Opinion
NO. 3-03-CV-0374-K
November 4, 2003
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Gregory Bruce Dunagan, by and through his counsel of record, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be conditionally granted.
I.
Petitioner was convicted of capital murder and sentenced to life imprisonment. His conviction and sentence were affirmed on direct appeal. Dunagan v. State, No. 05-99-01694-CR (Tex.App. — Dallas, Nov. 9, 2000, pet. ref'd). Petitioner also filed an application for state post-conviction relief. The application was denied without written order. Ex parte Dunagan, No. 52, 271-01 (Tex.Crim.App. Oct. 30, 2002). Petitioner then filed this action in federal court.
The state did not seek the death penalty.
II
In his sole ground for relief, petitioner contends that he received ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution. More particularly, petitioner claims that his trial counsel was ineffective for: (1) failing to effectively cross-examine the state's witnesses; (2) not presenting critical alibi evidence to the jury; and (3) failing to object in a timely manner to evidence of an extraneous arrest.
A.
The Sixth Amendment guarantees criminal defendants the effective assistance of counsel. That right is denied when the performance of counsel falls below an objective standard of reasonable professional conduct and thereby prejudices the defense. Yarborough v. Gentry, ___ S.Ct.___, 2003 WL 22382563 at *2 (U.S. Oct. 20, 2003), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Prejudice results when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland, 104 S.Ct. at 2068. See also Lockhart v. Fretwell, 506U.S. 364, 372, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993) (habeas petitioner must show that trial result was unreliable or proceeding fundamentally unfair due to deficient performance of counsel).
Where, as here, a state court has already rejected an ineffective assistance of counsel claim, a federal court may grant habeas relief only if the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law" or was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1) (2); see also Yarborough, 2003 WL 22382563 at *2 (citing cases). The Supreme Court has made clear that the "unreasonable application" prong of section 2254(d)(1) permits a federal habeas court to "grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the petitioner's case." Wiggins v. Smith, ___ U.S.___, 123 S.Ct. 2527, 2534-35, 156 L.Ed.2d 471 (2003), quoting Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). Stated differently, "a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Id., 123 S.Ct. at 2535, quoting Lockyer v. Andrade, 538 U.S. 63, ___, 123 S.Ct. 1166, 1175, 155 L.Ed.2d 144 (2003). In order for a federal court to find the state court's application of Supreme Court precedent "unreasonable," the state court decision must be more than incorrect or erroneous — the application of clearly established federal law must have been "objectively unreasonable." Id., citing Williams, 120 S.Ct. at 1523; see also Gardner v. Johnson, 247 F.3d 551, 560 (5th Cir. 2001).
B.
Petitioner was charged with knowingly and intentionally causing the death of Barkat Ali by shooting him with a firearm while in the course of committing or attempting to commit the offense of robbery. (St. App. Tr. at 2). The shooting occurred shortly after 6:00 a.m. on February 7, 1997, when two African-American men entered the Eagle Mart Food Store, a convenience store in Grand Prairie, Texas operated by Ali and his wife, Ishrat Khan. One of the men, identified in the offense report as "Suspect 1," was approximately six feet tall, weighed 200 pounds, and had a thin mustache. (St. Hab. Tr. at 44). The other man, identified as "Suspect 2," was shorter and wore a bandana across his face. ( Id.). Only two witnesses, Kahn and Vladamir Frank Kubala, Jr., were in the store at the time of the shooting. (St. Trial Tr.-VI at 148). Kubala told the police that the taller suspect "came around the meat counter and stuck a gun in my face[.]'" (Resp. Exh. 11). Kahn, who speaks little English, said that the shorter of the two men demanded money from the cash register while the taller suspect watched from the front of the store. According to Kahn, it was the shorter suspect, not the taller man, who came out from behind the counter and pointed his gun at Kubala. ( Id., Exh. 12). Neither Kubala nor Kahn were able to describe the hair length or hair style of the suspects. (St. Hab. Tr. at 44). However, both witnesses helped the police create composite sketches that were circulated to law enforcement agencies and various media outlets. (St. Trial Tr.-VI at 113, 149-50).
