Lucas v. Winden

Filing 57

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 52 Report and Recommendations. It is ORDERED that the petition for writ of habeas corpus is DENIED. Signed by District Judge Robert W. Schroeder, III on 3/26/2024. (SLO)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
AARON LUCAS,
Plaintiff,
v.
DIRECTOR, TDCJ-CID,
Defendant.

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CIVIL ACTION NO. 5:21-CV-9-RWS-JBB

ORDER
Aaron Lucas, proceeding pro se, filed the above-styled petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Docket No. 1. Petitioner challenges convictions for aggravated
sexual assault and aggravated kidnapping. See id.
The Court referred this matter to the Honorable J. Boone Baxter, United States Magistrate
Judge, at Texarkana, Texas, for consideration pursuant to 28 U.S.C. § 636(b)(1) and (3). The
Magistrate Judge has submitted a Report and Recommendation of United States Magistrate Judge
(AReport@) recommending that the petition for writ of habeas corpus be denied. Docket No. 52 at
20. Petitioner filed objections to the Report and Recommendation. Docket No. 56. The Court
reviews the objected-to portions of the Report de novo. FED. R. CIV. P. 72(b).
ANALYSIS
I.

Procedurally Barred Grounds for Review
The Magistrate Judge concluded that certain of Petitioner=s grounds for review were

procedurally barred. Docket No. 52 at 3–4. The Magistrate Judge concluded grounds for review
1(c), 1(f), 2, 3(b) and 4 were procedurally barred because Petitioner did not present these grounds
for review to the highest state court in either a petition for discretionary review or a state
application for writ of habeas corpus. Id. The Magistrate Judge further concluded that with respect

to ground for review 1(d), Petitioner’s assertion that there was insufficient evidence to support his
convictions was procedurally barred because he did not raise this ground for review on direct
appeal, as required by Texas state law. Id. at 4.
In his objections, Petitioner asserts the State of Texas created an impediment to his filling
state applications for habeas corpus which included the grounds for review set forth above. Docket
No. 56 at 1–3. Petitioner is incarcerated in Colorado and states he did not have access to Texas
state law materials. Id. He also asserts that he did present these grounds for review to the highest
state court. Id. Petitioner, however, does not assert the State of Texas had any control over what
legal materials were available to him at his institution in Colorado. Accordingly, this objection is
without merit.
With respect to Petitioner=s assertion that he did present these grounds for review to the
highest state court (see Docket No. 56 at 3–4), the Court agrees with the Magistrate Judge that the
grounds were not properly presented to the Texas Court of Criminal Appeals. In ground for review
4, Petitioner asserted he received ineffective assistance of counsel on appeal because appellate
counsel failed to investigate a suggestive lineup array and evidence regarding an identical twin
brother. The Magistrate Judge correctly found that while Petitioner did complain about his
appellate counsel in his state applications, he did not fault appellate counsel for failing to
investigate a suggestive lineup array or an identical twin brother. See e.g., Docket No. 21-9 at 95–
101 (blaming the State, not defense counsel, for alleged issues with the suggestive lineup
array and for failing to introduce evidence about Petitioner’s identical twin).
The Court agrees that Petitioner failed to present these grounds for review to the highest
state court and did not show cause and prejudice for failing to raise them. Consideration of these
grounds for review is therefore procedurally barred.
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II.

The Granting of Continuance was not Contrary to Clearly Established Federal Law
Prior to trial, the court granted a prosecution motion requesting a continuance. See Docket

