Blackwell v. Stephens, Director TDCJ-CID
MEMORANDUM OPINION and ORDER... the petition of petitioner for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be, and 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 7/25/2014) (krg)
NORTHERN DISTRICT OF TEXAS
IN THE UNITED STATES DISTRICT
FOR THE NORTHERN DISTRICT OF
FORT WORTH DIVISION
CHARLES CALVIN BLACKWELL,
CLERK, U.S. DISTRICT COUHT
WILLIAM STEPHENS, Director,
Texas Department of Criminal
This is a petition for writ of habeas corpus pursuant to 28
2254 filed by petitioner, Charles Calvin Blackwell, a
state prisoner currently incarcerated in the Correctional
Institutions Division of the Texas Department of Criminal Justice
(TDCJ), against William Stephens, Director of TDCJ, respondent.
After having considered the pleadings, state court records, and
relief sought by petitioner, the court has concluded that the
petition should be denied.
On July 20, 2010, in the 355th District Court of Hood
County, Texas, Case No. CR11350, a jury found petitioner guilty
of two counts of possession of a controlled substance,
methamphetamine, of more than four grams but less than twohundred grams with intent to deliver and one count of possession
of a controlled substance, cocaine, of more than one gram but
less than four grams and assessed his punishment at 99-years
imprisonment and a $10,000 fine on each count of possession with
intent to deliver and 2-years' imprisonment on the possession
Clerk's R. 8-18, 33-36, 39-46, ECF No. 12-9.
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.
Mem. Op. 41-60, Ex parte
Blackwell, No. WP-78,827-01, ECF No. 12-5; Blackwell v. State,
PDR No. 1171-11.
Petitioner challenged the two possession-with-
intent-to-deliver convictions, which are the subject of his
federal habeas petitions, in state habeas applications, one for
each conviction, and the Texas Court of Criminal Appeals denied
the applications without a hearing, factual findings, or written
Cover, Ex parte Blackwell, Nos. WR-78,827-01 & -02, ECF
The state appellate court set forth the facts of the case as
Roland Smith, an investigator for the Hood County
Sheriff's Office, testified that he knew appellant by
the name of Charlie. On April 17, 2009, Investigator
Smith met with a confidential informant and wired him
with a communication device that transmitted audio and
video. According to Investigator Smith, the
confidential informant contacted appellant to arrange
to buy drugs from him. Before the confidential
informant went to meet appellant, Investigator Smith
searched him and his car to make sure there were no
illegal narcotics with him.
He gave the informant
money to buy the drugs; officers had photocopied the
Investigator Smith also followed the informant
to where he was meeting appellant.
Investigator Smith identified State's Exhibit 1 as
a digital reproduction of the recording of the
transaction between the confidential informant and
appellant; the trial court admitted the recording.
Investigator Smith testified that he observed the buy,
which took place in the informant's car, from a
clandestine location, but he saw "what was taking place
at the time it was taking place." He saw appellant
hand something to the informant.
The State played the
recording for the jury.
The informant is first shown on the tape talking
to the investigat.or and another person about the
planned buy. The investigator gives the informant $400
and tells him to use it all for ice if he has to.
Although the informant's face cannot be seen, his cell
phone can be seen as if he is holding it in front of
him. On the audio, the informant can be heard making a
phone call to Charlie. The person on the other end of
the line says he has some coke. The two also discuss
the purchase of methamphetamine; the man on the phone
says he can get more ice.
Once the informant arrives at the meeting place,
the recording does not show the face of the person the
informant is meeting; the informant stays in the
driver's side of his vehicle with the window rolled
He talks with the man through the open window on
the driver's side and the two discuss money. The
informant says he is giving the man all $400; $90 for
some cocaine and methamphetamine, and $300 for more
methamphetamine to be delivered later.
tells the man to pay him back his $10 change for the
cocaine and initial methamphetamine that the man
already has. The informant can be seen handing money
out the driver's side window. After the informant
drives away, he can be heard calling Charlie and
telling him to apply the extra $10 toward the
methamphetamine that is to be delivered later.
Investigator Smith identified appellant as the man
from whom the informant bought the drugs.
Smith testified that after the buy, the informant
brought packages of methamphetamine and cocaine back
and explained that he gave Charlie the rest of the
money for more ice.
