Compton v. Director, TDCJ-CID

Filing 26

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 1 Petition for Writ of Habeas Corpus filed by Edward Compton. It is therefore recommended that the petition be denied and dismissed with prejudice. It is further recommended that a certificate of appealability be denied. Signed by Magistrate Judge Don D. Bush on 2/13/2012. (kls, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

EDWARD COMPTON aka
EDWARD JACKSON, #1394318

§

VS.

§

DIRECTOR, TDCJ-CID

§

CIVIL ACTION NO. 4:09cv45

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Petitioner Edward Compton, aka Edward Jackson, an inmate confined in the Texas prison
system, filed this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The
petition was referred for findings of fact, conclusions of law, and recommendations for the
disposition of the case.
Background
Petitioner is complaining about his Cook County conviction for murder, for which he was
sentenced to twenty-five (25) years’ confinement on May 11, 2006. Cause No. 00-341. The jury
judgment was affirmed on appeal. Compton v. State, No. 02-06-00281-CR (Tex. App.–Fort Worth,
December 20, 2007, no pet.). He did not file a petition for discretionary review (PDR). On
November 19, 2008, the Texas Court of Criminal Appeals (CCA) denied his state application for
writ of habeas corpus without written order. Ex parte Compton, App. No. 71,019-01.
In the present federal petition for habeas relief, Petitioner alleges that he is entitled to relief

1

based on the following:
1.

His right to due process was denied due to prosecutorial misconduct when the
prosecutor:
a.

presented false testimony to the grand jury;

b.

withheld grand jury testimony in violation of Brady;

c.

misled the jury;

2.

The indictment was fundamentally defective;

3

The jury instructions were defective;

4.

He was denied effective assistance of counsel when trial counsel:
a.

failed to challenge false testimony during the grand jury hearing;

b.

failed to investigate the grand jury information; and

c.

allowed the prosecutor to mislead the jury.

The Attorney General filed a Response, asserting that Petitioner’s issues are without merit.
Petitioner filed a Reply.
Statement of the Case
The Second Court of Appeals summarized the facts of the case:
During the early morning hours of June 7, 2000, Cassandra Calhoun, who worked
with Raj Ramsinghani at a liquor store in Gainesville, went to Ramsinghani’s small
apartment after work to help him hook up a new VCR. Compton, who had lived with
Calhoun on and off for a few years and considered her to be his common law wife,
showed up at Ramsinghani’s apartment shortly thereafter looking for Calhoun and
intending that she leave with him. After Ramsinghani answered Compton’s knock
on the front door, Calhoun, who was sitting on a bedroom floor, heard Compton
yelling and saw him “swinging with his fists” and “hitting” Ramsinghani.
Ramsinghani did not swing back at Compton; he put his hands up in an attempt to
defend himself from Compton’s blows. As the altercation progressed, Compton and
Ramsinghani moved towards the bedroom and a bathroom just before Compton
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pushed Ramsinghani, causing him to fall backwards into the bathroom and strike the
back of his head on an unknown object. Calhoun did not see Ramsinghani hit the
floor or the object that his head contacted while falling to the floor, but she heard a
noise that sounded like Ramsinghani hit the wall or some other object. After
Ramsinghani fell to the floor, Compton bent over and struck Ramsinghani’s face
multiple times with his fists as Calhoun screamed at him to stop. Compton stopped
hitting Ramsinghani, noticed that there was blood coming out of Ramsinghani’s
ears, and left the apartment before police arrived.
The incident left Ramsinghani in a coma with contusions and bruises on his face and
a fracture to the rear base of his skull that caused a subdural and subarachnoid
hemorrhage. He died ten days later in a Fort Worth hospital. The medical examiner
listed Ramsinghani’s cause of death as craniocerebral trauma due to blunt force
injury of the head – an injury consistent with Ramsinghani’s head moving at a rapid
pace before contacting a hard surface.
The State subsequently indicted Compton for murder, alleging that Compton either
intentionally or knowingly caused Ramsinghani’s death or that, with intent to cause
serious bodily injury, he committed an act clearly dangerous to human life that
caused Ramsinghani’s death. At trial, an investigator testified that his office was
unable to determine the object that Ramsinghani’s head struck as he fell to the floor.
A police officer testified that he responded to a call at Ramsinghani’s address about
one month before the June 7, 2000 incident because Compton had been knocking on
Ramsinghani’s door, had broken one of the apartment’s windows, and was
intoxicated. The officer arrested Compton. Compton testified that he entered the
apartment and pushed Ramsinghani off of him when Ramsinghani “grabbed” him.
Compton agreed that he pushed Ramsinghani, that Ramsinghani hit his head on an
object, and that Ramsinghani died. The jury ultimately convicted Compton of
murder, and this appeal followed.

