evidence and reasonable inferences
therefrom, a rational juror could have found the essential elements of the
crime beyond a reasonable doubt.” Hooper v. State, 214 S.W.3d 9, 13 (Tex.
Crim. App. 2007) (citations omitted). Thus, there is a deferential standard
in favor of upholding the verdict.
Banister is unable to show that, had appellate counsel briefed the
sufficiency argument, the result of the appeal would have been different. A
reasonable jury could look at the evidence of cocaine use, together with
erratic driving caused by exhaustion, to reach a guilty verdict. While some
testimony supported inferences contrary to the “cocaine crash” theory,
Texas law requires courts to “presume that the factfinder resolved any
conflicting inferences in favor of the verdict,” and “defer to that resolution.”
Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim. App. 2018) (citations
omitted).
***
Banister’s petition cannot overcome the dual hurdle of 28 U.S.C.
§ 2254(d) and Strickland. We affirm.
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