2020-09-23

#people/A/Anaya/David #event/Federal/Appeal #attorney/Bailey-Rus

United States Court of Appeals for the Fifth Circuit No. 18-11203

David Abram Anaya, Petitioner—Appellant, versus Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent—Appellee.

Appeal from the United States District Court for the Northern District of Texas USDC No. 2:15-CV-234

Before Barksdale, Haynes, and Willett, Circuit Judges.
Don R. Willett, Circuit Judge:

David Anaya was charged with murder and aggravated assault. He
rejected the State’s plea deal and opted instead for a jury trial. He didn’t deny
that he shot the victim. He insisted instead that he fired in self-defense. But
Anaya’s lawyer did not tell Anaya that, because he was a felon in possession
of a weapon, the jury could consider his failure to retreat under Texas law.
So now Anaya brings a habeas claim for ineffective assistance of counsel. The
district court denied Anaya relief. Because of the rigorous deference we owe
the state court’s judgment on collateral review, we AFFIRM.

I Late one night in Potter County, Texas, a group of five teenagers heard gunshots as they were leaving a club. They ran to their car, where they found a man, beaten and bloody, leaning up against it. One of the teens threw the man off the car so they could leave.

David Anaya left the same club at about the same time. He noticed a
crowd in the parking lot and saw “flashes of a gun in the air.” A group was
“pounding on somebody with their feet.” Anaya went to investigate. By the
time Anaya got close enough to the scene, he found his brother on the ground,
brutally beaten, wounded, and bleeding. Anaya gathered his brother, put him
in the front seat of his car, and put his brother’s gun in the console. Anaya
wanted to leave before police arrived because he was on parole.

While driving down Amarillo Boulevard, Anaya pulled up alongside
the car full of teens from the club. One of the teens testified that Anaya
accused them of attacking his brother. Anaya says that the front passenger in
the other car was making “aggressive gestures” and that someone in the back
seat pointed a gun at Anaya through the window. Anaya then fired his
brother’s gun at them, he claims, in self-defense. One of the teen passengers
was struck in the temple and died. The police recovered a black toy gun from
the teenagers’ car, but the owner of the toy gun denied having brandished it.

An investigator testified that the toy gun resembled a semi-automatic gun—
its blue and orange coloring had been scratched off to make it look real.
The State offered Anaya a plea bargain: 30 years for murder and 15
years for aggravated assault. Anaya did not deny the underlying facts in the
indictment but claimed he was acting in self-defense. So Anaya’s discussions
with his lawyer, Rus Bailey, centered on the viability of a self-defense claim at
trial. That was Anaya’s only defense. The State provided Bailey with a list of
Anaya’s convictions and made clear it planned to use those convictions at trial
to enhance Anaya’s punishment. Because of those prior convictions, at the
time of the shooting, Anaya was a felon in possession of a firearm. This meant
that the jury could consider Anaya’s failure to retreat in evaluating the
reasonableness of his actions.1

The jury convicted Anaya of both assault and felony murder. He was
sentenced to 40 and 99 years, respectively. Anaya appealed, and the state
intermediate appellate court affirmed. The Texas Court of Criminal Appeals
refused Anaya’s petitions for review. And he did not seek certiorari from the
Supreme Court of the United States.

Anaya pursued an ineffective assistance of counsel claim in three state
habeas proceedings, the last dismissed as successive. The TCCA denied
relief, and the Supreme Court denied certiorari.2 All of Anaya’s state habeas
petitions were denied without written orders. Anaya applied to the federal
district court for habeas relief.3 The district court adopted the magistrate
judge’s written findings, conclusions, and recommendation—the only
written opinion in Anaya’s habeas proceedings—and denied a Certificate of
Appealability. We granted Anaya a COA on one issue: Anaya’s ineffective
assistance of counsel claim that his counsel misdescribed the law of self-
defense, which impaired Anaya’s ability to make an informed decision on the
viability of his only defense and the State’s plea offer.

II When a state court denies a habeas application without a written order—as is the case here—that decision is an adjudication on the merits subject to deference under 28 U.S.C. § 2254(d). 4 When a district court denies a § 2254 application, we review the district court’s findings of fact for clear error and its conclusions of law de novo, “applying the same standard of review to the state court’s decision as the district court.”5 We also review mixed questions of law and fact de novo.6

To obtain relief under § 2254(d), Anaya must establish that the state
court’s adjudication of his claim “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 “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

III

The Sixth Amendment right to counsel extends to the plea-bargaining
process, where defendants are “entitled to the effective assistance of
competent counsel.”8 In fact, we have “observed that providing counsel to
assist a defendant in deciding whether to plead guilty is ‘one of the most
precious applications of the Sixth Amendment.

’”9 That’s because the
overwhelming majority of federal and state convictions are the result of guilty
pleas.10 The Supreme Court has repeatedly reminded us that, because our
criminal justice system has become “for the most part a system of pleas, not
a system of trials,” the “critical point for a defendant” is often plea
negotiation, not trial.11 And because “horse trading between prosecutor and
defense counsel determines who goes to jail and for how long,” plea
bargaining “is not some adjunct to the criminal justice system; it is the
criminal justice system.”12

Anaya’s ineffective assistance of counsel claim—based on Bailey’s
advice at plea bargaining—is governed by the two-part test established in