Compton, No. 02-06-00281-CR, slip op. at 2-3.
Federal Habeas Corpus Relief
The role of federal courts in reviewing habeas corpus petitions by prisoners in state custody
is exceedingly narrow. A person seeking federal habeas corpus review must assert a violation of a
federal constitutional right. Lowery v. Collins, 988 F.2d 1354, 1367 (5th Cir. 1993). Federal habeas
corpus relief will not issue to correct errors of state constitutional, statutory, or procedural law,

3

unless a federal issue is also present. Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 47980, 116 L. Ed.2d 385 (1991); West v. Johnson, 92 F.3d 1385, 1404 (5th Cir. 1996). In the course
of reviewing state proceedings, a federal court does not sit as a super state appellate court. Dillard
v. Blackburn, 780 F.2d 509, 513 (5th Cir. 1986).
The prospect of federal courts granting habeas corpus relief to state prisoners has been further
limited by the Antiterrorism and Effective Death Penalty Act of 1996. The new provisions of
Section 2254(d) provide that an application for a writ of habeas corpus “shall not be granted with
respect to any claim that was adjudicated on the merits in state court proceedings unless the
adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the United
States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” See Williams v. Taylor, 529 U.S. 362,
402-03, 120 S. Ct. 1495, 1517-18, 146 L. Ed.2d 389 (2000); Childress v. Johnson, 103 F.3d 1221,
1224-25 (5th Cir. 1997). The statutory provision requires federal courts to be deferential to habeas
corpus decisions on the merits by state courts. Moore v. Cockrell, 313 F.3d 880, 881 (5th Cir. 2002).
A decision by a state court is “contrary to” the Supreme Court’s clearly established law if it
“applies a rule that contradicts the law set forth in” the Supreme Court’s cases. Williams, 529 U.S.
at 405-06. A federal court’s review of a decision based on the “unreasonable application” test should
only review the “state court’s ‘decision’ and not the written opinion explaining that decision.” Neal
v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc). “Under § 2254(d)(1)’s ‘unreasonable
application’ clause, then, a federal habeas corpus court may not issue the writ simply because that
court concludes in its independent judgment that the relevant state-court decision applied clearly
4

established federal law erroneously or incorrectly.” Williams, 529 U.S. at 411. Rather, that
application must be objectively unreasonable. Id. at 409. The standard is satisfied only if
“reasonable jurists considering the question would be of one view that the state court ruling was
incorrect.” Davis v. Johnson, 158 F.3d 806, 812 (5th Cir 1998) (internal quotation marks and
citations omitted).
The trial court’s factual findings are entitled to a presumption of correctness unless the
petitioner can rebut the presumption with clear and convincing evidence to the contrary. Valdez v.
Cockrell, 274 F.3d 941, 947 (5th Cir. 2001). A federal district court must be deferential to state
court findings supported by the record. See Pondexter v. Dretke, 346 F.3d 142, 149-152 (5th Cir.
2003). A state application that is denied without written order by the Texas Court of Criminal
Appeals, as in the present case, is an adjudication on the merits. Singleton v. Johnson, 178 F.3d 381,
384 (5th Cir. 1999); Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997) (holding a
“denial” signifies an adjudication on the merits while a “dismissal” means the claim was declined
on grounds other than the merits).
Due Process
Petitioner claims that his due process rights were violated. The Due Process Clause provides
the guarantee of fair procedure related to a constitutionally protected interest. Zinermon v. Burch,
494 U.S. 113, 125, 110 S. Ct. 975, 983, 108 L. Ed.2d 100 (1990). Due process guarantees that a
government actor cannot deprive a person of a constitutionally protected interest in life, liberty, or
property without adequate procedural protections. Cleveland Bd. Of Educ. v. Loudermill, 470
U.S.532, 546, 105 S. Ct. 1487, 1495, 84 L. Ed.2d 494 (1985). The key to a procedural due process
claim is whether the petitioner was afforded the quantity of process to which he was constitutionally
5

