Wooley v. Thaler, Director TDCJ-CID
Filing
25
MEMORANDUM OPINION and ORDER... petitioner's petition for a writ of habeas corpus pursuant to 28 u.s.c. § 2254 is hereby, denied... for the reasons discussed herein, the court further ORDERS that a certificate of appealability be, and is hereby, denied, as petitioner has not made a substantial showing of the denial of a constitutional right. See Order for further specifics. (Ordered by Judge John McBryde on 7/12/2012) (krg)
U.S. DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FILED
n..
IN THE UNITED STATES DISTRICT C URT
I 2 2012
FOR THE NORTHERN DISTRICT OF T xAS
FORT WORTH DIVISION
CLERK, U.S. DISTRICT COURT
WILLIAM CARL WOOLEY,
BY----~~-----
Dcputy
§
§
Petitioner,
§
§
v.
§
§
RICK THALER, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
§
§
No. 4:11-CV-858-A
(Consolidated with
Nos. 4:11-CV-897-A
and 4:11-CV-898-A}
§
§
§
Respondent.
§
MEMORANDUM OPINION
and
ORDER
This is a petition for a writ of habeas corpus pursuant to
28
u.s.c.
§
2254 filed by petitioner, William Carl Wooley, a
state prisoner currently incarcerated in Huntsville, Texas,
against Rick Thaler, Director of the Texas Department of Criminal
Justice, Correctional Institutions Division, respondent.
After
having considered the pleadings, state court records, and relief
sought by petitioner, the court has concluded that the petition
should be denied.
I.
Factual and Procedural History
In February 2006 petitioner, who was 59 years old at the
time, was charged by separate indictment with prohibited sexual
conduct, sexual assault of a child younger than 17 years of age,
and aggravated sexual assault of a child younger than 14 years of
age in the 297th District Court of Tarrant County, Texas.
(02State Habeas R. at 149; 03State Habeas R. at 144; 04State
Habeas R. at 149 1 ;
02State Habeas RR at 6)
On December 13, 2006,
petitioner entered open guilty pleas to a jury, and his trial on
punishment commenced.
Initially, the following stipulation of
evidence was entered into evidence and read to the jury:
Pursuant to Texas Code of Criminal Procedure
Article 1.15, the following constitutes stipulated
evidence for this matter. Presented in and to the said
court, it is hereby stipulated between the State of
Texas and WILLIAM CARL WOOLEY, both individually as
well as through his attorney that the defendant in this
case is the same WILLIAM CARL WOOLEY referred to in the
following stipulation of evidence. The Defendant,
WILLIAM CARL WOOLEY, hereby stipulated that:
WILLIAM CARL WOOLEY (hereafter called
'defendant'), was born on July 15, 1947 and has worked
in the engineering field.
He was previously employed
by Bell Helicopter and has never been convicted of a
felony.
The defendant has a biological son, DAVID
WOOLEY.
The defendant married [C.S.] in 1999. [C.S.]
is the mother of [R.W.] (a pseudonym). . . .
[C.S.]
died from breast cancer in 2003, and the defendant
adopted [R.W.]
This adoption was final on November 25,
2003. After the death of [C.S.], DAVID moved out to go
to college. This left [R.W.] and the defendant living
alone in their house in Grapevine, Tarrant County,
1
"02State Habeas R." refers to the record in petitioner's
state habeas application no. WR-70,773-02; "03State Habeas R."
refers to the record in petitioner's state habeas application no.
WR-70,773-03; "04State Habeas R." refers to the record in
petitioner's state habeas application no. WR-70,773-04.
2
Texas.
On May 27th, 2005, DAVID WOOLEY brought two
computer disks to the Grapevine Police Department
containing video files of his father, the defendant,
having sexual intercourse with his step-sister, [R.W.].
[R.W.] was born on October 2, 1990 and was 14 years of
age at the time the police were notified.
DAVID WOOLEY gave a written statement about how
these disks were found.
He informed police that he had
gone to the defendant's home the day before, on May
26th, 2006. DAVID entered the Grapevine house and
observed his father viewing a computer video of two
people having sex. David further stated that he
believed the two individuals having sex in the video
were his father, the defendant, and his step-sister,
[R.W.]. DAVID pretended not to see anything and
completed the work on his father's computer. However,
he returned to his father's residence the next day to
confirm his suspicions. DAVID said he was able to
locate several video clips of his father having sexual
intercourse with his 14-year-old step-sister and copied
them to disks, which he brought to the Grapevine Police
Departm_ent.
After watching the video files, the police and
Child Protective Services arranged interviews with
[R.W.].
[R.W.] told the CPS workers that the defendant
had been having sexual intercourse with her since she
was 13 years old, after the death of her mother.
She
stated that on many occasions, she had performed oral
sex on her father.
In addition, her father had full
sex with her on numerous occasions.
[C.S.] married the
defendant in 1999 but moved into the defendant's house
in 1997 prior to their marriage. They lived in
Grapevine, Tarrant County, Texas.
A few months after her mother died, [R.W.] said
that the defendant began grooming her with supposed
"accidental" touches of her breast and buttocks as well
as orchestrated naked encounters. The defendant later
progressed to unveiled intentional touching of her
3
breast and buttocks as well as inserting his finger in
her vagina. He began making her perform both oral and
vaginal sex.
[R.W.] said that the defendant never used
a condom and had ejaculated inside her.
She said that
the defendant did not need to use a condom because he
was "fixed."
The defendant would make her perform sex acts in
order for her to get clothes or other items, spend the
night with friends, or go places.
[R.W.] remembered a
specific time, when she was 13 years old, that the
defendant bought her a new bed from Stacy's Furniture.
The defendant made her have sexual intercourse with him
on the new bed.