Investigator Smith testified that
upon obtaining the drugs,
We take them back to the sheriff's
office, and we go into our evidence room
where we weigh them, we them [sic] in a bag,
seal it, put an evidence tag on it, and then
we put it in a locker and for the evidence
clerk to pick up at a later date .
. . . The tag's got the case number, the
date, the charge, and then my name on it,
my-your signature will go on the . . . tag,
it goes on the evidence.
According to Smith, that same procedure was used
in this case.
Police logged four bags of drugs, three
of which were methamphetamine and one of which was
The State admitted exhibit 31, which was the
form used to submit the drugs to the lab for testing.
After watching the recording, Investigator Smith
prepared an arrest warrant for appellant. Investigator
Smith waited to serve the warrant, however, until
appellant had re-upped his supply of drugs.
sheriff's office had received information that
appellant would be transporting more drugs on May 14,
2009; they pulled appellant over in a traffic stop that
day in Hood County.
The stop was recorded by a device
in Investigator Smith's vehicle; the recording of the
stop was admitted as State's Exhibit 2. According to
Investigator Smith, appellant seemed "wired up" when he
pulled him over.
Appellant asked the officers to allow his brother
to pick up his truck, but officers ran a K-9 sniff on
the truck, and the dog alerted to the presence of
Under the hood of the truck, officers found
a meth pipe in a sock.
Rolled inside the tube of the
receiver hitch, officers found a plastic baggie of what
they believed to be marijuana.
They also found nine
bags of a substance that field-tested positive as
They logged everything they found
into evidence according to the procedure Investigator
Smith testified to previously.
The recording of the
stop was played for the jury.
testified that the total amount of methamphetamine in
the nine bags seized from the truck was 11.2 grams,
based on the report that he had signed and that the
sheriff's office had submitted to the DPS lab when it
sent the samples to be tested.
The marijuana was 13.6
Investigators Smith and Clark also seized
$492.33 in cash from the truck.
After seizing the narcotics from the truck, the
investigators took them back to the sheriff's office
and logged them into evidence.
testified that all narcotics are individually packaged
in a "seal-a-meal type thing" and then put in a larger,
heavier bag, which is then sealed. An evidence tag is
put on the bag with the case number, the offense, and
the investigator's signature. Also, the investigator
fills out an evidence submittal form, keeps a copy for
the report, and the original goes with the evidence for
the evidence clerk to use when later sending the bags
to DPS for testing.
The evidence is put in a locker
and the number of the locker is recorded on the
Here, the bags were sent to DPS for
testing; they were placed in a larger bag but not
opened until the lab opened them for testing.
Regarding appellant's possible intent to deliver
the drugs found in the truck on May 14, 2009,
Investigator Smith testified that such evidence was
from the separate packaging, i.e., the meth was "broken
down into little packages for sale." He agreed the
small packages were in relatively uniform amounts.
They also took into consideration the cash on appellant
when they found him. During the stop, Investigator
Clark answered appellant's cell phone when it rang and
pretended to be appellant.
The sheriff's' office also
took Investigator Clark's conversation into account in
deciding whether to charge appellant with intent to
On cross-examination, defense counsel asked
Investigator Smith who the confidential informant was,
and Investigator Smith identified him as Michael
Investigator Smith had arrested Eubanks in a
prior case; Eubanks was "working off" that charge by
buying drugs from appellant. According to Investigator
Smith, Eubanks brought him back the drugs that he had
bought from appellant, but he did not bring back any of
the money. When asked whether Eubanks bought $90 worth
of drugs and only brought back the drugs, Investigator
Smith said, "Okay" and then, "That's correct." One of
the bags of drugs had a tear in the seam. On the tape
of the buy, Eubanks tells Investigator Smith about the
tear and says appellant had told him about it during
The tipster who told Investigator Smith that
appellant was re-upping on May 14, 2009 was also
Eubanks. When officers pulled appellant over on May
14, 2009, he had a passenger named Bobby Underhill in
the truck with him.
Investigator Smith admitted he did
not hear Investigator Clark's conversation with
whomever had called appellant's cell phone.
On redirect, the prosecutor asked, "Now, do normal
persons who carry cell phones get calls on the phone
asking for $20 bags of methamphetamine?" Appellant's
counsel objected, stating that Investigator Smith had
already admitted that he had no knowledge of the
conversation. The trial court overruled the objection,
and Investigator Smith answered, "Normally, they
don't." William Todsen, a forensic scientist with the
Department of Public Safety Crime Laboratory in
Abilene, testified that he analyzed the evidence from
both the buy and the stop. He identified the bags that
he had analyzed, testifying that he unsealed them for
purposes of testing and that he resealed them when he
They did not appear to have been
tampered with since that time. The bags were sealed
when he got them. As for the drugs from the buy, the
methamphetamine weighed a total of 2.13 grams, and the
cocaine weighed less than one gram.