entitled prior to the deprivation of a protected interest. Id.
Prosecutorial Misconduct
Petitioner claims that his due process rights were violated based on misconduct of the
prosecutor. Claims of prosecutorial misconduct are determined on a case by case basis. Stahl v.
State, 749 S.W.2d 826, 830 (Tex. Crim. App. 1988). Prosecutorial misconduct has been found
where the prosecutor’s actions deliberately violated an express court order and where the
prosecutor’s misconduct was “so blatant as to border on being contumacious.” Id. at 831. It may
also be shown where the prosecutor asks a question that is clearly calculated to inflame the minds
of the jury and is of such a character as to suggest the impossibility of withdrawing the impression
produced. See Huffman v. State, 746 S.W.2d 212, 218 (Tex. Crim. App. 1988).
Where improper prosecutorial argument is asserted as a basis for habeas relief, “it is not
enough that the prosecutor’s remarks were undesirable or even universally condemned.’” Darden
v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2462, 91 L. Ed.2d 144 (1986). Rather, the relevant
question is whether the prosecutor’s comments “so infected the trial with unfairness as to make the
resulting conviction a denial of due process.” Id. In order to constitute a denial of due process, the
acts complained of must be of such character as to necessarily prevent a fair trial. Jones v. Scott, 69
F.3d 1255, 1278 (5th Cir. 1995). Moreover, the burden is on the habeas petition to show a reasonable
probability that, but for the remarks, the result would have been different.1 Id.

1

Counsel’s failure to object to an argument at trial is an indication that it was not
perceived as having a substantial adverse effect. Id.

6

False Testimony Used at Grand Jury Hearing
Petitioner asserts that the prosecutor engaged in prosecutorial misconduct by using false
testimony at the grand jury hearing. However, he does not specify what testimony at the grand jury
hearing was false. Petitioner makes his conclusory assertion, but does not attempt to show the
allegedly false testimony given at the hearing. Federal courts do not “consider a habeas petitioner’s
bald assertions on a critical issue in his pro se petition . . . mere conclusory allegations do not raise
a constitutional issue in a habeas proceeding.” Smallwood v. Johnson, 73 F.3d 1343, 1351 (5th Cir.
1996) (quoting Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983)). Conclusory claims are
insufficient to entitle a habeas corpus petitioner to relief. United States v. Woods, 870 F.2d 285, 288
(5th Cir. 1989); Schlang v. Heard, 691 F.2d 796, 799 (5th Cir. 1982).
A review of the state habeas proceedings shows that Petitioner complained that the
investigator, Mike Morris, gave false testimony to the grand jury. Specifically, Petitioner alleged
that Morris told the grand jury that, although a diligent investigation had been made, the
investigators were unable to determine what object the victim’s head struck as he fell to the floor.
However, at trial, Morris testified that the investigation showed that Petitioner caused the victim’s
death by causing the victim’s head to strike either the wall or the floor. At trial, Morris also said he
did not visit the scene of the murder himself.
William Zimmerer, the foreman of the grand jury, also testified at Petitioner’s trial. He
testified that the grand jury proceedings revealed that the object that the victim’s head struck could
not be identified with certainty. He also said that he understood that Morris had told the grand jury
that he, Morris, had personally visited the murder scene.
In the interest of justice, if this Court assumes that this is the issue that Petitioner intended
7

to bring in the instant petition, his claim is based on speculation. He has not shown the testimony
that was presented to the grand jury. His speculation is presumably based on Zimmerer’s
recollection from six years earlier that Morris told the grand jury that he had visited the crime scene
and that the object upon which the victim’s head struck was not ascertained. Conclusory and
speculative claims are insufficient for habeas relief. Murphy v. Johnson, 205 F.3d 809, 813-14 (5th
Cir. 2000) (habeas petition must plead more than conclusory and speculative allegations of
prosecutorial misconduct for relief); Woods, 870 F.2d at 288; Schlang, 691 F.2d at 799.
Moreover, Petitioner fails to allege that the prosecutor knew that any testimony was false.
To succeed on a prosecutorial misconduct issue, a petitioner must show the materiality of the alleged
false testimony and that the prosecutor knew the testimony was false. Giglio v. United States, 405
U.S. 150, 153-54, 92 S. Ct. 763, 765-66, 31 L. Ed.2d 104 (1972). In this case, Petitioner has failed
to show that Morris’s alleged grand jury testimony was material as the testimony in question related
only to the diligence of the investigating officers in their attempt to determine whether the victim’s
head struck the floor or the wall. Petitioner has also failed to show that the prosecutory knew that
any testimony was false. Petitioner has not shown that he was not afforded the quantity of process
to which he was constitutionally entitled. Loudermill, 470 U.S. at 546, 105 S. Ct. at 1495. This
issue is without merit. It must fail for the additional reason that Petitioner has failed to show that
the state court proceedings resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the United
States, or that the decision was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” Williams, 529 U.S. at 402-03, 120 S. Ct. at 151718; Childress, 103 F.3d at 1224-25.
8