Police obtained records from Stacy's
Furniture showing that the new bed was delivered on
July 6, 2004 when [R.W.] was still 13 years of age.
[R.W.] stated that when she wanted to go
somewhere, the defendant would write the sex act
required for her to get permission to go on a tally
sheet. This tally sheet was kept posted on the
refrigerator in the home they shared.
For each time
she was allowed to get things or see friends, she would
have to perform the act when she returned. On several
occasions, he required her to pose for erotic pictures
and videos.
Finally, [R.W.] stated that while the sex acts
occurred usually twice per week, the most recent was
sexual intercourse with the defendant had occurred two
days prior to the May 27, 2005 interview with CPS.
The defendant further consents to the introduction
of evidence by oral stipulation or by affidavit,
written statements of witnesses, and other documentary
evidence as agreed upon that may be introduced by the
State that makes the basis of this stipulation, as
follows:
STATE'S EXHIBIT #1: This Stipulation of Evidence
STATE'S EXHIBIT #2: CD Rom containing phone calls from
Defendant
STATE'S EXHIBIT #3: Certified copy of the adoption decree
4
STATE'S EXHIBIT #4: CD Rom containing video of dildo and sex
STATE'S EXHIBIT #5: CD Rom containing video of sex with
special Effects
STATE'S EXHIBIT #6: Picture of [R.W.] and her new bed
The state also called [R.W.] to testify and published the
above-referenced exhibits to the jury.
29)
(RR, vol. 3, at 19-27,
The defense called Dr. Richard Schmitt, petitioner's
psychologist, and Keith Atkins, a friend of petitioner's.
vol. 3, at 61-122, 124-30)
(RR,
During Dr. Schmitt's testimony both
mitigation and additional inculpatory evidence was elicited.
At
the conclusion of the trial, the jury assessed petitioner's
punishment at the maximum sentence in each case-i.e., ten years'
imprisonment and a $10,000 fine on the prohibited sexual conduct
charge, 20 years' imprisonment and a $10,000 fine on the sexual
assault of a child younger than 17 charge, and life imprisonment
on the aggravated sexual assault of a child younger than 14
charge.
(RR, vol. 2, at 157; 02State Habeas R. at 150; 03State
Habeas R. at 145; 04State Habeas R. at 150)
Petitioner appealed his sentences, but the Second District
Court of Appeals of Texas affirmed the trial court's judgments.
Wooley v. State, Nos. 2-06-442-CR, 2-06-443-CR, 2-06-444-CR, 2007
WL 3037932 (Tex. App.-Fort Worth Oct. 18, 2007)
for publication) .
(not designated
Petitioner filed three petitions for
5
discretionary review, one for each case, in the Texas Court of
Criminal Appeals, but they were untimely filed.
PDR Nos. 048-08, 049-08 & 050-08.
Wooley v. State,
Thereafter, petitioner filed
three state habeas applications, one for each case, challenging
his convictions and sentences, which were denied by the Texas
Court of Criminal Appeals without written order on the findings
of the trial court.
(02State Habeas R. at cover; 03State Habeas
R. at cover; 04State Habeas R. at cover)
This federal habeas
petition followed.
II.
Issues
Petitioner raises thirteen claims in this petition.
Specifically, he claims"Claim (1) . Petitioner received deficient legal
representation during sentencing phase of his trial, in
violation of his Sixth Amendment right to effective
assistance of counsel. Specifically, counsel
express[ed] his personal opinions before the jury,
which influenced the jury's verdict.
Claim (2) Petitioner received deficient legal
representation during his sentencing in violation of
his Sixth Amendment right to effective assistance of
counsel and in violation of his Fourteenth Amendment
right to due process of law.
Specifically, counsel
failed to preserve a complaint that the sentences were
disproportionate and cruel and unusual punishment, by
failing to make a timely request, objection or motion.
Petitioner was prejudiced thereby.
Claim (3) . Petitioner received deficient legal
representation on direct appeal in violation of the
6
Sixth Amendment rights to effective assistance of
counsel and in violation of his Fourteenth Amendment
rights.
That counsel filed a brief that he admitted
was not properly preserved for appeal.
Claim (4) . Petitioner received deficient legal
representation in that counsel failed to object and
file a motion to suppress evidence, in violation of his
Sixth and Fourteenth Amendment right to effective
assistance of counsel.
Counsel failure [sic] to
investigate the case, witness prejudiced the
petitioner.
Claim (5) . Petitioner received deficient legal
representation at the punishment stage, that counsel
made an unsound strategic decision to call his
psychologist to testify and to elicit and open the door
to prejudicial testimony.
Claim (6).
Petitioner was denied a full and fair
opportunity to litigate his exclusionary claims,
because he received deficient legal representation, in
violation of his rights under the Sixth and Fourteenth
Amendments to the United States Constitution and law,
but not limited to the above.
By his counsel[']s
allowing fruits of a criminal offense by another to be
used as evidence against him without objection.
Claim (7) . The state prosecutors violated
petitioner[']s right under the Equal Protection
components of the Fourteenth Amendment to the
Constitution of the United States, specifically engaged
in outrageous conduct, by knowingly allowing evidence
stolen from the petitioner's residence by a private
person to be used against him in violation of Article
38.23(a) of the Texas exclusionary rule.
Claim (8) . Petitioner received deficient legal
representation during the penalty phase of his trial,
in violation of the petitioner's Sixth Amendment right
to effective assistance of counsel, Eighth Amendment
rights to a reliable penalty hearing and to be free
from cruel and unusual punishment, and Fourteenth
7
Amendment right to due process of law.
