Sparks v. Stephens, Director TDCJ-CID

Filing 61

Memorandum Opinion and Order denying 38 amended petition for a writ of habeas corpus. In accordance with Federal Rule of Appellate Procedure 22(b) and 28 U.S.C. § 2253(c), and after considering the record in this case, the Court denies Spark s a certificate of appealability because he has failed to make a substantial showing of the denial of a constitutional right. If Sparks files a notice of appeal, he may proceed in forma pauperis on appeal. (Ordered by Judge David C Godbey on 3/27/2018) (zkc) Modified docket text on 3/27/2018 (zkc).

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ROBERT SPARKS
Petitioner,
v.
LORIE DAVIS,
Respondent.

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Civil Action No. 3:12-CV-469-N
(Death Penalty Case)

MEMORANDUM OPINION AND ORDER DENYING RELIEF
Robert Sparks petitions the Court for a writ of habeas corpus, contending that his
conviction and death sentence are unconstitutional due to trial errors, prosecutorial
misconduct and ineffective assistance of counsel. Because Sparks has not shown that he is
entitled to relief, the Court denies the requested relief.
I. PROCEDURAL BACKGROUND
Sparks was convicted and sentenced to death for the capital murder of his wife and
two stepsons in the same criminal transaction. State v. Sparks, No. F-0801020-J (Crim. Dist.
Ct. No. 3, Dallas County, Tex. Dec. 11, 2008). The Texas Court of Criminal Appeals
(“CCA”) unanimously affirmed the conviction and death sentence. Sparks v. State, No.
AP-76,099, 2010 WL 4132769, at *1 (Tex. Crim. App. Oct. 20, 2010), cert. denied, 563 U.S.
962 (2011). During the pendency of his direct appeal, Sparks filed his first postconviction
application for a writ of habeas corpus in the state trial court in writ number W08-01020-J(A)
on August 25, 2010. (State Habeas Clerk’s Record, “SHCR,” at 5-27). The CCA adopted

the trial court’s findings of fact and conclusions of law to deny relief. Ex parte Sparks, No.
WR-76,786-01 (Tex. Crim. App. Dec. 14, 2011).
Sparks filed his original petition for a writ of habeas corpus in this Court on June 10,
2013, which was accompanied by a motion to stay these proceedings to exhaust his claim
concerning the allegedly false prisoner classification testimony of A.P. Merillat and a related
claim of ineffective assistance of trial counsel. (Pet. doc. 19; Mot., doc. 18.) Respondent
agreed to the motion to stay. (Resp., doc. 27.) The Court found that this agreement complied
with Rhines v. Weber, 544 U.S. 269 (2005), and stayed these proceedings to allow Sparks to
exhaust these claims. (Order, doc. 33.) Following abeyance, Sparks filed a subsequent state
habeas application which was dismissed by the CCA as an abuse of the writ, and Sparks
returned to this Court. Ex parte Sparks, No. WR-76,786-02, 2014 WL 2002211, at *1 (Tex.
Crim. App. May 14, 2014) (per curiam).
Following exhaustion, these proceedings were reopened on June 19, 2014. (Order,
doc. 37.) Sparks filed his amended petition on August 27, 2014 (Am. Pet., doc. 38),
Respondent filed her answer on September 26 (Ans., doc. 44), and Sparks filed his reply on
November 17 (Reply, doc. 52).
II. FACTUAL BACKGROUND
The state court described the facts of the offense as follows:
Appellant was charged with intentionally and knowingly causing the deaths of
Raekwon Agnew and Harold Sublet, Jr., by stabbing and cutting them with a
knife, during the same criminal transaction. The record shows that on
September 15, 2007, appellant murdered his wife, Chare Agnew, and his 92

and 10-year-old stepsons, Harold and Raekwon, and he raped his 12- and
14-year-old stepdaughters, Garysha Brown and LaKenya Agnew. Some time
after midnight, when everyone else in the house was asleep, appellant put his
hand over Chare’s mouth and stabbed her eighteen times as she lay in her bed.
He then went into the boys’ bedroom. As Raekwon lay sleeping, appellant
woke Harold and took him to the kitchen, where he stabbed him at least 45
times. He then woke Raekwon, took him to the kitchen, and killed him in the
same manner. Appellant dragged the boys’ bodies to the living room and
covered them with a comforter. He then went into the girls’ bedroom and
woke LaKenya. He pulled her out of bed at gunpoint, tied her up with
bedsheets, and told her he had killed her mother and brothers. He showed her
their bodies and told her it was her fault they were dead. Next, he woke
Garysha and tied her up with electrical cords, and he tied a washcloth around
her mouth. He then told LaKenya that in order to save her and her sister’s life,
one of the girls would have to have sex with him. LaKenya said that she
would do it. Appellant took her to the living room and raped her on the living
room couch.
When he had finished raping LaKenya, appellant took Garysha to the
living room and raped her on the couch, next to her sister. Then, he made the
girls stay in the bathroom with him while he took a shower. He apologized to
the girls for the rapes and murders. He told them that their mother had been
trying to poison him and that her death was their fault. Next, he forced both
girls to go with him into the garage, where he tried, unsuccessfully, to change
the license plate on his car. He took the girls back to the living room, where
he lifted the comforter and showed the girls their brothers’ bodies. He
remarked that Raekwon was stronger than he had expected him to be.
Appellant made the girls walk into their mother’s bedroom and kiss her face,
and then he put them into the bedroom closet. He started a CD player and told
them that help would come when the music ended. He then locked the closet
door and moved a dresser in front of it. Finally, appellant left the house.
Appellant drove to his mother’s house to borrow her car. He then drove
to the home of his former girlfriend, Shunta Alexander, and their teenaged
daughter, Brianna. He told Shunta what he had done. He gave her some
money for Brianna and remarked that if there was a reward for catching him,
Brianna should have it. Shunta begged him to call the police. Appellant called
the police on his cell phone and briefly reported that he had killed his wife and
two boys and he had left two girls locked in a bedroom closet. He provided
the address and stated that he knew the police would trace the call if he stayed
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on the phone too long. He then hung up, broke his cell phone, and left
Shunta’s home. Later that morning, appellant’s cousin drove him to the
Greyhound bus station, where he bought a bus ticket under an assumed name
and traveled to Austin.
Appellant returned to Dallas a few days later. He called a police
detective and asked him if the police had found an audiocassette tape he had
left in the house, which he believed contained a recording of Chare or one of
the children admitting that they had been conspiring against him. He thought
that this tape would help his case. After his arrest, appellant made a statement
to police in which he requested testing for the presence of poison in his body,
and he said that LaKenya and Garysha should be polygraphed about whether
Chare had been poisoning him. He provided buccal, blood, hair, and fingernail
samples to be tested for evidence of poisoning, but the lab that received the
samples was not able to conduct the requested tests, and investigators were
unable to locate a lab with that capability.
Sparks v. State, No. AP-76,099, 2010 WL 4132769, at *1-2 (Tex. Crim. App. Oct. 20, 2010).
These findings are entitled to deference. See 28 U.S.C. § 2254(e)(1).
III. CLAIMS
Sparks presents eight claims for relief in the following enumerated categories:
1.

Sparks was denied his right to an impartial jury at the punishment phase
of the trial when a bailiff wore a necktie bearing the image of a
hypodermic syringe that showed his support for the death penalty.
(Am. Pet. at 42);

2.

(Abandoned.)1 (Am. Pet. at 57.)

3.

Sparks was denied his right to an impartial jury when the trial court
refused to grant a mistrial in spite of repeated instances of misconduct
by bystanders which took place within the view of the jury. (Am. Pet.
at 57);

1

This omitted claim is mentioned to preserve numbering.

4

4.

Sparks was denied his right to an impartial jury based on the combined
effects of the actions of the bailiff and the bystanders as well as the
overall atmosphere surrounding his trial. (Am. Pet. at 61);

5.

Sparks was denied his Eighth Amendment and Due Process rights when
the State’s expert witness, A.P. Merillat, testified to materially
inaccurate evidence at the punishment stage of Sparks’ trial. (Am. Pet.
at 63);

6.

Sparks was denied his right to an impartial jury and due process when
the trial court denied his challenges for cause to numerous jurors
specifically named in the direct state appeal. (Am. Pet. at 109);

7.

The Texas death penalty scheme violates the Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution by not
requiring the state to prove aggravating factors relevant to the
mitigation special issue beyond a reasonable doubt before the jury may
sentence the defendant to death. (Am. Pet. at 137);

8.

The Texas 12-10 Rule, and the law prohibiting jurors from being
informed that their individual vote that life is the proper sentence will
lead to a life sentence, violates the Eighth and Fourteenth Amendment
as construed by Mills v. Maryland2 and McKoy v. North Carolina.3
(Am. Pet. at 150); and

9-11. Ineffective assistance of counsel addressed in the foregoing sections.
(Am. Pet. at 157).
Sparks also requests an evidentiary hearing, specifically on his fifth claim (Am. Pet. at 10709, 158). Respondent asserts that the fifth claim is defaulted and procedurally barred and in
the alternative that it lacks merit. (Ans. at 26-46.) Respondent also asserts that the remaining
claims lack merit and were properly denied by the state court.