Nos. 20-18, 20-23 at 6–7, 9–11, 14. Petitioner asserts granting the continuance violated the
Interstate Agreement on Detainers (AIADA@), which requires a showing of good cause if a
defendant is not brought to trial within 180 days of a proper request for disposition of the
indictment. Petitioner contends good cause was not shown. Docket Nos. 1 at 6, 1-1 at 3–5.
The intermediate appellate court concluded good cause had been shown by the prosecution.
See e.g., Docket Nos. 20-4 at 2–7, 20-5 at 3. After reviewing the intermediate appellate court=s
opinion, the Magistrate Judge concluded that the decision was not contrary to, or an unreasonable
application of, clearly established federal law. Docket No. 52 at 6–8. Nor was the decision an
unreasonable determination of the facts in light of the evidence before the state court. Id. at 8. The
Magistrate Judge further concluded Petitioner failed to show he suffered prejudice because the
trial commenced less than two weeks after the expiration of the 180-day limit. Id.
Petitioner faults the Magistrate Judge for failing to conduct any individual analysis or
independent investigation of the facts presented in state court. Docket No. 56 at 5–8. He further
asserts that the prosecution failed to demonstrate good cause for the continuance and failed to
present evidence in support of the reasons cited in support of a continuance. Id.
Title 28 U.S.C. § 2254 established a highly deferential standard for evaluating state court
rulings, which requires federal courts to give those rulings Athe benefit of the doubt.@ Woodford v.
Visciotti, 537 U.S. 19, 24 (2002). Under this standard, a federal habeas court may not grant relief
unless a state court decision was contrary to, or an unreasonable application of, clearly established
federal law or was based on an unreasonable determination of the facts in light of the evidence
presented in state court. See id.; see also Lara v. Johnson, 141 F.3d 239, 242–43 (5th Cir.) (finding
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an IADA violation must be shown to be “a ‘fundamental defect’ of a type which would lead to a
‘miscarriage of justice.’ This defect must be an exceptional circumstance of a type which causes
prejudice to the defendant.”), reh’g granted, opinion modified, 149 F.3d 1226 (5th Cir. 1998)
(correcting a typographical error).
Under this standard, a federal court does not analyze an issue de novo or conduct an
independent investigation of the facts presented in state court. Upon review, the Court determines
that the Magistrate Judge, after setting forth the applicable standard, correctly concluded that the
decision of the state courts with respect to this ground for review was not contrary to, or an
unreasonable application of, clearly established federal law and was not based on an unreasonable
determination of the facts in light of the evidence before the state courts.
III.

The Alleged Improper Admission of Hearsay Evidence and Violation of
Confrontation Clause was Harmless
At Petitioner’s trial, law enforcement officers were permitted to recite unsworn

declarations and hearsay statements from witnesses from unrelated crimes in Colorado. Docket
No. 1 at 6. The four officers testified from police reports and their memory concerning the
investigation of crimes committed in Colorado. See id. They testified that Petitioner pled guilty to
each crime and was convicted. See e.g., Docket No. 20-25 at 230, 235, 250–252, 258–259.
Petitioner contends the admission of the testimony violated the Confrontation Clause and
constituted inadmissible hearsay. Docket No. 1-1 at 5. He stated he suffered prejudice because he
could not cross-examine the witnesses from the Colorado crimes. Id. Without expressing any
opinions as to the merits of this ground for review, the Magistrate Judge concluded that any error
by the trial court was harmless because the asserted error did not have a substantial and injurious
effect or influence in determining the jury’s verdict. Docket No. 52 at 9–11.
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Petitioner objects, asserting that the errors he identifies were not harmless. Docket No. 56
at 8. He states the admission of testimony regarding other crimes painted him in a negative light,
which may have influenced the jury’s decision. Id. Petitioner states that the evidenced relied on by
the Magistrate Judge to conclude any error was harmless was not properly established or verified.
Id. at 8–9.
The Court agrees that review of the alleged error is subject to harmless error analysis.
United States v. Foreman, 84 F.4th 615, 619–620 (5th Cir. 2023) (reviewing hearsay and
Confrontation clause objections de novo, subject to harmless error analysis). In his Report, the
Magistrate Judge meticulously set forth and analyzed the evidence against Petitioner, which the
Court has confirmed upon de novo review. See Docket No. 52 at 9–11. For example, the evidence
included the victim selecting Petitioner’s picture from a photographic array and identifying him at
trial as the person who harmed her. See e.g., Docket No. 20-25 at 128–134, 137, 152; 20-26 at 21. 1
In addition, there was DNA evidence that established it was 15.2 sextillion times more likely the
DNA came from Petitioner than from any unknown, unrelated individual. Docket No. 20-25 at
196–199. The testifying expert did acknowledge the sample could have also come from Petitioners
twin brother. Docket No. 20-25 at 78–79. With respect to the twin brother, however, testimony
indicated he was in Alabama near the time of the offense. See e.g., Docket No. 20-26 at 84.
After considering the evidence, the Court agrees that any error in admitting testimony from
the law enforcement officers was harmless. The victim’s identification and the DNA evidence
constituted strong evidence against Petitioner. Further, while the testifying expert indicated the
DNA evidence could have been from the twin brother and the twin brother’s appearance would

The victim also described a vehicle consistent with a description of a vehicle Petitioner owned. See Docket No.
20-26 at 16.