Claim (9). The state of Texas violated Texas
discovery rules and the fundamental requirements of
Brady vs Maryland and Napue vs Illinois by failing to
disclose mitigating and impeaching evidence regarding
previous investigative reports from Child Protective
Services and the Grapevine police pre-arrest/
indictment, which included the involvement of David
Wooley (Smith), thereby violating petitioner's Sixth
Amendment right to counsel, Eighth Amendment rights to
reliable penalty hearing and to be free from cruel and
unusual punishment, and Fourteenth Amendment right to
due process of law.
Claim (10) . 2 Petitioner claims that his guilty
pleas w[ere] involuntary because counsel failed to
advise him he could file a motion to suppress the video
files that w[ere] stolen from his residence and gave
[sic] to police.
That had counsel advised the
petitioner that he could challenge the evidence stolen
from his residence, he would not have entered a guilty
plea but would have insisted on going to trial. That
had counsel done so the outcome of the proceedings
would have been different.
Claim (10) . Petitioner claims that he was
misle[]d to his prejudice, insofar that counsel failed
to inform him that the state would seek the maximum
punishment for this offense, however in essence, as
reflected by the record, counsel made an agreement that
the petitioner would enter a[n] open guilty plea on
three indictments and the state would dismiss the
remaining five indictments once he plead[ed] guilty to
the three indictments.
Petitioner states that had he
known this he would never had entered a[n] open guilty
plea but wou[l]d have insisted on going to trial.
2
Petitioner sets forth two claims designated as "Claim 10"
and supplements "Claim 10" in his supplemental petition.
(docket
entry no. 24)
The court sets forth the claims as designated.
8
That counsel misle[]d the petitioner into entering
a[n] open guilty plea to three of the eight charges
against him, but failed to advise and or inform the
petitioner that the state would oppose probation and
would seek the maximum punishment on the three charges.
That had he known this he would have never entered a
guilty plea, but would have insisted on proceeding to
trial. That counsel was ineffective by his failure to
disclose the state[']s position to him before allowing
him to enter open pleas of guilty.
Claim (11).
Petitioner's trial attorney w[as]
burden[ed] with actual conflicts of. interest where
counsel represented to the jury that he also had a 14
year old child, this statement to the jury violated
petitioner[']s Sixth Amendment right to effective
assistance of counsel, Eighth Amendment rights to a
reliable penalty hearing and to be free from cruel and
unusual punishment, and Fourteenth Amendment right to
due process of law.
Claim (12) . Petitioner received deficient legal
representation at the pretrial stages of his case, that
counsel failed to test the state[']s case against him
and failed to inform the petitioner whether he had any
merit and after diligently searching the record, he had
concluded such motions would be without merit.
Claim (13) . Petitioner received deficient legal
representation during the punishment phase of his
trial, in violation of the petitioner's Sixth Amendment
right to effective assistance of counsel and to be free
from cruel and unusual punishment, and the Fourteenth
Amendment right to due process of law. That the expert
testified for the petitioner that he could be treated
for the illness.
Petitioner had no prior criminal
history."
(Pet. at 4-9; Supp. Pet. at 1)
III.
Rule 5 Statement
Respondent believes that one or more of petitioner's grounds
9
are unexhausted and procedurally defaulted but that the petition
is not barred by limitations or subject to the successivepetition bar.
(Resp't Ans. at 5)
IV.
Discussion
Legal Standard and for Granting Habeas Corpus Relief
Under 28 U.S.C.
§
2254(d), 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 he
shows that the prior adjudication:
(1) resulted in a decision
that was contrary to, or involved an unreasonable application of,
clearly established federal law, 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.
2254(d).
28 U.S.C.
§
A decision is contrary to clearly established federal
law if the state court arrives at a conclusion opposite to that
reached by the Supreme Court of the United States on a question
of law or if the state court decides a case differently than the
Supreme Court has on a set of materially indistinguishable facts.
Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see also Hill v.
Johnson, 210 F.3d 481, 485 (5th Cir. 2000).
A state court
decision will be an unreasonable application of clearly
10
established federal law if it correctly identifies the applicable
rule but applies it unreasonably to the facts of the case.
Williams,
529 U.S. at 407-08.
The statute further requires that federal courts give great
deference to a state court's factual findings.
485.
Hill, 210 F.3d at
Section 2254(e) (1) provides that a determination of a
factual issue made by a state court shall be presumed to be
correct.
The applicant has the burden of rebutting the
presumption of correctness by clear and convincing evidence.
U.S.C.
§
2254(e) (1).
28
Typically, when the Texas Court of Criminal
Appeals denies relief in a state habeas corpus application
without written order it is an adjudication on the merits, which
is entitled to this presumption.
Singleton v. Johnson, 178 F.3d
381, 384 (5th Cir. 1999); Ex parte Torres,
943 S.W.2d 469, 472
(Tex. Crim. App. 1997).
Exhaustion of State Court Remedies
As a preliminary matter, respondent asserts petitioner's
claims (1),
(3),
(7) and (9), enumerated above, are unexhausted
(Resp't Ans.
and procedurally barred from federal habeas review.
at 9-12)
Applicants seeking habeas corpus relief under
§
2254 are
required to exhaust all claims in state court before requesting
11
federal collateral relief.
28 U.S.C. § 2254(b) (1); Fisher v.
Texas, 169 F.3d 295, 302 (5th Cir. 1999).
The exhaustion
requirement is satisfied when the substance of the federal habeas
claim has been fairly presented to the highest court of the
state.
O'Sullivan v. Boerckel, 526 U.S. 838, 842-48 (1999);
Fisher, 169 F.3d at 302; Carter v. Estelle, 677 F.2d 427, 443 (5th
Cir. 1982).
In Texas, the highest state court for criminal
matters is the Texas Court of Criminal Appeals.
