Smith v. Stephens, Director TDCJ-CID

Filing 44

Opinion and Order...For the reasons discussed, the Court DENIES Petitioners petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and DENIES a certificate of appealability. (Ordered by Judge Terry R Means on 9/30/2014) (wxc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
PHILLIP DWAIN SMITH,
Petitioner,
v.
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.

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No. 4:13-CV-257-Y

OPINION AND ORDER
Before the Court is a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 filed by Petitioner, Phillip Dwain
Smith, a state prisoner, against William Stephens, director of the
Texas Department of Criminal Justice, Correctional Institutions
Division, Respondent.

The prior referral to the Magistrate Judge

is withdrawn.
After having considered the pleadings and relief sought by
Petitioner, the Court has concluded that the petition should be
denied.
I.

Factual and Procedural History

On November 4, 2010, in the 432nd Judicial District Court,
Tarrant County, Texas, a jury found Petitioner guilty on one count
of continuous sexual abuse of a child, two counts of aggravated
sexual assault of a child younger than 14 years of age, and three
counts of indecency with a child, for which the trial court

sentenced him to 60 years’ confinement on each of the first three
counts and 20 years’ confinement on each of the remaining counts,
the sentences to run concurrently. (Js. of Conviction by Jury 16482, ECF No. 22-3.)

Petitioner appealed his convictions, but the

Second District Court of Appeals of Texas affirmed the trial
court’s judgments and the Texas Court of Criminal Appeals refused
Petitioner’s petition for discretionary review.
ECF No. 22-3; PDR No. 1818-11.)

(Mem. Op. 184-91,

Petitioner also filed a state

habeas application challenging his convictions, which was denied
without written order by the Texas Court of Criminal Appeals on the
findings of the trial court.
2.)

(State Habeas R. cover, ECF No. 22-

This federal petition followed.
The state appellate court briefly summarized the facts of the

case as follows:
The victim, who was twelve years old at the time of
trial, testified that [Petitioner] began touching her
vagina when she was eight years old; first, he touched
her over her clothes, and then he began putting his hand
under her clothes.
He inserted his finger into her
female sexual organ.
She testified that [Petitioner]
would do this about once a week. When she was nine-anda-half years old, [Petitioner] began touching her on her
breasts, too. He did this every few days. He would kiss
her breasts. He continued to insert his finger into her
female sexual organ and to touch and kiss her breasts,
and when she was ten years old and eleven years old, the
frequency of [Petitioner]’s assaults increased to almost
daily.
(Mem. Op. 186, ECF No. 22-3.)
II.

Issues

In six grounds, Petitioner claims that he received ineffective
2

assistance of trial counsel (grounds one through five) and that the
state engaged in malicious prosecution and slandered his integrity
and character during closing argument (ground six).1

(Pet. 6-7,

ECF No. 1.)
III.

Rule 5 Statement

Respondent asserts that Petitioner has sufficiently exhausted
his state-court remedies as to the claims raised and that the
petition is not barred by limitations or subject to the successivepetition bar.
IV.

(Resp’t’s Answer 5, ECF No. 26.)

Legal Standard for Granting Habeas-Corpus Relief

A § 2254 habeas petition is governed by the heightened
standard of review provided for in the Anti-Terrorism and Effective
Death Penalty Act (AEDPA).

See 28 U.S.C. § 2254.

Under the Act,

a writ of habeas corpus should be granted only if a state court
arrives at a decision that is contrary to or an unreasonable
application of clearly established federal law as established by
the Supreme Court or that is based on an unreasonable determination
of the facts in light of the record before the state court.

1

28

Respondent asserts Petitioner’s claims are conclusory and should not be
considered by this Court. (Resp’t’s Answer 9-10, ECF No. 26.) However, to the
extent practical, Petitioner’s claims, subject to any procedural default, are
addressed. Furthermore, absent a showing of cause and prejudice or a miscarriage
of justice, such showing not having been demonstrated by Petitioner, his attempts
to raise claims for the first time in his reply brief and supplemental pleadings
without leave of court, are futile. Such claims are unexhausted and procedurally
barred. (Pet’r’s Reply Br. 2-14 & Supp. Doc. 1-14, ECF Nos. 30, 33.) 28 U.S.C.
§ 2254(b)(1); Smith v. Johnson, 216 F.3d 521, 523-24 (5th Cir. 2000).

3

U.S.C. § 2254(d)(1)–(2); Harrington v. Richter, 131 S. Ct. 770, 785
(2011).

