Dewberry, Stedmon, WR-83,308-01

Background

Stedmon Montrel Dewberry was convicted of murder after a jury trial on Nov. 3, 2011 and sentenced to 50 years' confinement; the conviction and sentence were affirmed on appeal.
Central factual dispute at trial: who fired the fatal shot to victim Latasha Antwine — Dewberry (fired a 9mm) or Brioni Dansby (fired a .40 caliber).
Trial counsel did not retain or call a ballistics expert; counsel later stated the principal reason for not doing so was the Dewberry family's inability to afford an expert.
Post-conviction habeas petition (filed May 2014, amended July 2014) alleged ineffective assistance of counsel for that omission and sought testing of ballistic evidence.
The trial court authorized scientific testing; a retained ballistics expert (Richard Ernest) determined State's Exhibit 66 (CSE-2) was a .40 caliber bullet and removed biological material, and Cellmark Forensics reported that the trace material produced a partial DNA profile consistent with an unknown female.
The district court has set and rescheduled habeas hearings, ordered further testing/analysis and sought additional time to make findings of fact and conclusions of law while DNA comparison testing is pursued.

Issues

Issue	Plaintiff's Argument (Dewberry)	Defendant's Argument (State)	Held
1) Whether trial counsel was ineffective for failing to consult/retain a ballistics expert	Failure to retain expert was deficient performance; counsel admitted not hiring an expert for cost reasons	Implied defense: prior proceedings upheld conviction; State previously relied on available ballistic/forensic evidence at trial	District court found the habeas claim merits a hearing and ordered post-conviction testing and proceedings (no final habeas disposition yet)
2) Whether ballistics/DNA testing of Exhibit 66 creates a reasonable probability of a different outcome	Expert testing showed Exhibit 66 is .40 caliber and contains female DNA — undermines verdict that Dewberry fired fatal shot	State had argued at trial and in closing that Exhibit 66 was from Dansby but maintained the verdict; may contest probative value or chain/interpretation	Court authorized testing and ordered the State to attempt comparative DNA analysis; testing results deemed sufficiently relevant to warrant further proceedings
3) Whether counsel's economic reason (not hiring expert for lack of funds) excuses deficient performance	Economic inability does not excuse failure; retained counsel still has duty — Briggs and federal precedent support deficiency where counsel declines experts for cost	State may assert strategic decision or that no prejudice shown at trial	Court treated the economic excuse as legally cognizable fact to be considered; ordered factual development (hearing) rather than summarily rejecting claim
4) Procedural: Whether district court may delay findings while additional forensic testing is attempted	Dewberry requests testing and comparison to victim's DNA (if available) to show prejudice	State to attempt to obtain comparative samples and report feasibility/timeline	District court requested extension to produce findings until DNA testing feasibility and results are determined; court set hearings and deadlines for State to report on comparative testing feasibility

Key Cases Cited

Williams v. Thaler, 684 F.3d 597 (5th Cir.) (failure to obtain ballistics/forensics experts can constitute deficient performance)
Draughon v. Dretke, 427 F.3d 286 (5th Cir.) (trial counsel ineffective for failing to obtain forensic examination of bullet path)
Soffar v. Dretke, 368 F.3d 441 (5th Cir.) (ineffective assistance where counsel failed to consult a ballistics expert and physical-scene evidence was central)
Strickland v. Washington, 466 U.S. 668 (Sup. Ct.) (establishing prejudice standard for ineffective-assistance claims)
Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App.) (attorney may be ineffective where expert not retained for economic reasons)