Richardson v.
Procunier, 762 F.2d 429, 431-32 (5th Cir. 1985).
Thus, a Texas
prisoner may satisfy the exhaustion requirement by presenting
both the factual and legal substance of a claim to the Texas
Court of Criminal Appeals in either a petition for discretionary
review or a state habeas corpus proceeding pursuant to article
11.07 of the Texas Code of Criminal Procedure.
See TEx.
CoDE
CRIM. PRoc. ANN. art. 11.07 (Vernon Supp. 2010); Depuy v. Butler,
837 F.2d 699, 702
(5~
Cir. 1988).
Petitioner did not file a memorandum in support of his
federal petition, and a review of petitioner's state habeas
applications and supporting memoranda reveals that petitioner's
ineffective assistance claims raised in the state habeas
proceedings were multifarious.
Having reviewed those claims, it
appears claims (1) and (9) were raised, at least tangentially, in
12
the state courts.
(02State Habeas R. at 23, 25)
However, it
does not appear that claims (3) and (7) were raised, or, if so,
that the claims exceed the scope of the claims presented in state
court.
Thus, claims (3) and (7) are unexhausted.
Under the
Texas abuse-of-the-writ doctrine, however, petitioner cannot now
return to state court for purposes of exhausting the claims.
TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4.
The abuse-of-the-writ
doctrine represents an adequate state procedural bar to federal
habeas review.
Cir. 1997).
See Nobles v. Johnson, 127 F.3d 409, 423 (5th
Therefore, absent a showing of cause and prejudice
or a miscarriage of justice, such showing not having been
demonstrated, petitioner's ineffective-assistance claims (3) and
(7), raised for the first time in this federal petition, are
procedurally barred from this court's review.
See Smith v.
Johnson, 216 F.3d 521, 523-24 (sth Cir. 2000)
Ineffective Assistance of Counsel
A criminal defendant has a constitutional right to the
effective assistance of counsel at trial.
U.S. CoNST. amend. VI,
XIV; Strickland v. Washington, 466 U.S. 668, 688 (1984).
To
prevail on an ineffective assistance claim in the context of a
guilty plea, a defendant must demonstrate that his plea was
rendered unknowing or involuntary by showing that (1) counsel's
13
representation fell below an objective standard of
reasonableness, and (2) there is a reasonable probability that,
but for counsel's deficient performance, he would not have
pleaded guilty and would have insisted on going to trial.
Hill
v. Lockhart, 474 U.S. 52, 56-59 (1985); Smith v. Estelle, 711
F.2d 677, 682 (5th Cir. 1983); see also Strickland v. Washington,
466
u.s.
668, 687 (1984).
In evaluating an ineffective assistance claim, a court must
indulge a strong presumption that counsel's conduct fell within
the wide range of reasonable professional assistance or sound
trial strategy.
Strickland, 466
u.s.
at 668, 688-89.
Judicial
scrutiny of counsel's performance must be highly deferential and
every effort must be made to eliminate the distorting effects of
hindsight.
Id. at 689.
Furthermore, federal habeas courts are
not to lightly second-guess counsel's decisions on matters of
tactics and generally entrust such matters to the professional
discretion of counsel.
Id. at 690.
Where a petitioner's
ineffective assistance claims have been reviewed on their merits
and denied by the state courts, federal habeas relief will be
granted only if the state courts' decision was contrary to or
involved an unreasonable application of the Strickland standard.
See Bell v. Cone, 535 U.S. 685, 698-99 (2002); Santellan v.
14
Dretke,
271 F. 3d 190, 198 (5th Cir. 2001) .
In the state habeas proceedings, the habeas judge, who also
presided over the trial, appointed a "writ master" to consider
petitioner's applications, wherein he raised two grounds.
(02State Habeas R. at 7-8)
Under the first ground, petitioner
provided a laundry list of acts and omissions by trial counsel he
claimed represented deficient performance, which were construed
by the master to include:
(1) counsel failed to give accurate
advice regarding probation eligibility;
he would receive probation;
(2) counsel promised that
(3) counsel failed to file any pre-
trial motion[s] or a motion for new trial;
(4) counsel failed to
conduct an independent investigation by obtaining medical and CPS
reports;
(5) counsel failed to file a motion to suppress the
State's evidence;
(6) counsel did not challenge the
proportionality of his sentence or make any objection to his
sentence; and (7) counsel failed to present adequate punishment
evidence.
Under the second ground, petitioner claimed his
sentences were disproportional and cruel and unusual.
Habeas R. at 7-8)
(02State
Additionally, petitioner's state habeas
counsel, Randy Schaffer, filed a "supplement" to petitioner's
original applications raising the ineffective assistance claim
that trial counsel "made an unsound strategic decision to call"
15
petitioner's psychologist "to testify and to elicit and open the
door to prejudicial testimony."
(02State Habeas R. at 51-58;
03State Habeas R. at 52-59; 04State Habeas R. at 54-61)
Trial counsel, Robert Ford, responded to petitioner's
original applications by affidavit as follows:
This affidavit is filed in response to the writ of
habeas corpus filed by William Wooley.
To set the stage before answering Wooley's
allegations, the reader needs to keep in mind that the
jury saw Wooley and his stepdaughter in a high
resolution DVD recorded by Wooley. The DVD showed
[R.W.] masturbating with directions from Wooley and
eventually [R.W.] asking Wooley to: "Fuck me harder,
Daddy".
The jury was stunned and I mean stunned beyond
belief that William Wooley had directed [R.W.] in
masturbation techniques and then filmed the sex act
between the two.
1. I never promised Mr. Wooley that he would receive
probation in his case.
In fact, I told William Wooley
on numerous occasions in meetings that the possibility
of probation was remote if not impossible.
