Lundgren v. Stephens Director TDCJ-CID
Filing
29
MEMORANDUM OPINION AND ORDER: After having considered the pleadings, state court records, and relief sought by petitioner, the Court has concluded that the petition should be denied. The Court further ORDERS that a certificate of appealability be, and is hereby, denied. (Ordered by Judge John McBryde on 8/26/2015) (trs)
-----------------------------------------
U.S. DISTRICTCOURT
NORTHERN DrSTRICTOFTEXAS
FILED
IN THE UNITED STATES DISTRICT
FOR THE NORTHERN DISTRICT OF
FORT WORTH DIVISION
KENNETH OLAF LUNDGREN,
CLERK, U.S. DISTRICT COURT
By _ _~·----
§
§
Petitioner,
OURT
EXAS
Ocpllty
§
§
v.
§
No. 4:14-CV-014-A
§
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
§
§
§
§
§
Respondent.
§
MEMORANDUM OPINION
and
ORDER
This is a petition for writ of habeas corpus pursuant to 28
U.S.C.
§
2254 filed by petitioner, Kenneth Olaf Lundgren, a state
prisoner confined 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.
I.
Factual and Procedural History
In January 2011 petitioner was charged by separate
indictment in Hood County, Texas, Case No. CR11793, with six
counts of aggravated assault with a deadly weapon on a public
servant for offenses occurring on October 31, 2010.
16, ECF No. 14-6.
2011.
Clerk's R.,
Petitioner's trial commenced on September 26,
The state appellate court summarized the factual and
procedural background of the case as follows:
On the evening of October 31, 2010, appellant was
at his home in Hood County with his wife and stepson.
Appellant had taken several prescribed medications for
back pain and was drinking alcohol. At some point in
the evening, appellant picked up a gun and began acting
strangely. Appellant's wife became concerned that he
was going to hurt himself, so she had her son call the
police. Several uniformed Hood County Sheriff's
deputies soon arrived and gathered at the gate to
appellant's property. Shortly after they arrived,
appellant's wife and stepson came out of the home and
reported that appellant was still inside. Appellant's
wife told police that she was concerned that appellan~
was going to come out of the house and come after her.
The deputies set up a perimeter around the house and
waited for a negotiator and SWAT team to arrive.
Before the negotiator or SWAT team could arrive,
appellant came out of the home and began walking toward
the deputies at the front gate. The deputies asked.h~m
to show his hands, and appellant made an obscene
gesture towards them with both hands. When he did so,
deputies noticed that appellant had a pistol tucked
into the waistband of his pants. They ordered
appellant to put the weapon down. Appellant instead
removed the pistol from his waistband and pointed it at
the deputies while continuing to walk toward them.
During the encounter, appellant pointed the pistol at
each of the deputies.
Ignoring repeated demands from
deputies to drop the pistol, appellant turned around
and began walking back toward the house.
The deputies
followed behind appellant and were able to overtake him
just before he reached the house. Deputies tackled
appellant, wrestled the pistol away from him, and
placed him under arrest for aggravated assault.
2
Appellant was transported to Lake Granbury Medical
Center, where he was evaluated before being taken to
jail.
Appellant was indicted on six counts of aggravated
assault on a public servant. Before trial, he filed a
Notice of Intent to Rais~ Insanity Defense requesting
that the trial court appoint a disinterested mental
health expert to evaluate him.
The trial court granted
the motion and appointed Dr. Barry Norman to examine
appellant. Dr. Norman concluded from his examination
of appellant that he "DID NOT have a mental infirmity
. that caused him to lose his ability to understand
or reason accurately at the time of the crime" and that
appellant "did know that his behavior with which he is
charged was wrong."
Appellant also filed a motion requesting a courtappointed expert to aid in the preparation of his
insanity defense. The trial court denied that motion.
At trial, the jury convicted appellant of all six
counts of aggravated assault on a public servant, and
the trial court sentenced appellant to twenty years'
confinement on each count, to be served concurrently.
Mem. Op. 2-3, ECF No. 14-4.
The appellate court affirmed the trial court's judgments.
Id. at 16.
Petitioner did not file a petition for discretionary
review in the Texas Court of Criminal Appeals, however he filed
two state-habeas applications challenging his convictions.
R., ECF No. 14-1.
Elec.
