Prater v. Director, TDCJ-CID

Filing 16

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 1 Petition for Writ of Habeas Corpus filed by Tommy Loyd Prater, Jr. It is therefore recommended that the petition be denied and the case dismissed with prejudice. It is further recommended that a certificate of appealability be denied. Signed by Magistrate Judge Don D. Bush on 7/30/2012. (kls, )

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

TOMMY LOYD PRATER, JR., #1462451

§

VS.

§

DIRECTOR, TDCJ-CID

CIVIL ACTION NO. 4:09cv632
Consolidated with 4:09cv633,
4:09cv634,
4:09cv635,
4:09cv636,
4:09cv637,
4:09cv638,
and 4:09cv639

§

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Petitioner Tommy Loyd Prater, Jr., an inmate confined in the Texas prison system,
proceeding pro se, filed petitions for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The
petitions were referred for findings of fact, conclusions of law and recommendations for the
disposition of the case.
Background
Petitioner is challenging his Fannin County convictions. He was convicted and sentenced
to two twenty-year sentences for indecency with a child, five twenty-year sentences for sexual assault
of a child, and one life sentence for aggravated sexual assault of a child. Texas v. Prater, Cause
Nos. 21975, 21976, 21977, 21978, 219792, 21980, 22064, 22065. A jury found him guilty of each
charge. On September 15, 2008, the Sixth Court of Appeals of Texas affirmed the convictions.
Prater v. State, Nos. 06-07-00187-CR - - 06-07-00194-CR (Tex. App.–Texarkana, Sept. 15, 2008,

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pet. ref’d). The Texas Court of Criminal Appeals (CCA) refused Petitioner’s petitions for
discretionary review. Simmons v. State, PDR Nos. 1573-08 -- 1580-08 (Tex. Crim. App. 2009). The
CCA also denied Petitioner’s state writ applications without written order. SHCR-01, at cover - SHCR-08, at cover.
Petitioner’s convictions are based on his sexual and indecency actions performed on his
children. In the present petitions, Petitioner alleges that he is entitled to relief based on five issues
of ineffective assistance of counsel. Specifically, he asserts that counsel was ineffective for failing
to object (1) to the reasonable doubt definition in the jury charge, (2) to the prosecutor’s failure to
give a ten-day notice of intent to call outcry witnesses, and (3) to the prosecutor’s introduction of
extraneous offenses. He also claims counsel was ineffective when he (4) called Petitioner
dysfunctional in his opening statement and (5) did not call Petitioner to testify. The Government
filed a Response, asserting that Petitioner’s issues are without merit. Petitioner did not file a Reply.
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,
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
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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
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).
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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). The AEDPA has modified a federal habeas court’s role in reviewing state prisoner
applications in order to prevent federal habeas “retrials” and to ensure that state court convictions
are given effect to the extent possible under law. Beel v. Cone, 535 U.S. 685, 693, 122 S. Ct. 1843,
1849, 152 L. Ed.2d 914 (2002); see Williams, 529 U.S. at 404. 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).
Additionally, federal habeas relief is foreclosed if a claim (1) is procedurally barred as a consequence
of a failure to comply with state procedural rules, Coleman v. Thompson, 501 U.S. 722, 111 S. Ct.
2546, 115 L. Ed.2d 640 (1991); (2) seeks retroactive application of a new rule of law to a conviction
that was final before the rule was announced, Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103
L. Ed.2d 334 (1989); or (3) asserts trial error that, although of constitutional magnitude, did not have
a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v.
Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 1722, 123 L. Ed.2d 353 (1993).
Ineffective Assistance of Counsel
In each of his issues, Petitioner claims that his trial counsel was ineffective.