2

486 U.S. 367 (1988).

3

494 U.S. 433 (1990).

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IV. STANDARD OF REVIEW
Federal habeas review of these claims is governed by 28 U.S.C. § 2254, as amended
by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). This statute sets
forth the preliminary requirements that must be satisfied before reaching the merits of a claim
made in a federal habeas proceeding.
A. Exhaustion
Under this statute, a federal court may not grant habeas relief on any claim that the
state prisoner has not first exhausted in the state courts. See 28 U.S.C. § 2254(b)(1)(A);
Harrington v. Richter, 562 U.S. 86, 103 (2011). However, the federal court may deny relief
on the merits notwithstanding any failure to exhaust. See 28 U.S.C. § 2254(b)(2); Miller v.
Dretke, 431 F.3d 241, 245 (5th Cir. 2005).
B. State-Court Procedural Determinations
If the state court denies a claim on state procedural grounds, a federal court will not
reach the merits of the claim if it determines that the state-law grounds are independent of
the federal claim and adequate to bar federal review. See Sawyer v. Whitley, 505 U.S. 333,
338 (1992); Coleman v. Thompson, 501 U.S. 722, 729 (1991). If the state procedural
determination is based on state grounds that were inadequate to bar federal habeas review,
or if the habeas petitioner shows that an exception to the bar applies, the federal court must
normally resolve the claim without the deference that 28 U.S.C. § 2254(d) otherwise
requires. See Miller v. Johnson, 200 F.3d 274, 281 n.4 (5th Cir. 2000); but see Busby v.

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Dretke, 359 F.3d 708, 721 n.14 (5th Cir. 2004) (affording deference to merits finding when
state court “invoked a procedural bar as an alternative basis to deny relief”); Rolan v.
Coleman, 680 F.3d 311, 319 (3rd Cir. 2012) (holding that “AEDPA deference [under
section 2254(d)] applies when a state court decides a claim on procedural grounds and,
alternatively, on the merits”).
C. State-Court Merits Determinations
If the state court denies a claim on the merits, a federal court may not grant relief
unless it first determines that the claim was unreasonably decided by the state court, as
defined in section 2254(d):
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court 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.
Id. In the context of section 2254(d) analysis, “adjudicated on the merits” is a term of art
referring to a state court’s disposition of a case on substantive rather than procedural
grounds. Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997). This provision does not
authorize habeas relief, but restricts this Court’s power to grant relief to state prisoners by
barring claims in federal court that were not first unreasonably denied by the state courts.
7

The AEDPA limits rather than expands the availability of habeas relief. See Fry v. Pliler,
551 U.S. 112, 119 (2007); Williams v. Taylor, 529 U.S. 362, 412 (2000). “By its terms §
2254(d) bars relitigation of any claim ‘adjudicated on the merits’ in state court, subject only
to the exceptions in §§ 2254(d)(1) and (d)(2).” Richter, 562 U.S. at 98. “This is a ‘difficult
to meet,’ and ‘highly deferential standard for evaluating state-court rulings, which demands
that state-court rulings be given the benefit of the doubt.’” Cullen v. Pinholster, 563 U.S.
170, 181 (2011) (internal citations omitted) (quoting Richter, 562 U.S. at 102, and Woodford
v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)).
Under the “contrary to” clause, a federal court is not prohibited from granting federal
habeas relief if the state court either arrives at a conclusion opposite to that reached by the
United States Supreme Court on a question of law or decides a case differently from the
United States Supreme Court on a set of materially indistinguishable facts. See Williams, 529
U.S. at 412-13; Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir. 2000). Under the
“unreasonable application” clause, a federal court may also reach the merits of a claim on
federal habeas review if “if the state court identifies the correct governing legal rule ... but
unreasonably applies it to the facts of the particular state prisoner’s case.” White v. Woodall,
134 S. Ct. 1697, 1705 (2014) (quoting Williams, 529 U.S. at 407-408). “ ‘[C]learly
established Federal law’ for purposes of § 2254(d)(1) includes only ‘the holdings, as opposed
to the dicta, of [the United States Supreme] Court’s decisions.’ ” Woodall, 134 S. Ct. at 1702
(quoting Howes v. Fields, 132 S. Ct. 1181, 1187 (2012)). The standard for determining

8

whether a state court’s application was unreasonable is an objective one and applies to
federal habeas corpus petitions that, like the instant case, were filed after April 24, 1996. See
Lindh v. Murphy, 521 U.S. 320, 327 (1997).
Federal habeas relief is not available on a claim adjudicated on the merits by the state
court unless the record before that state court first satisfies section 2254(d). “[E]vidence
introduced in federal court has no bearing on § 2254(d)(1) review. If a claim has been
adjudicated on the merits by a state court, a federal habeas petitioner must overcome the
limitation of § 2254(d)(1) on the record that was before that state court.” Pinholster, 563
U.S. at 185. The evidence required under section 2254(d)(2) must show that the state-court
adjudication “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.”
V. ANALYSIS
A. External Influence - Necktie
In his first claim, Sparks contends that the jury was improperly influenced in the
punishment phase of his trial by a necktie worn by one of the bailiffs that displayed a syringe.
(Am. Pet. at 42-57; Reply at 1-9.) Respondent argues that this claim was reasonably denied
by the state court. (Ans. at 11-15.)
1. Standard
A juror is exposed to an external influence when he receives information not admitted
into evidence. See Tanner v. United States, 483 U.S. 107, 117 (1987). “Under clearly

9

established Supreme Court case law, an influence is not an internal one if it (1) is extraneous
prejudicial information; i.e., information that was not admitted into evidence but nevertheless
bears on a fact at issue in the case, or (2) is an outside influence upon the partiality of the
jury, such as ‘private communication, contact, or tampering . . . with a juror.’” Robinson v.
Polk, 438 F.3d 350, 363 (4th Cir. 2006).

Once the inmate proves that a “private

communication, contact, or tampering” is received by a juror, the burden shifts to the
government to prove that the contact with the juror was not harmful. See Remmer v. United
States, 347 U.S. 227, 229 (1954); but see Smith v. Phillips, 455 U.S. 209, 215 (1982)
(holding “that the remedy for allegations of juror partiality is a hearing in which the
defendant has the opportunity to prove actual bias”). The ultimate question is whether the
improper external intrusion affected the jury’s deliberations and thereby its verdict. See
United States v. Olano, 507 U.S. 725, 739 (1993).
2. State Court Action
No objection was presented on the record at trial or on direct appeal. During the
postconviction habeas review, the state court conducted an evidentiary hearing on this claim.
Based on the evidence presented, the state court determined that Sparks had not shown that
any juror actually saw the image on the bailiff’s tie. (State Habeas Clerk’s Record, “SHCR,”
at 157-58.)
At the state evidentiary hearing, Sparks called the bailiff, Bobby Zoe Moorehead, who
testified that he was not in charge of the jury at that time but was seated behind the defendant

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and his attorneys, was wearing a lanyard in front of the tie that would have covered the
image, which was also potentially obscured by the bailiff’s coat and the stun-belt box he was
holding. (SHRR at 12-40.) Moorehead also testified that he complied with an instruction
relayed by defense counsel to tuck his tie into his shirt. (SHRR at 19.)
Sparks also called his investigator, Bobby Walton, who testified regarding
measurements from the bailiff’s chair to the jury and that he was able to see the tie and image
on the tie at those distances. (SHRR at 40-46.) On cross examination, Walton testified that
he did not view the tie on the black background of the bailiff’s clothing, did not view it with
a lanyard or stun belt box in front, and did not view it while attorneys were sitting at the desk
or the defendant with security. (SHRR at 48-50.) He also testified that he did not know the
position of the computer and monitor on the desk at the time of trial, but that it could also
have affected the jury’s view of the tie. (SHRR at 49.)
The State called Sparks’ lead trial counsel Paul Johnson, who testified that when he
saw the bailiff’s tie with the syringe on it, he said something to the bailiff, asked to talk with
the judge, obtained an instruction for the bailiff to conceal the image and told the bailiff, who
complied. (SHRR at 55-56.) Johnson testified that he made his objection off the record,
rather than on the record, because he didn’t see a need for a record of it at that time. “I didn’t
have any reason to believe anybody else had seen it or noticed it or that it was having an
impact or influence on the trial.” (SHRR at 56-57.)
The State also called Lalon Peale, another one of Sparks’ trial counsel, who said that

11

Mr. Johnson was the first to notice the tie and she did not know if anyone in the gallery or
jury would have noticed. (SHRR at 71.) She said that there was a lot going on at the same
time, but that Mr. Johnson brought it to the court’s attention and the bailiff was told to
conceal the tie. (SHRR at 71-72.) She thought that there was an objection on the record, but
that the appellate counsel didn’t find it. (SHRR at 71-72.) She said that the bailiff complied
and concealed the tie. (SHRR at 73.)
The State also called Sparks’ mother, Viola Sparks, who had provided an affidavit in
support of petitioner’s state habeas application. She testified that she saw the bailiff wearing
the tie and could see the image of the needle before he tucked it in. (SHRR at 93.) She said
the bailiff wearing the tie operated the box that controlled the stun gun and sat behind her
son, the defendant. (SHRR at 93-94.) She said from the spot where she testified during the
trial, she could see the bailiff wearing the tie if he was standing, but that during her testimony
she was focused on the district attorney’s questions and could not see the tie over her son and
the attorneys. (SHRR at 94.) She also testified that her affidavit that the attorney wrote
stated that you couldn’t miss what the bailiff was wearing, but she does not know for sure
whether the jury would have been able to see the image on the tie from where they were in
the courtroom. (SHRR at 90, 95-96.) She also testified that she has problems with memory
and gets confused. (SHRR at 96.)
The State also called Sparks’ sister, Perstefanie Sparks, who had also provided an
affidavit in support of petitioner’s state habeas application. (SHRR at 98-100.) She testified

