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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 02-10373
_____________________
MOISES MONDRAGON CATALAN,
Petitioner-Appellee,
versus
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellant.
Appeal from the United States District Court
for the Northern District of Texas

_________________________________________________________________
December 18, 2002
Before JOLLY, DUHÉ and WIENER, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Janie Cockrell ("Cockrell") appeals the district court's grant
of habeas relief to Moises Catalan ("Catalan"). Cockrell argues
that the district court erred in adopting the magistrate judge's
finding that Catalan's trial counsel and initial appellate counsel
rendered ineffective assistance and in granting habeas relief
previously denied by the Texas courts. We affirm the judgment of
the district court.
I.
Catalan and his brother Felipe were charged with aggravated
assault stemming from an altercation with members of the Navarro
1

family, during which Felipe shot Robert Navarro. Catalan and
Felipe were jointly represented by Joe Montemayor ("Montemayor")
until the day of trial, at which time the district court judge
became concerned that Montemayor's representation of both Catalan
and Felipe presented a conflict of interest. Because of this
concern, the judge appointed Thomas Grett ("Grett") to represent
Catalan. Grett did not request the ten-day preparation period for
appointed counsel that is provided under Article 1.051(e) of the
Texas Code of Criminal Procedure.1 Instead he consulted with
Catalan and Montemayor for less than an hour before proceeding to
trial. He conducted no investigation and was apparently unaware of
facts and evidence helpful to Catalan's defense. In conducting the
trial, Grett relied on the decisions of Montemayor. Because of
this reliance and his ignorance of the facts of the case, Grett did
not impeach the victim on cross examination with prior inconsistent
testimony that Catalan was a mere bystander to the assault.
Catalan was subsequently convicted of aggravated assault. On
direct appeal, Catalan's appellate counsel did not raise the issue
of Grett's failure to request the ten-day preparation time.
Catalan did raise the issue in his state habeas petition. The
state court denied habeas relief without issuing a written opinion.
Catalan raised the issue in his federal habeas petition, which was
1 "An appointed counsel is entitled to 10 days to prepare for
a proceeding but may waive the preparation time with the consent of
the defendant in writing or on the record in open court."
2

referred to a magistrate judge. After conducting an evidentiary
hearing, the magistrate entered his findings which the district
court adopted.
II.
We review findings of fact for clear error and issues of law
de novo using the same standards as the district court. Barrientes
v. Johnson, 221 F.3d 741, 750 (5th Cir. 2000). The Antiterrorism
and Effective Death Penalty Act ("AEDPA") provides that a federal
court may only grant habeas relief if the state court decision
under review "was contrary to or involved an unreasonable
application of clearly established federal law." 28 U.S.C. §
2254(d)(1). The clearly established federal law that sets the
standard for ineffective assistance claims is Strickland v.
Washington, 466 U.S. 668 (1984).
III.
To establish ineffective assistance under Strickland, a
petitioner must show that his lawyer's performance was deficient
and that the deficient performance prejudiced his defense.
Applying this standard, the district court found that Grett
provided ineffective assistance by failing to request the ten-day
extension, failing to procure his client's consent to the waiver of
the ten-day period, and relying solely on information provided to
him by Montemayor.
For essentially the same reasons given by the magistrate judge
and adopted by the district court, we agree that Grett's
3

performance was clearly deficient and prejudicial to Catalan.1
However, the ultimate question is whether the district court
can grant relief in this case that was denied by the Texas courts.
AEDPA provides that a federal court may only grant habeas relief if
the state court decision denying relief "was contrary to or
involved an unreasonable application of clearly established federal
law." 28 U.S.C. § 2254(d)(1).
The Texas court did not refer to Strickland at all in denying
habeas relief. This could be an indication that the court either
acted contrary to or misapplied clearly established federal law.
However, we have held that under the deferential standard of AEDPA,
we review only the state court's decision, not its reasoning or
written opinion, to determine whether it is contrary to or a
misapplication of clearly established federal law. Neal v.
Puckett, 286 F.3d 230, 246 (5th Cir. 2002)(en banc). "We have no
authority to grant habeas corpus relief simply because we conclude,
in our independent judgment, that a state supreme court's
application of Strickland is erroneous or incorrect." Id. at 236.
If the Texas court identified Strickland as the applicable federal
law in this case, we must determine whether the decision resulting
from the state court's application of federal law was an
unreasonable misapplication of the law. Id.
1 Because we find ineffective assistance with respect to
Grett, we do not reach the issue of appellate counsel's
performance.
4

Assuming that the Texas court applied Strickland in denying
relief in this case, we find that its application of Strickland was
objectively unreasonable.1 Grett failed to request the ten days
provided by statute to prepare for trial; therefore, he was unaware
of and unable to introduce evidence in favor of Catalan. Most
importantly he relied entirely on the decisions of Montemayor, an
attorney with a clear conflict of interest who had been removed
from representing Catalan. We agree with the district court that
"considering the conflicting evidence adduced at trial and the
complainant's prior inconsistent statement that the jury never
heard, there can be no doubt the petitioner was prejudiced by the
deficient performance of his trial attorney." Grett's failure to
prepare for trial, his reliance on conflicted counsel, and his
resulting failure to introduce evidence favorable to his client
presents such a clear case of deficient performance and prejudice
under Strickland that the Texas court's denial of relief in this
case was an objectively unreasonable application of clearly
established federal law.
For the foregoing reasons, the judgment of the district court
granting habeas relief in this case is
AFFIRMED.
1Because there is no written opinion, we cannot be sure that
the Texas court was applying Strickland. However, the briefs of
the parties to the state court centered around the Strickland
analysis. We assume that the Texas court was aware of and applied
Strickland.
5