661 F. 2d 388 - Boyd v. W J Estelle

James Louis Boyd appeals from the district court's dismissal of his petition for a writ of habeas corpus. On appeal, Boyd asserts that he was denied the right to effective assistance of counsel because his trial attorney failed to call an alibi witness who would have supported his alibi defense.1 We agree with the district court that Boyd is not entitled to relief.

On October 2, 1975, Boyd and four accomplices entered the Robert Hall clothing store on Greenville Avenue in Dallas, Texas, shortly after 6:00 p. m. Boyd demanded that Robert Kane, the store manager, hand over all the money in the store. Although Kane offered no resistance to Boyd's demand and gave Boyd the money in the cash register and safe, Boyd kicked and punched Kane during the course of the robbery, and, apparently dissatisfied with what he described as "chicken feed," pistol whipped Kane both before and after Boyd forced Kane to lie face down on the floor, knocking him unconscious. All the participants exited the store but were apprehended shortly thereafter.

At trial in Texas state court, Boyd relied upon an alibi defense but was convicted of aggravated robbery. The Texas Court of Criminal Appeals affirmed his conviction on direct appeal, Boyd v. State, 569 S.W.2d 913 (1978) (mem.), and subsequently denied two petitions for post-conviction relief. He complains that his trial counsel rendered ineffective assistance because he failed to call a witness, John T. Jones, who would have supported Boyd's alibi defense.

The sixth amendment guarantee of the right to counsel requires "not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance." MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir. 1960), adopted on rehearing en banc, 289 F.2d 928 (5th Cir.), cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961) (emphasis in panel decision); Washington v. Watkins, 655 F.2d 1346, 1355 (5th Cir. 1981). Application of this standard to the facts of an individual case involves an inquiry as to whether counsel's actual performance, considered in light of the totality of circumstances in the case, was seriously inadequate and whether counsel's inadequacy prejudiced the fairness of his client's trial. Washington v. Watkins, supra, 655 F.2d at 1356, 1359 n. 23, 1360-64; Washington v. Estelle, 648 F.2d 276, 279 (5th Cir. 1981); Nelson v. Estelle, 642 F.2d 903, 906 (5th Cir. 1981). Each inquiry is distinct from the other, Washington v. Watkins, supra, 655 F.2d at 1359 n. 23, and petitioner bears the burden of demonstrating both an identifiable lapse on the part of his trial counsel and some actual, adverse impact upon the fairness of his trial resulting from that lapse. Washington v. Watkins, supra, 655 F.2d at 1359 n. 23, 1360. Absent sufficient factual proof on both scores, a petitioner can not prevail. We do not believe that Boyd can satisfy either part of this test.

"(C)omplaints of uncalled witnesses are not favored, because the presentation of testimonial evidence is a matter of trial strategy and because allegations of what a witness would have testified are largely speculative." Buckelew v. United States, 575 F.2d 515, 521 (5th Cir. 1978). See also Washington v. Watkins, supra, 655 F.2d at 1363-64. It does not appear that Boyd's trial counsel could properly be blamed for failing to call Jones as an alibi witness. Boyd has asserted that Jones would have testified that Boyd was not a participant in the robbery but has not offered any facts to support his claim that Jones would have offered such testimony, and his allegations in this regard are both conclusory and contradictory.2 Moreover, Boyd has not offered any facts to support his allegation that Jones would have testified at all even if called, a proposition that is highly unlikely in light of the fact that Jones was charged with participating in the same robbery at issue in Boyd's case but was not convicted until after Boyd's trial. See Jones v. State, 565 S.W.2d 934 (Tex.Cr.App.1978). Based upon our analysis of the record, it appears that Boyd's attorney did not call Jones because he did not believe that Jones would have provided testimony buttressing an alibi defense. See Baldwin v. Blackburn, 653 F.2d 942, 947 (5th Cir. 1981). "Defense counsel are not required to close their eyes to the obvious and search for alibis for defendants who would like the assistance of counsel in the fabrication of a defense, for that would be a violation of the ethical standards of the legal profession." United States v. Decoster, 199 U.S.App.D.C. ---, 624 F.2d 196, 240 (D.C.Cir.1979) (en banc) (MacKinnon, J., concurring), cert. denied, 444 U.S. 944, 100 S.Ct. 302, 62 L.Ed.2d 311 (1980). See id. at 244 (MacKinnon, J., concurring). In addition, Boyd was positively identified as a perpetrator of the October 2 robbery by two witnesses, including Kane, as well as by one of his accomplices who testified for the state, Evelyn Clewis. Therefore, Boyd has not proven any fundamental unfairness in his trial necessary to establish prejudice. Washington v. Watkins, supra, 655 F.2d at 1359 n. 23, 1360. Accordingly, because it does not appear that Boyd has shown either a serious default by his trial counsel or any prejudice to the fairness of his trial resulting from this default, his sixth amendment claim is rejected.

AFFIRMED.