12

that she noticed the bailiff wearing the tie with the image of the needle on it when a victim’s
father approached the rail during jury argument, and the bailiffs made people in the audience
where she was sitting leave the courtroom. (SHRR at 104-106.) She told Petitioner’s trial
counsel about it, but could not remember which day it was. (SHRR at 101.) She also
remembered that the bailiff later tucked the tie into his shirt. (SHRR at 106-107.) She
provided an affidavit that she did not feel it was possible that the jury did not see what the
bailiff was wearing, but acknowledged that the jury would have seen the bailiff from a
different vantage point than her during the trial. (SHRR at 101-102.) She did not remember
whether there was a projector between the jury and the bailiff, and did not remember the
bailiff holding a box. (SHRR at 102-103.) She also admitted prior offenses for forgery of
a check and securing a document by deception. (SHRR at 103-104.)
The State also called Andy Beach, the lead trial prosecutor in the trial. (SHRR at
109.) Mr. Beach testified that he remembered seeing the bailiff wearing the tie with the
image of a syringe on it during the last day of trial when the bailiff was handling the box that
operated the stun belt. (SHRR at 109-10.) Mr. Beach testified that defense attorney Paul
Johnson stood up, asked to approach the bench, and went sidebar with the judge to deal with
the tie. (SHRR at 110.) The trial court judge took care of it and had the bailiff either tuck
in the tie or button his coat to conceal the image of the syringe. (SHRR at 110.) Mr. Beach
remembered that this took place early in the day and “well before argument.” (SHRR at 11011.) Mr. Beach also remembered the ruckus in the courtroom during his closing argument,

13

but did not remember what the bailiff was wearing during that part of his jury argument.
(SHRR at 111.)
The State also produced an affidavit from the jury foreperson that she did not see the
tie. (SHCR at 76-77.) “I personally never saw the tie. To my knowledge nothing about the
tie or Bailiff Moorehead entered into the jury’s deliberations.” (SHCR at 77.) Based on this,
other documents in the record, and the evidence at the hearing, the state court found that
Sparks had not shown that any juror saw the tie, and concluded that no constitutional
violation resulted from the bailiff’s tie. (SHCR at 157-58.)
3. Analysis
To show the state court’s determination to be an unreasonable determination of fact
based on the evidence presented to the state court, Sparks argues that it was physically
impossible for the jury to have not seen the image on the bailiff’s tie and that other people
saw it. (Am. Pet. at 48-50, 51-54.) However, none of the court officials–including the
attorneys for either side–testified that they thought that the jury could see the image on the
tie, the testimony indicated that there were obstacles between the jury and the tie that may
have obstructed its view before the bailiff concealed it, and the only evidence from the jury
was that it was not seen or considered by them. Even if this could rise to the level of the jury
tampering in Remmer, 347 U.S. at 229, the first element of this claim–that the jury actually
received the external influence by viewing the image on the tie–was not proven. Therefore,
the burden of proof could not have shifted to the State to prove that the alleged viewing was

14

not harmful. The state court’s determination has not been shown to be incorrect under
section 2254(e)(1), much less unreasonable under section 2254(d).
Accordingly, Sparks’ first claim for relief is DENIED for lack of merit.
B. External Influence - Spectators
In his third claim, Sparks contends that the jury was improperly influenced in the
punishment phase of his trial by the “repeated instances of audience disruptions” at the trial.4
(Am. Pet. at 57-61.) Respondent argues that the portion of this claim presented to the state
court–which included only one incident of audience disruption–was reasonably denied, and
that the portion not presented to the state court is unexhausted and procedurally barred. (Ans.
at 15-24.)
1. Exhaustion and Procedural Bar
a. Law
Generally, a federal court cannot grant habeas relief on an unexhausted claim. See 28
U.S.C.A. § 2254(b). To properly exhaust a claim, a habeas petitioner must fairly present its
factual and legal basis to the highest available state court for review in a procedurally correct
manner that allows the state court to consider the merits of the claim. See Carty v. Thaler,
583 F.3d 244, 254 (5th Cir. 2009); Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993);
Satterwhite v. Lynaugh, 886 F.2d 90, 92-93 (5th Cir. 1989); see also Nickleson v. Stephens,
803 F.3d 748, 753 (5th Cir. 2015) (“The exhaustion doctrine demands more than allusions

4

Sparks has abandoned his second claim. (Am. Pet. at 57.)

15

in state court to facts or legal issues that might be comprehended within a later federal habeas
petition. The exhaustion doctrine is based on comity between state and federal courts,
respect for the integrity of state court procedures, and ‘a desire to protect the state courts’ role
in the enforcement of federal law.’”) (quoting Castille v. Peoples, 489 U.S. 346, 349 (1989)
(in turn quoting Rose v. Lundy, 455 U.S. 509, 518 (1982))). In Texas, a death-sentenced
prisoner must present his claims to the CCA on direct appeal or in an application for state
post-conviction relief. See Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986) (noting
procedure in noncapital cases); Fuller v. State, 253 S.W.3d 220, 224 (Tex. Crim. App. 2008)
(noting that direct appeal to CCA is automatic under TEX. CODE CRIM. PROC. art. 37.071,
§ 2(h)); Beazley v. Johnson, 242 F.3d 248, 269 (5th Cir. 2001) (noting death-sentenced
petitioner’s failure to raise claim on direct appeal to CCA resulted in failure to exhaust
claim).
b. State Court Action
In his twenty-second point of error on direct appeal, Sparks claimed that “[t]he trial
court erred in denying Appellant’s motion for a mistrial after a spectator caused a disturbance
in the courtroom which had an improper influence on the jury.” (App. Br. at 79.) In support
of this claim, Sparks asserted his Sixth Amendment right to be tried by impartial jurors
whose verdict is based solely on the evidence at trial and cited that portion of the record of
the proceedings during the closing argument when the disturbance occurred and the motion

16

for mistrial made by Sparks’ trial counsel. (App. Br. at 79-80 (citing 41 RR at 68).)5 In this
record, the defense counsel at trial asserted that this was the second time that this individual
had caused a disruption and described a prior incident during the guilt phase of the trial. The
prosecutor also expressed his view of the prior events and the defense moved for a mistrial.
The trial court denied the motion and Sparks appealed.
The CCA denied this point of error, in part, because Sparks’ counsel failed to preserve
the error by first requesting the lesser remedy of an instruction to the jury to disregard the
influence as required by Texas law. After discussing the incident, the prior incident, and
comparing these facts to precedent, the CCA concluded:
Although the harm, if any, could have been cured by an instruction to
disregard, appellant did not request this “lesser remedy.” Further, appellant
has not carried his burden of showing a reasonable probability that the outburst
interfered with the jury’s verdict or posed a reasonable probability of injury to
himself. Appellant offers only conclusory assertions that this disturbance
violated his constitutional right to an impartial jury and was “designed” to
deny him a fair trial. Point of error twenty-two is overruled.
Sparks v. State, No. AP-76,099, 2010 WL 4132769, at *20 (Tex. Crim. App. Oct. 20, 2010)
(footnote omitted) (citing Ocon v. State, 284 S.W.3d 880, 885 (Tex. Crim. App. 2009)).
c. Analysis
In his third claim, Sparks complains that the same individual who charged the rail
during the prosecutor’s punishment argument had previously stood in the doorway during an
outburst by “a hysterical woman.” (Am. Pet. at 58.) Although the woman was not mentioned
5

At the end of his allegation before the state court, Sparks’ mistakenly cited volume 35 of the Reporter’s Record
at page 68, but that volume only has 31 pages.

17

in Sparks’ complaint before the state court or in the CCA’s discussion, the prior incident was
raised and discussed in the context of the same motion for a mistrial. The CCA considered
the nature of the disruption before the jury and the prior disruption, compared these facts
with other precedents, and concluded that, even if Sparks had properly preserved this error
in accordance with Texas law, Sparks had not shown a reasonable probability that the
outburst interfered with the jury’s verdict or posed a reasonable probability of injury to
himself.
In support of his argument that this claim was exhausted, Sparks cites Vela v. Estelle,
708 F.2d 954, 960 (5th Cir. 1983), holding that an ineffective-assistance-of-counsel claim
was exhausted because, although certain facts asserted before the federal court were not
specifically raised in the state court pleading, the same legal theories were presented and the
state court had an obligation under that pre-Strickland standard to review those additional
facts in making its determination.
Outside of referencing “Sparks’s claims regarding other instances of bystander
misconduct,” Respondent’s argument does not identify any substantially different incidents
raised in Spark’s third claim that were not raised and considered in his claim before the state
court. (Ans. at 16.) Therefore, while the Vela case is distinguishable, Sparks appears to have
fairly presented the substance of his third claim to the state court.
The state court’s conclusion that the error had not been properly preserved by first
requesting a lesser remedy in accordance with state law has not been asserted as an

18

independent and adequate ground to bar federal habeas review, and this Court declines to
raise that procedural bar sua sponte. Further, even if this claim were not exhausted, it is clear
that this Court may deny the claim on its merits regardless of exhaustion. “An application
for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the
applicant to exhaust the remedies available in the courts of the State.”

28 U.S.C.

§ 2254(b)(2).
2. Merits
a. Law
Sparks relies upon Holbrook v. Flynn, 475 U.S. 560 (1986), in which the Supreme
Court held that a prisoner was not denied his constitutional right to a fair trial when, at his
trial with five codefendants, customary courtroom security force was supplemented by four
uniformed state troopers sitting in first row of spectator section. Sparks also relies upon
Carey v. Musladin, 549 U.S. 70, 75-77 (2006), in which the Supreme Court reversed a grant
of relief by the Ninth Circuit Court of Appeals and held that state appellate court
determination that habeas petitioner was not inherently prejudiced when spectators wore
buttons depicting murder victim was not contrary to or unreasonable application of clearly
established law.
In Musladin, the Supreme Court distinguished between the “government-sponsored
practices” governed by the standard set out in Flynn and in Estelle v. Williams, 425 U.S. 501
(1976), and“spectator conduct” that does not yet have an established governing standard.