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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
habeas corpus 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. 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. Id.
at 690. 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); Rubio
v. Estelle, 689 F.2d 533, 535 (5th Cir. 1982); Murray v. Maggio, 736 F.2d 279 (5th Cir. 1984).
Secondly, the habeas 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. Petitioner must “affirmatively prove,” not just allege, prejudice. Id. at
693. If he fails to prove the prejudice component, the court need not address the question of
counsel's performance. Id. at 697.
Counsel’s Opening Statement
Petitioner asserts that counsel was ineffective for calling him “dysfunctional” in his opening
statement. However, a review of the record shows that counsel was referring to the entire Prater
family as dysfunctional. Specifically, counsel said, “And prepare yourself, because the things that
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– when you meet the Praters that might not have ever come into your realm of thought or might not
– you might not be able to say that they were anything but dysfunctional.” It appears that counsel
was attempting to prepare the jury for some unpleasant testimony. Trial counsel’s strategic choices
are virtually unchallengeable after a thorough investigation into the law and relevant facts are made.
Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. Moreover, Petitioner 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. Id., 466 U.S. at 694, 104 S. Ct. at 2068. He has failed to
show prejudice. 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, 120 S. Ct. at 1517-18; Childress, 103 F.3d at 1224-25.
Accordingly, his petition should be dismissed.
Failure to Call Petitioner to Testify
Petitioner complains that counsel was ineffective for not calling him to testify. [C]omplaints
of uncalled witnesses are not favored, because the presentation of testimonial evidence is a matter
of trial strategy and because allegations of what a witness would have testified are largely
speculative.” Buckelew v. United States, 575 F.2d 515, 521 (5th Cir.1978). Further, the presentation
of witness testimony is essentially strategy and, thus, within the trial counsel’s domain. Alexander
v. McCotter, 775 F.2d 595, 602 (5th Cir.1985). A petitioner must overcome a strong presumption
that his counsel’s decision in not calling a particular witness was a strategic one. Murray v. Maggio,
Jr., 736 F.2d 279, 282 (5th Cir. 1984). Where “the only evidence of a missing witness's testimony
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is from the defendant,” claims of ineffective assistance are viewed with great caution. United States
v. Cockrell, 720 F.2d 1423, 1427 (5th Cir.1983), cert. denied, 467 U.S. 1251, 104 S. Ct. 3534, 82
L. Ed.2d 839 (1984). Moreover, to succeed on the claim, Petitioner must have shown that had
counsel investigated, he would have found witnesses to support the defense, that such witnesses were
available, and had counsel located and called these witnesses, their testimony would have been
favorable and they would have been willing to testify on Petitioner’s behalf. Alexander, 775 F.2d
at 602; Gomez v. McKaskle, 734 F.2d 1107, 1109-10 (5th Cir. 1984), cert. den., 469 U.S. 1041
(1984). 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).
In the instant case, Petitioner asserts that trial counsel should have called him to testify. A
criminal defendant has a constitutional right to testify on his own behalf. Rock v. Arkansas, 483 U.S.
44, 49-53, 107 S. Ct. 2704, 2708 -10, 97 L. Ed.2d 37 (1987). However, Petitioner has not shown
that he wished to testify and that counsel refused his request. He also has not shown that the
decision not to call Petitioner to testify was not trial strategy. Conclusory claims are insufficient to
entitle a habeas corpus petitioner to relief. Woods, 870 F.2d at 288; Schlang, 691 F.2d at 799.
Moreover, Petitioner has not shown what his testimony would have been had he testified.
Unsupported assertions are not sufficient to overcome the strong presumption that the decision to
not call the witnesses was not a trial strategy. Alexander, 775 F.2d at 602; Murray, 736 F.2d at 282.
Petitioner 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. He has failed to show prejudice.
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Failure to Object
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, 104 S. Ct. at 2066.
Analysis – Failure to Object to Jury Charge
Petitioner asserts that trial counsel should have objected to the definition of reasonable doubt
in the jury charge, based on Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000).
However, there was no definition of reasonable doubt in the jury charge. Thus, any objection trial
counsel would have advanced in this vein would have been frivolous. Counsel cannot be held to be
ineffective for failing to argue frivolous claims or make meritless objections. Koch v. Puckett, 907
F.2d 524, 527 (5th Cir. 1990). Counsel has no duty to make meritless objections. Clark v. Collins,
19 F.3d 959, 966 (5th Cir. 1994). Furthermore, Petitioner also failed to prove that there is a
reasonable probability that, but for counsel’s alleged unprofessional errors, the result of the
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proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. He has
failed to show prejudice. 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.
Analysis - Failure to Object to Failure to Give Notice of Intent to Call Outcry Witness
Petitioner next claims that trial counsel was ineffective for failing to object to the
prosecution’s failure to give a ten-day notice of intent to call witnesses Tamara Morgan and Nurse
Judith Hart. He claims that the defense was caught off guard by the introduction of their testimony.
Specifically he states that such failure to receive notice “means counsel was unable to form a
strategic defense.” However, Petitioner has failed to show that the defense was caught off guard by
the witnesses’ testimony, or that trial counsel was unable to form a strategic defense. Conclusory
claims are insufficient to entitle a habeas corpus petitioner to relief. Woods, 870 F.2d at 288;
Schlang, 691 F.2d at 799.
A review of the record shows that the defense was well acquainted with what would be the
testimony of Tamara Morgan, Petitioner’s sister. In fact, the defense specifically asked the jury to
pay close attention to her testimony, “I also want you to focus on [Petitioner’s] sister, Tamara
Morgan’s testimony. Tamara Morgan gave a very concise statement of what happened that evening
after she outcried.” Additionally, Petitioner argued on appeal that Hart was not an outcry witness;
thus, Petitioner’s claim that the counsel’s failure to object to the prosecution’s failure to give notice
of calling her as an outcry witness is conclusory and contradictory in nature. Counsel has no duty
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to make meritless objections. Clark, 19 F.3d at 966. Conclusory claims are insufficient to entitle
a habeas corpus petitioner to relief. Woods, 870 F.2d at 288; Schlang, 691 F.2d at 799.
Furthermore, Petitioner 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. He has failed to show prejudice either by Tamara
Morgan’s or Judith Hart’s testimony. Petitioner 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.
Analysis - Failure to Object to the Introduction of Extraneous Offenses
Petitioner claims that counsel was ineffective for failing to object to the prosecution’s
introduction of extraneous offenses. However, the state gave notice of its intent to introduce
extraneous offense evidence, including the beating evidence of which Petitioner complains. He has
also failed to show what was improper about the evidence. Again, counsel has no duty to make
meritless objections. Clark, 19 F.3d at 966. Petitioner 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. He has not shown prejudice.
Furthermore, 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
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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.
Conclusion
Petitioner has failed to show that any of his ineffective assistance of counsel issues have
merit. Further, in each of his claims, 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, 120 S. Ct. at 1517-18; Childress, 103 F.3d at 1224-25.
Accordingly, his petition should be 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
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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
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 the Petitioner is not entitled to a certificate of appealability as to his claims.
Recommendation
It is therefore recommended that the petition be denied and the case 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
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.

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
conclusions accepted and adopted by the district court. Douglass v. United Servs. Auto Ass'n, 79
F.3d 1415, 1430 (5th Cir. 1996) (en banc).
SIGNED this 30th day of July, 2012.
.

____________________________________
DON D. BUSH
UNITED STATES MAGISTRATE JUDGE

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