Brady Evidence Withheld
Petitioner next seems to assert that the prosecutor withheld grand jury testimony in violation
of Brady. In Brady v. Maryland, the Supreme Court held “that the suppression by the prosecution
of evidence favorable to an accused upon request violates due process where the evidence is material
either to guilt or to punishment.” 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed.2d 215 (1963).
The prosecution “need not disgorge every piece of evidence in its possession . . . [but] has an
affirmative duty to disclose to the defense evidence that is favorable to the accused and material to
guilty.” Rector v. Johnson, 120 F.3d 551, 558 (5th Cir. 1997). In addressing a Brady claim, the Fifth
Circuit has explained that a defendant must prove:
(1) the prosecution suppressed evidence;
(2) the suppressed evidence was favorable to the defense; and
(3) the suppressed evidence was material to the defense.
Derden v. McNeel, 938 F.2d 605, 617 (5th Cir. 1991). The test for materiality is whether there is a
“reasonable probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” Id. The materiality of the evidence is evaluated in light of
the entire record. See Lagrone v. State, 942 S.W.2d 602, 615 (Tex. Crim. App. 1997). The Fifth
Circuit also requires that a petitioner show that discovery of the allegedly favorable evidence was
not the result of a lack of due diligence. Rector,120 F.3d at 558. The state does not have a duty to
disclose information that is available from other sources. Id. at 559. Additionally, the mere
possibility that a piece of information might have helped the defense does not establish materiality
in the constitutional sense. Id. at 562.
Again, Petitioner has failed to present specifics concerning the alleged material withheld in
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violation of Brady. In his state habeas proceedings, he asserted error based on his speculation as
to the content of Morris’s testimony to the grand jury, which was inconsistent with Zimmerer’s trial
testimony of his recollection of grand jury proceedings from six years earlier. The inconsistency
between Morris’s and Zimmerer’s testimony at trial – that Morris visited the crime scene personally
and that the victim’s head struck either the wall or the floor – does not show that Morris presented
false testimony to the grand jury. Inconsistencies in witnesses’ testimony at trial are to be resolved
by the trier of fact, and do not suffice to establish that certain testimony was false. Little v. Butler,
848 F.2d 73, 76 (5th Cir. 1988).
Moreover, Petitioner has not shown that the evidence is material to guilt or innocence. The
indictment alleged that Petitioner struck the victim in the head with his hands and caused the
victim’s head to strike an “object unknown to the Grand Jury” that ultimately caused the victim’s
death. At trial, the evidence showed that the investigating officers had been diligent in attempting
to determine what object the victim’s head struck. The evidence that Petitioner complains of relates
only to the State’s showing that the officers were diligent in their investigation. This evidence does
not advance a determination of guilt or innocence – it simply speaks of the sufficiency of the
evidence presented to the grand jury, which is irrelevant at his trial. In other words, Petitioner has
not shown that the alleged Brady evidence was material. Petitioner has also failed to show that there
was a “reasonable probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” Derden, 938 F.2d at 617.

Thus, there is no due process

right violation under Brady because the evidence allegedly withheld was not material. Id. Petitioner
has not shown that he was not afforded the quantity of process to which he was constitutionally
entitled. Loudermill, 470 U.S. at 546, 105 S. Ct. at 1495.
10

Additionally, Petitioner has not shown that the state court proceedings resulted in a decision
that was contrary to, or involved an unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States, or that the decision was based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding. Williams, 529 U.S. at 402-03; Childress, 103 F.3d at 1224-25.
False Representation Concerning Jury Instructions
Petitioner next claims that the prosecutor “lied to the jury about the charge on the jury
instruction.” Petitioner again does not state with any specificity which statements he contends are
improper or untrue. However, a review of his state habeas proceedings shows that he claimed the
prosecutor lied to the jury by stating that Petitioner shoved the victim, which caused the victim to
hit his head.
The record reflects that evidence was presented at trial showing that Petitioner struck the
victim in the face, pushed him to the floor causing him to hit his head on an unknown object, and
then continued to strike him after he fell. The prosecutor’s statements were a summarization of the
evidence, which is permissible during jury argument.