19

In contrast to state-sponsored courtroom practices, the effect on a
defendant’s fair-trial rights of the spectator conduct to which Musladin objects
is an open question in our jurisprudence. This Court has never addressed a
claim that such private-actor courtroom conduct was so inherently prejudicial
that it deprived a defendant of a fair trial. And although the Court articulated
the test for inherent prejudice that applies to state conduct in Williams and
Flynn, we have never applied that test to spectators’ conduct. Indeed, part of
the legal test of Williams and Flynn–asking whether the practices furthered an
essential state interest–suggests that those cases apply only to state-sponsored
practices.
Musladin, 549 U.S. at 76 (footnote omitted). The Supreme Court then concluded that the
state court could not have unreasonably applied clearly established federal law as determined
by the Supreme Court because the Supreme Court had not established a standard for
spectator’s conduct. “No holding of this Court required the California Court of Appeal to
apply the test of Williams and Flynn to the spectators’ conduct here. Therefore, the state
court’s decision was not contrary to or an unreasonable application of clearly established
federal law.” Id. at 77.
b. Analysis
Sparks relies upon Musladin, in which the Supreme Court held that it never applied
the standard set forth in Williams and Flynn to the conduct of bystanders rather than
government actors. The very case he relies upon reveals the lack of clearly established
federal law to support relief under section 2254(d). Sparks has not shown that the state court
decision was an unreasonable adjudication of his claim under section 2254(d). Therefore,
the third claim is DENIED for lack of merit.

20

C. External Influence - Cumulative
In his fourth claim, Sparks complains that the cumulative effect of bystander outbursts
and the image on the bailiff’s necktie created an overall atmosphere of “mob domination”
that deprived him of his rights to a fair trial by an impartial jury under the Sixth and
Fourteenth Amendments. (Am. Pet. at 61-63.) Respondent again argues that this claim is
unexhausted and procedurally barred, and in the alternative, lacks merit. (Ans. at 24-26.)
1. Exhaustion and Procedural Bar
a. Law
As set out above, a habeas petitioner must fairly present the factual and legal basis of
his claims to the highest available state court to satisfy the exhaustion requirement. See
Carty, 583 F.3d at 254; Deters, 985 F.2d at 795; Satterwhite, 886 F.2d at 92-93. This
includes claims of cumulative error. It is not enough that the habeas petitioner “effectively
raised in the state courts each of the underlying errors on which his claim of fundamental
unfairness depends.” See Nickleson v. Stephens, 803 F.3d 748, 753 (5th Cir. 2015). He must
“fairly present to the state courts” that the cumulative effect of the errors denied him due
process and a fundamentally fair trial.6 Id. Further, “ordinarily a state prisoner does not
‘fairly present’ a claim to a state court if that court must read beyond a petition or a brief (or
a similar document) that does not alert it to the presence of a federal claim in order to find

6
In Nickleson, the Court of Appeals noted that one court had misinterpreted its opinion in Derden v. McNeel,
978 F.2d 1453, 1454 (5th Cir. 1992), to imply that it dispensed with the exhaustion doctrine when considering a claim
of cumulative error. See 803 F.3d at 753 n.5 (citing Collins v. Sec’y of Pa. Dep’t of Corrs., 742 F.3d 528, 541-42 (3d
Cir 2014.)).

21

material, such as a lower court opinion in the case, that does so.” Baldwin v. Reese, 541 U.S.
27, 32 (2004).
“The purposes of the exhaustion requirement ‘would be no less frustrated were we to
allow federal review to a prisoner who had presented his claim to the state court, but in such
a manner that the state court could not, consistent with its own procedural rules, have
entertained it.’” Carty, 583 F.3d at 254 (quoting Edwards v. Carpenter, 529 U.S. 446, 453
(2000)). This can also result in a procedural bar from federal review.
“[A] habeas petitioner who has failed to meet the State’s procedural
requirements for presenting his federal claims has deprived the state courts of
an opportunity to address those claims in the first instance.” If the
“independent and adequate state ground” doctrine were not applied, a federal
district court or court of appeals would be able to review claims that [the
Supreme] Court would have been unable to consider on direct review.
Lambrix v. Singletary, 520 U.S. 518, 523 (1997) (quoting Coleman, 501 U.S. at 730-731,
732; internal citations omitted).
A petition containing both exhausted and unexhausted claims must normally be
dismissed or stayed so that the petitioner may return to state court to exhaust state remedies.
See Rhines v. Weber, 544 U.S. 269, 277-78 (2005); Rose v. Lundy, 455 U.S. 509, 519-20
(1982). Such action would be futile, and the federal court should find claims to be
procedurally barred, if “the court to which the petitioner would be required to present his
claims in order to meet the exhaustion requirement would now find the claims procedurally
barred.” Coleman, 501 U.S. at 735 n.1; see also Neville v. Dretke, 423 F.3d 474, 480 (5th
Cir. 2005) (holding unexhausted claims ineligible for stay when state court would find them
22

procedurally barred). But a habeas petitioner may avoid the imposition of this bar by
demonstrating a recognized exception.
In all cases in which a state prisoner has defaulted his federal claims in state
court pursuant to an independent and adequate state procedural rule, federal
habeas review of the claims is barred unless the prisoner can demonstrate
cause for the default and actual prejudice as a result of the alleged violation of
federal law, or demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.
Coleman, 501 U.S. at 750.
The federal court should find claims to be procedurally barred, if “the court to which
the petitioner would be required to present his claims in order to meet the exhaustion
requirement would now find the claims procedurally barred.” Coleman, 501 U.S. at 735 n.1;
see also, Neville, 423 F.3d at 480. The United States Court of Appeals for the Fifth Circuit
has repeatedly “held that ‘the Texas abuse of the writ doctrine has been consistently applied
as a procedural bar, and that it is an independent and adequate state ground for the purpose
of imposing a procedural bar.’” Canales v. Stephens, 765 F.3d 551, 566 (5th Cir. 2014)
(quoting Hughes v. Quarterman, 530 F.3d 336, 342 (5th Cir. 2008)).
b. Analysis
Respondent argues that Sparks did not present the combined claim to the state court,
but presented his complaint regarding the bailiff’s tie in the state postconviction proceedings
and his complaint about the bystander disruption in the state direct appeal. In neither of these
proceedings did Sparks combine these claims to complain about an environment of “mob
domination” in violation of his rights under the Sixth and Fourteenth Amendments.
23

Sparks responds that he properly exhausted each of his complaints regarding the
necktie and regarding bystander disruption and that the remainder of his complaint was
evident from the state court record. (Reply at 15-16.) Therefore, Sparks argues, his claims
are exhausted and not procedurally barred.
Even if Sparks exhausted individual parts of his cumulative claim, he has not
exhausted the cumulative claim itself. However, Sparks has not even exhausted each of his
individual claims. He argues that portions of his claim were apparent from the record, but
a claim is not “fairly presented” if the state court “must read beyond a petition or a brief ...
in order to find material” that alerts it to the presence of a federal claim.” See Baldwin, 541
U.S. at 32; Wooten v. Kirkland, 540 F.3d 1019, 1025 (9th Cir. 2008)). Therefore, the
cumulative error claim presented to this court was not presented to the state court and it relies
upon parts that were also not actually exhausted before the state court. Since his cumulative
error claim would now be considered procedurally barred in state court under the state abuseof-the-writ doctrine, it is procedurally barred in this Court as well. See Coleman, 501 U.S.
at 735 n.1; Neville, 423 F.3d at 480; Canales, 765 F.3d at 566.
Spark’s fourth claim is DISMISSED as procedurally barred.
2. Alternative Merits Analysis
The CCA denied Sparks’ complaint regarding the Bailiff’s necktie on the basis that
Sparks had not shown it was seen by the jury. Before this Court, Sparks has not shown that
finding to be incorrect or unreasonable. Therefore it could not have, either independently or

24

in combination with other factors, have created any adverse impact on the jury’s
consideration of his case.
This leaves the allegations of Spark’s third claim now presented under the theory that
the repeated conduct of a bystander created a “mob dominated” atmosphere that deprived
him of his right to a fair trial under the Sixth Amendment. Petitioner also likens this case to
Sheppard v. Maxwell, 384 U.S. 333 (1966), which only addressed prejudicially extreme
media coverage, both before trial and during trial that created a carnival atmosphere.
While we cannot say that Sheppard was denied due process by the
judge’s refusal to take precautions against the influence of pretrial publicity
alone, the court’s later rulings must be considered against the setting in which
the trial was held. In light of this background, we believe that the
arrangements made by the judge with the news media caused Sheppard to be
deprived of that ‘judicial serenity and calm to which (he) was entitled.’ Estes
v. State of Texas, supra, 381 U.S., at 536, 85 S.Ct., at 1629. The fact is that
bedlam reigned at the courthouse during the trial and newsmen took over
practically the entire courtroom, hounding most of the participants in the trial,
especially Sheppard. At a temporary table within a few feet of the jury box
and counsel table sat some 20 reporters staring at Sheppard and taking notes.
The erection of a press table for reporters inside the bar is unprecedented.
Id., 384 U.S. at 354-55. Nothing like this is presented in this case.
For the same reasons this Court rejected the merits of Sparks’ third claim, this claim
also lacks merit. Therefore, if it were not dismissed as unexhausted and procedurally barred,
it would be DENIED for lack of merit.
D. False Testimony - Merillat
In his fifth claim, Sparks complains that his Eighth Amendment and Due Process
rights were violated when a state’s expert was allowed to testify to materially inaccurate and
25

false information. (Am. Pet. at 63-109; Reply at 16-45.) Respondent asserts that this claim
is procedurally barred by the state court’s determination that it was barred in a successive
habeas petition. (Ans. at 26-30.) In the alternative, Respondent asserts that the claim lacks
merit. (Ans. at 26, 31-34.)
Sparks argues that the delay in filing this claim was due to prosecutorial misconduct.
(Am. Pet. at 92-98; Reply at 16-17.) Sparks also asserts that he has established cause and
prejudice to excuse the procedural default in that the prosecution team violated Brady in
failing to disclose the false nature of the testimony.7 (Am. Pet. at 92-98.) Further, Sparks
argues that the state procedural ground are not independent of federal law. (Ans. at 103106.) Respondent argues that Merillat’s testimony was not false and he was not a member
of the prosecution team. (Ans. at 31-38)
1. Factual Background
During the punishment stage, the prosecution called A.P. Merillat, a “criminal
investigator with the special prosecution unit in Huntsville” to explain “the likelihood or
opportunities to be violent inside the penitentiary.” (Am. Pet. at 64 (citing 39 RR at 8-36,
68-95, at 8).) On direct examination, Merillat testified that Sparks would enter the state
prison system, the Institutional Division of the Texas Department of Criminal Justice
(TDCJ), at a G-3 classification level if he was sentenced to life in prison, and that no set of

7

Sparks also argues that his alternate claim of ineffective assistance of trial counsel comes within the exception
to procedural bar created in Martinez v. Ryan, 566 U.S. 1 (2012), and applied to Texas cases in Trevino v. Thaler, 569
U.S. 413 (2013). (Am. Pet. at 98-103.) This is addressed in the discussion of his “ninth” claim.