This standard is difficult to meet but “stops short of

imposing a complete bar on federal court relitigation of claims
already rejected in state proceedings.”

Harrington, 131 S. Ct. at

786.
Additionally, the statute requires that federal courts give
great deference to a state court’s factual findings.
Johnson, 210 F.3d 481, 485 (5th Cir. 2000).

See Hill v.

Section 2254(e)(1)

provides that a determination of a factual issue made by a state
court shall be presumed to be correct. A petitioner has the burden
of rebutting the presumption of correctness by clear and convincing
evidence.

28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S.

322, 340 (2003); Williams v. Taylor, 529 U.S. 362, 399 (2000).
Finally, when the Texas Court of Criminal Appeals denies
relief

in

a

state

habeas-corpus

application

without

written

opinion, as in this case, it is an adjudication on the merits,
which is also entitled to the presumption of correctness.

See

Singleton v. Johnson, 178 F.3d 381, 384 (5th Cir. 1999); Ex parte
Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997).

Under these

circumstances, a federal court may assume the state court applied
correct standards of federal law to the facts, unless there is
evidence that an incorrect standard was applied.

4

See Townsend v.

Sain, 372 U.S. 293, 314 (1963)2; Catalan v. Cockrell, 315 F.3d 491,
493 n.3 (5th Cir. 2002); Valdez v. Cockrell, 274 F.3d 941, 948 n.11
(5th Cir. 2001); Goodwin v. Johnson, 132 F.3d 162, 183 (5th Cir.
1997).
V.
A

criminal

Ineffective Assistance of Counsel
defendant

has

a

constitutional

effective assistance of counsel at trial.

right

to

the

See U.S. Const. amend.

VI, XIV; Strickland v. Washington, 466 U.S. 668, 688 (1984).

To

establish ineffective assistance of counsel a petitioner must show
(1) that counsel’s performance fell below an objective standard of
reasonableness,

and

(2)

that

but

for

counsel’s

deficient

performance the result of the proceeding would have been different.
Strickland, 466 U.S. at 688.

Both prongs of the Strickland test

must be met to demonstrate ineffective assistance.

Id. at 687,

697.
Further, a court must indulge a strong presumption that
counsel’s

conduct

fell

within

the

wide

range

professional assistance or sound trial strategy.
89.

of

reasonable

Id. at 668, 688-

Judicial scrutiny of counsel’s performance must be highly

deferential

and

every

effort

must

distorting effects of hindsight.

be

made

to

eliminate

the

Id. at 689.

Finally, the Supreme Court recently emphasized in Harrington

2
The standards of Townsend v. Sain have been incorporated into 28 U.S.C.
§ 2254(d). Harris v. Oliver, 645 F.2d 327, 330 n.2 (5th Cir. 1981).

5

v.

Richter

the

way

that

a

federal

court

is

to

consider

an

ineffective-assistance-of-counsel claim raised in a habeas petition
subject to AEDPA’s strictures:
The pivotal question is whether the state court’s
application of the Strickland standard was unreasonable.
This is different from asking whether defense counsel’s
performance fell below Strickland’s standard. Were that
the inquiry, the analysis would be no different than if,
for example, this Court were adjudicating a Strickland
claim on direct review of a criminal conviction in a
United States district court. Under AEDPA, though, it is
a necessary premise that the two questions are different.
For purposes of § 2254(d)(1), “an
unreasonable
application of federal law is different from an incorrect
application of federal law.”
A state court must be
granted a deference and latitude that are not in
operation when the case involves review under the
Strickland standard itself.
131 S. Ct. at 785 (quoting Williams v. Taylor, 529 U.S. 362, 410
(2000)).

Accordingly, it is necessary only to determine whether

the state courts’ rejection of petitioner’s ineffective-assistance
claims was contrary to or an objectively unreasonable application
of Strickland.
Kittelson

v.

SeeBell v. Cone, 535 U.S. 685, 698-99 (2002);
Dretke,

426

F.3d

306,

315-17

(5th

Cir.

2005);

Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th Cir. 2003).
Petitioner was represented at trial by Curtis L. Fortinberry
and Lindsay Gilland. Petitioner claims counsel were ineffective by
failing (1) to “do anything” when the trial court denied his pro-se
motions for speedy trial and for an examining trial, resulting in
lost opportunities to bring forward potential witnesses on his
behalf; (2) to object to biased juror (juror number 28); (3) to put

6

on a defense and call “important fact witnesses,” including an
expert witness; (4) to suppress opinion testimony by the state’s
witnesses; and (5) to “challenge the weight of the evidence against
the conviction” and to “suppress supposed evidence.”
ECF

No.