This is a capital offense under Texas law. See TEX. PENAL CODE ANN. § 19.03(a)(2) (Vernon 1994) (a person commits the offense of capital murder if "the person intentionally commits [ ] murder in the course of committing or attempting to commit . . . robbery").
Kahn, a native of Pakistan, speaks Urdu. (St. Trial Tr.-VI at 91).
The investigation remained dormant for nearly 18 months due to the lack of any productive leads. ( Id. at 161). Then, on July 29, 1998, the police received information that pointed to petitioner as a possible suspect. ( Id. at 162-63). Alan T. Patton, the lead investigator, obtained a picture of petitioner as well as five other photographs from the Dallas County Sheriff's Department in order to prepare a photo line-up. ( Id. at 163). Kubala immediately identified petitioner as one of the suspects who robbed the convenience store. ( Id. at 172). Kahn was more tentative, unable to chose between petitioner and another photograph in the line-up. ( Id. at 180). Based on Kubala's positive identification, petitioner was arrested and charged with capital murder. ( Id. at 175).
Another suspect, Marcel Daniel, was also arrested by the police. However, Daniel was subsequently "no-billed" by the grand jury. (Evd. Hrg. Tr. at 61).
The case proceeded to trial on September 14-15, 1999. The state's case rested entirely on the eyewitness testimony of Kubala and Kahn. No fingerprints or physical evidence, other than a shell casing, were found at the crime scene. ( Id. at 154). At trial, Kubala, who lived next door to the Eagle Food Mart, testified that he heard a loud "pop" come from inside the store shortly after 6:00 a.m. on February 7, 1997. ( Id. at 46). Kubala immediately went to the store to investigate the noise. As he approached the meat counter, someone ran past him in a "blur." ( Id. at 52). Kubala then saw a "black male with a little mustache" standing behind the counter. ( Id. at 52, 54). The man pointed a gun at Kubala's head and told him to "[g]et down." ( Id. at 53). Kubala kneeled at the corner of the counter and watched as the man backed out the front door of the store. ( Id. at 57-58, 60). According to Kubala, he had a good view of the suspect for "five to seven seconds." ( Id. at 60). Kubala told the jury there was "no doubt" in his mind he could recognize the person he saw behind the meat counter and proceeded to identify petitioner as the man who pointed a gun at him. ( Id. at 73, 87). When asked how he could remember the suspect, Kubala responded, "It just stuck in my mind. I can think back and remember exactly what happened on the day it happened." ( Id. at 87). Defense counsel did not question this witness, but reserved his right to cross-examination. ( Id. at 89).
Kahn also testified at trial through an interpreter. She said that two African-American men came into her store on the morning of February 7, 1997. Each man had a gun. ( Id. at 97). Kahn stated that one of the men shot her husband from across the counter. ( Id. at 98, 100). The other suspect, who was standing behind the counter near the register, demanded money. ( Id. at 106). Kahn removed the cash drawer and handed it to the second suspect. ( Id. at 107). The man took $200 and left the store. ( Id. at 107-09). After stating that she could identify the person who shot her husband, Kahn initially said that the man was not in court. ( Id. at 100). Upon further questioning by the prosecutor, Kahn identified a spectator in the gallery as the shooter. ( Id. at 104, 106). Defense counsel reserved his right to cross-examination. ( Id. at 114). Just before the state rested its case-in-chief, the prosecutor recalled Kahn and asked if she could identify the man who shot her husband. (St. Trial Tr.-VII at 27). This time, she identified petitioner. ( Id. at 29). Kahn told the jury that she intentionally identified the wrong person in her prior testimony because she was afraid. ( Id. at 28-29). Defense counsel then cross-examined Kahn in an attempt to impeach her in-court identification of petitioner. ( Id. at 30-42). Kahn also was questioned about inconsistencies between her trial testimony and a prior statement given to the police. ( Id. at 42-45). However, counsel never asked Kahn whether any of the suspects wore a bandana or how the police could prepare composite sketches based on her limited description of the suspects. Nor were these issues ever raised with Kubala. Instead, after consulting with petitioner, counsel chose to rest without recalling any witnesses. ( Id. at 50). The jury deliberated for more than five hours before finding petitioner guilty of capital murder as charged in the indictment. (St. Trial Tr.-VIII at 3).