The methamphetamine seized from the truck weighed
6.01 grams, and the marijuana weighed .42 ounces.
Although Todsen did not testify to the weights of the
methamphetamine in each individual bag, he testified
that they were the same as in the lab report he had
prepared, which the trial court admitted into evidence.
Todsen testified that he weighed the bags separately,
then took out whatever substance was inside and weighed
just the bag; that way, he could determine the net
weight of the substance itself.
William Watt, a sergeant with the Hood County's
Sheriff's Department, testified that Investigators
Smith and Clark called him to transport appellant to
jail after arresting him on May 14. Through Sergeant
Watt, the State introduced a DVD recording of the
arrest on May 14.
Investigator Clark testified that he was the
handler for Laws, the canine who alerted on appellant's
truck. According to Investigator Clark, Laws alerted
to the passenger side of the truck.
agreed that they seized $492.33 from appellant. He
said he checked the truck's toolbox, but all he found
was an X-Box that Underhill said belonged to him.
and Investigator Smith photographed the items they
found in the truck. After they were finished, they
took the evidence to the sheriff's office where
Investigator Smith placed it into evidence, and
Investigator Clark interviewed appellant and gave him
his Miranda warnings. The interview was recorded and
published to the jury.
Investigator Clark also
testified that he thought appellant was under the
influence of methamphetamine at the time of the stop.
Investigator Clark testified without objection
that the phone call he took on appellant's cell phone
was from Tom who said he needed "a 20," which
Investigator Clark understood to mean $20 of
methamphetamine. He asked where Tom was, and the man
said his aunt's house on Brierwood.
said he would be there shortly and hung up, but he
never went to the street Tom gave him because he was
interviewing appellant. When Investigator Clark
interviewed appellant, he asked if he knew someone
named "Tom," and appellant answered, "You mean Tom over
on Brierwood?" Appellant tried to tell Investigator
Clark that he had just bought the truck that day, but
Investigator Clark had pulled appellant over in the
same truck "probably a couple of weeks before."
On cross-examination, appellant's counsel asked if
Investigator Clark knew what number Tom had been trying
to call or whether he had tried to call Tom back to
verify whom he had been trying to call. He asked what
exactly Tom had said; Investigator Clark answered that
he could not recall specifically but that "he had
called and asked for Charlie, for Mr. Blackwell, and
stated he wanted a $20 bag of methamphetamine."
Investigator Clark denied that Tom had spoken in "code"
or that people who called asking for drugs commonly
asked for them in code. When asked if he stated the
conversation differently in his report from May 14,
2009, Investigator Clark said,
That's what I put in my report, is what was
said. Okay? I said I didn't remember
obviously every detail, you know,
that-that-of the conversation, but the basic
terminology that was used to obviously to
show that Mr. Blackwell was selling drugs was
what was put in the report.
Upon questioning by defense counsel, Investigator
Clark admitted that proof that appellant was selling
drugs was important to both him and Investigator Smith.
In his closing argument, appellant's counsel urged the
jury to find that appellant had been framed by Eubanks,
who manipulated the buy and later put the drugs in
appellant's truck. He also argued that Eubanks had
borrowed Tom's phone and called, pretending to be Tom
so that he could set up appellant.
testified that he did not know Eubanks before the buy.
Mem. Op. 42-51, Ex parte Blackwell, No. WR-78,827-01, ECF No. 1215.
Petitioner raises five grounds for habeas relief, wherein he
claims that he received ineffective assistance of trial counsel
(grounds one through four)
and that his right to confrontation
was violated under Crawford v. Washington, 541 U.S. 36 (2004),
Pet. 6-7 & Pet'r's Mem. 5, ECF No. 1.
Rule 5 Statement
Respondent believes that the petition is neither successive
nor untimely under the federal statute of limitations and that
the claims have been properly exhausted with respect to grounds
one through four.
He believes however that ground five is
Resp't's Answer 11, 14-16, ECF No. 15; 28
In his fifth ground, petitioner asserts his right to
confrontation was violated because Investigators Clark and Smith
testified, without objection, to statements made by informants
Michael Eubanks and "Tom," but neither witness was called to
testify at trial.