1.)

In

the

state

habeas

proceeding,

(Pet. 6-7,
lead-counsel

Fortinberry, a licensed attorney since November 1994, responded to
Petitioner’s allegations as follows:
1.

Petitioner’s claim of ineffective assistance of
counsel:
Petitioner admits that his motions for an
examining trial and for speedy trial were
brought before the court with myself and cocounsel present. His argument is that we did
not protest loudly enough when the judge
“denied his rights” by denying his motion.
I’m at a loss on how he wanted his counsel to
“push the issues”. Tarrant County has an open
file policy, so Defense had all relevant
documents.
His Motion for Speedy trial was
waived as it was not brought before the Court
until after his first setting.

2.

Petitioner’s claim, that I did not object to juror
#28.
I moved to strike #28 for cause but after
examination by the judge, my request was
denied. I do not remember if juror number 28
ended up on the jury panel. However, if she
did, it was because I believed that there were
other venireman [sic] more essential to use
our preremptory [sic] strike[s] on.

3.

Petitioner’s claim that we failed to put on a
defense and call “important fact witnesses”.
All of the state’s witnesses were crossexamined and weaknesses were found in each of
their testimonies.

7

There were NO fact witnesses that could say
that over the period of years he was accused
of molesting the victim, that not one incident
ever happened.
There were two witnesses on the police report,
not the 5-7 as claimed by Petitioner. Both
testified for the State and were crossexamined by me and were not helpful to
Petitioner’s defense[.]
4.

Petitioner’s claim that we failed to suppress
the D.A. evidence, i.e. the Medical Examiner’s
theory, the Detective’s investigation and the
“other 5 witnesses[”].
I objected to each and every item of evidence
and testimony that I believed, in my
professional opinion was objectionable. Some
were sustained and some were overruled.

5.

Petitioner’s claim of inadmissible hearsay.
Petitioner is stating “inadmissible hearsay”
and says I failed to challenge the weight of
the evidence and failed to suppress evidence.
I objected to each portion of each of the
State’s witnesses, that in my professional
opinion
were
hearsay,
again
some
were
sustained and some were overruled. I did not
ask the court to suppress the SANE nurse[’]s
testimony, nor the detectives[’], nor the
witnesses[’], as I had no legal grounds to do
so.

The weight of the evidence against Petitioner was
strong.
All witnesses for the State were vigorously
cross[-]examined. Contrary to Petitioner’s claim, there
were no fact witnesses that could repudiate even one
instance regarding the charges against Petitioner.
Petitioner[’]s defense was strong and effective.
I
strongly object to each and every charge Petitioner was
[sic] made against myself and Ms. Gilland.
(Aff. 117-18, ECF No. 22-3.)
Counsel Gilland also responded to Petitioner’s allegations by

8

affidavit, wherein she averred:
I began working for Curtis Fortinberry in early
August of 2010. He was appointed on this case and I sat
second chair. I was in my first year of practice at the
time of trial. I will have been practicing three years
this December. From what I remember from this trial, I
was responsible for cross-examining the child witness and
I was responsible for the punishment phase.
As to the motion for examining trial, I was still
employed at another law firm at that time. The motion
was filed on July 20, 2010. From the documents attached
to the writ, it looks like the case was indicted on July
27, 2010.
Mr. Phillip Smith was arrested on July 6, 2009.
Mr.
Smith’s trial began in September of 2010, approximately
a year and two months later.
As to ground two of Mr. Smith’s claim, I don’t remember
but I believe Mr. Fortinberry moved to strike Juror #28
for cause; however, I believe the juror was questioned by
the Court and the Court denied the strike for cause. I
do not remember if juror number 28 ended up on the jury
panel. However, if she did, it was because we believed
that there were other venireman [sic] more essential to
use our preremptory [sic] strike[s] on.
As to ground three, Mr. Smith never informed me or Mr.
Fortinberry of any witnesses to call in the punishment
phase of his trial or in the case in chief. I remember
that the client’s mother was in the courtroom. I do not
believe we called her as a witness.
As to the claim of not calling witnesses named in the
police report, all witnesses listed in the police report
were adverse to our client and were either witnesses
accusing him of sexual assault or indecency with a child
such as [S.C.] the child victim, Linda Staggs, her
mother, Mr. Bridges, an adverse witness, Mr. Bazan, an
adverse witness, or police officer or detectives.
As far as the fourth ground in Mr. Smith’s writ, I do not
believe the evidence in this case could have been
suppressed. As far as the testimony of the SANE nurse,
she testified that there were no physical findings and
that was consistent with the kind of abuse alleged.
9