Alejandro v. State, 493 S.W.2d 230, 231

(Tex. Crim. App. 1973) (In Texas, proper argument includes (1) a summation of the evidence, (2)
reasonable deductions or inferences from the evidence, (3) an answer to argument of opposing
counsel, and (4) a plea for law enforcement.)
Moreover, Petitioner raised this issue in his state habeas proceedings, which the Court of
Criminal Appeals denied. A federal district court must be deferential to state court findings
supported by the record. Pondexter, 346 F.3d at 149-152. Furthermore, Petitioner has not show that
the prosecutor’s actions deliberately violated an express court order or that they were “so blatant as
11

to border on being contumacious.” Stahl, 749 S.W.2d at 830. He has not shown that the
prosecutor’s questioning was clearly calculated to inflame the minds of the jury and was of such a
character as to suggest the impossibility of withdrawing the impression produced. Huffman, 746
S.W.2d at 218. Finally, he has not shown that the prosecutor’s questioning and comments “so
infected the trial with unfairness as to make the resulting conviction a denial of due process.”
Darden, 477 U.S. at 181. Essentially, the prosecutor summarized the evidence, which is permissible
argument. Alejandro, 493 S.W.2d at 231.
Petitioner has failed to demonstrate due process violations based on prosecutorial
misconduct. He has not shown that he was not afforded the quantity of process to which he was
constitutionally entitled. Loudermill, 470 U.S. at 546, 105 S. Ct. at 1495. Further, he is not entitled
to relief because he has not shown, as required by 28 U.S.C. § 2254(d), that the State court findings
resulted in a decision that was contrary to, or involved an unreasonable application of, clearly
established federal law as determined by the Supreme Court of the United States, or resulted in a
decision that was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceedings. Williams, 529 U.S. at 402-03; Childress, 103 F.3d at 122425. Accordingly, his petition should be dismissed.
Defective Indictment
Petitioner asserts that he was denied due process because the allegations in the indictment
were not supported by grand jury testimony. Initially, the Court notes that a defective indictment
does not deprive a court of jurisdiction, and a defect in the indictment does not deprive a court of its
power to adjudicate a case. United States v. Cotton, 535 U.S. 625, 630-31, 122 S. Ct. 1781, 1785,
152 L. Ed.2d 860 (2002). The sufficiency of a state indictment is appropriate for federal habeas
12

corpus relief only when it can be shown that the indictment is so defective that it deprives the
convicting court of jurisdiction. Williams v. Collins, 16 F.3d 626, 637 (5th Cir. 1994). State law
dictates whether a state indictment is sufficient to confer a court with jurisdiction. Id. The Fifth
Circuit has held that the district court is “required to accord due deference to the state’s interpretation
of its own law that a defect of substance in an indictment does not deprive a state trial of
jurisdiction.” McKay v. Collins, 12 F.3d 66, 69 (5th Cir. 1994), cert. denied, 513 U.S. 854, 115 S.
Ct. 157, 130 L. Ed.2d 95 (1994).
Petitioner’s state application for writ of habeas corpus was denied without written order by
the Texas Court of Criminal Appeals, and constitutes an adjudication on the merits. Singleton, 178
F.3d at 384; Torres, 943 S.W.2d at 472 (holding a “denial” signifies an adjudication on the merits
while a “dismissal” means the claim was declined on grounds other than the merits). The denial
constitutes a rejection of his defective indictment complaint. When it denied the state writ, it
necessarily found that the indictment conferred jurisdiction on the trial court and that the indictment
was sufficient. He has not shown that he was not afforded the quantity of process to which he was
constitutionally entitled. Loudermill, 470 U.S. at 546, 105 S. Ct. at 1495.
Furthermore, federal district courts exceed their “powers in dismissing an indictment for
prosecutorial misconduct not prejudicial to the defendant.” Bank of Nova Scotia v. United States,
487 U.S. 250, 254, 108 S. Ct. 2369, 2373, 101 L. Ed.2d 228 (1988). Additionally, “errors before the
grand jury will often be deemed harmless if the defendants were subsequently and properly convicted
before an impartial petit jury.” United States v. Flores, 56 F.3d 319, 328 (1st Cir. 1995). Once a
defendant has been found guilty at trial, “the petit jury’s verdict of guilty beyond a reasonable doubt
demonstrates a fortiori that there was probable cause to charge the defendants with the offenses for
13