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have been substantially similar to Petitioner’s appearance, there was no evidence indicating the
twin brother was in the area where the offense was committed at the relevant time. As a result of
the other evidence in the case, the Court agrees with the Magistrate Judge’s conclusion that the
officers’ testimony did not have a substantial and injurious effect or influence on the jury’s verdict.
IV.

Improper Admission of Identification Evidence
The trial court admitted into evidence a photographic array which resulted in the victim

identifying Petitioner as the person involved in the crime. Docket No. 1-1 at 6–7. Petitioner asserts
detectives altered the lineup by using Awhiteout@ to cover the victim’s signature for her protection
and had an anonymous reporting party sign the document. Id. He also contends the lineup
procedure was not recorded, the victim stated she did not sign his photograph, the array contained
suggestive markings and that the victim picked another man from a previous array. Id. Finally,
Petitioner states the lineup was conducted four years after the crime and that the original array was
not provided at trial. Id.
As the Magistrate Judge stated, a two-step analysis applies to challenges to identification
evidence. Coleman v. Quarterman, 456 F.3d 537, 544 (5th Cir. 2006). First, a court determines
whether the identification procedure was impermissibly suggestive. Id. If so, the court must
determine whether the suggestiveness led to a “substantial likelihood of irreparable
misidentification.” Id. In making this determination, five factors set forth in Neil v. Biggers, 409
U.S. 188, 199-200 (1972), are considered. Coleman, 456 F.3d at 544.
The Magistrate Judge concluded Petitioner failed to satisfy either step of the test. Docket
No. 52 at 13. The Court agrees. The Magistrate Judge accurately described the testimony at trial
concerning the photographic array. See Docket No. 52 at 12–14 (citing the relevant portions of
Docket Nos. 20-25, 20-26). The testimony did not indicate the victim was given any hint or
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instruction as to which photograph she should choose. Id. The testimony showed the photographs
were of six white males with little or no hair. 2 Id. The Court agrees that the first factor is not
satisfied because the evidence at trial failed to establish anything impermissibly suggestive about
the victim=s pretrial identification of Petitioner.
Nevertheless, the Magistrate Judge went on to consider the factors set forth in Biggers,
concluding that three of the five factors weighed in favor a finding that the pretrial identification
procedure was reliable. Docket No. 52 at 14–15. This conclusion was correct. The testimony
showed the victim had a reasonable opportunity to view Petitioner at the time of the crime. Further,
the testimony did not indicate the victim failed to pay attention to the person who took her. Finally,
there was no indication that the victim showed any uncertainty when she picked Petitioner from
the array. Accordingly, three of the factors set forth in Biggers supported a finding that the pretrial
identification was reliable. Upon a de novo review, the Court agrees with the Magistrate Judge that
this ground for review did not entitle Petitioner to relief.
V.

Ineffective Assistance of Counsel
Petitioner asserts he received ineffective assistance of counsel because counsel failed to

call exculpatory witnesses who could have verified his alibi of being in military training in Virginia