However, the fact that there were no physical findings
was actually favorable to Mr. Smith’s case.
The
detectives who testified were testifying to their
interview of him, of which a video was shown to the jury.
The other witnesses were police officers involved in the
case and witnesses Gregory Bridges and Charles Bazan who
witnessed Mr. Smith and [S.C.] kissing about a month
before his arrest. Also Ms. Perez the property manager
testified about inappropriate behavior she had seen
between [S.C.] and Mr. Smith.
As far as ground five, Mr. Fortinberry challenged the
weight of the evidence during our cross-examination of
the witnesses.
I challenged [S.C.]’s credibility by
questioning her about why she never reported the abuse to
her mother, friends or anyone else.
(Aff. 115-16, ECF No. 22-3.)
Based on counsel’s affidavits, the documentary record, and his
own personal recollections of counsel’s actions during the trial
proceedings, the state habeas judge entered the following findings
of fact:
. . .
7.

Mr. Fortinberry and Ms. Gilland had access to the
State’s files through the Tarrant County ECFS.

8.

Mr. Fortinberry and Ms. Gilland reviewed the police
reports regarding the case against the applicant.

9.

The witnesses named in the police reports were all
adverse to the applicant’s defense.

10.

The applicant did not provide Mr. Fortinberry or
Ms. Gilland
with the names of any potential
witnesses for the guilt/innocence or the punishment
phase of his trial.

11.

Mr. Fortinberry and Ms. Gilland conducted a
reasonable investigation on the applicant’s behalf.

12.

Based upon the police reports, Mr. Fortinberry
concluded that the best defense was the lack of
10

third-party witnesses to the alleged molestation
and to vigorously cross-examine the State’s
witnesses.
13.

Mr. Fortinberry’s defense tactic was reasonable
trial strategy.

14.

The applicant filed a pre-trial application for
writ of habeas corpus on August 28, 2009, in which
he alleges that he filed a request for an examining
trial on July 20, 2009.

15.

The criminal docket does not show that any request
for an examining trial was filed on July 20, 2009.

16.

The applicant was indicted on July 27, 2009.

17.

The applicant’s right to an examining trial was
terminated by his indictment.

18.

Any post-indictment assertion of applicant’s
request for an examining trial by Mr. Fortinberry
or Ms. Gilland would have been frivolous.

19.

The applicant filed a pre-trial application for
writ of habeas corpus on September 9, 2009,
alleging that he was entitled to release due to
delay by the State.

20.

The State filed its announcement of ready on July
27, 2009.

21.

The applicant has no right to release under Code of
Criminal Procedure article 17.151 if the State has
announced that it is ready for trial.

22.

Any post-announcement assertion of the applicant’s
request for release by Mr. Fortinberry or Ms.
Gilland would have been frivolous.

23.

Mr. Fortinberry and Ms. Gilland did not move to
suppress the testimony of Rebecca Sullivan, the
forensic nurse who examined S.C., because they did
not believe there was a legal ground to suppress
her testimony.

24.

Mr. Fortinberry and Ms. Gilland believed that Ms.
Sullivan’s testimony was favorable to the defense
11

because there was no physical findings.
25.

The decision by Mr. Fortinberry and Ms. Gilland not
to seek suppression of Ms. Sullivan’s testimony was
reasonable trial strategy.

26.

Mr. Fortinberry and Ms. Gilland did not move to
suppress the remaining witnesses because they
believed that there were no legal grounds to
suppress their testimony.

27.

The decision by Mr. Fortinberry and Ms. Gilland not
to seek suppression of the remaining witnesses’
testimony was reasonable trial strategy.

28.

Mr. Fortinberry and Ms. Gilland reasonably prepared
for the applicant’s trial.

29.

Venire member #28 informed the trial court that she
had been sexually assaulted when she was fifteen.

30.

Venire member #28 assured the trial court that she
could be fair and impartial to both the applicant
and the State.

31.

Venire member #28 was not challengeable for cause.

32.

Any challenge to venire member #28 by Mr.
Fortinberry or Ms. Gilland would have been
frivolous.