I met with
Mr. Wooley at least five times and discussed his case
at length. Why did I tell Mr. Wooley he was going to
prison. A sampling of his thoughts on [R.W.]
follow[s]:
[R.W.] liked to take pictures of herself with
her mother's dildo.
I had to teach [R.W.] about sex because that
is what her mother asked me to do before she
died.
[R.W.] liked full blown sex once a month.
16
[R.W.] once masturbated twenty times and
really got sore.
All kids are not the same.
[R.W.] said fuck
me hard, bite my boob, and get behind me.
If [R.W.] wanted to fuck - it was o.k. and
not against the law.
What I did with [R.W.] was educational.
[R.W.] was the best piece of pussy I ever
had.
[R.W.] 's ability to climax would be very good
for the jury to hear because that
demonstrates her liking sex.
The jury was charged on probation.
I did tell the
jury that it would take a supreme act to give probation
and then moved on to talk about penitentiary time
because of the William Wooley video that they had
viewed.
It is my opinion that the jury was so angry at
that point that probation was not a consideration.
I
was trying to minimize Wooley's penitentiary sentence.
Mr. Wooley is lucky that a juror or jurors did not jump
over the railing and assault him. The jury was so
angry that they were literally exuding hatred for my
client.
Let me also add that William Wooley asked me on
numerous occasions for a copy of the sex video because
he said he was entitled to look at it when he wanted.
2.
I did not file pretrial motions because this was an
open plea and we did not have any issues to litigate.
The State gave me every video, statement, still photo
they had.
I should also point out that the jury did
not view the 10 hours of hidden camera video William
Wooley made of [R.W.] while she was in the bathroom.
3. There was no independent investigation to perform.
William Wooley[] read every report filed in this case.
17
We looked at photos he had taken. We did not view his
[R.W.] video together; however, I viewed the video in
Mitch Poe's office on two occasions. Mr. Wooley and I
met in my office and at his residence to review files.
4. There is no proportionality of sentence argument to
make in this case.
5. Dr. Richard Schmidt presented compelling evidence
at trial. He had treated William Wooley as a sex
offender and gave a sympathetic description of what he
thought Mr. Wooley's problems were and how they should
be addressed.
I met at length with Dr. Schmidt before
the hearing in order to get him ready for testimony.
6.
I repeatedly asked the prosecutor in this case for
an offer and I was turned down on each and every
occasion. Mr. Poe told me that the family was not
interested in a plea bargain.
7. Mr. Wooley alleges that I failed to cross-examine
his stepdaughter. Let me be very specific at this
point. Wooley, repeatedly told me before and during
trial he did not want [R.W.] cross-examined- period.
Why? Because during her testimony Wooley leaned over
to me and stated that they (referring to the State)
have brainwashed her, she still loves me.
I rendered effective assistance of counsel in this
case. Mr. Wooley's writ is totally without merit.
(02State Habeas R. at 48-50)
In a separate affidavit, counsel responded to petitioner's
supplemental claim as follows:
This affidavit is filed in response to the writ of
habeas corpus filed by Randy Schaffer on behalf of
William Wooley.
Mr. Wooley has obviously given Mr. Schaffer false
information about the decision to use Dr. Schmidt at
18
trial. Mr. Wooley and I discussed the problems and
advantages of having Dr. Schmidt testify. One of the
key reasons Dr. Schmidt testified was based on the fact
that Mr. Wooley could not provide a list of witnesses
who would appear on his behalf.
I want to be excruciatingly clear about this
situation. No one wanted to be involved in this case
on behalf of Bill Wooley.
I mean no one.
Finally, one
friend agreed to testify and he appeared but was of
limited help.
In other words, significant family
members would not speak up for Bill Wooley. Mr. Wooley
has failed to inform Mr. Schaffer of that situation.
Mr. Wooley and I discussed Dr. Schmidt's
testimony. Bill Wooley knew beforehand that negative
material was going to be brought out; however, in the
context of the offense the material had minimal impact.
The reader should also understand that Bill Wooley
understood that Dr. Schmidt's testimony would clarify
for the jury how the relationship with R.W. came about
and why it happened. Dr. Schmidt also told the jury
that Bill Wooley was amenable to treatment.
Mr. Schaffer is Wrong
The following quote appeared in the applicant's
brief:
Had the jury not heard this damaging testimony, there
is a reasonable probability that the punishment would
have been different.
Let me repeat that the jury in this case saw the
video that Bill Wooley produced. A high quality
production showing R.W. masturbating with a dildo under
the direction of Bill Wooley. And the video closed
with R.W. telling Bill Wooley to "fuck me harder
daddy."
That video said and showed Bill Wooley to the
jury. Quite frankly, Jesus Christ - in person - could
not have saved Bill Wooley from a life sentence. And,
19
Dr. Schmidt certainly did not contribute to any
increase in Bill Wooley's punishment.
Again, I rendered effective assistance of counsel
in this case. Mr. Wooley's writ is totally without
merit.
(02State Habeas R. at 107-08)
Consistent with counsel's affidavits, the master submitted
the following findings of fact 3 :
2.
Mr. Ford has been licensed as an attorney in the
State of Texas since June 1989.
3.
Mr. Ford is known by this Court to have practiced
criminal law in Tarrant County for many years and
that he has served as trial counsel in a number of
major felony cases, including capital murders.
Mr. Ford was qualified to represent the applicant
in this case.
4.
Mr. Ford did not promise the applicant that he
would receive probation.
5.
Mr. Ford told the applicant on numerous occasions
that the possibility of probation was remote if
not impossible, and that he would likely be going
to prison.
6.