The first application was denied by the Texas
Court of Criminal Appeals without written order, and the second
was dismissed as a successive petition.
SH1 "Action Taken," ECF
No. 17-1; SH2 "Action Taken," ECF No. 17-6
3
II.
Issues
Generally, petitioner seeks habeas relief·based on the
following grounds:
(1)
He is actually innocent;
(2)
The sheriff's deputies failed to follow·
legislative directives;
(3)
The sheriff's deputies engaged in an illegal
search and seizure;
(4)
The prosecution withheld exculpatory evidence;
( 5)
The prosecution used perjured testimony;
( 6)
The prosecution engaged in improper voir dire;
( 7)
The prosecution delayed a speedy trial;
( 8)
The trial court abused its discretion by refusing to
adjourn for the day so the defense could call Dr.
Smith, a material witness; and
(9)
He received ineffective assistance of trial counsel.
Pet. 6-7 & Insert, ECF No. 1.
III.
Rule 5 Statement
Respondent believes that petitioner's claims (1),
and (9),
(3),
(4),
in part, enumerated above, are unexhausted and
procedurally barred.
Respondent does not believe that the
petition is untimely or successive.
ECF No. 19.
4
Resp't's Answer 2, 11-15,
IV.
Procedural Bar
Applicants seeking habeas corpus relief under
§
2254 are
required to exhaust all claims in state court before requesting
federal collateral relief.
Texas,
28 U.S.C.
§
2254(b) (1); Fisher v.
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
on direct appeal or in state post-conviction proceedings.
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).
The exhaustion requirement is "not satisfied if the
petitioner presents new legal theories or factual claims in his
federal habeas petition."
(5th Cir. 2014)
Reed v. Stephens, 739 F.3d 753, 780
(quoting Anderson v. Johnson, 338 F.3d 382, 386,
(5thCir. 2003)).
In Texas, the highest state court for criminal matters i9
the Texas Court of Criminal Appeals.
762 F.2d 429, 431-32 (5th Cir. 1985).
Richardson v. Procunier,
Therefore, a Texas
prisoner may typically 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, as in this case, a state habeas post5
conviction proceeding.
See TEX. CoDE CRIM. PRoc. ANN. art. 11.07
(West 2015); Depuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988)
Petitioner did not file a petition for discretionary review;
thus it was necessary that he raise his claims in a properlyfiled state-habeas application under article 11.07 of the Texas
Code of Criminal Procedure.
Petitioner raised a claim in his
first properly-filed state-habeas application that sufficiently
corresponds to his ground (4), however respondent correctly notes
that petitioner did not raise claims that sufficiently correspond
to grounds (1),
(3) and (9), to the extent petitioner claims
counsel was ineffective by failing to move for a mistrial.
Petitioner's ground (1) raised for the first time in his second
state-habeas application, which was dismissed as a successive
application, as well as his grounds (3) and (9), in part, raised
for the first time in this federal petition are unexhausted for
purposes§ 2254(b) (1) (A).
Under the Texas abuse-of-the-writ doctrine, however,
petitioner cannot now return to state court for purposes of
exhausting the claims.
4(a)-(c).
TEX. CODE CRIM. PROC. ANN. art. 11.07, §
The abuse-of-the-writ doctrine represents an adequate
state procedural bar to federal habeas review.
Johnson, 127 F.3d 409, 423 (5th Cir. 1997).
6
See Nobles v.
Therefore, absent a
.
.
showing of cause and prejudice or a miscarriage of justice, such
showing not having been demonstrated, petitioner's grounds (1),
(3) and (9), to the extent petitioner claims counsel was
ineffective by failing to move for a mistrial, are unexhausted
and procedurally barred from this Court's review. 1
Johnson,
216 F.3d 521, 523-24
v.
See Smith v.
(5th Cir. 2000).
Discussion
Legal Standard for Granting Habeas Corpus Relief
A
§
2254 habeas petition is governed by the heightened
standard of review provided for by the Anti-Terrorism and
Effective Death Penalty Act (AEDPA) .
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 Supreme Court precedent or that is based on
an unreasonable determination of the facts in light of the record
before the state court.
100 (2011)
i
28 U.S.C.
§
Harrington v. Richter, 562 U.S. 86, 992254 (d) (1)- (2).