Two police officers, Alan T. Patton and Mark Taddonio, two forensic technicians, Vicki Hall and Sylvia Reyes, and Dallas County Medical Examiner Jeffrey Barnard also testified for the state at trial. However, none of these witnesses linked petitioner to the robbery and shooting.
C.
Petitioner contends that his attorney was ineffective for failing to adequately cross-examine the state's witness. Because the case against him was based entirely on the testimony of Kubala and Kahn, petitioner maintains that counsel should have questioned these witnesses about their limited description of the suspects and the fact that one of the men wore a bandana across his face.
1.
This claim was first raised on collateral review in state court. Among the evidence presented by petitioner was the sworn affidavit of Jay Matthews, a private investigator, who spoke with Kubala and Kahn about their recollections of the robbery and shooting. Kubala told Matthews that he did not see a mask on either suspect and never told anyone that a mask was involved in the crime. However, Kubala acknowledged that the person who ran past him "could have had on a mask." (St. Hab. Tr. at 55). Kahn, on the other hand, said that the man who shot her husband wore "a face mask, a scarf or bandana, covering from under his eyes down." ( Id. at 52). The accomplice did not wear a bandana or mask. According to Kahn, the masked suspect moved toward the door after the shooting while his accomplice came around the counter and demanded money out of the cash drawer. When Kubala entered the store, the masked suspect pulled him inside and pointed a gun at him. Kahn said that she was able to identify petitioner as the man who shot her husband "by his eyes." She stood by that identification in her interview with Matthews. ( Id. at 52-53).
Respondent argues that "anything Kahn purportedly told [Matthews] regarding Dunagan's identity as the man who was wearing the bandana is inadmissible hearsay and incompetent evidence in this proceeding." (Resp. Ans. at 11). Assuming arguendo that Kahn's statements to Matthews constitute hearsay, the state failed to object on that basis in the state habeas court.
Petitioner's attorney, Larry Baraka, also submitted an affidavit to the state habeas court. Baraka explained that he made a strategic decision not to cross-examine any witnesses until the state rested its case-in-chief. (Supp. St. Hab. Tr. at 16). After Khan misidentified one of the courtroom spectators as the shooter, Baraka decided to forego his strategy and asked her to identify the suspect one more time. Khan again pointed to a gentlemen in the audience. Baraka said that he did not question Kubala or Kahn about the bandana worn by one of the suspects because "I felt the state had not met it's [sic] burden of proof." ( Id. at 17). According to Baraka:
[W]ith regards to the issue of the mask, I again felt it was not worth opening up an opportunity for the state to give rebuttal testimony, by going forward on defense, because I felt it was obvious to the jury that the eye-witnesses did not correctly identify the Defendant in open court after repeated attempts to do so. I felt the jury would question her identification.
* * * *
I was aware that the offense report reflected one of the men wore a mask during the robbery. I advised them that I didn't think the state had met it's [sic] burden of proof, in that the only eye-witness mis-identified the Defendant. I advised the family as well as the Defendant, that we could go forward for the defense but that the state would be allowed to bring out the defendants [sic] prior criminal convictions before the jury, if he testified and those convictions could prejudice the jury against, [sic]. I advised them that the Defendant did not have to prove his innocence, but that the state had to convince the jury beyond a reasonable doubt. I further advised them that I thought we should rest, so that if the state had any rebuttal witnesses they could not be called, and based upon the case the state presented, there was a legitimate issue if the state had met it's [sic] burden.