In his Report, the Magistrate Judge stated Lillian Tidwell testified she administered the photograph lineup where the
victim identified Petitioner. She described the appearances of the men in the array, stated she laid the photographs out
before the victim and did not give any suggestion to the victim as to which one she should choose. She also stated the
victim circled the number 2 on Petitioner=s photograph. Docket No. 20-25 at 129–133. In his objections, Petitioner
states Ms. Tidwell testified she had no memory of the lineup or conducting the lineup. Ms. Tidwell testified that she
did not remember when the lineup was conducted and, when asked if she remembered “a lot” about this particular
lineup, replied by stating “not at all.” Id. at 135. However, when she asked whether she was familiar with all the
lineups in the case, she replied by stating, “No, I only did the one.” Id. at 134. Further, when Ms. Tidwell was asked
whether a detective had asked her to administer a lineup for a child victim named Melinda Givens (a pseudonym), she
replied by stating that while she did not remember the name, the detective had asked her to administer the lineup. Id.
at 128–129. Finally, when asked whether, when the detective handed her the photographs, she had any idea whether
a picture of the suspect was included, Ms. Tidwell stated, “No. She just handed me the packet and asked if I could do
the lineup.” Id. at 131. As a result, it can fairly be concluded Ms. Tidwell had some memory of conducting the lineup.
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at the time of the crime. Docket No. 1-1 at 10. The Magistrate Judge concluded this ground for
review was without merit because, while Petitioner stated his wife could have testified concerning
his alibi, he did not provide an affidavit from his wife or provide any more than his unsupported
assertion regarding the contents of her testimony and her willingness to testify on his behalf.
Docket No. 52 at 17. Nor did Petitioner provide the names of any other witnesses Petitioner could
have called or shown any other witnesses were available to testify. Id.
In his objections, Petitioner does not take issue with the Magistrate Judge’s conclusion
regarding the assertion that counsel was ineffective for not calling alibi witnesses. Docket No. 56
at 13. However, he does state the Magistrate Judge did not address his assertion that appellate
counsel was ineffective because he did not raise numerous issues on appeal and did not meet with
Petitioner or speak with him by telephone during the appellate process. See id.
Petitioner does not identify the issues counsel allegedly failed to raise at the appellate level.
See Docket Nos. 1-1 at 1, 56 at 13. Nor does he explain what issues counsel would have been able
to raise if he had met with Petitioner. Docket Nos. 1-1 at 1, 56 at 13. As a result, Petitioner has
failed to establish counsel’s performance was deficient or that he suffered prejudice as a result of
the alleged deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). This
ground for review is therefore without merit.
CONCLUSION
The Court has conducted a careful de novo review of the portions of the Magistrate Judge=s
proposed findings and recommendation to which Petitioner objected. See 28 U.S.C. § 636(b)(1)(C)
(a district judge shall “make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.”). Upon such de novo review,

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the Court has determined that the Report of the Magistrate Judge is correct, and Petitioner=s
objections are without merit. Accordingly, it is
ORDERED that Petitioner’s objections (Docket No. 56) are OVERRULED. It is further
ORDERED that the Report of the Magistrate Judge (Docket No. 52) is ADOPTED as the
opinion of the District Court. It is further
ORDERED that the petition for writ of habeas corpus is DENIED. A final judgment will
be entered in accordance with the Magistrate Judge’s recommendation.
In addition, Petitioner is not entitled to a certificate of appealability. An appeal from a
judgment denying federal habeas relief may not proceed unless a judge issues a certificate of
appealability. 28 U.S.C. § 2253. The standard for granting a certificate of appealability requires a
petitioner to make a substantial showing of the denial of a federal constitutional right. Slack v.
McDaniel, 529 U.S. 473, 483-84 (2000); Elizalde v. Dretke, 362 F.3d 323, 328 (5th Cir. 2004). To
make a substantial showing, the petitioner need not demonstrate he would prevail on the merits.
Rather, he must demonstrate that “reasonable jurists would find the district court's assessment of
the constitutional claims debatable or wrong.” Elizalde, 362 F.3d at 328 (citing Slack, 529 U.S. at
484). As to the procedurally barred claims, “[Petitioner] must, in addition to establishing the
debatability of the underlying constitutional claim, demonstrate that jurists of reason would find it
debatable whether the district court was correct in its procedural rulings as to those claims.” Id.
Here, Petitioner has not shown that the issues raised are subject to debate among jurists of
reason. Petitioner has therefore failed to make a sufficient showing to merit the issuance of a
certificate of appealability. Accordingly, a certificate of appealability will not be issued.

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So ORDERED and SIGNED this 26th day of March, 2024.

____________________________________
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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