The opinion
United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 7, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-50468
JAMES B. TENNY,
Petitioner-Appellee,
versus
DOUG DRETKE, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent-Appellant.
Appeal from the United States District Court
for the Western District of Texas
Before HIGGINBOTHAM, SMITH, and BENAVIDES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
James B. Tenny was convicted in a Texas state court of the
murder of Joyce Mulvey, the woman with whom he was living at the
time. After unsuccessful state habeas proceedings, Tenny turned to
federal court. The federal district court granted habeas relief
based on trial counsel’s failure to adequately investigate and
elicit crucial evidence of self-defense. We affirm.
I
In 1997, Tenny and Mulvey were living together in Blanco,
Texas. Mulvey worked as an attendant at Elder Haus, a residential
facility for the elderly, located on the grounds of Christ of the
Hills Monastery. On May 12, 1997, Tenny and Mulvey had a violent
altercation resulting in Mulvey’s death. The district court below
recounted the facts and state trial testimony surrounding the fight
as follows:
On the night of her death, May 12, 1997,
Joyce Mulvey and Jim Tenny had an argument
over Tenny moving out of their house so he
could have his son come live with him. Tenny
testified he left the room to allow things to
“cool down” and upon returning to the kitchen,
Mulvey attacked him with a gas can. Mulvey
sloshed gasoline into Tenny’s eyes and all
over his body. Tenny further testified he
could hear the clicking of a lighter and saw
Mulvey approaching with a lighter. The fight
escalated from there with Tenny punching
Mulvey to keep her away.
Tenny called 911 at 9:28 p.m. requesting
help because “[his] old lady [wa]s trying,
trying to burn down the house.” According to
Tenny, Mulvey then smashed a platter over his
head, thereby ending the emergency call.
Mulvey continued her attack on Tenny with a
butcher knife and they engaged in a violent
struggle for the knife in which Tenny
sustained several injuries, including a stab
wound to his chest, which collapsed his lung.
Tenny then stabbed Mulvey believing it
necessary to defend his own life and caused
the death of Mulvey.1
On May 14, 1999, a jury found Tenny guilty of murder,
rejecting his contention that the act had been in self-defense.
The court sentenced him to 65 years, rejecting Tenny’s sentencing-
phase mitigation argument--specifically, sudden heat of passion--
which would have capped his sentence at 20 years. The state
1
Tenny v. Cockrell, No. 1:01-CV-409-SS, at 3-4 (W.D. Tex. Apr. 5, 2004)
(unpublished) (citations omitted).
2
appellate court affirmed and Tenny did not seek discretionary
review by the Texas Court of Criminal Appeals.
Tenny filed a state habeas petition arguing, inter alia,
ineffective assistance of counsel (IAC) in developing his claims of
self-defense and mitigation. The state habeas court declined to
grant Tenny’s petition,2 and on April 11, 2001, the Texas Court of
Criminal Appeals denied Tenny’s application without an opinion and
without a hearing.3
Tenny then filed a habeas petition in federal court. The
magistrate judge held an evidentiary hearing and issued a
recommendation. The district court granted relief, holding that
the state court unreasonably concluded that Tenny had not received
ineffective assistance from his trial counsel.4 The State
appealed. Tenny did not file a cross-appeal.
II
We review the district court’s findings of fact for clear
error and its conclusions of law de novo.5 “As claims of
ineffective assistance of counsel involve mixed questions of law
2
See id. at 3. The state court’s findings of fact only made reference to
Tenny’s contention in his habeas petition that his counsel had a conflict of
interest. Id. The court otherwise ignored Tenny’s IAC habeas arguments.
3
See id. at 2.
4
The district court also made rulings adverse to Tenny, concluding that
several affidavits offered at the evidentiary hearing were unexhausted and
rejecting other bases for habeas relief.
5
Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th Cir. 2003); Martinez v.
Johnson, 255 F.3d 229, 237 (5th Cir. 2001).
3
and fact, they are reviewed de novo.”6
A
Under the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), 28 U.S.C. § 2254(d), a writ of habeas corpus will not
issue unless the state habeas court’s adjudication of Tenny’s IAC
claim
(1) resulted in a decision that was contrary
to, or involved an unreasonable application
of, clearly established Federal law, as
determined by the Supreme Court of the United
States; or
(2) resulted in a decision that was based on
an unreasonable determination of the facts in
light of the evidence presented in the State
Court proceeding.7
We focus here on § 2254(d)(1)--that is, on whether the state habeas
court’s decision was an “unreasonable application” of Strickland v.