( Id. at 17-18). The state habeas judge, who did not preside over petitioner's trial, accepted Baraka's explanation and found that "counsel was not ineffective in his representation." ( Id. at 14). The Texas Court of Criminal Appeals agreed and denied relief. Ex parte Dunagan, No. 52, 270-01.
2.
Concerned about the sufficiency of Baraka's affidavit and other inconsistencies in the record, this court held an evidentiary hearing on September 18, 2003 to fully explore the factual basis of petitioner's ineffective assistance of counsel claim. At this hearing, Baraka elaborated on his strategy for not questioning Kubala and Kahn about the bandana or their vague descriptions of the suspects. Baraka explained that he reserved cross-examination in order to "lock" the witnesses into their testimony. (Evd. Hrg. Tr. at 10). Although he intended to recall some of the state's witnesses later in the trial, Baraka decided to rest his case without presenting any evidence after Kahn misidentified a spectator in the courtroom as the man who shot her husband. ( Id. at 14-16, 18-19). When asked why he did not question Kahn about the bandana after she changed her testimony and identified petitioner as the shooter, Baraka stated:
Well, probably from the vantage point of the bandana for me didn't hold a lot of relevance in that from talking to my client, okay, he says he wasn't there, looking at the offense report that talks about suspect one and suspect two, the testimony being that Mr. Dunagan was the tallest of the two, the fact that the second suspect was the one with the bandana, which wouldn't have much relevance to my client's situation, I didn't get into that. I really wanted to probably — I did recross her to attempt to find out if she made an error, why now that she recognizes she made that error, and I believe I asked her questions with — she said something, that she was afraid, and I asked if Mr. Dunagan or any member of his family or associates had threatened her or scared her, and she said they had not. So, no, I did not get into the bandana.
( Id. at 21). As for his failure to question Kubala about the bandana, Baraka explained:
Well, I mean, based on what I was hearing, my evaluation was basically that I would not probably going to shake him, that I basically would be reinforcing in the jury [sic] mind his, once again, ability to repeat he's the one. Now, in term — if I might add with regards to that question, that came into play really only as part of my evaluation at the end of the state's case if we were going to go forward or not or close, because had I gone forward, I would have cross-examined him even though he would have been repeating it again.
( Id. at 34). Baraka admitted that he would not have opened the door to rebuttal evidence by cross-examining, rather than recalling, the state's witnesses. ( Id.). He also acknowledged that evidence regarding the bandana and "other problems with the identification" would have been helpful to petitioner and could have been used in closing argument. ( Id. at 24). Still, Baraka decided not to cross-examine Kahn about the bandana or recall Kubala based, in part, on his fear that the prosecutor might present evidence that petitioner bragged about the killing to a jailhouse informant. ( Id. at 45-46). Upon questioning by the court, Baraka offered one last rambling explanation of why he never asked any of the state's witnesses about the bandana:
Well, part of it had to do with the way the trial progressed. As I said before, my first part was just to listen and to see what was what and then put our case forward, recognizing I had no other alternatives, even though I didn't think the defense strategy was going to be that good. I'm not quite sure — well, yeah, when the female eyewitness testified and made the wrong identification, that was such a strong thing that I wanted to get on that immediately and focus with that aspect, so I didn't deal with any of the little nuances that I would have worked with with regards to the bandana, the height-heck, I would have gotten into the lighting of the store, the distance, all of those factors I would have gotten into, but once I got with her and she was pretty consistent about this wrong identification, we rested that day. Then I started thinking, well, here's something that I did not anticipate happening, because in all sincerity, my evaluation of the case was, as I told them, we're in a tight fix here. This eyewitness business, I watch them. They can say it's the man in the moon, and the juries are going to believe them if these people look decent, and reading everything that this person has said in regards to identifying the person, again, I'm going to ask those questions, but I've been in trial. I've asked those questions. Juries aren't going to go with it unless I can come up with something very strong to show some question about their credibility. So that night I'm thinking, well, should I go in and go for it, at least just asking the questions and not call my client, would the state bring back that witness. And, you know, I'm seeing this guy on the witness list, I know he's there, and I'm wondering why they don't bring him out in the beginning.