26

circumstances could change this. (Am. Pet. at 64-65 (citing 39 RR at 70-80).) Merillat also
explained that persons entering at this level would be permitted to go to the mess hall with
other inmates, go the library with other inmates, go to school and medical facilities, go to
visitation, and that they could work outside the walls of the prison. (Am. Pet. at 65 (citing
38 RR at 76).) On cross examination by defense counsel, Merillat agreed that an offender
receiving a life sentence for capital murder could be classified at the more restrictive G-4 or
G-5 levels.
Q.

But as I just pointed out, sir, whether or not you’re classified, the
minimum classification for a person is G-3 and can go all the way up
to an automatic classification of ad seg right off the bat, couldn’t it?
That’s yes or no, sir. Right or wrong?

A.

You’re wrong.

Q.

I’m wrong?

A.

Yes.

Q.

Couldn’t be placed in ad seg?

A.

Very limited circumstances. But the broad way you say it is not correct.

Q.

He could be, couldn’t he?

A.

He could be.

Q.

Could be G-4, couldn’t he?

A.

He could be.

Q.

Could be G-5.

A.

Could be.
27

(39 RR at 86-87.)
In support of his claim, Sparks presents the testimony of his expert, Frank Aubuchon,
that a person sentenced to life without parole will, at best, be classified to the G-3 level, or,
to the more restrictive G-4 or G-5 levels, if required. (Am. Pet. at 66 (citing Pet. Ex. #1).)
2. State Court Action
This claim was not raised in the direct appeal or initial state habeas proceeding.
Instead, this Court granted an agreed stay of these proceedings to allow this claim to be
presented to the state court in a subsequent state habeas application. (Order, doc. 33.)
During the abeyance, the state court denied the subsequent state application filed to present
this claim “as an abuse of the writ without considering the merits of the claim.” Ex parte
Sparks, No. WR-76,786-02, 2014 WL 2002211, at *1 (Tex. Crim. App. May 14, 2014).
3. Procedural Bar
a. Law
This Court will not reach the merits of a claim that the state court denied on
independent and adequate state procedural grounds, unless the habeas petitioner shows that
an exception to the procedural bar applies. See Sawyer, 505 U.S. at 338; Coleman, 501 U.S.
at 729. The United States Court of Appeals for the Fifth Circuit has repeatedly “held that
‘the Texas abuse of the writ doctrine has been consistently applied as a procedural bar, and
that it is an independent and adequate state ground for the purpose of imposing a procedural
bar.’” Canales v. Stephens, 765 F.3d 551, 566 (5th Cir. 2014) (quoting Hughes v.
28

Quarterman, 530 F.3d 336, 342 (5th Cir. 2008)).
b. Analysis
Because the state court denied the claim as procedurally barred by the Texas abuse-ofthe-writ rule, Respondent argues that it is barred from review in this Court as well. (Ans. at
27-30.) Sparks responds that it comes within an exception to procedural bar.8 (Am. Pet. at
92-103.) Specifically, Sparks asserts as cause and prejudice the prosecutorial misconduct of
withholding exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963), “by
concealing the fact that Merillat, a state agent, was testifying falsely at Sparks (sic)
punishment phase, and how sparks (sic) was prejudiced by Merillat’s false testimony.” (Am.
Pet. at 92-93.) However, as set out in the alternate merits analysis below, Sparks has not
shown that the testimony in question was materially false in light of Merillat’s correcting
testimony on cross-examination.
To the extent that Sparks asserts that the State withheld evidence because “Merillat
had to have known he was testifying falsely,” Sparks does not consider the correcting
testimony provided on cross examination. Therefore, any prior misstatement of the TDCJ
classification plan was not material under Brady in light of the correcting testimony.
To the extent Sparks complains of the suppression of TDCJ classification regulations,
the withholding of administrative regulations is not generally considered a violation of Brady
if the regulations were equally available to either side. See e.g., United States v. Farkas, 867
8

Sparks also called upon the State to waive the procedural bar, but there is no indication that they have done
so. (Am. Pet. at 90-91.) Instead, the procedural bar is clearly asserted in defense of this claim.

29

F.2d 609 (4th Cir. 1989) (holding that federal administrative regulations are not Brady
material.). Sparks has not shown that the TDCJ Unit Classification Procedure was not
equally available to both sides. Therefore, he has not shown any suppression, even if the
testimony had been shown to be false and material.
To the extent that Sparks attempts to prove that the evidence was false based on the
testimony of his own expert, this has generally not been considered sufficient to show a due
process violation. A mere disagreement between experts is not normally sufficient to show
that the opinion testimony of one of them is false or misleading. See Boyle v. Johnson, 93
F.3d 180, 186 (5th Cir. 1996) (holding that “the fact that other experts disagreed” was
insufficient to show the state’s expert testimony to be false or misleading); Clark v. Johnson,
202 F.3d 760, 767 (5th Cir. 2000) (holding disagreement between experts was insufficient
to overcome state habeas court’s factual determination that the prosecution expert’s
testimony was not false or misleading); Harris v. Vasquez, 949 F.2d 1497, 1524 (9th Cir.
1990) (holding that conflicting psychiatric opinions did not show that the state’s expert
testimony was false, noting that “psychiatrists disagree widely and frequently” (quoting Ake
v. Oklahoma, 470 U.S. 68, 81 (1985)).); Campbell v. Gregory, 867 F.2d 1146, 1148 (8th Cir.
1989) (presenting differing testimony from new expert in motion for new trial did not
establish falsity of prior expert’s opinion offered at trial). But even if it could be sufficient,
for the reasons set out in the alternate merits analysis, Sparks’ expert testimony would not
establish a due process violation.

30

Sparks’ contention that the state court’s disposition on procedural grounds is
intertwined with federal law is effectively rebutted by the state court order which dismissed
Sparks’ subsequent application “as an abuse of the writ without considering the merits of the
claim.” Ex parte Sparks, 2014 WL 2002211, at *1. This language is sufficient to show the
disposition on “adequate and independent state law” grounds. Gutierrez v. Stephens, 590 F.
App’x 371, 384 (5th Cir. 2014); see also Thompson v. Davis, No. CV H-13-1900, 2017 WL
1092309, at *14 (S.D. Tex. Mar. 23, 2017) (holding such a dismissal adequate to bar federal
review). Sparks argues that the state law is not independent, asserting that the “Art. 11.071
§(5) review necessarily includes a federal component.” (Am. Pet. at 104.) He cited Ruiz v.
Quarterman, 504 F.3d 523, 527 (5th Cir. 2007), in support of this position, but Ruiz is
distinguishable.
In Ruiz, the state court order did not contain the express language that the claim was
dismissed as an abuse of the writ without considering the merits of the claim. Instead, the
“studied ambiguity” of the language gave rise to the uncertainty relied upon in Ruiz. 504
F.3d at 527. The Court of Appeals also considered the intricacies of the CCA’s voting
requirements and the language in both the concurring and dissenting opinions which
“strongly suggest that the CCA debated and reached the federal merits question, not the
independent state law ground.” Id. at 528. This is clearly distinct from the express language
of the order dismissing Sparks’ subsequent state writ. Sparks has not shown this express
finding to be incorrect.

31

The Court finds that Sparks has not shown cause and prejudice to excuse the
procedural default on independent and adequate state grounds. Therefore, this claim is
DISMISSED as procedurally barred.
4. Alternate Merits Analysis
a. Law
Sparks relies upon Napue v. Illinois, 360 U.S. 264, 269 (1959), in support of his
argument that a conviction obtained through perjury, known to be such by representatives of
the State, violates due process, even when the State, although not soliciting the perjury,
allows it to go uncorrected when it appears. (Am. Pet. at 76-77; Reply at 16.) To prove a
due process violation under Napue, a petitioner must establish that (1) the testimony was
false, (2) the government knew the testimony was false, and (3) the testimony was material.
See Summers v. Dretke, 431 F.3d 861, 872 (5th Cir. 2005); United States v. Mason, 293 F.3d
826, 828 (5th Cir. 2002). Sparks also relies upon Johnson v. Mississippi, 486 U.S. 578, 590
(1988), in support of his assertion that his death sentence was procured in violation of the
Eighth Amendment because it was based on “materially inaccurate” evidence. (Am. Pet. at
74-75.)

The United States Court of Appeals for the Fifth Circuit has held that,

notwithstanding the difference between a claim of false testimony and the use of an invalid
aggravator, to sustain a claim under Johnson, a habeas petitioner must establish that the
testimony was “false and material.” See Hernandez v. Johnson, 213 F.3d 243, 252 (5th Cir.

