Hongo v. Cain

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-30893
RONNIE HONGO,
Petitioner-Appellee,
VERSUS
BURL CAIN, Warden,
Louisiana State Penitentiary, Angola, Louisiana,
Respondent-Appellant.
Appeal from the United States District Court
For the Western District of Louisiana
(5:98-CV-2305)
June 18, 2001
Before STEWART and PARKER, Circuit Judges, and GOLDBERG, Judge.*
PER CURIAM:**
Burl Cain, Warden of the Louisiana State Penitentiary in
*
Judge of the United States Court of International Trade,
sitting by designation.
**
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this opinion should not be published and is not precedent except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.
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Angola, Louisiana (referred to hereafter as the “State”), appeals
the district court’s grant of habeas corpus relief to Petitioner
Ronnie K. Hongo, Louisiana prisoner #98420. We reverse.
FACTS AND PROCEDURAL HISTORY
Hongo was convicted in a Louisiana state court of attempted
second-degree murder and sentenced to life imprisonment without
benefit of parole. He was also convicted of possession of a
firearm by a felon, for which he received a five-year sentence.
Hongo shot Karen Garner in the head with a pistol and blinded
her in one eye. At trial, Garner testified that Hongo appeared at
her front door armed with the pistol and that he shot at her twice,
striking her once. According to the testimony of Officer Martone,
Hongo admitted, shortly after his arrest, that he went to Garner’s
home to shoot Garner’s father and said that he did not mean to
shoot Garner. At trial, Hongo testified that he went to the Garner
house with a 20 gauge shotgun in his pants, but no pistol. He
claimed he was talking to Garner, who had the pistol on a nearby
table, when they got into a playful wrestling match during which
the pistol was accidentally discharged. Hongo denied making the
incriminating statements after his arrest.
Hongo appealed, alleging that Officer Martone’s testimony
about Hongo’s post-arrest statement was improper and that his prior
convictions were not grounds for an enhancement. Hongo’s
conviction was affirmed, but the matter was remanded to correct a
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sentencing error. State v. Hongo, 625 So.2d 610, 620 (La. App. 3
Cir. 1993).
Hongo filed a state habeas petition, alleging that his
sentence was unconstitutionally excessive and that his counsel was
ineffective for failing to object to the use of a 1977 felony
conviction and to a clearly erroneous jury instruction. Hongo
contended that the jury was erroneously instructed on the elements
of attempted second-degree murder. The state judge had instructed
Hongo’s jury that second-degree murder required specific intent to
kill or inflict great bodily harm. Hongo argued that, under
Louisiana law, attempted murder requires that the state prove
specific intent to kill. The state district court denied relief
without written reasons. The state intermediate appellate court,
in a two-to-one split-panel decision, found that Hongo’s attorney
was ineffective, granted relief, and vacated Hongo’s conviction.
The Louisiana Supreme Court reversed and reinstated Hongo’s
conviction. State v. Hongo, 706 So.2d 419, 422 (La. 1997). The
Louisiana Supreme Court found that the state presented sufficient
evidence that Hongo had the intent to kill the victim but failed to
complete his plans and that there was no evidence presented to the
jury which would support a finding that Hongo had the intent to
inflict great bodily harm. Id. Therefore, the Louisiana Supreme
Court concluded that although Hongo’s counsel’s performance fell
below prevailing professional norms, his deficient performance did
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not prejudice the defendant. Id. Hongo filed a second state
habeas petition on an unrelated issue, which was denied.
Hongo then filed this federal habeas petition, alleging that
the erroneous jury instruction concerning intent to inflict great
bodily harm mandated a reversal without a harmless error analysis
and that trial counsel was ineffective for failing to object to the
erroneous jury instruction on attempted second-degree murder and
attempted manslaughter. The magistrate judge, in a report and
recommendation, noted that the state conceded that the trial court
improperly instructed the jury on the standard for finding
attempted second-degree murder and that the error rendered the
instruction constitutionally deficient. The magistrate judge
employed harmless error analysis and found that, despite the error,
there was no reasonable probability that the jury would have
returned a different verdict had the instruction been consistent
with the law. Thus, the magistrate judge concluded that Hongo
failed to establish prejudice arising from counsel’s failure to
object to the erroneous jury instruction. Hongo filed objections
to the magistrate judge’s report and recommendation.
