Drousche v. Cockrell

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50411
Summary Calendar
SHANE EDWARD DROUSCHE,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. A-99-CV-593-SS
--------------------
March 25, 2002
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Shane Edward Drousche, Texas prisoner # 750819, appeals from
the district court's denial of his 28 U.S.C. § 2254 petition for
writ of habeas corpus in which he challenges his conviction for
murder. Drousche argues that his trial counsel, Lawrence
Schaubhut, was burdened by unconstitutional conflicts of interest
which adversely affected his representation because he did not call
as witnesses Beth Pearson, Scott Pearson, and Michelle Pearson.
Drousche asserts that the Pearsons were former or current clients

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of Schaubhut at the time of trial, and they could have impeached
the state's eye witness, Michael Dear-Kelly, by testifying that
Dear-Kelly told them he was too drunk on the night of Drousche's
fight with the victim, C.W. Dean, to know what happened or to
remember the events of the fight the next day. The district court
granted Drousche a certificate of appealability on this issue, and
we now affirm.
The respondent contends that Drousche failed to exhaust his
factual allegations in state court because the state habeas court
refused to consider two supporting exhibits upon which Drousche
relies. Assuming, without deciding, that Drousche failed to
properly present the exhibits to the state court or exhaust his
claims based on the exhibits, we may affirm the denial of habeas
relief on the merits. See 28 U.S.C. § 2254(b)(2).
Drousche argues that Schaubhut referred to all three of the
Pearsons as his clients and that because of an actual conflict we
must presume prejudice. Prejudice is presumed if it is shown that
an attorney's actual conflict of interest adversely affected his
performance. See Cuyler v. Sullivan, 446 U.S. 335, 348 (1980).
The presumed prejudice standard applies to cases involving multiple
representation. Perillo v. Johnson, 205 F.3d 775, 797 (5th Cir.
2000). We conclude based on the record that only Beth Pearson was
Schaubhut's former client, having been represented by him in a
divorce action 25 years prior to trial. We conclude that Drousche
has failed to show an actual conflict involving Beth Pearson or
that such a conflict adversely affected Schaubhut's representation
of Drousche. Id. at 781-82. An affidavit from Dear-Kelly executed

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No. 01-50411
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in 1999 reveals that on the day after Drousche's fight with Dean,
Dear-Kelly spoke with Scott Pearson, not Beth Pearson, about his
intoxication.
With respect to Scott and Michelle Pearson, Drousche must show
both that Schaubhut rendered deficient performance and that the
deficient performance prejudiced his case. Strickland v.
Washington, 466 U.S. 668, 697 (1984). We conclude that Drousche
has failed to show that Schaubhut rendered deficient performance or
that there is a reasonable probability that but for Schaubhut's
failure to call Scott or Michelle Pearson to impeach Dear-Kelly,
the result of his trial would have been different. Id. at 694.
The record shows that Dear-Kelly admitted in his testimony that he
was drunk and that Schaubhut cross-examined Dear-Kelly about his
intoxication. Dear-Kelly's 1999 affidavit does not state that he
told Scott Pearson that he was so drunk that he could not see the
fight or remember its details. The affidavit also does not state
that Dear-Kelly's trial testimony was incorrect or inaccurate.
Finally, in addition to testimony from Dear-Kelly, the jury had a
written confession from Drousche describing the brutal nature of
the assault and medical evidence showing that the cause of death
was a combination of blows as a result of being hit and kicked in
the face and head.
The district court's judgment is AFFIRMED.

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