Washington.8 In making this inquiry we “ask whether the state
court’s application of clearly established federal law was
objectively unreasonable,” and we are mindful that “an unreasonable
application of federal law is different from an incorrect
application of federal law.”9 Further, we are “authorized by
6
Lewis v. Dretke, 355 F.3d 364, 366 (5th Cir. 2003) (per curiam).
7
28 U.S.C. § 2254(d)(1)-(2); see Riddle v. Cockrell, 288 F.3d 713, 716
(5th Cir. 2002); see also Martinez v. Dretke, 404 F.3d 878, 884 (5th Cir. 2005).
8
466 U.S. 668 (1984).
9
Williams v. Taylor, 529 U.S. 362, 409, 410 (2000); see also Rompilla v.
Beard, 125 S. Ct. 2456, 2462 (2005); Brown v. Payton, 125 S. Ct. 1432, 1438-39
(2005).
4
[§] 2254(d) to review only a state court’s ‘decision,’ and not the
written opinion explaining that decision.”10
B
Tenny asserts an IAC claim based on his trial counsel’s
failure to investigate adequately and elicit testimony germane to
Tenny’s theory of self-defense. The law is clear: Tenny’s claim is
measured against the familiar Strickland tandem of deficient
performance and prejudice.11
A deficient performance is conduct beyond the bounds of
prevailing, objective professional standards.12 We accord
substantial deference to counsel’s performance, applying the
“strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.”13
“[E]very effort must be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged
10
Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc); see id.
(“[O]ur focus on the ‘unreasonable application’ test under [§] 2254(d) should be
on the ultimate legal conclusion that the state court reached and not on whether
the state court considered and discussed every angle of the evidence.”).
11
466 U.S. at 687; see also Williams, 529 U.S. at 391 (“It is past
question that the rule set forth in Strickland qualifies as ‘clearly established
Federal law, as determined by the Supreme Court of the United States.’”);
Schaetzle, 343 F.3d at 443-44.
12
Strickland, 466 U.S. at 687-88.
13
Id. at 689 (internal quotation marks and citation omitted); see also
Titsworth v. Dretke, 401 F.3d 301, 310 (5th Cir. 2005).
5
conduct, and to evaluate the conduct from counsel’s perspective at
the time.”14
Prejudice is established by a demonstration of a “reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”15 A reasonable
probability is “a probability sufficient to undermine confidence in
the outcome.”16 “[A] defendant need not show that counsel’s
deficient conduct more likely than not altered the outcome in the
case.”17
In light of the AEDPA, the test for federal habeas purposes is
not merely whether a defendant made the requisite Strickland
showing, but, instead “the test is whether the state court’s
decision--that [a defendant] did not make the Strickland-showing--
was contrary to, or an unreasonable application of, the standards,
provided by the clearly established federal law (Strickland), for
succeeding on his IAC claim.”18 We are persuaded that Tenny has
satisfied the heightened standard prescribed by the AEDPA.
C
We turn first to deficiency. The district court held that,
14
Strickland, 466 U.S. at 689.
15
Id. at 694; see also Williams, 529 U.S. at 391.
16
Strickland, 466 U.S. at 694.
17
Id. at 693.
18
Schaetzle, 343 F.3d at 444.
6
insofar as the state court found no deficiency in counsel’s
performance,19 the state court’s decision was an unreasonable
application of Strickland. The State, in its opening brief, does
not challenge this holding and we thus consider the issue waived.20
In its reply brief, the State argues that it did not waive the
issue because it “is not unusual for IAC analysis” to assume
deficient performance arguendo and to focus on the prejudice prong.
This argument is meritless. While the cases cited by the State
aptly illustrate that we often opt to decide an IAC claim based
solely on one of the two prongs,21 that does not give the State
license to argue one prong to the exclusion of the other and expect
the latter issue not to be waived. Had the State actually
challenged the district court’s holding on the first prong and then
proceeded “arguendo,” it would, of course, be a different matter.
19
The state habeas court denied relief on this IAC claim without
explanation. While we cannot say whether the state court denied the claim for
lack of deficiency or for lack of prejudice, we will assume for purposes of this
analysis that the state court found both to be lacking.