So my thing is I'm looking to win, I'm not looking just to ask questions to be asking them. Do I think the kind of questions I'm going to ask this guy is going to be significant enough that it's going to raise a jury's sense of doubt? I personally did not, still don't think it would have; but had I been prepared to go forward, I would have asked them because you use everything to see if it will stick, In this instance I had to make a decision, do I even want to reopen and allow the state an opportunity to not only add onto this ID witness, but another human being is going to come in and say from this man's own lips he committed this crime, and, again, with the weak alibi that I had, so that's when I went to Mr. Dunagan. In fact, co-counsel with me came in that morning, and we were kind of laughing because she said, you know, I had an epiphany last night. Why don't we close? I know this is risky. I said, wow, I had that same thought, and I said but here's the problem, you know, we didn't really cross this person, we didn't cross this person, and I'm not too comfortable with that, but I know based on what we know, I'm probably not going to shake these people. Do I really want to risk this? So I decided in talking to him, this is a high-risk thing we're doing. I think the jury may hang. That's what I'm looking at.
( Id. at 63-65).
Patrick Kirlin, the lead prosecutor in the case, also testified at the evidentiary hearing. Kirlin said that he would have called a jailhouse informant to testify against petitioner had he attempted to impeach the identification testimony of the state's witnesses by eliciting evidence that one of the suspects wore a bandana. ( Id. at 69-70). The informant, Dave Spencer, had given a statement to the police implicating petitioner in the robbery and murder of Bakrat Ali. ( Id. at 76-77; see also Resp. Exhs. 13 14). Kirlin further stated that he would have tried to introduce evidence of petitioner's prior aggravated robbery convictions to show a correlation between the older robberies and the instant offense. (Evd. Hrg. Tr. at 70). However, when cross-examined by habeas counsel, Kirlin acknowledged that none of the prior robberies occurred inside a convenience store and may have been inadmissible for that reason. ( Id. at 85).
The prosecutor obtained statements from two jailhouse informants, Spencer and Eldunta Washington. (Resp. Exhs. 13 14). However, only Spencer's statement directly implicates petitioner in the offense. Although Washington recounts his conversations with Spencer and Marcel Daniel about the robbery and shooting, he does not mention any inculpatory statements made by petitioner. ( See Resp. Exh. 14).
3.
Cross-examination is "the greatest legal engine ever invented for the discovery of truth." California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970), quoting 5 J. WIGMORE, EVIDENCE § 1367 (3d ed. 1940). The importance of cross-examination in the American judicial system cannot be overstated. It "sheds light on [a] witness' perception, memory and narration" and "can expose inconsistencies, incompleteness, and inaccuracies in his testimony." See Perry v. Leeke, 488 U.S. 272, 283 n. 7, 109 S.Ct. 594, 601 n. 7, 102 L.Ed.2d 624 (1989), citing 4 J. WEINSTEIN, EVIDENCE ¶ 800[01] (1988). "There are few subjects, perhaps, upon which [the Supreme] Court and other courts have been more nearly unanimous than in the expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal." Miller v. Illinois, 476 U.S. 530, 540, 106 S.Ct. 2056, 2061-62, 90 L.Ed.2d 514 (1986), quoting Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965).