Mr. Ford reached this assessment based on the
applicant's unwillingness to show remorse or take
responsibility for his sexual conduct with R.W.
3
The state court's findings of fact and conclusions of law
are essentially identical in all three state habeas proceedings,
thus the court sets forth only those findings of fact and
conclusions of law in 02State Habeas R.
20
7.
Mr. Ford filed a request for probation on the
applicant's behalf.
8.
Mr. Ford recognized that the jury was unlikely to
assess probation after they were shown a video
recorded by the applicant of his 13 year old
daughter, R.W., masturbating with a dildo and
making sexually explicit comments and requests to
him.
9.
Mr. Ford hoped that [the] jury's consideration of
probation would be an avenue to minimize the
applicant's potential penitentiary sentence.
10.
Mr. Ford provided the applicant with accurate
information on probation and an accurate
assessment of the likelihood that it would not be
awarded.
11.
Mr. Ford provided the applicant with adequate
representation regarding probation and probation
eligibility.
12.
Mr. Ford did not perform an independent
investigation of the applicant's case because he
concluded that it was unnecessary.
13.
Mr. Ford received from the State every videotape,
still photograph and statement in their
possession.
14.
The applicant has not identified any evidence
other than that made known to Mr. Ford by the
State.
15.
Mr. Ford reviewed with the applicant every report
and photograph that he received.
16.
Mr. Ford reviewed the evidence with the applicant
at both Mr. Ford's office and at the applicant's
house.
17.
Mr. Ford reviewed the videotape of R.W. on two
21
occasions at the prosecutor's office.
18.
Mr. Ford did not review the videotape with the
applicant despite the applicant's repeated desire
to possess a copy of the videotape.
19.
Mr. Ford did not file any pre-trial motions because the
applicant entered into . . . open guilty plea[s] and no
such motions were needed or appropriate.
20.
Mr. Ford sought a plea agreement from the State,
but the State chose not to make a plea offer.
21.
The jury was not shown ten hours of hidden-camera
video which the applicant taped while R.W. was
using the bathroom.
22.
Mr. Ford made reasonable preparations for the
defense of the case.
23.
Given the applicant's persistent and long-term
sexual misconduct with R.W., his maximum sentence
is not grossly disproportionate and does not
provide grounds for a proportionality argument.
24.
Mr. Ford did not provide the- applicant inadequate
representation by his decision not to challenge
the proportionality of his sentence.
25.
Dr. Richard Schmitt, a clinical psychologist,
testified on the applicant's behalf.
26.
Prior to making the decision to call Dr. Schmitt
as a witness, Mr. Ford discussed with the
applicant the advantages and disadvantages of his
testimony.
27.
Dr. Schmidt had had 44 counseling sessions with
the applicant during the time between June 2005
and December 2006.
28.
Dr. Schmidt testified that he had made a plan to
address the applicant's needs and that he believed
22
the applicant would respond to counseling.
29.
Dr. Schmitt informed the jury that the applicant
was amenable to treatment.
30.
The applicant knew that negative material would
also be brought out through Dr. Schmitt's
testimony.
31.
The applicant understood that Dr. Schmitt's
testimony would clarify for the jury how the
applicant's relationship with R.W. came about and
why it happened.
32.
Mr. Ford called Dr. Schmitt to testify partially
because the applicant could not provide a list of
witnesses who would appear on his behalf.
33.
Mr. Ford was unable to find other witnesses,
including significant family members, to testify
on the applicant's behalf.
34.
Keith Atkins, the only friend who did testify on
the applicant's behalf, provided limited help.
35.
The applicant does not identify any other
witnesses or evidence that could have been
introduced in his behalf.
36.
Mr. Ford provided the applicant with adequate
representation regarding the calling of witnesses,
including Dr. Schmitt.
37.
In his final argument to the jury Mr. Ford tried
to reinforce the jurors' confidence in him and his
argument by admitting that some of the evidence
that he, himself, had brought before them was
harmful to the applicant.
38.
Mr. Ford provided the applicant with adequate
representation as guaranteed by the Sixth
Amendment.
23
39.
The following evidence undercuts any likelihood
that the outcome of this case would have been
different with another counsel or if Mr. Ford had
represented the applicant in another manner:
a.
The applicant started a relationship
with [C.S.] (R.W.'s mother) when R.W.
was approximately five years old.
b.
The applicant and [C.S.] were eventually
married.
c.
After she married the applicant, [C.S.]
found out that she had breast cancer.
d.
[C.S.] died in 2003, when R.W. was
twelve years old.
e.
Later that year, the applicant adopted
R.W.
f.
In 2005, when R.W. was fourteen, David
Wooley, the applicant's adult son from a
prior relationship, found video files on
his father's computer showing him having
sexual intercourse with R.W.
g.
David turned copies of the videos over
to police.
h.
Other videos were later discovered that
showed that applicant had been secretly
recording R.W. when she was in the
bathroom since she was ten years old.
I.
Compact discs containing these videos
were admitted and published to the jury.
j.
R.W. admitted to child protective
services caseworkers that the applicant
had been engaging her in a variety of
sexual activity since her mother's
death.
24
k.
R.W. estimated that she had sexual
intercourse with the applicant
approximately every other day for a year
and a half.
1.
R.W. explained that applicant played
upon her fears by threatening she would
wind up in foster care if she told of
their relationship since her mother and
biological father were both dead and she
had no relationship with other
relatives.
m.
The applicant told R.W. that her mother
had wanted him "to show [her] what it's
like to be in a sexual relationship."
n.
The applicant posted a "tally sheet" in
their home listing the sex acts required
to see friends, go places, or buy
clothes.
40.