32

2000) (citing Fuller v. Johnson, 114 F.3d 491, 497 (5th Cir.1997)).9 This would correspond
with two of the three elements of a due process claim under Napue.
b. Analysis
Sparks argues that the principle set forth in Johnson was applied by the State court to
reverse death sentences in Estrada v. State, 313 S.W.3d 274 (Tex. Crim. App. 2010) and
Velez v. State, No. AP-76,051, 2012 WL 2130890, at *31 (Tex. Crim. App. June 13, 2012)
because it found the death sentences to be based on similar inaccurate testimony by Merillat.
In Estrada, the defendant presented expert testimony that the least restrictive classification
he could receive if given a life sentence was G-3. In rebuttal, the state presented testimony
from Merillat that, “after 10 years of G-3 status, a sentenced-to-life-without-parole capital
murderer could achieve a lower (and less restrictive) G classification status than a G–3
status.” 313 S.W.3d at 286. On appeal, the State confessed error, joining with Estrada in
asking the CCA to take judicial notice of a TDCJ regulation which, both parties agree,
unambiguously shows that, prior to Estrada’s trial, “offenders convicted of Capital Murder
and sentenced to ‘life without parole’ will not be classified to a custody less restrictive than
G–3 throughout their incarceration’ (it appears that before September 1, 2005, a
sentenced-to-life-with-the-possibility-of-parole capital murderer could have obtained a lower
and less restrictive G–3 status after ten years).” Id. at 287. The CCA accepted the
9

Sparks also argues an opinion of the CCA in support of this claim. (Am. Pet. at 59 (citing Estrada v. State, 313 S.W.3d
274, 287 (Tex. Crim. App. 2010)); Reply at 8-9.) Under section 2254(d), however, only a state court decision that is
“contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme
Court of the United States” can make the required showing. This would not include state court decisions, but “only ‘the
holdings, as opposed to the dicta, of [United States Supreme Court] decisions.’” Woodall, 134 S. Ct. at 1702.

33

confession of error, vacated the sentence, and remanded for a new punishment hearing. See
id. at 317.
In Velez, the State also called Merillat, who testified that a capital murderer sentenced
to life without parole could achieve a lower, less restrictive G classification status than G-3
based on good behavior. 2012 WL 2130890, at *31. On direct appeal, the CCA found that
this testimony contained the same error as in Estrada, that, if sentenced to life, the defendant
could obtain a classification less restrictive than a G-3 status. The CCA sustained the point
of error, vacated the death sentence, and remanded for a new punishment hearing. See 2012
WL 2130890, at *35.
Respondent argues that Sparks’ case is distinguishable from Estrada and Velez, and
that Merillat’s testimony in Sparks’ trial was not false. (Ans. at 31-34.) Respondent asserts
that to obtain relief, Sparks must establish a due process violation resulting from the use of
perjured testimony, and must show that the prosecution knowingly presented materially false
evidence to the jury. (Ans. at 31-32 (citing Koch v. Puckett, 907 F.2d 524, 531 (5th Cir.
1990); United States v. Martinez-Mercado, 888 F.2d 1484, 1492 (5th Cir. 1989)).)
As noted above, Merillat’s allegedly false testimony was corrected during defense
counsel’s cross examination. Any misstatement was not materially false for purposes of
Napue or Brady. Accordingly, Sparks has not shown that the testimony was false or
materially inaccurate. Therefore, if this claim were not dismissed as procedurally barred it
would be DENIED for lack of merit.

34

E. Juror Challenges
In his sixth claim, Sparks complains that the state court improperly overruled his
challenges for cause to numerous jurors named in his direct appeal. (Am. Pet. at 109-37.)
Respondent argues that the state court adjudication was not contrary to or an unreasonable
application of clearly established federal law. (Ans. at 46-58.) Respondent also asserts that
Sparks has not demonstrated harm in that he was able to strike all but one of the jurors about
which he complains and, moreover, that he was granted two additional strikes. Respondent
argues that, at a minimum, Sparks must show that the juror who actually sat rendered his trial
fundamentally unfair and that two additional jurors he peremptorily struck were equally
egregious. (Ans. at 58.) Because Sparks fails to demonstrate a violation of clearly
established constitutional law, Respondent argues that these claims for relief must be denied.
(Ans. at 58.)
1. State Court Action
At trial, Sparks challenged seventeen jurors for cause that were made part of his
appellate points of error to the CCA, including the eight jurors listed in his amended petition.
When these challenges for cause were overruled, Sparks exercised a peremptory challenge
to each of them except for the last one, Susan Cassel. By that time, Sparks had run out of his
original and the two additional peremptory strikes that he had been granted. This prevented
all but Cassel from serving on the jury. The CCA held that, because the trial court had
granted 2 additional peremptory strikes, Sparks had to “show that the trial court committed

35

error in denying his challenges for cause to three potential jurors to demonstrate that he was
harmed.” Sparks, 2010 WL 4132769, at *2.
After thoroughly reviewing fifteen of the challenged jurors, and determining that each
of the challenges lacked merit, the CCA declined to review the challenges to the last two,
Kristine Marie Bell and Kimberlyn Moriarity, as moot due to the lack of three remaining
challenges. Sparks, 2010 WL 4132769, at *17 n.32.
2. Law
“It is well settled that the Sixth and Fourteenth Amendments guarantee a defendant
on trial for his life the right to an impartial jury.” Ross v. Oklahoma, 487 U.S. 81, 85 (1988).
However, the forced use of a peremptory challenge does not rise to the level of a
constitutional violation. See id. at 88. “Any claim that the jury was not impartial, therefore,
must focus not on [the excused venireperson], but on the jurors who ultimately sat.” Id. at
86.
The proper standard for determining when a prospective juror may be excluded for
cause because of his or her views on capital punishment is whether the juror’s views would
“prevent or substantially impair the performance of his duties as a juror in accordance with
his instructions and his oath.” Wainwright v. Witt, 469 U.S. 412, 424 (1985). Further, “[d]ue
process implies a tribunal both impartial and mentally competent to afford a hearing.”
Jordan v. Com. of Massachusetts, 225 U.S. 167, 176 (1912). In federal prosecutions, “[t]o
enforce this right, the jury’s verdict must be set aside if the defendant presents ‘clear

36

evidence of a juror’s incompetence to understand the issues and to deliberate at the time of
his service.” United States v. Hall, 989 F.2d 711, 714 (4th Cir. 1993) (quoting United States
v. Dioguardi, 492 F.2d 70, 78 (2d Cir.1974), and United States v. Vargas, 606 F.2d 341 (1st
Cir.1979)). “A federal court must assume the state court’s determination of the facts is
correct unless the petitioner ‘rebut[s] the presumption of correctness by clear and convincing
evidence.’” Prystash v. Davis, 854 F.3d 830, 835 (5th Cir. 2017), cert. denied, 138 S. Ct.
649 (2018) (quoting 28 U.S.C. § 2254(e)(1)).
3. Analysis
The only challenge that Sparks presents regarding a juror who actually sat on his jury
complains of Susan Cassel. At trial, Sparks did not challenge this juror because of her views
on capital punishment or any perceived bias. He only complained that she did not have the
mental capacity to sit on this jury.
After Cassel was interviewed by the both the state and the defense the defense
objected that Cassel was “not the kind of juror that the law envision[ed] sitting
on this type of case.” 33 Ct. R. at 129-130. The defense was concerned that
the Cassel did not understand the nature her role as a juror, and opined that
there was no way, “under any stretch of the imagination we could accept [her]
as the 12th juror on the panel.” Id. at 129.
(Am. Pet. at 135.) The trial court disagreed and found the juror to be qualified.
THE COURT:

I’m not sure, Mr. Johnson, whether you and I just
observed the same juror an hour and a half. Be that as it
may, your motion that she be stricken for cause is denied.

MR. JOHNSON:

Judge, at this time, we have to ask the court to grant us
an additional peremptory strike so we could excuse her
from serving.
37

THE COURT:

Having given you two previous strikes, I deny your
request for additional peremptory strikes.

MR. JOHNSON:

So the record’s clear, the court’s -- if we have to accept
-- we can’t accept her. If the court’s gonna force this
juror upon us without giving us an additional strike, that
is the conclusion of the voir dire; is that correct?

THE COURT:

She will -- ya’ll not having any strikes left, no additional
being given, her clearly being qualified, she will be our
12th juror and we will begin to pick the alternates.

(33 RR at 129-30) (emphasis added).
On appeal to the CCA, Sparks presented his seventeenth point of error which
complained that Cassel was
challengeable for cause under Article 35.16(a)(5), which provides that a
challenge for cause may be made by either the state or the defense for the
reason that
the juror has such defect in the organs of feeling or hearing, or
such bodily or mental defect or disease as to render the juror
unfit for jury service, or that the juror is legally blind and the
court in its discretion is not satisfied that the juror is fit for jury
service in that particular case[.]
A “mental defect” may be present when the prospective juror's responses show
an inability to understand the jury's role in capital proceedings.
Sparks v. State, 2010 WL 4132769, at *15 (footnote omitted). The CCA explained
During voir dire, Cassel said that she understood and would follow the
law concerning the State’s burden of proof at the guilt phase. She also stated
that after finding a defendant guilty, she could presume that a life sentence was
the proper punishment. She affirmed that she could presume that the
defendant would not be a future danger, unless and until the State proved

38

future dangerousness during the punishment phase. Cassel also said that she
would be open to considering mitigating circumstances.
Near the conclusion of voir dire, defense counsel asked Cassel if she
had any questions for him. Cassel asked for clarification about the timing of
the different parts of the trial. Counsel explained that the guilt phase would
come first, and then, if the jury found the defendant guilty, the punishment
phase would follow. During punishment, the jury would hear evidence
concerning both future dangerousness and mitigation, all at the same time.
The jury would then retire to deliberate on the future dangerousness question
and then, if the jury found that the defendant was a future danger, the jury
would deliberate on the mitigation question. Cassel thanked defense counsel
for this information.
Id., 2010 WL 4132769, at *16. The CCA concluded,
This record does not demonstrate that Cassel had any bodily or mental defect
that rendered her unfit for jury service. The record shows only that, when
defense counsel asked Cassel if she had any questions, she asked him for
clarification about the timing of the different parts of the trial. Counsel
answered her question, and she thanked him. The trial court did not abuse its
discretion in denying appellant’s challenge for cause. Point of error seventeen
is overruled.
Id.
Sparks cites certain portions of Cassel’s testimony as “nonsensical” and showing that
she was “overwhelmed” and did not understand Texas death penalty law. (Am. Pet. at 13537.) However, Sparks takes these passages out of context and does not accurately quote from
the record. Sparks alleges that “when asked if society includes prison society she answered
as follows . . . .” (Am. Pet. at 135.) But the record reflects that Cassel had already answered
the question about society and heard the attorney’s comments about how this part of future
dangerousness may seem “counterintuitive.” She was then asked, “You have any questions

