W. EUGENE DAVIS, Circuit Judge:
Upon reconsideration, this panel's previous opinion in this case, Williams v. Thaler, 459 Fed.Appx. 327 (5th Cir.2012), is hereby withdrawn in its entirety and replaced with the following.
Appellant Rick Thaler appeals the district court's grant of appellee Nanon McKewn Williams' writ of habeas corpus based on his claim that he received ineffective assistance of counsel during his trial for murder, a claim that was previously litigated in Texas state court. Because we cannot conclude that there was no reasonable basis for the state court's denial of Williams' habeas petition, we reverse the district court's grant of relief.
In a previous appeal, this court detailed the facts of this case as follows:
Williams v. Quarterman, 551 F.3d 352, 353-55 (5th Cir.2008). On July 26, 1995, Williams was convicted of capital murder and sentenced to death. The Texas Court of Criminal Appeals (CCA) affirmed the conviction on direct appeal.
Williams filed a state habeas application, in connection with which a state trial court ordered the prosecution to release its ballistics evidence and Guevara's .22-caliber pistol. Before delivering the evidence to Williams' counsel, the prosecution conducted its own tests which revealed that the
The state trial court held two evidentiary hearings. Williams presented the new ballistics evidence, including testimony from the Chief Criminalist of the Tarrant County Medical Examiner's Office, Ronald Singer. Ronald Singer testified that Collier had suffered two wounds to the head, one inflicted by a .22-caliber weapon, and one inflicted by a shotgun. Singer stated that EB-1 was easily identifiable as a bullet from a .22-caliber pistol, and that any competent examiner would have been able to identify it as such. Id.
Williams also presented testimony and affidavits of Dr. Marc Andrew Krouse, Deputy Chief Medical Examiner of the Tarrant County Medical Examiner's Office. Dr. Krouse examined the autopsy evidence and trial testimony and testified that EB-1 was itself highly likely to have caused death. He stated that he did not agree with the conclusion made at trial that the red margin around the bullet wound meant that Collier was alive when shot with the shotgun. Dr. Krouse concluded that it was impossible to tell in which order the firearm wounds had been inflicted, and that if he had performed the original autopsy he would have listed both wounds as causes of death. Id.
The prosecution presented the testimony of Smith, who was in the car during the shootings but was not present to testify at trial. Smith testified that he heard a pistol shot and then heard Collier yell "I'm hit," and that he saw Williams standing over Collier and pointing the shotgun at him. Id.
The state trial court found, inter alia, that Collier was alive when Williams shot him with the shotgun. But the state trial court nevertheless recommended that habeas relief be granted, finding that Williams had proven that trial counsel's failure to obtain independent experts constituted ineffective assistance under the Strickland standard. Id. The trial court reasoned that if trial counsel had sought out independent expert testimony, the evidence would have "changed the type and strength of cross-examination of Guevara... and much of the prosecution's closing argument" and that the jury "would have been presented with favorable and arguably exculpatory evidence." Id.
The CCA rejected the state trial court's recommendation in a two-page order, which stated in relevant part: "[W]e do not believe, based on our review of the record presented, that some of the crucial fact findings and the recommendation based, at least in part, on them, are supported by the evidence presented at the evidentiary hearing. Accordingly, after a review of the record with respect to the allegations made by [Williams], and with due consideration of the recommendation made by the trial court, the relief sought is denied." Ex parte Williams, No. 46,736-02 (Tex.Crim.App.2002) (per curiam).
This court reversed, holding that the district court erred in applying a presumption of correctness to the state-court findings of fact. Williams v. Quarterman, 551 F.3d 352, 358 (5th Cir.2008) (Williams 1) The case was remanded to the district court "for a full de novo evidentiary hearing of Williams's ineffective assistance of counsel claims on which the [COA] was granted." Id.
The district court held an evidentiary hearing at which two pathology experts testified. Williams v. Thaler, 756 F.Supp.2d 809 (S.D.Tex.2010). Williams called Dr. Krouse, who had previously testified on his behalf in the state habeas proceedings, and the Director called Dr. Vincent J.M. Di Maio. Dr. Krouse reiterated the findings that he reported in state court, and testified that the amount that Collier bled led him to conclude that Collier did not have blood pressure when he was shot with the shotgun. Id. at 822. On cross-examination, Dr. Krouse conceded that he could not definitively conclude whether Collier was alive at the time of the shotgun blast. Id. at 823. The prosecution's expert Dr. Maio testified that blood in the tissue surrounding the wound indicated that Collier was alive when hit by the shotgun pellets, and that he would have listed EB-1 "as a finding" but not as a cause of death. Id. On cross-examination, Dr. Maio agreed that a .22 magnum "has a high potential for fatality if you're struck in the head with it." Id.
After reviewing the evidence, the district court found that trial counsel's failure to obtain expert testimony regarding ballistics and pathology constituted ineffective assistance of counsel under Strickland. The district court therefore granted Williams' habeas application. Id. at 828. This appeal followed.