which they were convicted.” United States v. Mechanik, 475 U.S. 66, 67, 106 S. Ct. 938, 940, 89
L. Ed.2d 50 (1986). Petitioner has not stated a basis for federal habeas relief. McKay, 12 F.3d at
68. He also has not shown that the state court proceedings resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States, or that the decision was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding. Williams, 529 U.S. at
402-03, 120 S. Ct. at 1517-18; Childress, 103 F.3d at 1224-25.
Jury Charge
Petitioner claims that the jury charge in his case was fundamentally defective. When
examining this type of complaint, the question is whether the jury instruction, by itself, rendered the
trial fundamentally unfair, thus denying the defendant due process. Estelle v. McGuire, 502 U.S. 62,
72, 112 S. Ct. 475, 482, 116 L. Ed.2d 385 (1991). Error is deemed harmless unless the petitioner
can show that it had “substantial and injurious effect” or influence in deciding the jury’s verdict.
Pyles v. Johnson, 136 F.3d 986, 993 (5th Cir. 1998). Where there is overwhelming evidence of a
defendant’s guilt, habeas relief must be denied, even in cases where trial counsel failed to object to
a jury instruction that would warrant automatic reversal under state law even without an objection.
Moawad v. Anderson, 143 F.3d 942, 946 (5th Cir. 1998); Lewis v. Procunier, 746 F.2d 1073 (5th Cir.
1984). In examining habeas claims of improper jury instructions, the inquiry is “whether there was
prejudice of constitutional magnitude.” Sullivan v. Blackburn, 804 F.2d 885, 887 (5th Cir. 1986).
In the instant case, Petitioner fails to state how the jury charge was defective, or how the
alleged error rose to a “constitutional magnitude.” Id. Accordingly, it is conclusory and should be
dismissed. Conclusory claims are insufficient to entitle a habeas corpus petitioner to relief. Woods,
14

870 F.2d at 288; Schlang, 691 F.2d at 799. At trial, overwhelming evidence of Petitioner’s guilt was
presented – that Petitioner came to the victim’s residence, struck him many times, pushed him,
which caused him to fall and hit his head on an unknown object, and which ultimately caused his
death. Accordingly habeas relief must be denied. Moawad, 143 F.3d at 946. Furthermore, the CCA
considered this issue in Petitioner’s state habeas proceedings and denied relief. It necessarily found
that there was no error in the jury charge in light of the trial as a whole that so infected procedure that
Petitioner was denied an impartial trial. See, e.g., Ex parte Maldonado, 688 S.W.2d 114, 116 (Tex.
Crim. App. 1985). Petitioner has not shown that the state court proceedings resulted in a decision
that was contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States, or that the decision was based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding. Williams, 529 U.S. at 402-03; Childress, 103 F.3d at 1224-25.
Ineffective Assistance of Counsel
Petitioner asserts that he is entitled to relief based on several instances of ineffective
assistance of counsel.
Legal Standard
A petitioner who seeks to overturn his conviction on the grounds of ineffective assistance of
counsel must prove his entitlement to relief by a preponderance of the evidence. James v. Cain, 56
F.3d 662, 667 (5th Cir. 1995). In order to succeed on a claim of ineffective assistance of counsel, a
petitioner must show that “counsel’s representation fell below an objective standard of
reasonableness,” with reasonableness judged under professional norms prevailing at the time counsel
rendered assistance. Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2065, 80 L.
15

Ed.2d 864 (1984). The standard requires the reviewing court to give great deference to counsel’s
performance, strongly presuming counsel exercised reasonable professional judgment. 466 U.S. at
690, 104 S. Ct. at 2066. The right to counsel does not require errorless counsel; instead, a criminal
defendant is entitled to reasonably effective assistance. Boyd v. Estelle, 661 F.2d 388, 389 (5th Cir.
1981). See also Rubio v. Estelle, 689 F.2d 533, 535 (5th Cir. 1982); Murray v. Maggio, 736 F.2d
279 (5th Cir. 1984). Secondly, the petitioner “must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Petitioner must “affirmatively prove,” not just
allege, prejudice. Id., 466 U.S. at 693, 104 S. Ct. at 2067.

