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Adekeye v. Davis

United States Court of Appeals, Fifth Circuit

September 13, 2019

ADEDJI O. ADEKEYE, Petitioner-Appellant,
v.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee.

          Appeal from the United States District Court for the Southern District of Texas

          Before Clement, Haynes, and Willett, Circuit Judges.

          Don R. Willett, Circuit Judge:

         In this 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[1] or other clearly established federal law. The district court was correct to deny habeas relief, and we AFFIRM.

         I

         Police 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.

         The 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 Adekeye.

         Meanwhile, 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 passenger.

         The 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 single case.

         Before 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.

         In 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.

         After a 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.

         Adekeye 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."[2] 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 investigation.

         Adekeye took a direct appeal. Texas's Fourteenth Court of Appeals affirmed his conviction.[3] 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.

         Adekeye, 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.

         Adekeye, 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 further reasons.

         Adekeye, 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).

         Adekeye appealed to this court. We granted a COA on "Adekeye's claim that counsel rendered ineffective assistance by failing to conduct an adequate investigation."[4] We denied a COA on all other issues.[5] We appointed counsel to assist Adekeye under the circuit's pro bono program and deeply appreciate counsel's able representation.

         II

         Federal habeas features an intricate procedural blend of statutory and caselaw authority.

         A

         For 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."[6] 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."[7]

         Under the Antiterrorism and Effective Death Penalty Act of 1996, state prisoners face strict procedural requirements and a high standard of review.[8]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.[9] "The exhaustion requirement is satisfied when the ...


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