This standard is
difficult to meet and "stops short of imposing a complete bar on
1
The Court is aware that, if proved, actual innocence may overcome a
procedural bar.
However, petitioner has not made a colorable showing that he
is actually innocent in light of "new evidence." McQuiggin v. Perkins, -U.S.
-, 133 S. Ct. 1924, 1931-35 (2013).
Nor has the Supreme Court resolved the
issue of whether a prisoner may be entitled to habeas relief based on a
freestanding claim of actual innocence.
Herrera v. Collins, 506 U.S. 390,
401-05 (1993).
7
federal court relitigation of claims already rejected in state
proceedings."
Harrington, 562 U.S. at 102.
The statute further requires that federal courts give great
deference to a state court's factual findings.
210 F.3d 481, 485 (5th Cir. 2000).
Hill v. Johnson,
Section 2254(e) (1) provides
that a determination of a factual issue made by a state court
shall be presumed to be correct.
The presumption of correctness
applies to both express and implied 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).
Absent express findings,
a federal court may imply fact findings consistent with the state
court's disposition.
Townsend v. Sain, 372 U.S. 293, 314
(1963);
Pondexter v. Dretke, 346 F.3d 142, 148 (5th Cir. 2003); Catalan
v. Cockrell, 315 F.3d 491, 493 n.3
(5th Cir. 2002).
Further,
when the Texas Court of Criminal Appeals denies a federal claim
in a state habeas corpus application without written opinion, a
federal court may presume "that the state court adjudicated the
claim on the merits in the absence of any indication or state-law
procedural principles to the contrary."
Johnson v. Williams,
U.S. -, 133 S. Ct. 1088, 1094 (2013); Harrington, 562 U.S. at 99.
8
(2) Failure of Sheriff's Deputies to Follow or Adhere to
Legislative Directives
Under petitioner's second ground, he asserts the deputies
failed to comply with
§
573.001 of the Texas Health and Safety
Code by not immediately taking him to a mental health facility.
TEX. HEALTH
&
SAFETY CODE ANN.
§
573.001 (West Supp. 2014)
A
violation of state law however provides "no basis for federal
habeas relief."
Estelle v.
McGuire,
502 U.S. 62, 68 n.2
(1991).
(4)-(7) Prosecutorial Misconduct
Under petitioner's fourth through seventh grounds, he
asserts the prosecution engaged in prosecutorial misconduct by:
withholding evidence; using perjured testimony; tainting the jury
pool during voir dire; and delaying his trial to hamper his
defense and gain a tactical advantage.
Pet. 6-7 & Inserts, ECF
No. 1.
Petitioner claims the state withheld the "dashcam" video
from Sergeant Ellis's patrol car, which would have exonerated
him, and only gave the defense notice of its existence at the
last minute.
(1963).
Pet. 7, ECF No. 1.
Brady v. Maryland, 373 U.S. 83
This Court is aware that the Tarrant County District
Attorney's Office maintains an open-file policy.
Moreover, the
prosecution introduced the "dashcam" videos of both Sergeant
9
Ellis and Deputy Mead into evidence and tendered them to the jury
RR, vol. 3, 33 & 88; ECF No. 15-3.
without objection.
This
suggests to the Court that the defense was aware of the dashcam
videos at the latest on the day petitioner's trial commenced and
was able to cross-examine the officers regarding the videos.
Pet. 7, ECF No. 1.
No prejudice occurs if evidence is disclosed
in time for its "effective use at trial."
United States v.
McKinney, 758 F.2d 1036, 1050 (5th Cir. 1985).
Petitioner claims the prosecution knowingly used perjured
testimony of the law enforcement officers, when it had "in its
custody the dashcam video," but used "a satillite photo of
petitioners property marked as to the alledged positions of
petitioner and deputies, knowing that this was false."
Pet.
Insert., ECF No. 1 (all misspellings and grammatical errors are
in the original).
This claim is frivolous.
It was the jury's
role to evaluate the credibility of the witnesses and weigh any
conflicting evidence.
(5th Cir. 2012).
United States v. Grant, 683 F.3d 639, 642
As noted above, two "dashcam" videos were
admitted at trial; thus, it was for the jury to decide whether
the videos corroborated or contradicted the officers' testimony
regarding petitioner's and the officers' relative positions as
the events occurred.