Williams filed his federal habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA), therefore the requirements of the AEDPA apply. The AEDPA generally bars relitigation of claims that have already been adjudicated on the merits by a state court. 28 U.S.C. § 2254(d); see Premo v. Moore, ___ U.S. ___, 131 S.Ct. 733, 739, 178 L.Ed.2d 649 (2011); Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). The statute provides three exceptions to the general relitigation bar. A petitioner may obtain federal habeas relief on a claim that has been litigated in state court if the petitioner can show that the state court's decision was contrary to a federal law that was clearly established in Supreme Court holdings, that the decision was an unreasonable application of such law, or that the decision was based on an unreasonable factual determination. 28 U.S.C. § 2254(d)(1)(3); see also Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001).
In reviewing a district court's grant of habeas relief, we review "for clear error with respect to findings of fact and de novo for issues of law." Richardson v.
As an initial matter, we turn to the precedent established by this court in Williams v. Quarterman, 551 F.3d 352 (5th Cir.2008) ("Williams I"). In Williams I, we held that our precedents require an evidentiary hearing in the district court when a state appellate court issues a decision adopting some but not all of the trial court's findings, without specifying which it has adopted. Id. at 358-59. We now hold that subsequent Supreme Court precedent established in Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011), and Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011), undermines our holding in Williams I. In Pinholster the Supreme Court held that, because analysis under 2254(d)(1) requires a determination of whether a state-court decision was reasonable at the time it was made, "the record under review is limited to the record in existence at the same time." Pinholster at 1388. The Court went on to hold that "evidence introduced in federal court has no bearing on § 2254(d)(1) review," and that "[i]f a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was before that state court." Id. at 1400. This holding precludes consideration of facts developed at a post-conviction federal district court evidentiary proceeding in the § 2254(d)(1) analysis.
Williams' Strickland claim was adjudicated on the merits in state court. Therefore under Pinholster the sole issue is whether the decision by the Texas Court of Criminal Appeals (CCA) was an "objectively unreasonable" application of the clearly established federal law concerning ineffective assistance of counsel. Yarborough v. Gentry, 540 U.S. 1, 5, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003). As established by Pinholster, this is a "backward-looking" analysis, limiting itself to the record that was before the Texas CCA at the time of its decision.
Section 2254(d) "imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt." Felkner v. Jackson, ___ U.S. ___, 131 S.Ct. 1305, 1307, 179 L.Ed.2d 374 (2011) (quoting Renico v. Lett, ___ U.S. ___, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010)) (internal quotation marks omitted). As the Supreme Court recently held, the standard is meant to be difficult to meet. Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011).
Although the CCA provided no explanation for its reasoning in denying Williams' Strickland claim, that fact does not alter the highly deferential nature of the AEDPA standard. "Where a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Harrington, 131 S.Ct. at 784. In reviewing a state court habeas decision unsupported by explanation, a federal court must "determine what arguments or theories ... could have supported the state court's decision," and then ask "whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision" of the Supreme Court. Id. at 786 (citing Lockyer v. Andrade, 538 U.S. 63, 71, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)).
It is uncontested here that trial counsel's performance fell below an objective standard of reasonableness. Williams's counsel failed to obtain any independent ballistics or forensics experts, and was therefore unable to offer any meaningful challenge to the findings and conclusions of the state's experts, many of which proved to be incorrect.
Having concluded that Williams received ineffective assistance of counsel, the remaining question under Strickland is whether it is "reasonably likely" that the result of the trial would have been different if counsel had provided effective assistance. In order to determine whether the CCA reasonably concluded that the outcome would not have been different, we must examine the record that was before it. We have authority to issue the writ only if we conclude from this record that no fairminded jurist could agree with the CCA's determination. Harrington, 131 S.Ct. at 784.
The testimony at trial established that Williams went into the woods with Guevara, Collier, and Rasul. Winn testified that she was "certain" that Williams was carrying a shotgun he took from the car they arrived in, and that he was wearing a jacket that he used to conceal the shotgun. Williams was also carrying a.25-caliber pistol. After Guevara, Collier, Rasul and Williams entered the woods, numerous shots were fired. Williams fired his .25-caliber pistol, shooting Rasul in his foot. Collier was then shot in the face twice, once by a shotgun and once by a pistol. Later, the autopsy revealed both a small-caliber bullet and shotgun pellets in Collier's cranial cavity. While no eyewitness saw Williams shoot the shotgun, uncontroverted witness testimony established that he was the only person in the vicinity carrying a shotgun at the time.
The primary issue in this petition is whether trial counsel's failure to obtain expert reports was so prejudicial that every reasonable jurist would agree that this failure changed the outcome of the trial. Certainly the trial would have proceeded differently if Williams' counsel had obtained independent expert reports. The state's expert incorrectly concluded that Williams fired the pistol round identified as EB-1 in addition to the shotgun pellets that were found in Collier's cranial cavity. This allowed the state to argue that because Williams fired both the shotgun and the pistol that delivered EB-1, it was irrelevant which shot caused Collier's death. Williams argues that if his counsel had called ballistic experts to testify that EB-1 was delivered by a .22-caliber pistol, the defense would have been able to argue that Guevara, not Williams, killed Collier.
But the fact that the new evidence would have given Williams a stronger defense or
For the above reasons, we conclude that the CCA's decision was not an unreasonable application of clearly established federal law. Accordingly, we REVERSE the district court's grant of habeas relief to Williams and RENDER judgment in favor of the director.
REVERSED and RENDERED.