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Click here for the full text of this decision FACTS:In May 1998, Kathyanna Nguyen, the murder victim, lived with Tony Tostado behind her grocery store in North Houston. Tostado owned a restaurant next door to the grocery store. On the afternoon of May 17, 1998, Tostado ate lunch with Nguyen and then went to his restaurant to clean up. Shortly thereafter, Julian Gutierrez stopped by the grocery store to get some gas. Gutierrez entered the store to pay and heard someone say, “Give me all your money.” Gutierrez looked up and saw a man pointing a gun at Nguyen’s chest. When the robber saw Gutierrez, he turned and pointed the gun at him. Gutierrez ran from the store. As Gutierrez ran, the robber fired the gun at him, hitting him in the shoulder. Hearing several more gunshots, Gutierrez turned to see the robber shooting at Nguyen. Gutierrez later identified Johnny Ray Conner as the robber. Hearing gunshots, Tostado hurried over to the store. Although Tostado attempted to grab the assailant, the man was able to run away. Tostado then saw Nguyen on the floor bleeding profusely. He immediately called 911. While he was on the phone, Tostado saw the fleeing suspect again. Other individuals who were outside nearby businesses saw the assailant as he fled the grocery store. For example, Agnes Hernandez, who was stopped at a nearby intersection in her vehicle, decided to follow the robber to see where he went. Hernandez never saw the suspect’s face but stated that the suspect ran fast for more than a block. At the scene, Tostado and several others entered the store to help Nguyen. The police also discovered a juice bottle on the floor near the counter from which they recovered Conner’s fingerprint. When the investigation of the crime narrowed to focus on Conner, Conner’s photograph was included in a photo spread of suspects shown to witnesses. Three separate witnesses identified Conner from the photo spread. Conner turned himself in to the Harris County Jail on June 17, 1998. Conner was convicted of capital murder for intentionally killing Nguyen by shooting her with a deadly weapon during the commission or attempted commission of a robbery. At the punishment phase of the trial, the state offered evidence of Conner’s prior offenses, while the defense offered evidence from family members about Conner’s troubled upbringing. The jury returned a death sentence, and the trial court sentenced Conner to death. The Court of Criminal Appeals (CCA) affirmed Conner’s conviction and sentence on Sept. 21, 2001. Conner filed a state habeas petition, alleging, among other things, ineffective assistance of counsel. Conner argued that, while several witnesses noted that the suspect ran very quickly for some distance from the scene of the crime, he could not run easily because of a leg injury in 1996 that caused him to limp on his right side. He also urged that he could not have committed the crime, because none of the witnesses noted that the assailant limped. He contended in state habeas proceedings that his trial attorneys were ineffective for failing to discover this exculpatory information. His trial lawyers Ricardo Rodriguez and Jonathan Munier submitted affidavits to the court, explaining that while they knew Conner had injured his leg, he never mentioned any continuing problems with it and neither of them noticed that Conner limped. The state court found that Conner’s attorneys were credible, that they fulfilled their duty as his counsel and that the attorneys had a reasonable trial strategy. The CCA affirmed the lower court. On Dec. 10, 2002, Conner filed a timely petition for writ of habeas corpus in the U.S. District Court in the Southern District of Texas. Conner again alleged ineffective assistance of counsel for his lawyers’ failure to discover his condition, known as “foot drop.” Conner’s federal habeas petition included several exhibits that were not attached to his petition for state habeas relief, including general information about foot drop and medical records. The district court ordered an evidentiary hearing on Conner’s ineffective assistance of counsel claim based on his leg injury and his lawyers’ alleged failure to investigate. At the evidentiary hearing, Dr. Jeffery Gaitz, a board-certified neurologist, testified that Conner’s medical records indicated that he had ongoing nerve damage that still affected his movements in September 1999. Next, the district court heard testimony from Conner’s trial attorneys. Rodriguez stated that Conner told him about his leg injury, saying “I broke my leg, but I’m fine now. I went for therapy.” Munier testified that Conner did not tell him of his leg injury and walked in front of the jury at his original trial every day without the gait that Conner displayed at the evidentiary hearing. Conner testified that he could not run in May 1998. He stated that he told his trial attorneys this on several occasions, but they refused to discuss the issue. He said that Rodriguez told him that the limp had no relevancy to the case. Based on this evidence, the district court found that the state courts’ application of Strickland v. Washington, 466 U.S. 668 (1984) was objectively unreasonable, because the behavior of counsel in not investigating Conner’s medical condition was deficient and prejudicial. The district court granted him habeas corpus relief. HOLDING:Reversed and rendered. First, because Conner did not diligently develop the factual basis for his habeas claim in state court, the court held that the federal district court improperly granted an evidentiary hearing under 28 U.S.C. �2254(e)(2). The court stated it would determine whether Conner received ineffective assistance of counsel under the two-prong test of Strickland. The first prong of Strickland, the court stated, requires Conner to show that his attorneys rendered deficient performance in failing to conduct an adequate investigation in preparing for the guilt/innocence phase of the trial by not investigating Conner’s medical records to determine that he had a limp. The second prong of Strickland, the court stated, requires Conner to show a reasonable probability that the outcome of the proceeding would have been different if counsel’s performance had been sufficient. Conner argued that if his attorneys had argued that he had a limp in front of the jury, the outcome of the trial would likely have been different. But Conner, the court stated, failed to show prejudice resulting from his counsel’s alleged deficiency in not reviewing his medical history. Conner’s attack on his trial attorneys, the court noted, failed to lessen the impact of the other evidence against him, including his fingerprints on a bottle near the register of the grocery store and his identification by three witnesses, including one whom he had just shot. The surplus of other evidence, the court stated, prevents Conner from being able to establish prejudice. Therefore, the court held that the district court erred in granting Conner habeas corpus relief. OPINION:Stewart, J.; Wiener, Benavides and Stewart, J.J.

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