33.

Mr. Fortinberry reasonably conducted voir dire on
the applicant’s behalf.

34.

Mr. Fortinberry and Ms. Gilland
examined the State’s witnesses.

35.

Mr. Fortinberry and Ms. Gilland made the proper and
necessary
objections
during
applicant’s
proceedings.

36.

Mr. Fortinberry and Ms. Gilland did not move for an
instructed verdict when the State rested its case.

37.

The decision by Mr. Fortinberry and Ms. Gilland not
to request an instructed verdict was a matter of
reasonable professional judgment.

12

fully

cross-

38.

Mr. Fortinberry and Ms. Gilland fully defended the
applicant during his trial.

39.

The following evidence undercuts any likelihood
that the outcome of this case would have been
different
with
another
counsel
or
if
Mr.
Fortinberry and Ms. Gilland had represented
the
applicant in another manner;
a.
b.

The applicant began by first touching
S.C. over her clothes, and then putting
his hand under her clothes.

c.

The applicant inserted his finger into
S.C.’s female sexual organ.

d.

S.C. testified that these
occurred about once a week.

e.

When S.C. was nine-and-a-half years old,
the applicant began touching and kissing
her on her breasts.

f.

The applicant continued to insert his
finger into S.C.’s female sexual organ.

g.

When S.C. was ten and eleven years old,
the applicant increased the frequency of
his assaults to almost daily.

h.

41.

The applicant began touching S.C.’s
vagina when she was eight years old.

The evidence established hundreds of
finger-vaginal penetrations and hundreds
of hand-breast and oral-breast contacts
by the applicant.

assaults

Given the evidence, there is no reasonable
probability that the jury would have reached a
different result or verdict with counsel other than
Mr. Fortinberry and Ms. Gilland.

(Findings of
omitted)).

Fact

140-44,

ECF

No.

22-3

(record

references

Based on its findings, and applying the Strickland standard

13

and relevant state law, the habeas court entered the following
legal conclusions:
10.

The applicant’s right to an examining trial was
terminated by his indictment.

11.

The applicant has no right to release under Code of
Criminal Procedure article 17.151 if the State has
announced that it is ready for trial.

12.

Counsel is
objections.

13.

Mr. Fortinberry and Ms. Gilland properly did not
pursue the applicant’s post-indictment request for
an examining trial or his post-announcement request
for release.

14.

Mr. Fortinberry and Ms. Gilland properly did not
seek to suppress admissible evidence.

15.

Mr. Fortinberry and Ms. Gilland fully and
adequately prepared for the applicant’s trial.

16.

Mr. Fortinberry reasonably conducted voir dire on
the applicant’s behalf.

17.

Venire member #28 was not challengeable for cause
since she assured the trial court that she could be
fair and impartial to the applicant and to the
State.

18.

Mr. Fortinberry and Ms. Gilland fully defended the
applicant during his trial.

19.

Mr. Fortinberry and Ms. Gilland properly did not
seek a motion for instructed verdict.

20.

Mr. Fortinberry and Ms. Gilland functioned
counsel guaranteed by the Sixth Amendment.

21.

The applicant has failed to show that there is a
reasonable probability that, but for the alleged
acts of misconduct, the result of his trial would
have been different.

22.

The

applicant

not

required

received
14

to

effective

make

frivolous

assistance

as

of

trial counsel.
(Conclusions of Law 144-47, ECF No. 22-3.)
Petitioner has failed to rebut the state court’s findings of
fact by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
Thus, the findings, including the court’s credibility findings, are
entitled to a presumption of correctness.

Richards v. Quarterman,

566 F.3d 553, 563-64 (5th Cir. 2009); Galvan v. Cockrell, 293 F.3d
760, 764 (5th Cir. 2002).

Deferring to those findings, and having

independently reviewed petitioner’s claims in conjunction with the
state-court

records,

it

does

not

appear

the

state

courts’

application of Strickland was objectively unreasonable.
Petitioner’s

claims

are

largely

conclusory,

as

noted

by

Respondent, with no legal and/or evidentiary basis; are refuted by
the record; involve state evidentiary rulings or other matters of
state law, or involve strategic and tactical decisions made by
counsel, all of which generally do not entitle a state petitioner
to federal habeas relief.