20
See Tharling v. City of Port Lavaca, 329 F.3d 422, 430 (5th Cir. 2003)
(party waived issue by failing to raise it in opening brief); Lockett v. EPA, 319
F.3d 678, 684 n.16 (5th Cir. 2003) (“To the extent that appellants attempt to
raise the issue . . . in their reply brief, we view the issue waived.”); Peavy
v. WFAA-TV, Inc., 221 F.3d 158, 179 (5th Cir. 2000) (“We do not consider any of
[the issues], because they were not raised in the parties’ opening briefs.”);
United States v. Jackson, 50 F.3d 1335, 1340 n.7 (5th Cir. 1995) (“It is
well-settled that, generally, we will not consider issues raised for the first
time in a reply brief.”); see also Nixon v. Epps, 405 F.3d 318, 323 (5th Cir.
2005).
21
See Harris v. Cockrell, 313 F.3d 238, 243 (5th Cir. 2002); Johnson v.
Cockrell, 301 F.3d 234, 239 (5th Cir. 2002); see also Johnson v. Dretke, 394 F.3d
332, 337-38 (5th Cir. 2004) (“Because Johnson has not met the first prong of
Strickland, we need not reach the question of prejudice . . . .”).
7
D
The prejudice here is plain. The district court pointed to
ample unpresented evidence--evidence that would plainly be vital to
Tenny’s success on self-defense. As the district court expressed
it, Tenny did not “elicit any critical testimony supporting Tenny’s
sole defense.”22 His counsel failed to investigate and call
witnesses, including two monks and a nun, and failed to elicit
important testimony from witnesses, including a doctor, who were
called.23
Much of the evidence that never reached the jury, including
evidence of Mulvey’s threats on Tenny’s life, would clearly have
been useful to Tenny’s theory of self-defense by demonstrating that
Tenny had a “reasonable apprehension” and that Mulvey was the
aggressor.24 Specifically, the omitted evidence indicated that
Mulvey threatened to kill Tenny in the days leading up to--and even
22
Tenny, No. 1:01-CV-409-SS, at 16; see also id. at 22 (noting that
Tenny’s lawyer abandoned self-defense).
23
The attorney failed to fully investigate and call Florence Parker and
Mother Seraphima. Id. at 16-18. He investigated but failed to call Father
Benedict and Father Jeremiah. Id. at 19-20. He called but failed to elicit key
testimony from Dr. William Penn, Joseph Swift and Tenny himself. Id. at 20-21.
The district court considered only the missing testimony of these six
individuals--in addition to Tenny himself--because their affidavits were
previously presented to the state court. Id. at 16; cf. id. at 6-13 (declining
to consider declarations of certain other individuals based on lack of
exhaustion). Without offering comment on the court’s decision to restrict its
inquiry, we confine our analysis to the same set of individuals.
24
See, e.g., Tate v. State, 981 S.W.2d 189, 193 (Tex. Crim. App. 1998)
(holding in self-defense case that victim’s prior threat on life of defendant,
even though made two months prior to victim’s death, is probative of defendant’s
reasonable apprehension and victim’s aggression).
8
on the very day of--the fight that resulted in Mulvey’s death;25
Mulvey was “agitated, argumentative, and threatening” on the day of
the fight;26 Tenny was warned on the day of the fight that Mulvey
intended to kill him;27 Mulvey had stabbed Tenny on the Friday
before the fight,28 Mulvey threatened to burn the house down;29
Mulvey exhibited violent tendencies and “was prone to ‘fly into
insane rages’”;30 and Mulvey possessed the strength necessary to
“throw almost any grown man to the ground.”31 A doctor, who did
testify at trial, would have provided additional testimony had
Tenny’s attorney questioned him further. Specifically, he would
have explained that, upon visiting Tenny in the hospital after the
fight,
[Tenny] looked like he had been run over by a
threshing machine. His right eye was black and
25
Tenny, No. 1:01-CV-409-SS, at 16 (“[O]n the day of Mulvey’s death,
Mulvey told Parker ‘[s]he would kill Jim and burn the house down before she would
have any of his kids come and stay or live there, or hi[m] change the status quo
in any way.’”); id. at 19 (Father Jeremiah would have testified “that Mulvey
threatened Tenny by stating ‘I’m gonna kill that son of a bitch, bury him in the
yard and burn the house down’”).