10
Petitioner claims the prosecution improperly examined a
veniremember, a police captain, during voir dire.
In his state
habeas application, Petitioner assertedDuring voir dire the prosecutor asked veniremember
Captain Allen Hines of the Granbury City Police
Department as to his feelings and that of other police
officers with hypothetical that mirrored the actual
case before jury was selected and evidence presented at
trial. Although proper to use hypothetical questions
to explain application of law or to explain concepts of
law. The prosecution attempted to seek or search the
results of the case in advance or ask questions that
are calculated to harm the defence or to commit venneir
members to a verdict thus tainting the entire jury pool
deining appellant the right to a fair and impartial
jury and trial.
SH01, 13, ECF No. 17-1 (all misspellings and grammatical errors
are in the original).
Under Texas law, it is proper during voir dire to pose
hypothetical fact situations to determine prospective jurors'
view of issues particular to the case being tried.
Johnson, 160 F.3d 1029, 1037 n.4
(5th Cir. 1998).
Green v.
In application,
this means that "[a] proper [voir dire] question is one which
seeks to discover a veniremember's views on an issue applicable
to the case."
App. 1996).
Rhoades v. Texas, 934 S.W.2d 113, 122 (Tex. Crim.
The prosecutor may not, however, go beyond
hypotheticals and attempt to commit an individual prospective
11
juror to a particular course of action based upon a certain
factual situation.
Cuevas v. State, 742 S.W.2d 331, 343 (Tex.
Crim. App. 1987); see also Lee v. State, 176 S.W.3d 452, 461-62
(Tex. App.-Houston [1st Dist.] 2004)
(holding that hypothetical
was not overbroad when it "did not contain additional facts
specific to the case at bar that [were] unnecessary to explain
the application of the law").
Here, the prosecutor discussed the
concepts of finding a defendant guilty based on a threat alone,
the use of a gun relevant to the ability to carry out the threat,
voluntary intoxication, a defendant's threat to commit suicide,
and an insanity defense.
RR, vol. 2, 41-61, ECF No. 15-2.
Thus,
the state's hypothetical and questions all served the purpose of
illustrating principles of law that were applicable to
petitioner's case and tested the veniremembers' potential bias
and ability to apply those principles.
See Delacerda v. State,
425 S.W.3d 367, 382 (Tex. App.-Houston [1st Dist.] 2011, pet.
ref'd).
This Court may assume then that the state courts found
the hypothetical proper.
Absent a showing that this
determination is contrary to, or an unreasonable application of
clearly established Supreme Court law on the issue or clear and
convincing evidence that the hypothetical examples rendered his
trial fundamentally unfair by denying him an impartial jury, we
12
defer to the state courts' adjudication of the claim.
See Clark
v. Blackburn, 605 F.2d 163, 164 (5th Cir. 1979).
Finally, under his seventh ground, petitioner claims the
prosecution delayed his trial for nine months to hamper his
defense and gain an advantage by failing to contact "Dr. Norman,
the court appointed disinterested expert witness, within the 30
day time limit" required by the Texas Code of Criminal Procedure.
Pet. Insert., ECF No. 1.
The record reflects that on December 7,
2010, the trial court appointed Dr. Norman as a disinterestedexpert and ordered Dr. Norman to conduct a "concurrent"
examination of petitioner for both competency and sanity and
submit his report within 30 days as provided by statute.
SHOl,
37-39, ECF No. 17-1.
TEX. CODE CRIM. PROC. ANN. arts. 46C.103
46C.105 (West 2006).
Dr. Norman evaluated petitioner on July 15
&
and August 19 1 2011 1 and submitted his report on August 291 20111
which was received by the trial court on September 11 2011.
Supp. Clerk 1 S R. 11 1 ECF No. 14-5.
As previously noted, a
violation of state law provides "no basis for federal habeas
relief. '
1
Estelle, 502 U.s. at 68 n. 2.
Nor does petitioner raise
a tenable federal constitutional claim under the Sixth Amendment.
Such a claim is evaluated under the four-part balancing test set
forth in Barker v. Wingo, 407 U.S. 514 (1972)
13
1
under which a
court must take into consideration the "[l]ength of delay, the
reason for the delay, the defendant's assertion of his right,
[and] prejudice to the defendant."
Id. at 530.
wholly fails to address these factors.
