by Dale Chappell

Finding that defense counsel’s failure to interview the State’s key eyewitness in a Louisiana murder case constituted ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), the U.S. Court of Appeals for the Fifth Circuit affirmed the U.S. District Court for the Middle District of Louisiana’s grant of habeas corpus relief and ordering a new trial, despite the state courts denying relief without any reasoned opinion.

George Hughes has been in prison since 2004 for killing his daughter Amy’s boyfriend, Drew Hawkins. The murder happened after Amy called her father and said that Hawkins had attacked her, so Hughes went to her house to confront Hawkins with a gun. There was no question that Hughes shot and killed Hawkins; instead, the question was exactly how it happened, i.e., Hughes’ intent at the moment of the actual shooting. Hughes was charged with second-degree murder, and his defense was that he didn’t intentionally shoot Hawkins—the gun accidentally went off as the two men struggled for it.

Hughes’ version of events was confirmed by a forensic expert, who concluded that the evidence supports a scenario in which Hughes and Hawkins struggled and the gun went off when Hawkins grabbed it. But there were two eyewitnesses who claimed that Hawkins was backing away from Hughes with his hands raised when Hughes shot him. The first eyewitness, his own daughter, was found to be unreliable when her sister testified at trial that Amy had her back to the incident and didn’t see the shooting. There were also reports that Amy was threatened by Hawkins’ family.

And the second eyewitness, Sandra Allen, the State’s key and only impartial witness, also testified that she saw Hawkins backing away from Hughes before he was shot. But her testimony didn’t match her initial statement to the police that she was inside her house when she heard the gunshot and only then went outside to investigate. When confronted at trial, the eyewitness said that in the stress of the moment she must have transposed the sequence of events in her initial statement to police and maintained that she was outside and witnessed the fatal shooting. Hughes was convicted by a non-unanimous jury.

Following the verdict, trial counsel learned that on the night of the shooting Allen gave a television interview in which she seemed to state that she was inside her apartment at the time of the shooting. Counsel moved for a new trial, but the trial court denied the motion, stating that she could “not imagine” how a witness who testified at trial could be considered newly discovered evidence. The court sentenced Hughes to life in prison without the possibility of parole.

After all his appeals were rejected, Hughes filed for state postconviction relief, claiming ineffective assistance of counsel (“IAC”) because trial counsel never interviewed Allen before trial. The court held two hearings and postconviction counsel found yet another witness: Allen’s roommate, Lee, who testified that they were both inside their apartment during the shooting and witnessed Allen go outside only after they heard the gunshot. Trial counsel also testified that he was wrong for not interviewing Allen, because he would have discovered Lee and discredited the State’s only credible eyewitness against Hughes. Importantly, trial counsel testified that his failure to interview Allen at any time was not a strategic decision.

Despite those two hearings and the court commissioner’s findings supporting IAC, the state court denied relief without providing any reasoning. The state appellate court did the same, and the Louisiana Supreme Court entered a one-page order that Hughes hadn’t met the IAC criteria established by the U.S. Supreme Court in Strickland without providing any further explanation.

Hughes then filed a federal habeas petition under 28 U.S.C. § 2254, again raising the same IAC claim. The U.S. District Court referred Hughes petition to a magistrate judge, who concluded that trial counsel’s failure to investigate and interview Allen was not reasonable and that counsel’s deficient performance prejudiced Hughes at trial. The District Court adopted the findings, ruled that the state court’s “ultimate legal conclusion was objectively unreasonable,” and granted relief by ordering a new trial.

The State appealed the grant of relief, arguing that the state courts were owed “deference” under the Antiterrorism and Effective Death Penalty (“AEDPA”). Under § 2254(d), a federal court cannot grant habeas relief unless the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts” presented. The “clearly established Federal law” in this case is Strickland, which held that IAC requires showing (1) counsel’s representation fell below an “objective standard of reasonableness” and (2) the error was “prejudicial to the defense.”

The Court stated that where a state court correctly identifies the governing federal law, as in the present case, the state court decision may still be “an unreasonable application” of the law if it “applies [the law] unreasonably to the facts of a particular prisoner’s case.” Williams v. Taylor, 529 U.S. 362 (2000). Importantly, the U.S. Supreme Court has instructed that an “unreasonable application” means more than just merely wrong but that the state court decision is “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86 (2011).

The Court noted that the fact the Louisiana Supreme Court did not explain its reasoning does not affect its review. Federal courts are required to “determine what arguments or theories could have supported the state court’s determination” and evaluate “each ground supporting the state court decision.” Shinn v. Kayer, 141 S. Ct. 517 (2020); Wetzel v. Lambert, 565 U.S. 520 (2012). This is indeed a high bar to overcome, made even more difficult by the fact that the Strickland “inquiry is highly deferential to counsel” and AEDPA requires deference to the state court, making review “doubly deferential.” Anaya v. Lumpkin, 976 F.3d 545 (5th Cir. 2020) (quoting Strickland); see also Knowles v. Mirzayance, 556 U.S. 111 (2009).

The Court found that trial counsel’s performance was deficient because he failed to make any attempts to interview Allen, the State’s key eyewitness—thereby satisfying the first prong of Strickland. “Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary,” the Strickland Court instructed, citing the American Bar Association standards on attorney conduct.

Describing Allen as “the cornerstone” of the State’s case, the Court said she was a “particularly promising investigation lead” trial counsel should have pursued. The Court rejected that counsel’s cross-examination of Allen at trial, no matter how effective it was, could have cured the error—moreover, it’s possible that the cross-examination could have been improved had counsel investigated and interviewed Allen beforehand. See Bryant v. Scott, 28 F.3d 1411 (5th Cir. 1994). Additionally, the Court stated that in Bryant it found deficient performance where, like in the present case, trial counsel failed to interview two eyewitnesses who could identify the defendant as the perpetrator, explaining that the defense might have been strengthened through better pretrial investigation and that a reasonable lawyer would have done so. Because trial counsel in the present case similarly failed to investigate a critical eyewitness, Hughes’ trial counsel’s performance was likewise deficient, the Court concluded.

The Court discussed and rejected all potential reasons for Hughes’ trial counsel’s failure to investigate and interview Allen. It determined that there was no reasonable argument that counsel satisfied Strickland’s deferential standard of adequate performance and ruled that the state court’s determination otherwise was an unreasonable application of Strickland.

As for the prejudice prong of Strickland, or showing a difference in the outcome, Hughes had an additional burden. With a failure-to-investigate claim, a habeas petition must also allege with specificity what the investigation would have revealed and how it would have altered the outcome of the trial. United States v. Green, 882 F.2d 999 (5th Cir. 1989). Hughes argued that interviewing Allen would have revealed two critical pieces of evidence: (1) Allen’s television interview and (2) Lee’s conflicting story. The Court agreed and ruled that “no fairminded jurist could conclude that the failure to introduce Lee’s testimony would not have ‘undermine[d] confidence in the outcome.’” Strickland.

The Court stated: “AEDPA sets a high bar but not an insurmountable one. The Louisiana courts’ denial of relief to Hughes is on of the rare ‘extreme malfunctions in the state criminal justice system’ that we are obligated to correct.” Dunn v. Reeves, 141 S. Ct. 2405 (2021).

Accordingly, the Court affirmed the District Court’s grant of habeas relief and grant of a new trial. See Hughes v. Vannoy, 7 F.4th 380 (5th Cir. 2021). 

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