If he fails to prove the prejudice

component, the court need not address the question of counsel's performance. Id., 466 U.S. at 697,
104 S. Ct. 2052.
Failure to Challenge False Testimony Given to Grand Jury
Petitioner first claims that he is entitled to relief based on ineffective assistance of counsel
because his trial counsel failed to challenge the false testimony that was given to the grand jury. He
again fails to provide specific allegations concerning the false testimony. Conclusory claims are
insufficient to entitle a habeas corpus petitioner to relief. Woods, 870 F.2d at 288; Schlang, 691 F.2d
at 799.
This Court has already determined that Petitioner has presented no evidence of false
testimony being given to the grand jury. Presumably, Petitioner is complaining here of the
inconsistency between Morris’s and Zimmerer’s testimony. However, the record shows that trial
counsel attempted to impeach the credibility of Morris’ testimony with Zimmerer’s testimony. Thus,
16

Petitioner has not shown deficient performance.
The evidence presented at trial included substantial eye-witness and expert testimony
identifying Petitioner as the perpetrator, that he struck the victim, pushed him to the ground, and
continued to strike him in the head, and caused the victim’s death. Accordingly, even if deficient
performance was shown, Petitioner has failed to show prejudice. Morris’s testimony to the grand
jury was not material to Petitioner’s guilt or innocence. He has failed to prove that there is a
reasonable probability that, but for counsel’s alleged unprofessional errors, the result of the
proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Petitioner
has also failed to show that the state court proceedings resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States, or that the decision was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding. Williams, 529 U.S. at
402-03; Childress, 103 F.3d at 1224-25.
Failure to Obtain Grand Jury Information
Petitioner asserts that his counsel was ineffective for failing to “make a serious effort to
obtain the grand jury information.” A defendant who alleges a failure to investigate must allege with
specificity what the investigation would have revealed and how it would have altered the outcome
of the trial. Gray v. Lucas, 677 F.2d 1086, 1093 (5th Cir. 1982).
Petitioner has failed to state with specificity what information his trial counsel should have
investigated or obtained, or how it would have altered the outcome of his trial. Id. A review of the
record reveals that trial counsel filed discovery requests relating to the grand jury testimony. Thus,
the record contradicts Petitioner’s assertion. He has failed to show deficient performance or prove
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that there is a reasonable probability that, but for counsel’s alleged unprofessional errors, the result
of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. He
has also failed to show that the state court proceedings resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States, or that the decision was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding. Williams, 529 U.S. at
402-03; Childress, 103 F.3d at 1224-25.
Failure to Object to the Prosecutor’s Jury Argument
Petitioner complains that his counsel was ineffective for allowing the prosecutor to mislead
the jury. A failure to object does not constitute deficient representation unless a sound basis exists
for objection. See Emery v. Johnson, 139 F.3d 191, 198 (5th Cir. 1997) (a futile or meritless
objection cannot be grounds for a finding of deficient performance). Even with such a basis,
however, an attorney may render effective assistance despite a failure to object when the failure is
a matter of trial strategy. See Burnett v. Collins, 982 F.2d 922, 930 (5th Cir. 1993) (noting that a
failure to object may be a matter of trial strategy as to which courts will not second guess counsel).
Failure to make frivolous objections does not cause counsel’s performance to fall below an objective
level of reasonableness. See Green v. Johnson, 160 F.3d 1029, 1037 (5th Cir. 1998). On habeas
review, federal courts do not second-guess an attorney’s decision through the distorting lens of
hindsight, but rather, the courts presume that counsel’s conduct falls within the wide range of
reasonable professional assistance and, under the circumstances, that the challenged action might
be considered sound trial strategy. Strickland, 466 U.S. at 689.
This Court first notes that Petitioner has failed to specify which statements by the prosecutor
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were false or misleading. Based on a review of his claims in his state habeas proceedings, he
challenged the prosecutor’s closing argument, “you find the Defendant guilty of the greatest offense
that he’s guilty of . . . . You don’t hold him guilty of some lesser conduct just because he’s guilty of
that conduct . . . . And that’s what we’ll be asking you to do in this case.” The prosecutor’s
statements were pleas for law enforcement, which is a proper jury argument. Alejandro, 493 S.W.2d
at 231. Additionally, the prosecutor’s statement that Petitioner shoved the victim was also proper
jury argument as it was a summation of the evidence. Id. Because the prosecutor’s comments were
proper jury arguments, an objection would have been futile. Koch v. Puckett, 907 F.2d 524, 527 (5th
Cir. 1990) (counsel not required to make futile motions or objections). Thus, trial counsel cannot
be found ineffective for failing to object. Petitioner has also failed to prove that there is a reasonable
probability that, but for counsel’s alleged unprofessional errors, the result of the proceeding would
have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Likewise, he has not shown
that the state court proceedings resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme Court
of the United States, or that the decision was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding. Williams, 529 U.S. at 402-03;
Childress, 103 F.3d at 1224-25.
Conclusion
In each of his ineffective assistance of counsel claims, Petitioner has failed to demonstrate
a reasonable probability that the result of the trial would have been different, but for counsel’s
strategy. He has not show that counsel’s performance was deficient or that he was prejudiced.
Further, federal habeas corpus relief will not issue to correct errors of state constitutional, statutory,
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or procedural law, unless a federal issue is also present. Estelle, 502 U.S. at 67-68, 112 S. Ct. 475,
479-80, 116 L. Ed.2d 385 (1991); West v. Johnson, 92 F.3d 1385, 1404 (5th Cir. 1996). In all of
his claims, Petitioner has failed to show error or that the state court proceedings resulted in a
decision that was contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States, or that the decision was based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.” Williams, 529 U.S. at 402-03, 120 S. Ct. at 1517-18; Childress, 103 F.3d at 1224-25.
Accordingly, his petition should be denied and dismissed.
Certificate of Appealability
An appeal may not be taken to the court of appeals from a final order in a habeas corpus
proceeding “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C. §
2253(c)(1)(A).

