Durrell Bester v. Warden, Attorney General of the State of Alabama
2016 U.S. App. LEXIS 16276
| 11th Cir. | 2016Background
- Police surveilled Bester’s home, observed him carrying a small white grocery bag into his mother’s apartment, and later found that bag behind a boombox containing digital scales, 43.5g powder cocaine, and 26.1g crack cocaine. Officers also recovered drug paraphernalia in a suitcase Bester admitted was his and additional drug-related items at his house.
- Bester was tried in Alabama for trafficking in cocaine, failure to affix a tax stamp, and possession of drug paraphernalia; jurors were allowed to submit questions to witnesses during trial.
- Bester did not testify at trial; his trial counsel did not request a no-adverse-inference jury instruction (i.e., an instruction prohibiting jurors from drawing negative inferences from his silence).
- He was convicted on all counts and received life without parole on the trafficking conviction plus additional sentences on the other counts.
- On state collateral review (Rule 32) the trial court denied his ineffective-assistance claim for counsel’s failure to request the instruction; the Alabama intermediate court declined to consider Bester’s pro se brief raising that claim. Federal habeas courts initially adopted a magistrate report that conflated claims and denied relief; the Eleventh Circuit granted a COA on whether counsel was ineffective for failing to request the instruction.
- The Eleventh Circuit concluded the state courts had not adjudicated the specific ineffective-assistance claim on the merits and reviewed the claim de novo under Strickland, ultimately affirming denial because Bester failed to show prejudice given overwhelming evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel was ineffective for failing to request a no-adverse-inference instruction | Bester: counsel’s omission was deficient and likely caused prejudice because the jury could have inferred guilt from his silence | State: even if counsel omitted the request, Bester cannot show the requisite Strickland prejudice given the strong evidence; state courts did not err on the merits | Court: Reviewed de novo (state courts didn’t adjudicate the claim); held Bester failed to prove prejudice under Strickland, so claim fails |
| Whether an evidentiary hearing was required in federal habeas | Bester: hearing could develop facts on counsel’s performance and prejudice | State: no additional facts in record would make a difference; §2254(e)(2) bars a new hearing absent justification for state-court failure to develop facts | Court: No hearing required — petitioner offered no relevant extra-record facts and §2254(e)(2) bars relief |
Key Cases Cited
- Carter v. Kentucky, 450 U.S. 288 (1981) (defendant entitled to requested no-adverse-inference instruction protecting the right to remain silent)
- Lakeside v. Oregon, 435 U.S. 333 (1978) (trial judge may permissibly decline to give a no-adverse-inference instruction over defendant’s objection)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-part test for ineffective assistance: deficiency and prejudice)
- Chapman v. California, 386 U.S. 18 (1967) (harmless-error standard for constitutional trial error)
- United States v. Burgess, 175 F.3d 1261 (11th Cir. 1999) (failure to give requested no-adverse-inference instruction required reversal where evidence was not overwhelming and jury expressed reasonable doubt)
- Harrington v. Richter, 562 U.S. 86 (2011) (reasonableness of counsel’s performance is an objective inquiry; courts must avoid unwarranted second-guessing)
- Hill v. Lockhart, 474 U.S. 52 (1985) (guidance on prejudice inquiry where additional evidence or facts are alleged to affect outcome)
- Holsey v. Warden, Ga. Diagnostic Prison, 694 F.3d 1230 (11th Cir. 2012) (burden on habeas petitioner to prove Strickland deficiency and prejudice)