Filed: Sep. 09, 2020
Latest Update: Sep. 09, 2020
Summary: Case: 18-40888 Document: 00515556939 Page: 1 Date Filed: 09/09/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED No. 18-40888 September 9, 2020 Lyle W. Cayce Clerk Cornell McHenry, Petitioner—Appellant, versus State of Texas; Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondents—Appellees. Appeal from the United States District Court for the Eastern District of Texas USDC No. 5:16-
Summary: Case: 18-40888 Document: 00515556939 Page: 1 Date Filed: 09/09/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED No. 18-40888 September 9, 2020 Lyle W. Cayce Clerk Cornell McHenry, Petitioner—Appellant, versus State of Texas; Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondents—Appellees. Appeal from the United States District Court for the Eastern District of Texas USDC No. 5:16-C..
More
Case: 18-40888 Document: 00515556939 Page: 1 Date Filed: 09/09/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 18-40888 September 9, 2020
Lyle W. Cayce
Clerk
Cornell McHenry,
Petitioner—Appellant,
versus
State of Texas; Bobby Lumpkin, Director, Texas
Department of Criminal Justice, Correctional
Institutions Division,
Respondents—Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:16-CV-74
Before Barksdale, Elrod, and Ho, Circuit Judges.
Per Curiam:*
A Texas jury convicted Cornell McHenry for possession of
methamphetamine, and he was sentenced to 25 years in prison. After his
direct appeal and state habeas petitions failed, McHenry, proceeding pro se,
*
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should not be published and is not precedent except under the limited circumstances set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.
Case: 18-40888 Document: 00515556939 Page: 2 Date Filed: 09/09/2020
No. 18-40888
sought federal habeas relief, which the district court denied. This court
granted a certificate of appealability on three questions relating to
McHenry’s claim that he is entitled to habeas relief as a result of his trial
counsel’s conflict of interest. Because his claims fail on the merits, we
AFFIRM.
I.
During Cornell McHenry’s state-court trial for possession of
methamphetamine, the public defender’s office represented McHenry, and
Rick Shumaker, a public defender, served as lead counsel. At trial,
McHenry’s former girlfriend, DeQueener Mitchell, testified for the state
against McHenry. Mitchell testified that she and McHenry were living
together in a house where methamphetamine was discovered by police and
that, despite her earlier guilty plea to possessing those drugs and her sworn
affidavit stating that the drugs were solely hers, the methamphetamine
actually belonged to McHenry. Mitchell maintained she was lying when she
previously stated that the methamphetamine was hers. And she testified that
she did not receive anything in exchange for her testimony against McHenry.
Following Mitchell’s testimony, the trial court discovered that, more
than two years prior to McHenry’s trial, the public defender’s office
represented Mitchell when she entered her plea agreement. 1 The trial court
admonished the public defender’s office for not bringing the potential issue
of successive representation to the court’s attention sooner so that new
counsel could be appointed for McHenry and so “the conflict would not
exist.” The trial court determined that although there was an “inherent
1
Although the record clearly indicates that the public defender’s office
represented Mitchell in her guilty plea, it is silent as to whether Shumaker represented
her, and the parties dispute this fact.
2
Case: 18-40888 Document: 00515556939 Page: 3 Date Filed: 09/09/2020
No. 18-40888
conflict of interest,” McHenry suffered no harm from the conflict. Based on
its determination that McHenry was not adversely affected by the conflict,
the trial court concluded that no action was necessary, and the trial
continued.
The jury ultimately convicted McHenry of possession of a controlled
substance. See McHenry v. Texas, No. 06-14-00131-CR, 2015 WL 3526252,
*1 (Tex. App. June 5, 2015) (unpublished). Based on a prior felony
conviction, the trial court enhanced his punishment range to that of a first-
degree felony, and he was sentenced to 25 years in prison.
Id. at *1 n.1.
McHenry appealed his conviction, arguing that there was insufficient
evidence to support the verdict and that the court improperly instructed the
jury. Id. at *1–2. McHenry did not raise an ineffective assistance of counsel
claim on direct appeal and did not mention the conflict of interest.
Id. at *1–
2. After the state appellate court affirmed the conviction
, id. at *3–8,
McHenry failed to file a timely petition for discretionary review with the
Texas Court of Criminal Appeals (TCCA).
In addition to his direct appeal, McHenry also filed multiple state
habeas petitions. The TCCA dismissed McHenry’s first habeas petition on
procedural grounds because the intermediate appellate court had not yet
issued its mandate on his direct appeal when the petition was filed. In his
second state habeas petition, McHenry raised the same claims raised on
direct appeal. Notably, he did not include an ineffective assistance of counsel
claim. The trial court recommended denying McHenry’s petition because
the claims raised had been rejected on direct appeal. And the TCCA denied
the petition based on the findings of the trial court.
McHenry then filed a federal 28 U.S.C. § 2254 petition that is the
subject of this appeal. In his federal petition, McHenry raised the same
claims that he raised in his state habeas petition. He also raised an ineffective
3
Case: 18-40888 Document: 00515556939 Page: 4 Date Filed: 09/09/2020
No. 18-40888
assistance of counsel claim, arguing that his trial counsel operated under a
conflict of interest. The district court, adopting the report and
recommendations of a magistrate judge, denied his petition and motion for a
certificate of appealability (COA).
McHenry then moved this court for a COA based on, inter alia, his
claim that counsel was ineffective due to a conflict of interest. We granted a
COA with respect to the following:
(1) Is McHenry’s claim of ineffective assistance of counsel
based upon counsel’s conflict of interest (which was explicitly
ruled upon by the state trial court but not raised in the state
habeas proceedings) procedurally defaulted? (2) If so, is there
cause and prejudice to excuse the default? and (3) If so, is
McHenry entitled to habeas relief as a result of his trial
counsel’s conflict of interest?