Petitioner raised the claim on direct appeal,
but the appellate court found that because petitioner did not
object to the evidence on Crawford or Confrontation-Clause
grounds at trial, he had failed to preserve error.
Mem. Op. 55-
56, Ex parte Blackwell, No. WR-78,827-01, ECF No. 12-5.
In Wainwright v. Sykes, 433
72, 87 (1977), the Supreme
Court held that, absent a showing of "cause" and "prejudice,"
federal habeas review is barred if the petitioner fails to comply
with a state contemporaneous objection rule at trial.
asserts that the state procedural default was the result of the
ineffectiveness of trial counsel and that the claim was addressed
by the Texas Court of Criminal Appeals because the state court's
denial of habeas relief, versus a dismissal, signifies an
adjudication on the merits.
Pet'r's Reply 12, ECF No. 16.
Although this is generally true,
[a] state court's unexplained
denial of a habeas petition raising federal claims is not
sufficient, for purposes of federal review, to lift a procedural
bar imposed on direct appeal."
801 (1991) .
Ylst v. Nunnemaker,
501 U.S. 797,
"When faced with a silent or ambiguous state habeas
decision, the federal court should 'look through' to the last
clear state decision on the matter" to determine whether the
decision is an adjudication on the merits or procedural.
v. Johnson, 194 F.3d 641, 651 (5th Cir. 1999).
appellate court explicitly overruled the claim on procedural
"where, as here, the last reasoned opinion on the
claim explicitly imposes a procedural default, we will presume
that a later decision rejecting the claim did not silently
disregard that bar and consider the merits."
Ylst, 501 U.S. at
Further, because the court holds below that petitioner's
trial counsel was not constitutionally ineffective, the court
finds no cause and/or prejudice resulting from counsel's failure
to object to the testimony and is therefore precluded from
See Murray v. Carrier, 477 U.S. 478, 486-
addressing the claim.
Legal Standard 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.
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.
210 F.3d 481, 485 (5th Cir. 2000).
A state court
decision will be an unreasonable application of clearly
established federal law if it correctly identifies the applicable
rule but applies it unreasonably to the facts of the case.
529 U.S. at 407-08.
The Act further requires that federal courts give great
deference to a state court's factual findings.
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
The presumption of correctness applies to both implicit
and explicit factual findings.
Young v. Dretke, 356 F.3d 616,
629 (5th Cir. 2004); Valdez v. Cockrell, 274 F.3d 941, 948 n.11
(5th Cir. 2001)
("The presumption of correctness not only applies
to explicit findings of fact, but it also applies to those
unarticulated findings which are necessary to the state court,s
conclusions of mixed law and fact.").
The petitioner has the
burden of rebutting the presumption of correctness by clear and
the Texas Court of Criminal Appeals denies relief in a state
habeas corpus application without written order, it is an
adjudication on the merits. 1
Barrientes v. Johnson,
741, 779-80 (5th Cir. 2000); Ex parte Torres,
943 S.W.2d 469, 472
(Tex. Crim. App. 1997).
Ineffective Assistance of Counsel
A criminal defendant has a constitutional right to the
effective assistance of counsel at trial.
XIV; Strickland v. Washington, 466
U.S. Const. amend. VI,
668, 688 (1984).
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
As previously noted, an exception to this rule occurs when
"the last reasoned opinion on the claim explicitly imposes a
Ylst, 501 u.s. at 803.
Strickland, 466 U.S. at 688.
Both prongs of the
Strickland test must be met to demonstrate ineffective
Id. at 687, 697.
Further, a court must indulge a strong presumption that
counsel's conduct fell within the wide range of reasonable
professional assistance or sound trial strategy.
Id. at 668,
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.
Finally, in the absence of a written opinion or express
findings of fact, this court assumes the state courts applied the
Strickland standard and made factual findings consistent with the
state courts' decision.
The Supreme Court recently emphasized in
Harrington 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
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. 770, 785 (quoting Williams v. Taylor, 529 U.S. 362,
Accordingly, it is necessary only to determine
whether the state courts' rejection of petitioner's ineffective
assistance claim was contrary to or an objectively unreasonable
application of Strickland.
Bell v. Cone, 535 U.S. 685, 698-99
(2002); Kittelson v. Dretke, 426 F.3d 306, 315-17 (5th Cir.