26
Id. at 19 (Father Benedict); see also id. at 18 (Mother Seraphima would
have “testified she spoke with and observed Mulvey hours before her death, and
found her to be ‘absolutely out of control’ and ‘in a rage’” and that Mother
Seraphima “saw Mulvey assault Father Jeremiah and overheard her threaten to ‘burn
the Monastery down’”).
27
Id. at 19-20 (Father Benedict).
28
Id. at 19 (Father Benedict); id. at 21 (Tenny).
29
Id. at 16 (Parker); id. at 19 (Father Jeremiah).
30
Id. at 19 (Father Jeremiah).
31
Id. at 18 (Mother Seraphima); see also id. at 16 (“Parker would have
testified Mulvey possessed surprising physical strength . . . .”).
9
blue, his right ear cut, and there was a tube
coming out of his chest emptying blood from a
punctured lung into a bag on the floor. It was
clear that there had been a violent struggle
in which [Tenny] had nearly lost his life.32
Further testimony from Tenny himself would have indicated that
Tenny was aware of Mulvey’s threats on his life and her other
erratic behavior, and even that Mulvey had stabbed her previous
husband.33
The district court also noted that trial counsel did not
investigate or further utilize these various witnesses.34 For
example, he declined to interview Parker and Mother Seraphima,
believing that the former was incompetent and that the latter had
nothing to offer, despite the frequent contact Mulvey had with
Parker and Mother Seraphima.35
Trial counsel gave as his stated reason for not pursuing
testimony from Father Jeremiah and Father Benedict his concern
about ongoing church sex-abuse-related scandals at the Monastery.
After Mulvey’s death, “Father Jeremiah and Father Benedict were
indicted for what [trial counsel] described as multiple counts of
32
Id. at 20 (Dr. Penn).
33
Id. at 21.
34
See id. at 16-18, 16 n.2, 22-24. As previously mentioned, the State has
not challenged these deficiency holdings on appeal. The only omission that the
State attempts to justify as a legitimate trial strategy is counsel’s refusal to
call individuals associated with the Monastery, discussed below, but that was
only raised in the State’s reply brief and was accordingly waived. We
nonetheless briefly recount the district court’s reasoning.
35
See id. at 16 n.2.
10
indecency with a child” and trial counsel believed that the
Monastery had a poor reputation in the community.36 These are, of
course, legitimate concerns. However, Tenny’s alternatives were
slim, and his attorney himself recognized that the testimony of
Father Benedict and Father Jeremiah “is absolutely essential to the
defense” and that “[i]t’s no secret that our defense is
justification.”37 Furthermore, the district court noted that Tenny
could seek to alleviate the taint by requesting a change of venue,
conducting voir dire of potential jurors to control for bias, or
“apprising himself of the rules of evidence available to prohibit
the State’s attempts to introduce this type of character
evidence.”38 Significantly, nothing implicated the nun in any
misconduct at the Monastery. The fit of her testimony with that of
the priests would have given it support, mitigating any rub-off of
the difficulties at the Monastery.
These decisions by the defense easily were prejudicial. The
jury was unconvinced by Tenny’s proffered assertions of self-
defense. Given the lack of independent eyewitnesses to the fight
resulting in Mulvey’s death, and given that the physical evidence
did not conclusively establish who was the aggressor that night,
the district court noted that “evidence establishing Mulvey was the
36
Id.
37
Id. at 23 (quoting Tenny’s motion for continuance, made on April 30,
1999, two weeks prior to trial).
38
Id. at 23-24 (citing TEX. R. EVID. 608, 609).
11
initial aggressor and Tenny possessed a reasonable apprehension of
imminent death or serious bodily injury is the only evidence which
could have persuaded the jury to accept Tenny’s defense of self-
defense . . . .”39 The powerful omitted testimony would have
painted a very different picture of the deceased on the day she was
killed.
The State argues that Tenny was not prejudiced--that is, that
all of the above witnesses are irrelevant and “[t]he jury was left
with no alternative than to convict Tenny of murder”--because Tenny
had already admitted that his acts were not in self-defense.
Tenny, however, made no such stark admission. The State reaches
its conclusion--that “Tenny himself admitted to the jury that the
murder was not committed in self-defense”--by pointing to Tenny’s
testimony indicating that he gained control of the knife and
stabbed Mulvey multiple times.
Under the State’s view of self-defense, the moment Tenny took
“control” of the knife, he per se could no longer reasonably
believe himself in danger. This is not the law, notwithstanding
the State’s citation to an unpublished decision of an intermediate
Texas appellate court.40 Under Texas Penal Code § 9.32, “deadly
39
Tenny, No. 1:01-CV-409-SS, at 4.