39

about that? You’re hesitating.” (33 RR at 85.) Cassel’s open-ended response makes far
more sense in light of the open-ended question she was given.
Sparks also complains about Cassel’s response to his question about the presumption
of innocence in the first part of the trial and her response that in the second part she guessed
she was supposed to presume guilt instead. (Am. Pet. at 136.) Sparks has not shown that her
answer was unreasonable or any proof of mental incompetence. See Stullivan v. State, 47
Tex. Crim. 615, 619, 85 S.W. 810, 812 (1905) (holding that the presumption of innocence
does not apply in the punishment stage after a determination of guilt); United States v.
Thaxton, 483 F.2d 1071, 1072 (5th Cir. 1973) (presumption of innocense disappears with a
verdict of guilty). And the attorney did not disagree with her answer. Further, Sparks
neglected to mention that the attorney had just given her a scenario where the jury
unanimously found the defendant guilty and emphasized that the best the defendant could get
was life without the possibility of parole. (33 RR at 107.) He was looking for a presumption
that the answer to Special Issue No. 1 was “no.” (33 RR at 107-108.) In his questioning, the
attorney’s emphasis was that, at the punishment stage, Sparks was never going to get out of
prison regardless of how the jury answered those special issues.
The state court has determined that Cassel was qualified and fit for jury service.
Sparks has not shown that these findings were incorrect or any unreasonable adjudication of
his claim. Since none of the other prospective jurors in issue served on this jury, there is no
need to analyze whether Sparks’ challenges for cause of those prospective jurors were

40

properly overruled before they were otherwise excused. See Ross, 487 U.S. at 86. Sparks’
sixth claim is DENIED for lack of merit.
F. Jury Instructions
In his seventh claim, Sparks complains that the Texas death penalty procedures violate
the Sixth, Eighth, and Fourteenth Amendments by not requiring the prosecution to disprove
the mitigation special issue beyond a reasonable doubt. (Am. Pet. at 137-49.) Respondent
argues that this claim is foreclosed by binding precedent in accordance with the state court
adjudication. (Ans. at 58-63.) Respondent is correct.
In Rowell v. Dretke, 398 F.3d 370, 375-76 (5th Cir. 2005), the habeas petitioner
complained that Texas law was unconstitutional for failing to assign a burden of proof to the
mitigation special issue and not providing a standard for appellate review. The Court of
Appeals held that this special issue procedure was constitutional and that to create such a
new rule of constitutional law would be barred from federal habeas review under Teague v.
Lane, 489 U.S. 288, 310 (1989). Id., 398 F.3d at 376-77.
Sparks acknowledges this Circuit precedent, but argues that his argument is different,
and it rests on a much firmer foundation. (Am. Pet. at 148-49.) He argues that his complaint
is a more modest one in that it does not argue that the prosecution should have the burden of
proof beyond a reasonable doubt, but that the law must merely assign a burden of proof to
let everyone know “the rules of the mitigation game before play started.” (Am. Pet. at 149.)
Sparks both asserts different complaints in his own ground for relief and misapprehends

41

circuit precedent. His complaint bears no meaningful distinction from that in Rowell, even
assuming the lesser standard.
This claim does not show an entitlement to relief, but is foreclosed by binding circuit
precedent. Accordingly, Sparks seventh claim for relief is DENIED for lack of merit.
G. Informing Jurors of Effect of Failure to Reach Verdict
In his eighth claim, Sparks complains that the Texas death penalty procedures violate
the Sixth, Eighth, and Fourteenth Amendments by not informing the jurors that the failure
to come to a verdict will result in a life sentence. (Am. Pet. at 150-56.) Sparks argues that
this affirmatively misleads jurors “about their individual ability to give effect to their
personal belief regarding mitigation.” (Am. Pet. at 150.) Sparks bases his argument on
Supreme Court precedent “that the petitioner’s sentence could not stand where it was
possible that some ‘jurors were prevented from considering factors which may call for a less
severe penalty [than death.]’” (Am. Pet. at 150 (citing Mills v. Maryland, 486 U.S. 367, 376
(1988)). Respondent argues that this claim is foreclosed by binding precedent in accordance
with the state court adjudication, and is barred by the the nonretroactivity principle of
Teague. (Ans. at 63-67) (citing Jones v. United States, 527 U.S. 373, 381 (1999), Blue v.
Thaler, 665 F.3d 647, 669-70 (5th Cir. Tex. 2011), Alexander v. Johnson, 211 F.3d 895, 897
(5th Cir. 2000), and Webb v. Collins, 2 F.3d 93, 95-96 (5th Cir. 1993)).
Citing Mills v. Maryland, 486 U.S. 367, 376 (1988), and McKoy v. North Carolina,
494 U.S. 433, 442-43 (1990), Sparks argues that the jury instructions were unconstitutional

42

in that they misled jurors about their individual ability to give effect to mitigating
circumstances.
Although Texas’ sentencing statute gives individual jurors the power to
prevent the death penalty if they believe mitigating circumstances call for a
sentence of life, that same statute also misleads jurors into believing their
individual belief is immaterial unless they are able to persuade nine of their
fellow jurors that their view of the evidence is correct.
(Am. Pet. at 151.) This complaint has been repeatedly rejected in this Circuit.
In Allen v. Stephens, 805 F.3d 617, 631-32 (5th Cir. 2015), the petitioner argued that
his “sentencing process was confusing and violated Mills v. Maryland, 486 U.S. 367, 108
S.Ct. 1860, 100 L.Ed.2d 384 (1988), because it gave the jurors the misimpression that they
did not have an individual ability to prevent a death sentence based upon their personal view
of the mitigating evidence.” The Court of Appeals rejected that argument, holding that the
Supreme Court has declined to give Mills such a “broad construction.” Id. at 632 (citing
Smith v. Spisak, 558 U.S. 139, 148-49 (2010)).
Mills error occurs only where jurors are led to believe that they are “precluded
from considering any mitigating evidence unless all 12 jurors agreed on the
existence of a particular such circumstance.” Id. (quoting Mills, 486 U.S. at
384, 108 S.Ct. 1860) (emphasis added).
Allen points to no instruction in his case that would have led jurors to believe
that they were required to agree on the existence of any particular mitigating
circumstance. Indeed, the instructions in Allen’s case specifically provided
that jurors “need not agree on what particular evidence supports an affirmative
finding on” the mitigation special issue.
Id.
Similarly, Sparks has not identified any instruction that the jurors were required to
43

agree on any particular mitigating circumstance, and the instructions concerning the
mitigation special issue at his trial provided that “[t]he jury however need not agree on what
particular evidence supports a ‘Yes’ answer on this Special Issue.” (Vol. 2, Clerk’s Record,
“CR”, at 497.) This Circuit has repeatedly rejected arguments against the 12-10 rule like the
one that Sparks raises here, holding that the 12-10 rule does not violate Mills. See, e.g.,
Allen, 805 F.3d at 632; Reed v. Stephens, 739 F.3d 753, 779 (5th Cir.2014); Druery v. Thaler,
647 F.3d 535, 542-43 (5th Cir.2011); Miller v. Johnson, 200 F.3d 274, 288-89 (5th
Cir.2000); Jacobs v. Scott, 31 F.3d 1319, 1328–29 (5th Cir.1994).
Sparks attempts to avoid this long line of precedent by arguing that prior circuit
precedent did not address the change in article 37.071 of the Texas Code of Criminal
Procedure. (Am. Pet. at 151-56.) The United State Court of Appeals for the Fifth Circuit has
expressly rejected this argument as well.
Allen attempts to distinguish our prior cases on the ground that he was
sentenced after Texas’s 1991 revisions to the mitigation special issue. The
district court rejected this argument because several of our cases in fact
examined the post-1991 mitigation special issue. Reed, 739 F.3d at 761
(petitioner charged in 1997); Parr v. Thaler, 481 Fed. Appx. 872 (5th Cir.
2012) (petitioner convicted in 2004); see also Druery v. State, 225 S.W.3d
491, 495 (Tex. Crim. App. 2007) (petitioner convicted in 2003). Allen argues
that these newer cases relied on precedent that analyzed the pre-1991
mitigation special issue. However, that the later cases relied on older
precedent does not allow the panel to disregard their holdings and flout the
circuit’s rule of orderliness—“only an intervening change in the law . . .
permits a subsequent panel to decline to follow a prior Fifth Circuit
precedent.” United States v. Alcantar, 733 F.3d 143, 145 (5th Cir.2013).
Allen cites no such change in the law. Therefore, the district court correctly
held that Allen’s Mills argument is foreclosed by binding circuit precedent.
E.g., Druery, 647 F.3d at 542-43.
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Allen, 805 F.3d at 632-33. For these same reasons, Sparks’ Mills argument is also foreclosed
by binding circuit precedent.
Sparks’ eighth claim is DENIED for lack of merit and as barred by Teague.
H. Effective Assistance of Counsel
In his final claim, labeled alternatively “Claims Eight to Eleven” and “Claims Nine,
Ten, and Eleven,” Sparks asserts in two sentences that he was deprived of the effective
assistance of counsel as set out in earlier portions of the amended petition. (Am. Pet. at 157.)
Respondent argues that these claims are inadequately briefed and lack merit. (Ans. at 67-70.)
1. Claim
Sparks references claims from his original skeletal petition which constituted a list of
conclusions without supporting facts. (Pet., doc. 9, at 36-41.) Even so, Sparks confirms that
“[t]he substance of these predecessor claims have all been raised in this amended petition.”
(Am. Pet. at 157.) This Court has only found one claim of ineffective assistance of counsel
that was actually presented in the amended petition.
In addition to complaining in his fifth claim about prosecutorial misconduct, Sparks
also complained in the alternative that his trial counsel failed to provide effective assistance
of counsel by failing to correct the record by introducing evidence rebutting Merillat’s
testimony. (Am. Pet. at 86-89.) Specifically, Sparks argues that Defense counsel was
ineffective for allowing Officer Merillat to mislead the jury with his demonstrably incorrect
claim that inmates sentenced to life without parole will enter prison at the G3 classification
45