Given the horrific circumstances of the
applicant's persistent and on-going sexual assault
of his stepdaughter R.W., including the
videotapes, it is not reasonable to believe that
the jury would have reached a different result had
Mr. Ford done more investigation, more
communication, or more preparation in this case,
or if Mr. Ford had employed different strategies.
41.
The applicant was not denied effective assistance
by Mr. Ford's representation.
(02State Habeas R. at 134-38)
(citations to the record omitted)
Based on his findings and the state court records, the
master, applying the Strickland standard, entered the following
conclusions of law-
25
10.
Under Strickland, counsels have a duty to make
reasonable investigations or to make a reasonable
decision that makes particular investigations
unnecessary.
11.
Counsels are not required to investigate every
conceivable line of evidence no matter how
unlikely the effort would be to assist the
defendant.
12.
The decision whether to call a witness is trial
strategy and a prerogative of trial counsel.
13.
Mr. Ford, a well-qualified and experienced
attorney, made all appropriate preparations for
the defense of the State's case against the
applicant.
14.
Mr. Ford conducted a reasonable investigation to
prepare for the defense of the State's case
against the applicant.
15.
Mr. Ford provided the applicant with adequate
information and representation regarding probation
and probation eligibility.
16.
The applicant's sentence[s] [and] fine[s] [are
within the range of punishment for the . . .
offense[s] . . .
17.
It is a well-settled Texas law that, as long as a
sentence is within the proper statutory range of
punishment, it will not be disturbed as an abuse
of discretion.
18.
Given the applicant's persistent and long-term
sexual misconduct with R.W., his maximum
sentence[s] [are] not grossly disproportionate.
19.
Mr. Ford did not provide inadequate representation
by his decision not to challenge the
proportionality of the applicant's sentence[s].
26
20.
Mr. Ford provided the applicant adequate
representation regarding the calling of witnesses,
including Dr. Schmitt.
21.
Mr. Ford provided the applicant adequate
representation as guaranteed by the Sixth
Amendment.
22.
A party seeking to prove ineffective assistance of
counsel, fails to carry his burden where he is
unable to establish that, but for the alleged
deficient conduct of counsel, the probability of a
different result is such as to undermine one's
confidence in the outcome.
23.
Given the horrific circumstances of the
applicant's persistent and on-going, long term
sexual assault of his stepdaugher R.W., including
the videotapes, there is no reasonable probability
sufficient to undermine confidence in the
applicant's conviction[s] and sentence[s] that,
but for his counsels' performance, the result of
his trial would have been different.
24.
The applicant received effective assistance of
counsel.
(Id. at 138-41)
(citations omitted)
The state habeas judge adopted the master's findings and
legal conclusions, and, in turn, the Texas Court of Criminal
Appeals denied petitioner's habeas applications without written
order on those findings, which represents an adjudication of the
claims on the merits.
(02State Habeas R. at cover, 148; 03State
Habeas R. at cover, 143; 04State Habeas R. at cover, 148)
In this federal petition, petitioner makes no specific
27
reference to the state court findings and makes no effort to
rebut the presumptive correctness of the findings nor has he
presented argument or evidence that could lead the court to
conclude that the state courts unreasonably applied Strickland
based on the evidence presented in state court.
28 U.S.C. §
2254 (d) .
Petitioner's eighth and ninth claims are vague and
ambiguous, and his eleventh claim is refuted by the record. 4
The
remainder of petitioner's claims are multifarious, and not
properly before the court, conclusory, and/or involve counsel's
trial strategy or matters of state evidentiary law.
Conclusory allegations in support of a claim of ineffective
assistance of counsel are insufficient to meet Strickland
standards.
1998).
Green v. Johnson, 160 F.3d 1029, 1042 (5th Cir.
Furthermore, federal habeas courts are not to lightly
second-guess counsel's decisions on matters of tactics and
generally entrust such matters to the professional discretion of
counsel.
Indeed, as noted in the state court's legal
conclusions, "[s]trategic choices made after thorough
4
Petitioner does not cite to the record where trial counsel
allegedly "represented to the jury that he also had a 14 year old
child," and the court was unable to locate any such statement by
counsel.
28
investigation of law and facts relevant to plausible options are
virtually unchallengeable."
Strickland, 466 U.S. at 690.
Finally, petitioner has not demonstrated that the video
files were illegally obtained by his son or that they were
inadmissible.
Under the Texas "exclusionary rule," "[n]o
evidence obtained by an officer or other person in violation of
any provisions of the Constitution or laws of the State of Texas,
or of the Constitution or laws of the United States of America,
shall be admitted in evidence against the accused on the trial of
any criminal case."
(Vernon 2005) . 5
TEX. CODE CRIM. PROC. ANN. art. 38.23(a)
The Texas Court of Criminal Appeals has held
that when a non-governmental actor takes property that is
evidence of a crime without the consent of the owner and with
intent to turn the evidence over to the police, the conduct may
be non-criminal even though the person has the intent to deprive
the owner of that property.
Jenschke v. State, 147 S.W.3d 398,
402 (Tex. Crim. App. 2004).
Therefore, Article 38.23 would not
require exclusion of the video files.
Furthermore, under state
law, the entry of a guilty plea before a jury admits the
existence of all facts necessary to establish guilt, however it
5
Petitioner does not raise a Fourth Amendment claim in his
federal petition.
29
does not restrict the state's right to present evidence.
State, 566 S.W.2d 936, 938
(Tex. Crim. App. 1978).
York v.
Any evidence
that would be admissible under a plea of not guilty is also
admissible under a plea of guilty.
Id.
The purpose of offering
evidence in such a case is to enable the jury to intelligently
exercise its discretion in assessing punishment.
Id.
