ADEDJI O. ADEKEYE, Petitioner-Appellant,
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee.
from the United States District Court for the Southern
District of Texas
Clement, Haynes, and Willett, Circuit Judges.
Willett, Circuit Judge:
federal habeas action, Adedji Adekeye claims his Sixth
Amendment right to effective assistance of counsel was
violated because his trial attorney failed to conduct a
sufficient pretrial investigation. But Adekeye fails to
allege what a sufficient investigation would have uncovered
or how it would have changed his trial outcome. As Adekeye
cannot show prejudice, he cannot show that the state habeas
court unreasonably applied Strickland v.
Washington or other clearly established federal
law. The district court was correct to deny habeas relief,
and we AFFIRM.
arrested Adekeye in 2012 in Houston. The complaining witness,
Nora Mendez, had a hair salon storefront in a shopping
center. One day Mendez saw a woman walk slowly by the salon
wearing a wig. A few minutes later, Mendez saw the woman
sitting inside a Ford Explorer parked in front of the salon.
Two men were also inside. Through the salon and Explorer
windows, Mendez saw one of the men put something on his head,
put on gloves, and hold up a pistol. Mendez called 911 and
locked the salon's door. While waiting for the police,
Mendez saw the man with the gun open the car door and begin
to get out. But he stayed in the Explorer, apparently because
another person was passing by. The man repeated this a second
time but never fully exited the Explorer.
Explorer drove away. Responding to the 911 call, the police
intercepted the Explorer, turned on their lights, and ordered
the driver to pull over. The driver sped away. At one point
the Explorer slowed down, and two men jumped out and ran
away. The police chased them on foot. Along the way, the
police found a discarded mask, two pairs of gloves, and a
gun. Bystanders directed the police to two parked dump
trucks. Inside one of the dump trucks the police found
the police also caught the Explorer. Mendez identified its
driver as the woman she saw walking by her salon. And she
identified Adekeye as the passenger who held the gun and
tried to exit the Explorer. The police never caught the third
state charged Adekeye with two offenses in separate
indictments. In Cause No. 1349025, the state charged him with
attempted aggravated robbery and applied a sentencing
enhancement for a prior felony conviction. In Cause No.
1349026, the state charged him with being a felon in
possession of a firearm. These charges went forward in a
trial, Adekeye had to obtain counsel and enter his plea. The
court initially appointed counsel for Adekeye. But about a
month later Adekeye moved to substitute his appointed counsel
with retained counsel, Omotayo Lawal. In plea negotiations,
the state offered Adekeye a ten-year sentence in exchange for
a guilty plea. Lawal advised Adekeye that the state did not
have a strong case. And, according to Adekeye, Lawal
incorrectly said ten years was the maximum sentence for this
offense. Adekeye rejected the plea deal.
preparation for trial, Lawal reviewed the prosecution's
case file, made notes, and filed a discovery motion. He also
hired a private investigator to help prepare the case. But
the investigator never produced a report because
Adekeye's family did not pay him. Lawal omitted several
other means of pretrial investigation: He did not follow up
his discovery motion by seeking a ruling on the record. He
did not visit or photograph Mendez's salon. He did not
inspect any physical evidence. He did not view Adekeye's
or the Explorer driver's videotaped statements to the
police. And he either interviewed none of the eyewitnesses,
or interviewed only Mendez.
trial, the jury convicted Adekeye of both offenses. The court
sentenced Adekeye to 35 years in prison. Lawal then withdrew
as counsel, and the court appointed Lana Gordon to represent
Adekeye going forward.
moved for a new trial based on ineffective assistance of
counsel. Among other theories, Adekeye argued that his prior
counsel failed to investigate the case before trial. The
state trial court held a hearing on the motion. At the
hearing, Lawal admitted most of the facts that Adekeye relies
on for his ineffective assistance claim. Lawal's
testimony suggests he did not interview any witnesses before
trial. This exchange is representative: "Q. [by Gordon]
Did you interview any witnesses . . . ? A. [by Lawal] I did
not even see the full offense report. I don't know the
witnesses that they will be calling at any
point." Lawal also suggested Adekeye would not pay
for a pretrial investigation. After the hearing, the state
court denied the motion for new trial. Its explanation from
the bench focused on issues unrelated to pretrial
took a direct appeal. Texas's Fourteenth Court of Appeals
affirmed his conviction. As relevant here, it held that there
was no prejudice from any failure of counsel's pretrial
investigation. One justice dissented on unrelated grounds; he
believed the evidence did not sustain Adekeye's
conviction for attempted aggravated robbery.
now proceeding pro se, sought discretionary review from the
Texas Court of Criminal Appeals. He adopted the dissenting
justice's theory and advanced only one argument: The
evidence was insufficient to sustain his conviction. He did
not argue that counsel's pretrial investigation was
deficient, or present any theory based on ineffective
assistance of counsel. The court denied discretionary review.
still proceeding pro se, sought state habeas relief. His
petition cited only Cause No. 1349025, the attempted
aggravated robbery offense. Among other arguments, he
contended that counsel failed to investigate the case before
trial. The trial court recommended denying habeas relief. Its
report adopted the state's proposed findings of fact and
conclusions of law. The trial court's report rejected
Adekeye's ineffective assistance arguments, finding no
deficient performance or prejudice. Based on the trial
court's findings, the Court of Criminal Appeals denied
Adekeye's state habeas petition without a hearing or
still proceeding pro se, sought habeas relief in U.S.
District Court. His petition again cited only Cause No.
1349025, the attempted aggravated robbery offense. He
continued to argue that counsel failed to investigate the
case before trial. The district court denied relief and
granted the state's motion for summary judgment. It held
that "Adekeye fails to allege, and the record fails to
show, evidence that trial counsel's investigation and
interviews would have uncovered or how that evidence would
have changed the trial outcome." The district court
denied a certificate of appealability (COA).
appealed to this court. We granted a COA on
"Adekeye's claim that counsel rendered ineffective
assistance by failing to conduct an adequate
investigation." We denied a COA on all other
issues. We appointed counsel to assist Adekeye
under the circuit's pro bono program and deeply
appreciate counsel's able representation.
habeas features an intricate procedural blend of statutory
and caselaw authority.
starters, our review is limited by the COA. "COAs are
granted on an issue-by-issue basis, thereby limiting
appellate review to those issues alone." And when
assessing a denial of habeas relief, "we review the
district court's findings of fact for clear error and its
conclusions of law de novo."
the Antiterrorism and Effective Death Penalty Act of 1996,
state prisoners face strict procedural requirements and a
high standard of review.We may not grant habeas relief to a
state prisoner "unless . . . the applicant has exhausted
the remedies available in the courts of the State" or
state process is absent or ineffective. "The
exhaustion requirement is satisfied when the ...