With all due respect to trial counsel and the state habeas court, this court is unable to discern any legitimate tactical reason for not cross-examining or otherwise questioning the only two eyewitnesses to the crime about the bandana worn by one of the suspects. Baraka offers two reasons for his decision to rest without presenting evidence that one of the suspects wore a bandana across his face — it would have opened the door to harmful rebuttal evidence and the bandana was not relevant to his client. Neither explanation is particularly convincing. First, Baraka could have cross-examined Kubala and Kahn during the state's case-in-chief. This would have allowed him to rest without presenting evidence and precluded the state from calling any rebuttal witnesses. In fact, Baraka cross-examined Kahn on a variety of subjects after she changed her prior testimony and identified petitioner as the shooter. However, he inexplicably failed to ask this witness if one of the suspects wore a bandana across his face. Had Baraka effectively cross-examined Kahn, he could have further impeached her already shaky identification testimony by showing that she did not have a clear view of the shooter's face.
Second, the court does not agree that the bandana was irrelevant to petitioner's defense. Although Kubala steadfastly maintained that petitioner did not have a mask, he did not see the other suspect. Nor is it entirely clear that petitioner was the suspect who encountered Kubala. In a statement given to the police shortly after the offense, Kahn indicated that the shorter suspect came out from behind the counter and pointed his gun at Kubala. (Resp. Exh. 12). Kahn later told petitioner's investigator that the suspect who pulled a gun on Kubala wore a bandana or mask. (St. Hab. Tr. at 53). While Baraka pointed out some inconsistencies between Kahn's trial testimony and her prior statement on cross-examination, he never asked any questions about a bandana. As Baraka himself belatedly recognizes, evidence regarding the bandana and "other problems with the identification" would have been helpful to petitioner and could have been used in closing argument. (Evd. Hrg. Tr. at 24).
The only plausible strategy articulated by Baraka for failing to question Kubala and Kahn about the bandana was his fear that the prosecutor might present evidence that petitioner bragged about the killing to a jailhouse informant. ( Id. at 45-46). The court initially notes that Baraka offered this explanation for the first time at the evidentiary hearing on petitioner's federal writ. He never attempted to justify his decision on this ground in the state court proceeding. For that reason alone, his explanation is suspect. Moreover, the statement of this informant is short on details and, in some respects, inconsistent with Kahn's version of the facts. Dave Spencer stated that he met petitioner and Marcel Daniel at a night club two days after the robbery. (Resp. Exh. 13). The three started "partying" at 11:30 p.m. that evening. When Spencer asked petitioner where he got his big diamond ring, petitioner boasted that he and Daniel robbed a store in Grand Prairie of $60,000. Petitioner allegedly said that there were "some Iranian foreign people at the store and that the man was bullshitting and I shot him in the chest or stomach." ( Id.). Sometime later, Spencer saw one of the composite sketches on television and recognized the suspect as petitioner. ( Id.).
As Kirlin readily acknowledged at the evidentiary hearing, Spencer, who had a pending murder charge against him, was not the type of witness he normally would like to present at trial. (Evd. Hrg. Tr. at 77). Nevertheless, Kirlin insists he would have done so had Baraka attempted to inject the bandana into the case. ( Id. at 77-78). The court finds this testimony not credible. Given Kahn's shaky identification of petitioner and other problems with the state's case, there was no reason for the prosecutor not to call Spencer as a witness if he thought there was any chance his testimony would be believed by a jury. It is disingenuous at best to suggest that Spencer was held back by the prosecution in the event that Baraka attempted to elicit evidence about the bandana.
The only viable defense available to petitioner was to somehow impeach the identification testimony of Kubala and Kahn. This defense was seriously compromised when Baraka decided not to question these witnesses about the bandana worn by one of the suspects. While strategic decisions made by counsel after a thorough investigation of the law and the facts are presumed to be reasonable, "Strickland does not require deference to those decision of counsel that, viewed in the light of the facts known at the time of the purported decision, do not serve any conceivable strategic purpose." Moore v. Johnson, 194 F.3d 586, 615-16 (5th Cir. 1999) (citing cases). Baraka's decision to ignore the bandana did not further any legitimate defense strategy. To the contrary, it left Kubala's testimony virtually unchallenged, a fact noted by the prosecutor during closing argument. ( See St. Trial Tr.-VII at 70). This amounts to deficient representation under Strickland and its progeny. See, e.g. Beltran v. Cockrell, 294 F.3d 703, 734-35 (5th Cir. 2002), cert. denied, 123 S.Ct. 871 (2003) (holding that counsel was ineffective for failing to challenge identification testimony of eyewitnesses).