Petitioner
Moreover, the delay in
this case-less than a year-would not provoke an inquiry into the
Barker v. Wingo factors.
Id. at 530.
(8) Abuse of Discretion
Under his eighth ground, petitioner claims the trial court
abused its discretion by refusing to adjourn the case for a day
so the defense could call a material witness, Dr. Smith, to
assist in establishing an insanity defense.
No. 1.
Pet., Insert, ECF
The record reflects that on July 1, 2011, defense counsel
filed a motion for appointment of an independent psychiatric
expert to assist in petitioner's defense.
14-6.
Clerk's R. 19, ECF No.
On September 26, 2011, prior to announcing ready for
trial, defense counsel, relying on Ake v. Oklahoma, 470 U.S. 68
(1985), requested a ruling on the motion and a continuance of a
day and a half for the purpose of obtaining expert assistance.
RR, vol. 2, 4-6, ECF No. 15-2.
motion.
Id. at 6.
The trial court denied the
In Ake, the Supreme Court held that due
process requires the state to provide an indigent defendant funds
for psychiatric assistance when he makes a preliminary showing
14
that his mental state was a significant factor at the time of the
offense.
470 U.S. at 83.
The state appellate court, citing to
Ake and relevant state law, addressed the claim as follows:
Appellant .
. argues that the trial court erred
in denying his motion to appoint a mental health expert
to aid him in presenting his insanity defense.
Appellant claims that he properly demonstrated that his
sanity was likely to be a significant factor at trial
and thus he had a due process right to have a courtappointed expert examine him and testify on his behalf.
Appellant contends that the trial court's failure to
provide an expert denied him his due process rights.
Due process requires access to the raw materials
integral to the building of an effective defenseincluding the appointment of an expert for indigent
defendants. But in implementing the right to receive
an expert, the defendant has the burden to make a
sufficient threshold showing of the need for expert
assistance.
To carry his burden when requesting expert
assistance on the issue of sanity, the defendant must
show that sanity is likely to be a significant factor
at trial.
The defendant's claim must be based on more
than undeveloped assertions that expert assistance
would be beneficial. Generally, the trial court looks
for the defendant to support his motion for an expert
with affidavits or other evidence showing his need for
expert assistance, as well as an explanation of the
defensive theory and why the expert assistance would be
helpful in establishing that theory. When the court
appoints a disinterested expert to examine the
defendant to determine whether sanity will be a
significant factor at trial and that expert determines
that sanity will not be a significant factor, then the
right to an appointed expert is not triggered. We
review a trial court's ruling on a motion to obtain a
court-appointed expert under an abuse of discretion
standard.
In this case, the trial court appointed a
15
disinterested expert, Dr. Norman, to evaluate
appellant. Dr. Norman examined appellant and submitted
his report .to the trial court.
In his report, Dr.
Norman disciussed appellant's medical and psychological
history, as well as his mental ~tate at the time of the
examination, and concluded that appellant was not
criminally insane. Dr. Norman noted that appellant was
likely under the influence of drugs and alcohol at the
time of the offense but also stated that voluntary
intoxication cannot be a basis for criminal insanity.
The doctor also noted that although appellant may have
been suffering from depression at the time of the
offense, he was functioning normally, had the capacity
to understand what he was doing, and knew that his
behavior was wrong.
In appellant's Motion for Appointment of Expert
Assistance, he argued that he was entitled to an expert
other than Dr. Norman to assist ~n presenting his
insanity defense. Appellant stated in his motion that
"[i]t is believed that all actions which substantiate
the charge were the result of a psychotic episode or
some other mental aberration which rendered [him]
insane." Appellant argued that the appointment of an
expert for the defense was both "necessary" and
"critical" to the preparation of his defense.
Appellant did not support his motion with any
affidavits, testimony, or exhibits.
Because the disinterested expert concluded that
appellant's sanity at the time of the offense would not
be a significant factor and because appellant brought
forward no evidence other than conclusory assertions in
support of his motion, the trial court could have
reasonably found that appellant did not carry his
burden in showing that his sanity would be a
significant factor at trial.
Therefore, we hold that
the trial court did not abuse its discretion in denying
appellant's motion for an appointed expert.
Mem. Op. 10-13, ECF No. 14-4.
Ake does not clearly provide a constitutional right to an
16
n.S
v.