We denied his COA motion in all other respects.
II.
Proceeding pro se, McHenry claims that he is entitled to habeas relief
because his trial counsel, laboring under a conflict of interest, was
constitutionally ineffective. Because we find that McHenry’s ineffective
assistance of trial counsel claim does not merit relief, even when reviewed de
novo, see Berghuis v. Thompkins, 560 U.S. 370, 390 (2010), we need not decide
whether that issue is procedurally defaulted or whether there is cause and
prejudice to excuse procedural default. 28 U.S.C. § 2254(b)(2); King v.
Davis,
883 F.3d 577, 585 (5th Cir. 2018). Instead, “we will cut straight to the
merits to deny his claim.” Murphy v. Davis,
901 F.3d 578, 589 n.4 (5th Cir.
2018).
McHenry claims that Shumaker was constitutionally ineffective
because his prior representation of Mitchell created an impermissible conflict
of interest. “Under the Sixth Amendment, if a defendant has a constitutional
4
Case: 18-40888 Document: 00515556939 Page: 5 Date Filed: 09/09/2020
No. 18-40888
right to counsel, he also has a corresponding right to representation that is
free from any conflict of interest.” United States v. Vaquero, 997 F.2d 78, 89
(5th Cir. 1993). However, the mere “possibility of conflict is insufficient to
impugn a criminal conviction.” Cuyler v. Sullivan,
446 U.S. 335, 350 (1980).
Instead, to demonstrate a violation of the Sixth Amendment based on
counsel’s conflict of interest, a petitioner must show that trial counsel
“labored under an actual conflict which adversely affected his lawyer’s
performance.” Perillo v. Johnson,
79 F.3d 441, 447 (5th Cir. 1996) (Perillo I).
“An ‘actual conflict’ exists when defense counsel is compelled to
compromise his or her duty of loyalty or zealous advocacy to the accused by
choosing between or blending the divergent or competing interests of a
former or current client.” Perillo v. Johnson,
205 F.3d 775, 781 (5th Cir.
2000) (Perillo II).
Even assuming that Shumaker labored under an actual conflict of
interest based on his alleged representation of Mitchell two years prior to
McHenry’s trial, the question remains whether that conflict adversely
affected Shumaker’s performance in representing McHenry. See Sullivan,
446 U.S. at 348. “[T]o show adverse effect, a petitioner must demonstrate
that some plausible defense strategy or tactic might have been pursued but
was not, because of the conflict of interest.” Perillo
I, 79 F.3d at 449. Thus,
McHenry must show, “not only that [Shumaker’s] performance was
compromised, but that the compromises revealed in the record were
generated by the actual conflict between [Mitchell’s] and [McHenry’s]
interests.” Perillo
II, 205 F.3d at 807.
McHenry offers only two arguments to support his contention that he
was adversely affected. First, McHenry argues that the disparity between his
sentence and Mitchell’s sentence shows that trial counsel’s performance
negatively affected him. The trial court sentenced McHenry to 25 years in
prison, while Mitchell received only probation following her guilty plea. But
5
Case: 18-40888 Document: 00515556939 Page: 6 Date Filed: 09/09/2020
No. 18-40888
this disparity is largely because Mitchell accepted a plea deal, while McHenry
took his chances at trial. And, McHenry cannot argue that Shumaker and the
public defender’s office did not attempt to secure a plea deal for him.
McHenry was presented with multiple plea deals, including a five-year plea
deal offer and a two-year plea deal offer. But McHenry rejected these deals,
choosing to take his chances at trial, despite counsel’s advice to the contrary
and warnings that he faced the possibility of a longer prison sentence if he
was convicted.
Even if we focus on the disparity between the plea deal McHenry was
offered and the plea deal Mitchell accepted, McHenry points to no evidence
suggesting that the state would have offered him a better plea deal, or a plea
deal similar to the one Mitchell accepted, had he been represented by
different counsel. And an offer of a plea deal without prison time was
unlikely, due to McHenry’s lengthy criminal history. Thus, the difference
between Mitchell’s and McHenry’s sentences are insufficient to show an
adverse effect.
Second, McHenry argues that he was adversely affected because part
of Mitchell’s plea deal “included the stipulation that Mitchell testify against
McHenry.” Furthermore, he insists that “the record is fully developed on
this point.” But, despite that claim, the record is devoid of any evidence
supporting McHenry’s assertion. Mitchell’s written plea deal contains no
agreement to testify against McHenry. And Mitchell testified under oath
that she had not received anything in exchange for her testimony.
What the record does show, however, is that Shumaker aggressively
and thoroughly cross-examined Mitchell, attempting to impeach her
credibility on multiple occasions. See United States v. Burns, 526 F.3d 852,
857 (5th Cir. 2008) (holding that the defendant did not show an actual
conflict of interest adversely affected his defense because counsel, among
6
Case: 18-40888 Document: 00515556939 Page: 7 Date Filed: 09/09/2020
No. 18-40888
other things, challenged the credibility of the witness who was his former
client).
Without any support from the record, McHenry’s claims of adverse
effect are entirely speculative. See United States v. Alvarez, 580 F.2d 1251,
1255 (5th Cir. 1978). He failed to “demonstrate that some plausible defense
strategy or tactic might have been pursued but was not, because of the
conflict of interest.” Perillo
I, 79 F.3d at 449. Thus, McHenry cannot
establish that he was adversely affected by his trial counsel’s conflict of
interest, and the district court did not err by denying his petition for habeas
relief.
***
For the foregoing reasons, we AFFIRM the judgment of the district
court. McHenry’s petition for habeas relief is DENIED.
7