level regardless of the specific offender characteristics. (Am. Pet. at 87.) In connection with
this, Sparks argues that defense inadequately investigated punishment-phase evidence by
failing to request Merillat’s personnel file, training history, and case files prior to trial. (Am.
Pet. at 87.) Sparks also argues that defense counsel failed to secure an expert who could
have set the record straight, and testify to the proper TDCJ rules regarding classification.
(Am. Pet. at 88.)
Sparks asserts that he was prejudiced in that the jury was allowed to consider
Merillat’s false testimony which resulted in a death sentence rather than a life sentence.
(Am. Pet. at 89.) This claim was not presented to the state court in the original state habeas
proceeding, and was included in the alternative in his subsequent state habeas application that
was dismissed as an abuse of the writ. (Subsequent State Appl at 25, 38-41, doc. 60 at 84,
97-100.) Sparks argues that this claim comes within the exception to procedural bar set out
in Trevino and Brady. (Am. Pet. at 92-103.)
2. Analysis
a. Procedural Bar
As set out above, “the Texas abuse of the writ doctrine has been consistently applied
as a procedural bar, and that it is an independent and adequate state ground for the purpose
of imposing a procedural bar.” Canales, 765 F.3d at 566. Therefore, this Court will not reach
the merits of a claim that the state court denied on such procedural grounds, unless the habeas

46

petitioner shows that an exception to the procedural bar applies. See Sawyer, 505 U.S. at
338; Coleman, 501 U.S. at 729.
Sparks argues that good cause exists for this court to consider the merits of his
prosecutorial misconduct claim because the prosecution “violated Brady by concealing the
fact that Merillat, a state agent, was testifying falsely at Sparks punishment phase, and how
sparks was prejudiced by Merillat’s false testimony.” (Am. Pet. at 92-93 (referencing
allegations in Am. Pet. at 76-85).) Sparks argues that Merillat was a member of the
prosecution team and “had to have known he was testifying falsely,” thus giving rise to the
State’s duty to disclose. (Am. Pet. at 94.) However, as set out above, Sparks has not shown
the testimony to be materially false in light of Merillat’s correcting testimony on cross
examination that an inmate could be placed in ad seg, G-4 or G-5 under certain
circumstances. (39 RR at 86-87.) Therefore, this does not show cause and prejudice under
Brady.
Sparks also asserts that this claim comes within the exception to procedural bar
created in Martinez v. Ryan, 566 U.S. 1 (2012), and applied to Texas cases in Trevino v.
Thaler, 569 U.S. 413 (2013). (Am. Pet. at 98-103.) To bring a claim within this exception,
Sparks must show that a substantial claim of ineffective assistance of trial counsel was not
presented to the state court because of the ineffective assistance of state habeas counsel. See
Martinez, 566 U.S. at 14; Trevino, 569 U.S. at 429. However, as further discussed in the
alternate merits analysis below, Sparks has not shown any merit to his claim that trial counsel

47

was ineffective for failing to correct a false statement in light of the record showing that it
was trial counsel’s own cross-examination that corrected the allegedly false statement.
Further, state habeas counsel could not have been ineffective in failing to raise a meritless
claim. See Garza v. Stephens, 738 F.3d 669, 676 (5th Cir. 2013) (agreeing with the district
court that “habeas counsel was not ineffective in failing to raise [a] claim at the first state
proceeding” because “there was no merit to [the petitioner’s] claim”); Beatty v. Stephens, 759
F.3d 455, 466 (5th Cir. 2014).
Sparks has not established cause and prejudice to excuse the procedural default.
Accordingly, this claim is DISMISSED along with the rest of Sparks’ fifth claim as
procedurally barred.
b. Alternate Merits Analysis
To determine whether a habeas petitioner has shown ineffective assistance of counsel,
this Court applies the two-pronged standard set forth in Strickland v. Washington, 466 U.S.
668 (1984). The first prong of Strickland requires the defendant to show that counsel’s
performance was deficient. Id. at 687. The second prong of this test requires the defendant
to show prejudice resulting from counsel’s deficient performance. Id. at 694. The court need
not address both prongs of the Strickland standard if the complainant has made an
insufficient showing on one. Id. at 697.
In demonstrating that counsel’s representation was deficient, a petitioner must show
that counsel’s representation fell below an objective standard of reasonableness. Id. at 687-

48

88; Lackey v. Johnson, 116 F.3d 149, 152 (5th Cir. 1997). “It is well settled that effective
assistance is not equivalent to errorless counsel or counsel judged ineffectively by hindsight.”
Tijerina v. Estelle, 692 F.2d 3, 7 (5th Cir. 1982). A court reviewing an ineffectiveness claim
must indulge a strong presumption that counsel’s conduct fell within the wide range of
reasonable professional competence or that, under the circumstances, the challenged action
might be considered sound trial strategy. Gray v. Lynn, 6 F.3d 265, 268 (5th Cir. 1993);
Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir. 1992). There are “countless ways to
provide effective assistance in any given case. Even the best criminal defense attorneys
would not defend a particular client in the same way.” Richter, 562 U.S. 106. In Richter,
the Supreme Court noted the “wide latitude counsel must have in making tactical decisions”
and the need to avoid judicial second-guessing. Id. (quoting Strickland, 466 U.S. at 689).
“Just as there is no expectation that competent counsel will be a flawless strategist or
tactician, an attorney may not be faulted for a reasonable miscalculation or lack of foresight
or for failing to prepare for what appear to be remote possibilities.” Id. at 110.
To satisfy the second prong of the Strickland test, the petitioner must show that
counsel’s errors were so egregious “as to deprive the defendant of a fair trial, a trial whose
result is reliable.” Strickland, 466 U.S. at 687. The test to establish whether there was
prejudice is whether “there is a reasonable probability that, but for the counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

49

A reasonable probability under this test is “a probability sufficient to undermine confidence
in the outcome.” Id.
For the same reason that he has not shown cause and prejudice to excuse the
procedural default, Sparks fails to show that his claim has any merit. Sparks has not shown
Merillat’s testimony to be materially false in light of his correcting testimony that dispelled
the alleged falsity. Therefore, trial counsel could not have been ineffective in failing to
correct a falsity that his own cross examination, in fact, corrected. See, e.g. Beavers v.
Lockhart, 755 F.2d 657, 663 (8th Cir. 1985) (holding attorney not ineffective in deficiency
that was corrected by the state eliminating prejudice); Jones v. Attorney Gen. of California,
280 F. App’x 646, 647 (9th Cir. 2008) (“Because Jones’s second attorney corrected the
misrepresentation, and it is clear from the record that the trial court was aware of the correct
information, Jones cannot show prejudice and is not entitled to habeas relief.”). Accordingly,
if this claim were not dismissed as procedurally barred, it would be DENIED for lack of
merit.
VI. REQUEST FOR EVIDENTIARY HEARING
Sparks requests an evidentiary hearing on his complaints regarding the false testimony
of A. P. Merillat and related ineffective assistance of trial counsel, which are presented in his
fifth and ninth through eleventh grounds for relief. (Am. Pet. at 63-109, 157; Reply at 1645.) This Court has discretion to grant an evidentiary hearing if one is not barred under
section 2254(e)(2). See Schriro v. Landrigan, 550 U.S. 465, 468 (2007). In exercising that

50

discretion, the Court considers whether a hearing could enable petitioner to prove the
petition’s factual allegations which, if true, would entitle him to relief. Id. at 474. The Court
also must consider the deferential standards which limit the Court’s ability to grant habeas
relief. Id.
Sparks argues that a hearing is required because the state courts “have not fully and
fairly addressed the factual issue” regarding Merillat’s false testimony and this Court should
now find cause and prejudice to excuse the procedural default. (Am. Pet. at 107-108.)
Sparks argues that an evidentiary hearing is required whether or not the Court finds that the
prosecution team knew whether the testimony was false.
Simply put, if the cause for the default is Merillat’s false testimony, then
(unless the state concedes that it presented false testimony) a hearing will be
necessary. On the other hand, if this Court concludes that nobody on the
State’s side should be charged with knowing whether Merrilat’s testimony was
false, then the question becomes whether the defense adequately investigated
this issue pretrial and whether state habeas counsel adequately investigated in
state hearings.
(Am. Pet. at 109.) In light of the record before this Court that Merillat corrected the alleged
falsity on cross examination, Sparks has not shown any falsity upon which either claim may
be granted. Therefore, in light of the record and this Court’s own review of the merits of
these claims, the request for an evidentiary hearing is denied.
VII. CONCLUSION
The Court denies Sparks’s amended petition for a writ of habeas corpus.

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In accordance with Federal Rule of Appellate Procedure 22(b) and 28 U.S.C. §
2253(c), and after considering the record in this case, the Court denies Sparks a certificate
of appealability because he has failed to make a substantial showing of the denial of a
constitutional right. See Miller-El v. Cockrell, 537 U.S. 322, 338 (2003); Slack v. McDaniel,
529 U.S. 473, 483-84 (2000); 28 U.S.C. § 2253(c)(2). If Sparks files a notice of appeal, he
may proceed in forma pauperis on appeal.
SIGNED March 27, 2018.

_________________________________
David C. Godbey
United States District Judge

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