Thus, as a
matter of state law, the video files showing petitioner engaging
in the acts alleged in the indictment were admissible as well as
evidence of other acts committed by petitioner against R.W. "for
its bearing on relevant matters," including the petitioner's
state of mind and the relationship between him and R.W.
OF CRIM. PROC. ANN. art. 38.37,
TEX. CODE CRIM. PROC. ANN. art.
§
§
2 (Vernon Supp. 2010).
37.07,
§
3(a).
TEX. CODE
See also
Counsel may not be
deemed ineffective for failing to file frivolous motions.
United
States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995); Clark v.
Collins, 19 F. 3d 959, 966 (5th Cir. 1994).
Having reviewed the entirety of the record, counsel's
performance was not outside the wide range of professionally
competent assistance, and petitioner has failed to show that but
for counsel's strategic decisions and other alleged acts or
omissions, his sentences would have been significantly less
harsh.
Dale v. Quarterman, 553 F.3d 876, 880 (5th Cir. 1993).
30
Overall, trial counsel engaged in pretrial investigation through
the state's open file policy, filed pretrial motions, conducted
voir dire, gave opening and closing argument, made meritorious
objections and motions during trial, cross-examined state
witnesses, called two defense witnesses, devised a trial
strategy, and presented mitigating evidence through Dr. Schmitt
that petitioner had sought sex offender treatment, was amenable
to treatment, was the type of person that would respond to
treatment, and could function in a probation setting in the hope
of leniency from the jury.
(RR, vol. 2, at 93-146; RR, vol. 3,
at 11, 16-18, 57, 61, 94, 101, 110-12, 115, 119-21, 124, 138-41)
Counsel's performance and strategic choices, given petitioner's
admission of guilt to the offenses and the other overwhelming
evidence bearing on his guilt, satisfy the Strickland standard.
Even if petitioner could demonstrate deficient performance,
which he has not, he most certainly has not demonstrated a
reasonable likelihood that the result of his trial would have
been different and he would have received lighter sentences or
probation but for counsel's performance.
Strickland demands that
likelihood of a different result umust be substantial, not just
conceivable."
792 (2011)
Harrington v. Richter, -U.S. -, 131 S. Ct. 770,
(citation omitted) .
Under the facts of this case, the
31
likelihood of a different is neither substantial nor conceivable.
Voluntariness of Petitioner's Guilty Pleas
Petitioner claims his guilty pleas were involuntary because
counsel failed to advise him that he could file a motion to
suppress the stolen video files and that such a motion would be
meritorious and inform him that the state would oppose probation
and seek the maximum punishment in his cases.
(Pet. at 7-8)
A federal court will uphold a guilty plea challenged in a
habeas corpus proceeding if the plea was knowing, voluntary, and
intelligent.
James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995).
The longstanding test for determining the validity of a guilty
plea is "whether the plea represents a voluntary and intelligent
choice among the alternative courses of action open to the
defendant."
North Carolina v. Alford, 400 U.S. 25, 31 (1970);
Boykin v. Alabama, 395 u.s. 238, 242 (1969).
If a defendant
understands the charges against him, understands the consequences
of a guilty plea, and voluntarily chooses to plead guilty,
without being coerced to do so, the guilty plea will be upheld on
federal review.
1980).
Frank v. Blackburn, 646 F.2d 873, 882 (5th Cir.
"Solemn declarations in open court carry a strong
presumption of verity," forming a "formidable barrier in any
subsequent collateral proceedings."
32
Blackledge v. Allison, 431
u.s.
63, 73-74 (1977).
The record reflects that, in open court, petitioner agreed
to enter open pleas of guilty to the three indictments, that the
state agreed to move for dismissal of five other indictments
against petitioner, that petitioner was advised of the charges
against him and the range of punishment for each offense, that
petitioner understood the charges and the ranges of punishment,
that petitioner discussed his pleas and other options with trial
counsel, that petitioner understood he would be required to
register as a sex offender for life if he pleaded guilty, that
petitioner was pleading guilty because he was guilty and for no
other reason, that petitioner had not been threatened by anyone,
that no one had held out any hope of pardon or promises of reward
in exchange for his guilty pleas, that counsel had not promised
petitioner anything, that petitioner had decided to plead guilty
given his options, the state's case, and to avoid putting R.W.
through a "full-blown trial," that counsel had "always
steadfastly maintained that if [petitioner] wanted a trial,"
counsel would try the cases, that although counsel and petitioner
had had disagreements about particular things, it was
petitioner's decision to plead guilty, and that petitioner's
pleas were freely and voluntarily made.
33
(RR, vol. 2, 4-14)
Counsel warned petitioner that probation was unlikely, if
not impossible, and ,for the reasons stated supra, petitioner
cannot demonstrate that counsel performed deficiently in not
pursuing a motion to suppress the video files or that such a
motion would have been successful.
Thus, it cannot be said that
petitioner's otherwise knowing and voluntary pleas were rendered
involuntary as a result of counsel's performance.
Petitioner's
subjective hope for lighter sentences or probation is not
McNeil v.
sufficient to render his guilty pleas involuntary.
Blackburn, 802 F.2d 830, 832
(sth
Cir. 1986).
For the reasons discussed herein,
The court ORDERS petitioner's petition for a writ of habeas
corpus pursuant to 28
u.s.c.
§
2254 be, and is hereby, denied.
Pursuant to Rule 22(b) of the Federal Rules of Appellate
Procedure, Rule ll(a) of the Rules Governing Section 2254 Cases
in the United States District Court, and 28 U.S.C.
§
2253(c), for
the reasons discussed herein, the court further ORDERS that a
certificate of appealability be, and is hereby, denied, as
petitioner has not made a substantial showing of the denial of a
34
constitutional right.
SIGNED July
I Z.c--;
2012.
35
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