2005); Schaetzle v. Cockrell, 343 F. 3d 440, 443
(5th Cir. 2003).
Under his first ground, petitioner claims trial counsel
rendered ineffective assistance because counsel failed to request
a "cautionary" jury instruction on informant witness
corroboration under article 38.141 of the Texas Code of Criminal
Pet. 6 & Pet'r's Mem. 11-12, ECF No. 1.
38.141 provides, in relevant part:
(a) A defendant may not be convicted of an offense
under Chapter 481, Health and Safety Code, on the
testimony of a person who is not a licensed peace
officer or a special investigator but who is acting
covertly on behalf of a law enforcement agency or under
the color of law enforcement unless the testimony is
corroborated by other evidence tending to connect the
defendant with the offense committed.
Tex. Code Crim. Proc. Ann. art. 38.141(a)
The state appellate court addressed the issue as follows:
The plain language of the statute provides that a
licensed peace officer's testimony does not need to be
corroborated. Here, Eubanks did not testify; only
Investigators Smith and Clark testified. Accordingly,
article 38.141 does not apply, and no additional
corroboration was required.
Mem. Op. 55, Ex parte Blackwell, No. WR-78,827-01, ECF No. 12-15
(citations omitted) .
Deferring to the state courts' interpretation of state law,
the state courts' rejection of petitioner's claim is neither
erroneous nor objectively unreasonable.
to make frivolous motions or objections.
Counsel is not required
Johnson v. Cockrell,
306 F.3d 249, 255 (5th Cir.2002); Koch v. Puckett, 907 F.2d 524,
527 (5th Cir.1990).
Under his remaining three grounds, petitioner claims counsel
rendered ineffective assistance by failing to object to a
Confrontation Clause violation and the admission of hearsay
testimony and by eliciting damaging and inadmissible hearsay.
Pet. 6-7 & Pet'r's Mem. 12-14.
Specifically, he complains of the
investigators' testimony regarding informants Eubanks's and Tom's
out-of-court statements to them.
Pet. 7, Pet'r's Mem. 13-14, ECF
Applying the Strickland standard, the state appellate
court addressed the issue as follows:
Appellant's complaint is that trial counsel failed
to appreciate the hearsay issue regarding the
confidential informant. However, as we have explained,
Eubanks did not testify, and counsel may have had a
reasonable strategy for not objecting at trial to
Investigator Smith's testimony that Eubanks called him
and said appellant had re-upped, giving officers the
information they wanted to pull appellant over the
Specifically, trial counsel argued in his
closing that Eubanks framed appellant.
Moreover, although appellant complains that his
counsel failed to object to evidence regarding the
phone call from Tom, and additionally elicited
"damaging" hearsay about what "Tom" said on the phone,
counsel apparently employed that call as part of his
strategy of claiming that Eubanks framed appellant.
his closing, counsel suggested that Eubanks had called
on appellant's cell phone, pretending to be Tom. Also,
in questioning Investigator Clark about what exactly
Tom had said, counsel showed that Investigator Clark's
memory of the call was not very detailed and that no
follow-up investigation was done to determine that a
man named Tom on Brierwood was indeed the person whom
Investigator Clark had talked with.
The right to effective assistance does not
guarantee errorless counsel but rather objectively
We will not second-guess
trial counsel's apparent strategy of arguing that the
evidence as admitted was equally consistent with
appellant's being framed by Eubanks, especially with a
record that is silent on counsel's reasons.
Mem. Op. 58-60, Ex parte Blackwell, No. WR-78,827, ECF No. 12-15
(footnote and citations omitted).
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."
1080, 1090 (11th Cir.1985).
Messer v. Kemp, 760 F.2d
In fact, as noted by the state
court, even where a record is utterly silent with regard to
strategy, a reviewing court will presume counsel's action or
inaction to be the product of strategy, except in extremely
unusual circumstances not present in this case.
717 F.2d 199, 206 (5th Cir. 1983); Stanley v. Zant, 697
F.2d 955 (11th Cir.1983).
Certainly counsel's decision not to
object to the testimony, which was consistent with his theory of
defense, was strategy and not a deficiency.
Petitioner has presented no 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.
2254(d); 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).
For the reasons discussed herein,
The court ORDERS the petition of petitioner for a writ of
habeas corpus pursuant to 28 U.S.C.
2254 be, and is hereby,
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.
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
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