Epps" 58 o F . 3d 318 , 3 3 2
..
(5th Cir. 2009), cert. denied, 559 U.S. 1071 (2010), and the
"independent" psychiatrist.
Woodward
''r;
Supreme Court has denied certiorari in a case regarding whether
Texas's provisi<:)n of a "disinterested" expert sqtisfies Ake.
Granviel v. Texas, 495 U.S. 963
(1990).
Given the lack of a
clear Supreme Court holding that a defendant is entitled to
independent psychiatric assistance, the decision of the state
court in rejecting this claim is not "contraty to" or an
"unreasonable application of" clearly established federal law.
Lopez v. Smith, 135 S. Ct. 1, 4-5
(2014)
(holding the AEDPA
prohibits the federal courts of appeals from relying on their own
precedent to conclude a particular constitutional principle is
"clearly established"); ·williams v. Taylor, 529 U.S. 362, 381
(2000)
(relief precluded if the Supreme Court has not "broken
sufficient legal ground" on a constitutional principle advanced
by a petitioner) .
(9)
Ineffective Assistance of Counsel
Under his ninth ground, petitioner claims he received
ineffective assistance of trial counsel.
A criminal defendant
has a constitutional right to the effective assistance of counsel
at trial.
U.S. CONST. amend. VI, XIV; Evitts v. Lucey, 469 U.S.
387, 393-95 (1985); Strickland v. Washington, 466 U.S. 668, 688
17
(1984).
An ineffective assistance claim is governed by the
familiar standard set forth in Strickland v. Washington.
U.S. at 668.
466
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.
Strickland allows the habeas court to look at either prong first;
if either one is found dispositive, it is not necessary to
address the other.
Id. at 697; Murray v. Maggio, 736 F.2d 279,
282 (5th Cir. 1984)
In this case, no express findings of fact or conclusions of
law were made by the state courts regarding petitioner's
ineffective-assistance claims.
The state habeas judge, who also
presided over petitioner's trial, merely recommended denial of
petitioner's state application after finding there were "no
controverted, previously unresolved issues of fact material to
the legality of the Petitioner's conviction[s] ."
ECF No. 17-1.
SH1-Writ 25,
The recommendation was followed by the Texas Court
of Criminal Appeals, which denied relief without hearing or
written order.
In the absence of a written opinion or express findings of
18
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
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.
562 U.S. at 101 (quoting Williams v. Taylor, 529 U.S. 362, 410
(2000))
(emphasis in original).
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.
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).
19
Petitioner claims his trial attorney was ineffective because
he(a)
failed to "investigate if a dashcam was recorded
and failed to view it";
(b)
failed to object during voir dire;
(c)
failed "to sustain the plea [and] abandoned the
plea by failure to call material witnesses"; and
(d)
failed to "understand how to obtain expert witness
for the defence by simple affidavit or records
supporting need for such expert."
Pet. Insert, ECF No. 1 (all misspellings and grammatical errors
are in the original) .
Having reviewed the record in its entirety, and assuming the
state courts concluded that petitioner failed to demonstrate one
or both prongs of the Strickland standard, it is not necessary
for this court to apply the first prong.
In light of the
overwhelming evidence of petitioner's guilt, he cannot establish
prejudice against him.
Cir. 1989).
Green v. Lynaugh, 868 F.2d 176
177 (5th
1
Absent prejudice/ petitioner 1 s claims fail the
second Strickland prong.
United States v. Royal, 972 F.2d 643/
651 (5th Cir. 1992).
Summary
In summary/ petitioner
1
S
grounds (1)
1
(3)
1
and (9)
1
to the
extent petitioner claims counsel was ineffective by failing to
20
move for a mistrial, are unexhausted and procedurally barred.
The state courts' adjudication of petitioner's remaining claims
is not contrary to or involve an unreasonable application of
clearly established federal law, as determined by the Supreme
Court, in light of the record as a whole.
Accordingly, it is
entitled to deference and the presumption of correctness.
For the reasons discussed herein,
The Court ORDERS the petition of petitioner for a writ of
habeas corpus pursuant to 28 U.S.C.
denied.
§
2254 be, and is hereby,
The Court further ORDERS that a certificate of
appealability be, and is hereby, denied.
SIGNED August
~ ~I
2015.
21
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