The district court conducted a de novo review, and found that
the erroneous jury instruction, combined with erroneous statements
of law to the jury by both defense counsel and the prosecutor had
a substantial effect or influence on the verdict such that there
was more than a reasonable possibility that the result would have
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been different had the jury been properly instructed. The district
court found that defense counsel’s failure to object to the
erroneous instruction was deficient performance, and that defense
counsel’s error resulted in prejudice given the frequency of the
erroneous statement and the Fifth Circuit’s holding in Gray v.
Lynn, 6 F.3d 265 (5th Cir. 1993). The district court conditionally
granted Hongo’s writ of habeas corpus, vacated his conviction and
ordered that he be released from custody unless the state, within
180 days, commenced its prosecution.
The State timely appealed. No certificate of appealability is
required because a representative of the State is appealing the
district court’s grant of habeas relief. See FED. R. APP. P.
22(b)(3).
DISCUSSION
A. Standard of review
“In a habeas corpus appeal, we review the district court’s
findings of fact for clear error and review its conclusions of law
de novo, applying the same standard of review to the state court’s
decision as the district court.” Thompson v. Cain, 161 F.3d 802,
805 (5th Cir. 1998).
A district court shall not grant Federal habeas relief for
any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim –
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
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Court of the United States; or
(2) 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.
28 U.S.C. § 2254(d).
In reviewing the state court’s decisions regarding questions
of law under the “unreasonable application” clause, a federal
habeas court may not issue a writ simply because that court
concludes, in its independent judgment, that the relevant state-
court decision applied clearly established federal law erroneously
or incorrectly. Williams v. Taylor, 529 U.S. 362, ___, 120 S. Ct.
1495, 1522 (2000). Rather, that application must also be
unreasonable. Id. A federal habeas court making the “unreasonable
application” inquiry must ask whether the state court’s application
of clearly established federal law was objectively1 reasonable.
Id. Mixed questions of fact and law are likewise reviewed for
unreasonable application of clearly established federal law. See
Lockhart v. Johnson, 104 F.3d 54, 56-57 (5th Cir. 1997).
A state court’s factual determinations are reviewed to
determine whether the state court’s adjudication of the claim
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
1
Williams rejected the Fifth Circuit’s apparently subjective
“reasonable jurist” standard set out in Drinkard v. Johnson, 97
F.3d 751, 769 (5th Cir. 1996). Beazley v. Johnson, ___ F.3d ___,
2001 WL 118393 (5th Cir. 2001).
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the state court proceeding. See id. A determination of a factual
issue made by a state court shall be presumed to be correct, and
the applicant has the burden of rebutting the presumption of
correctness by clear and convincing evidence. See § 2254(e)(1).
To obtain relief based upon ineffective assistance of counsel,
a defendant must demonstrate both that his counsel’s performance
was deficient and that the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Judicial scrutiny of counsel’s performance must be highly
deferential, and courts must indulge in a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional conduct. Id. at 689. The defendant bears the burden
of proving both deficient performance and prejudice resulting from
error. Westley v. Johnson, 83 F.3d 614, 719 (5th Cir. 1996). To
establish prejudice, 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. A failure to establish either
deficient performance or prejudice defeats the claim. Id. at 697.
B. Was Hongo prejudiced by counsel and district court errors?
The State concedes, as it has throughout Hongo’s habeas
proceedings, that the trial court erroneously instructed the jury
on the elements of attempted second-degree murder. The trial court
instructed the jury that in order to be convicted of second-degree
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murder the jury had to find that the defendant had the specific
intent to kill or inflict great bodily harm. Under Louisiana law,
Hongo had to have the specific intent to kill; the intent to cause
great bodily harm is not an element attempted second-degree murder.