Although Petitioner has not yet filed a notice of appeal, it is respectfully

recommended that this Court, nonetheless, address whether he would be entitled to a certificate of
appealability. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (A district court may sua
sponte rule on a certificate of appealability because “the district court that denies a petitioner relief
is in the best position to determine whether the petitioner has made a substantial showing of a denial
of a constitutional right on the issues before the court. Further briefing and argument on the very
issues the court has just ruled on would be repetitious.”).
A certificate of appealability may issue only if a petitioner has made a substantial showing
of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained
the requirement associated with a “substantial showing of the denial of a constitutional right” in
Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 1604, 146 L. Ed.2d 542 (2000). In cases
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where a district court rejected a petitioner’s constitutional claims on the merits, “the petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Id.; Henry v. Cockrell, 327 F.3d 429, 431 (5th Cir. 2003). “When a
district court denies a habeas petition on procedural grounds without reaching the petitioner’s
underlying constitutional claim, a COA should issue when the petitioner shows, at least, that jurists
of reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.” Slack, 529 U.S. at 484.
It is respectfully recommended that reasonable jurists could not debate the denial of the
Petitioner’s § 2254 petition on procedural grounds, nor find that the issues presented are adequate
to deserve encouragement to proceed. Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S. Ct. 1029,
134, 154 L. Ed.2d 931 (2003) (citing Slack, 529 U.S. at 484). Accordingly, it is recommended that
the Court find that Petitioner is not entitled to a certificate of appealability as to his claims.
Recommendation
It is therefore recommended that the petition be denied and dismissed with prejudice. It is
further recommended that a certificate of appealability be denied.
Within fourteen (14) days after receipt of the magistrate judge's report, any party may serve
and file written objections to the findings and recommendations contained in the report.
A party's failure to file written objections to the findings, conclusions and recommendations
contained in this Report within fourteen days after being served with a copy shall bar that party from
de novo review by the district judge of those findings, conclusions and recommendations and, except
on grounds of plain error, from appellate review of unobjected-to factual findings and legal
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.

conclusions accepted and adopted by the district court. Douglass v. United States Auto Ass'n, 79
F.3d 1415, 1430 (5th Cir. 1996) (en banc).
SIGNED this 13th day of February, 2012.
.

____________________________________
DON D. BUSH
UNITED STATES MAGISTRATE JUDGE

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