In response to defense counsel's argument that there was a reasonable doubt as to identity, the prosecutor remarked, "I think they're trying to — from their argument, and the lack of cross-examination, that they're conceding everything we have to prove." (St. Hab. Tr.-VII at 70) (emphasis added).
The court further determines that petitioner was prejudiced by this deficient representation. Although Kubala was unwavering in his identification of petitioner, the evidence suggests that he and Kahn may have identified different suspects as the same person before the jury. Kubala testified that a man standing behind the counter pointed a gun at this head and told him to "[g]et down." (St. Trial Tr.-VI at 52-54). In a prior statement, Kubala indicated that this suspect stood 6' 1" or 6' 2" tall and weighed around 200 pounds. (Resp. Exh. 11). Kahn, on the other hand, testified the taller of the two suspects shot her husband from across the counter and retreated to the front door after the shooting. (St. Trial Tr.-VI at 98-100). His accomplice, who was shorter, came around the counter and demanded money from the register. ( Id. at 106-07). Kahn told the police that the shorter suspect, who stood about 5' 8" tall and weighed between 150-160 pounds, pointed a gun at Kubala. (Resp. Exhs. 12 15). In court, Kahn identified petitioner, who stands 5' 10" tall, as the man who shot her husband. (St. Trial Tr.-VII at 29). Thus, it appears that Kubala identified petitioner as the accomplice behind the counter whereas Kahn identified petitioner as the shooter. This conclusion is bolstered by the evidence adduced in the state habeas proceeding. When interviewed by petitioner's investigator, Kubala said that the gunman did not have a mask. (St. Hab. Tr. at 55). However, Kahn stated that the suspect who pointed a gun at Kubala wore a bandana. ( Id. at 53). Evidence that one of the suspects wore a bandana across his face likely would have added to this confusion and greatly enhanced the prospects of a hung jury or an outright acquittal. See Wiggins, 123 S.Ct. at 2543 (federal habeas court may consider both the evidence adduced at trial and the evidence adduced in the state habeas proceeding in determining whether petitioner was prejudiced by deficient performance of counsel).
This might have been a closer case had Baraka adhered to his original trial strategy and not cross-examined any witnesses. Though such a tactic may have been ill-advised, petitioner would have had a more difficult time proving that this strategy was so deficient that it amounted to an objectively unreasonable application of clearly established Supreme Court precedent. However, once Baraka decided to cross-examine Kahn, there was no discernable strategic purpose for not questioning her about the bandana worn by one of the suspects. At a minimum, this important piece of evidence could have been used by defense counsel in closing argument to cast doubt on Kubala's identification testimony. The state habeas court all but ignored this aspect of petitioner's claim, focusing instead on Baraka's original strategy not to cross-examine witnesses until the state rested its case and his subsequent decision not to present evidence due to Kahn's misidentification. ( See Supp. St. Hab. Tr. at 13-14). Because Baraka failed to adequately cross-examine Kahn, thereby leaving Kubala's identification testimony virtually unchallenged, petitioner was deprived of his Sixth Amendment right to effective assistance of counsel under Strickland. Federal habeas relief is proper on this ground.
D.
Petitioner also criticizes his attorney for failing to present evidence to the jury that he was at home with his girlfriend, Dawn Williams, at the time of the offense waiting for a visit from his parole officer. Williams was available to testify at trial as an alibi witness but was never called by the defense. Nor did counsel call petitioner's parole officer, Ken Mosier, who would have confirmed that he made a home visit on February 7, 1997. ( See St. Hab. Tr. at 58-63).