State v. Butler, 322 So.2d 189 (La. 1975). Neither does the State
challenge on appeal the district court’s holding that Hongo’s
counsel’s failure to object to the erroneous instruction was
deficient performance. As the Louisiana Supreme Court noted in
Hongo’s State habeas proceeding, “the first prong [of Strickland]
is easily met here, as the rule of Butler is well-established with
over twenty years duration and a reasonably competent attorney
would know of it and properly object when presented with the
instant erroneous instruction.” Hongo, 706 So.2d at 422. The
State’s appeal focuses instead on whether these errors prejudiced
Hongo.
In order to establish prejudice, Hongo must demonstrate that
there is a reasonable probability that the jury would have had a
reasonable doubt respecting Hongo’s guilt if the phrase “or inflict
great bodily harm” had been left out of the jury charge. Gray, 6
F.3d at 269-70. The district court conducted a de novo review of
the record and found that the erroneous jury instruction, combined
with erroneous statements of the law to the jury made by both
defense counsel and the prosecutor had a substantial effect on the
verdict, thus concluding that the Louisiana Supreme Court’s opinion
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denying Hongo relief incorrectly applied federal law. However, the
district court erred when it failed to inquire whether the state
court application of federal law was unreasonable. See Williams,
120 S. Ct. at 1522.
There is no dispute that the Louisiana Supreme Court applied
the correct law in examining the prejudice prong of the Strickland
ineffective assistance of counsel test. The only question is
whether it correctly applied that law to the facts. Upon
examination of the record, the Louisiana Supreme Court found that
the jury in this case was presented with a binary choice between
the State’s and the defendant’s version of what occurred. The
defendant testified that he and the victim were struggling over the
gun when it accidentally discharged. Hongo, 706 So.2d at 442. The
State presented evidence that the defendant entered the house with
the intent to kill the victim but failed to complete his plan. Id.There was no argument or evidence presented to the jury which would
support a finding that Hongo had the intent to only inflict great
bodily harm. Id. “Indeed, given only the two versions that were
presented, no reasonable jury could have concluded that defendant
had the intent to only inflict great bodily harm.” Id. Thus, the
Louisiana Supreme Court concluded that the erroneous jury
instruction did not prejudice the defendant or affect the verdict.
Id. The Louisiana Supreme Court’s characterization of the evidence
in the record is accurate and its application of the law to that
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evidence is not unreasonable.
The Fifth Circuit decision in Gray v. Lynn, 6 F.3d 265 (5th
Cir. 1993), on which the district court grounded its decision, is
inapposite. In Gray, as in the case at bar, trial counsel failed
to object to a jury instruction on attempted murder that allowed
the jury to convict the defendant if they found that he intended
only to inflict great bodily harm on his victim. Id. at 269. This
court concluded that a jury could have interpreted the evidence to
prove that Gray intended to harm, but not to kill, his victim based
on the fact that Gray was presented with several “golden
opportunities” to kill his victim, but did not take advantage of
them. Id. at 270. Indeed, Gray fired three shots at close range,
none of which hit the victim. Id. Therefore, we held that Gray
met his burden of establishing that he had been prejudiced by his
counsel’s error. Id. at 271. Here, Hongo fired two shots at close
range, hitting his victim in the head. Hongo’s jury did not have
the same missed “golden opportunities” to consider that we found
persuasive in Gray’s case. More importantly, Gray filed his
federal habeas application in 1987, id. at 267, so the deference we
owe to the State court determination in this suit, per §
2254(e)(1), as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), was not an element of the analysis
in Gray. See Lindh v. Murphy, 521 U.S. 320 (1997)(holding that the
provisions of the AEDPA do not apply to cases that were filed
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before the April 1996 effective date of that act.) Further, the
state court in Gray never ruled on the merits of Gray’s
contentions, so there was no state court decision in that case to
which we could have deferred. Gray, 6 F.3d at 267.
We therefore conclude that the district court in this case
erred in failing to afford the proper deference to the Louisiana
Supreme Court’s factual determinations and legal conclusion and in
granting Hongo’s habeas application.
Based on the foregoing we reverse the district court’s grant
of habeas relief to Hongo.
REVERSED.
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