40
See Lebron v. State, 1999 WL 61977, at *3 (Tex. App.--San Antonio 1999).
In fact, this case actually lends support to Tenny’s position, given that the
court only indicates that “even if [the victim] came at [the defendant] with a
knife, once [the defendant] gained control of the knife, the jury could have
found that deadly force was no longer immediately necessary,” not that the jury
must have so found. Id. (emphasis added).
12
force” is justified (1) if the conditions of § 9.31 are met; (2) if
a reasonable person would not have retreated; and (3) “when and to
the degree he reasonably believes the deadly force is immediately
necessary . . . to protect himself against the other’s use or
attempted use of unlawful deadly force.”41
Here, it is clear that a jury could have concluded that Tenny
still reasonably believed that deadly force was immediately
necessary, even after gaining control over the knife. One flick of
the lighter, which was apparently not too far from Mulvey at that
point in the struggle, would have ignited Tenny’s gasoline-soaked
person. Tenny had already received multiple wounds from the knife,
one of which collapsed his lung. Mulvey was persisting in her
attacks and a jury could well credit Tenny with believing Mulvey
had another weapon. Indeed, in this context, the gasoline itself
could be a deadly weapon. In the heat of the fierce struggle, with
all of these events happening within seconds, Tenny’s reasonable
fear of harm did not necessarily vanish the moment he was able to
wrest some measure of control over the knife from Mulvey. The
State’s contrary suggestion is without merit. In other words, it
41
TEX. PENAL CODE § 9.32(a) (emphasis added); see also Holmes v. State, 150
S.W. 926, 933-34 (Tex. Crim. App. 1912) (“[I]t must be apparent that the danger
is passed, or he has reached a place where it is not reasonable for him to have
fear of life or serious bodily injury at the time, before his right of
self-defense would be abridged.”); Crow v. State, 88 S.W. 814, 815 (Tex. Crim.
App. 1905).
In turn, under Texas Penal Code § 9.31, subject to certain exceptions, “a
person is justified in using force against another when and to the degree he
reasonably believes the force is immediately necessary to protect himself against
the other’s use or attempted use of unlawful force.” TEX. PENAL CODE § 9.31(a).
13
does not directly follow from Tenny’s control of the knife and
intent to kill Mulvey with it that the act was not in self-defense.
By definition, self-defense is a justification for an intentional
killing; the key is whether Tenny “reasonably believe[d] the deadly
force [wa]s immediately necessary.”42
Of course, this is not to suggest that a reasonable jury could
not, after being exposed to the omitted evidence, still reject
Tenny’s defense of self-defense. Rather, we merely point out that
the State’s contention that Tenny’s testimony foreclosed a finding
of self-defense is unpersuasive. As such, the omitted testimony is
surely powerful evidence of Mulvey as the aggressor and the
reasonableness of Tenny’s apprehension. This evidence would have
left the jury with a markedly different landscape, and “had the
jury been so confronted, there is a reasonable probability that at
least one juror would have refused to return a verdict of guilty.”43
Indeed, given the veritable absence of support for Tenny’s self-
defense theory, we think there is a substantial probability that
the jury would have returned with a different result, enough so
that our confidence in the outcome is shaken. On these facts, in
light of the “totality of the evidence before the judge or jury”44--
or, more accurately, the lack of self-defense evidence--we are
42
TEX. PENAL CODE § 9.32(a).
43
Soffar v. Dretke, 368 F.3d 441, 479 (5th Cir. 2004).
44
Strickland, 466 U.S. at 695.
14
persuaded that not only was the state habeas court incorrect on the
issue of prejudice, but that its decision that no prejudice ensued
was not a reasonable application of Strickland.
III
In sum, we are persuaded that the state court acted
unreasonably in denying Tenny’s IAC claim as to the guilt phase of
his trial. We need not address Tenny’s argument as to the
sentencing phase. We also need not pause to consider Tenny’s
argument, even assuming that it is properly before us in the
absence of a cross-appeal by Tenny,45 that the district court erred
in its adverse holdings on exhaustion and other bases for habeas
relief.
AFFIRMED.
45
See Moore v. Johnson, 194 F.3d 586, 593 (5th Cir. 1999); see also
Beltran v. Cockrell, 294 F.3d 730, 733 (5th Cir. 2002).
15