In an affidavit submitted to the state habeas court, Baraka explained that he did not call Williams or Mosier because neither witness could testify that they were with petitioner during the hour of the robbery. (Supp. St. Hab. Tr. at 17). Williams refuted this statement in her own affidavit. According to Williams, petitioner came home at approximately 1:00 a.m. on February 7, 1997 and "remained home continuously after that until at least 8:30 a.m. when I left for work." (St. Hab. Tr. at 58). The state court considered this evidence and found that "[t]he alibi testimony of the live in girlfriend would have been easily attacked for veracity by the State." (Supp. St. Hab. Tr. at 13). Additionally, the court found that "[t]his testimony would have also opened the door to Applicant's prior conviction for aggravated robbery for which he was currently on parole." ( Id.). These were sound tactical reasons for not presenting these alibi witnesses.
Had Ken Mosier been able to confirm that he made a home visit at the exact time the robbery occurred, perhaps counsel would have risked injecting this potentially harmful issue into the case. However, at best, the parole records show only that Mosier met with petitioner sometime on February 7, 1997. (St. Hab. Tr. at 63).
E.
Finally, petitioner contends that trial counsel was ineffective for failing to object in a timely manner to evidence of an extraneous arrest. At issue is the testimony of lead investigator Alan T. Patton. On direct examination, the prosecutor asked Patton what actions he took after learning that petitioner was a potential suspect in the case. Patton responded:
I came to the Dallas County Sheriff's Department and obtained a photograph of the defendant, as well as a number of other photographs from the Dallas County Sheriff's Department arrest files for the purpose of preparing a six-picture photo line-up.
(St. Trial Tr.-VI at 163). Defense counsel did not object to this testimony. However, when Patton later testified that the photographs obtained from the Dallas County Sheriff did not fit the photo line-up card used by the Grand Prairie Police Department, counsel objected as follows:
MR. BARAKA: Off. Patton — Your Honor, Off. Patton has been testifying in this court for a long time. He knows what he's doing is improper and that it is wrong. Any reference with regards to what those pictures are, how they came to be, is improper, and we'd ask to have a hearing outside the presence of this jury to discuss these particulars.
THE COURT: I didn't understand him going into that subject matter.
MR. BARAKA: Your Honor, his whole conversation —
THE COURT: I don't think it was a physical explanation.
MR. KIRLIN: That was my understanding, Your Honor.
THE COURT: We're not going into the background of the pictures.
MR. BARAKA: Your Honor, he's already done this. He's emphasized for this jury. For people who are under arrest, who have been arrested. What is the suggestion of that, but the defendant and other people, or past arrestees where they've gotten photographs. It doesn't take a rocket scientist to understand what's happened. We object.
( Id. at 166-67). The objection was overruled and Patton continued with his testimony about the photo line-up. No further mention was made regarding the source of the photographs.
The court agrees that counsel should have objected when Patton initially testified that he obtained petitioner's photograph from the Dallas County Sheriff's Department. However, in view of the trial court's ruling on his subsequent objection, it is not at all clear that the objection would have been sustained. Nor has petitioner demonstrated prejudice as a result of this isolated error. Accordingly, this ground for relief should be overruled.
RECOMMENDATION
The murder of Barkat Ali was both tragic and senseless. However, federal courts must be "ever vigilant in ensuring that the constitutionally guaranteed rights of defendants in habeas corpus cases are not violated in substantial and injurious ways." Shaw v. Collins, 5 Fu.3d 1-28, 133 (5th Cir. 1993). The record in this case establishes that petitioner was deprived of his Sixth Amendment right to effective assistance of counsel when his attorney failed to adequately cross-examine the only two eyewitnesses to the crime. Accordingly, petitioner's application for writ of habeas corpus should be conditionally granted. The writ should issue unless petitioner is retried within 90 days after these findings are approved by the district judge.