See Swarthout v. Cooke, 562 U.S. 216,

861 (2011) (reinforcing that “federal habeas corpus relief does not
lie for errors of state law”); Strickland, 460 U.S. at 689 (holding
strategic decisions by counsel are virtually unchallengeable and
generally do not provide a basis for post-conviction relief on the
grounds of ineffective assistance of counsel); Johnson v. Cockrell,
306 F.3d 249, 255 (5th Cir. 2002) (concluding that counsel is not
required to make futile motions or objections); Johnson v. Puckett,

15

176 F.3d 809, 820 (5th Cir. 1999) (“State evidentiary rulings do
not warrant federal habeas relief unless they violate a specific
constitutional right or render the trial so fundamentally unfair as
to violate due process.”); Green v. Johnson, 160 F.3d 1029, 1042
(5th Cir. 1998) (“Mere conclusory allegations in support of a claim
of ineffective assistance of counsel are insufficient to raise a
constitutional issue.”); Alexander v. McCotter, 775 F.2d 595, 602
(5th Cir. 1985) (ineffective assistance claims “based upon uncalled
witnesses [are] not favored because the presentation of witness
testimony

is

essentially

strategy

and

thus

within

the

trial

counsel’s domain, and . . . speculations as to what these witnesses
would have testified [to] is too uncertain”).
demonstrated

deficient

performance

or

Petitioner has not

shown

any

reasonable

probability that the outcome of his trial would have been different
but for counsel’s representation.

A petitioner shoulders a heavy

burden to overcome a presumption that his counsel’s conduct is
strategically

motivated,

and

to

refute

the

premise

that

“an

attorney’s actions are strongly presumed to have fallen within the
wide range of reasonable professional assistance.” Messer v. Kemp,
760 F.2d 1080, 1090 (11th Cir. 1985).

Petitioner has presented no

evidentiary, factual, or legal basis in this federal habeas action
that could lead the Court to conclude that the state courts
unreasonably applied the standards set forth in Strickland based on
the evidence presented in state court.

16

28 U.S.C. § 2254(d).

Accordingly, Petitioner is not entitled to relief under grounds one
through five.
VI.

Malicious Prosecution, Slander and Malice

Under his final ground, Petitioner claims that the state
engaged in malicious prosecution and slandered his integrity and
character and inflamed the minds of the jurors by calling him an
“odious, repellant creature” during closing argument. (Pet. 7, ECF
No. 1; Reporter’s R., vol. 6, 72, ECF No. 14-11.)

Petitioner’s

malicious-prosecution claim is a tort claim and cannot be addressed
in this habeas action. If petitioner wishes to raise such a claim,
he must pursue it in a separate lawsuit. Further, the state habeas
court recommended denial of his jury-argument claim because the
claim is not cognizable on state habeas review and because it could
have been but was not raised on direct appeal and was, thus,
procedurally barred.

(Writ of Habeas Corpus 148, ECF No. 22-3.)

Under the procedural-default doctrine, a federal court may not
consider a state prisoner’s federal habeas claim when the last
state court to consider the claim expressly and unambiguously based
its

denial

of

relief

on

an

independent

and

adequate

state

procedural default. Coleman v. Thompson, 501 U.S. 722, 729 (1991);
Johnson v. Puckett, 176 F.3d 809, 823 (5th Cir. 1999); Fisher v.
State, 169 F.3d 295, 300 (5th Cir. 1999).
relied

upon

procedural

firmly
rules

to

established
recommend
17

and

The state court clearly

regularly

denial

of

this

followed

state

claim,

which

represents an adequate state procedural bar to federal habeas
review.

Ex parte Gardner, 959 S.W.2d 189, 199 (Tex. Crim. App.

1996) (holding Fifth Amendment claim is procedurally defaulted
because not raised on direct appeal); Ex parte Banks, 769 S.W.2d
539, 540 (Tex. Crim. App. 1989) (holding “the Great Writ should not
be used to litigate matters which should have been raised on
appeal”).

Therefore, absent a showing of cause and prejudice or a

miscarriage of justice, such showing not having been demonstrated
by Petitioner, his sixth ground is procedurally barred from this
Court’s review.

VII.

Conclusion

Based on the record before the Court, the state courts’
rejection of Petitioner’s claims is not contrary to, no does it
involve an unreasonable application of, clearly established federal
law as established by the Supreme Court nor was the decision based
on an unreasonable determination of the facts in light of the
evidence presented in the state court.
For the reasons discussed, the Court DENIES Petitioner’s
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
and DENIES a certificate of appealability.
SIGNED September 30, 2014.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE

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