Boone v. Davis, Director TDCJ-CID

Filing 49

Memorandum Opinion and Order: The court ORDERS that petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be, and is hereby, denied. 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. (Ordered by Judge John McBryde on 12/30/2016) (hth)

IN THE UNITED STATES DISTRICT
FOR THE NORTHERN DISTRICT OF
FORT WORTH DIVISION
RODNEY NATHANIEL BOONE,

§

§

Petitioner,

lly ---;l);mr-tY____ _

§
§

v.

§

No. 4:14-CV-945-A

§

LORIE DAVIS, 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, Rodney Nathaniel Boone, a

state prisoner incarcerated in the Correctional Institutions
Division of the Texas Department of Criminal Justice (TDCJ) ,
against Lorie Davis, 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. Procedural History
In 2008 petitioner was indicted in Tarrant County, Texas,
Case No. 1289758D, for possession with intent to deliver heroin
in the amount of one gram or more but less than four grams (count

one) and the lesser included offense of possession of heroin in
the amount of one gram or more but less than four grams (count
two).

(Clerk's R. at 5.) The indictment also included a habitual

offender notice.

(Id.) On June 19, 2013, a jury found petitioner

guilty on count one, petitioner pleaded true to the habitual
offender notice, and the trial court assessed his punishment at
thirty years' confinement. 1 (Id. at 77.) On appeal, the Second
District Court of Appeals of Texas affirmed the trial court's
judgment.

(Mem. Op. at 15.) Petitioner did not file a petition

for discretionary review but did file two relevant state
postconviction habeas applications challenging his 2013
conviction. The first was dismissed because the court of
appeals's mandate had not issued when it was filed in the trial
court.

(State Habeas R., WR-54,131-02,

"Action Taken.") The

second was denied by the Texas Court of Criminal Appeals without
written order on the findings of the trial court.

(State Habeas

R. , WR- 54, 131-03, "Action Taken.")
The state appellate court summarized the background facts of

1After the jury found petitioner guilty in Case No. 1289758D, petitioner
waived his right to a jury trial and, pursuant to a plea agreement, pleaded
guilty in Case No. 1304611D to possession with intent to deliver heroin in the
amount of four grams or more but less than 200 grams and was sentenced to
fifteen years' confinement, the sentence to run concurrently with his 30-year
sentence. (State Habeas R., WR-54,131-05, at 83.)

2

the case as follows:
In July 2012, Fort Worth Police Department (FWPD)
Officer Juan Sandoval obtained a search warrant for a
house. Officer Sandoval organized a team of
approximately twenty officers to execute the warrant.
On an early evening, after knocking on the house's
front door and receiving no response, the officers
opened the door by force and entered the house. Seconds
later, while Officer Sandoval stood in the backyard of
the house, he saw six people, including appellant,
running out of the back door. While fleeing, appellant
dropped a clear plastic baggie in the back room of the
house.
Officer Sandoval found the baggie that appellant
had dropped. In the baggie and near it, Officer
Sandoval saw several clear capsules containing a brown
powdery substance that he believed was heroin.
In the house, officers found another person who
had possessed drugs, more narcotics (heroin, cocaine,
and Xanax) in the kitchen and bedroom areas of the
house, a coffee grinder containing residue, a digital
scale containing brown residue, and two cell phones.
Appellant said that one of the cell phones belonged to
him. The police did not find evidence on the phones
that connected anyone to the delivery or sale of drugs.
When the police detained appellant, he had roughly
$666. Specifically, appellant had two $100 bills, one
$50 bill, seven $20 bills, twelve $10 bills, twenty-six
$5 bills, twenty $1 bills, and over $5 in change.
Officer Sandoval believed that the amount of money that
appellant had possessed was "consistent with
individuals who sell narcotics." Also, Officer Sandoval
believed that appellant had possessed an amount of
heroin that exceeded what he could personally use.
(Mem. Op. at 2-3.)

3

II. Issues
Generally, petitioner's grounds for relief involve
allegations of ineffective assistance of trial counsel,
prosecutorial misconduct, and trial court error.

(Pet. at 6;

Pet'r's Mem. at 1-7; Pet'r's Supp. Mem. at 1-3.) His grounds are
multitudinous and addressed as thoroughly as practical below.
III. Rule 5 Statement
Respondent does not believe the petition is subject to the
successive-petition bar or is untimely but does assert that one
or more of petitioner's claims are unexhausted and/or
procedurally barred.
2244 (b)'

(Resp't's Answer at 5.) 28 U.S.C.

§§

(d)' 2254 (b) (1).
IV. 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). 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
determined by the United States Supreme Court or that is based on
an unreasonable determination of the facts in light of the record

4

before the state court. Harrington v. Richter, 562 U.S. 86, 10001

(2011); 28 U.S.C.

§

2254(d) (1)-(2). This standard is difficult

to meet and "stops short of imposing a complete bar on federal
court relitigation of claims already rejected in state
proceedings." Harrington,

562 U.S. at 102.

Additionally, the statute requires that federal courts give
great deference to a state court's factual findings. Hill v.
Johnson,

210 F.3d 481, 485 (5th Cir. 2000). Section 2254(e) (1)

provides that a determination of a factual issue made by a state
court shall be presumed to be correct. The petitioner has the
burden of rebutting the presumption of correctness by clear and
convincing evidence. 28 U.S.C.
Cockrell,

2254(e) (1); Miller-El v.

§

537 U.S. 322, 340 (2003); Williams v. Taylor,

529

u.s.

362, 399 (2000). This presumption applies to both express and
implied findings of fact. Valdez v. Cockrell, 274 F.3d 941, 948
(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
5

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" and applied the correct
"clearly established federal law, as determined by the Supreme
Court of the United States" unless there is evidence that an
incorrect standard was applied, in making its decision. Johnson
v. Williams, -U.S. -, 133 S. Ct. 1088, 1094 (2013); Harrington,
562 U.S. at 99; Schaetzle v. Cockrell, 343 F.3d 440, 444

(5th

Cir. 2004).

(1) Ineffective Assistance of Counsel
A criminal defendant has a constitutional right to the
effective assistance of counsel at trial and on the first appeal
as of right. U.S. CONST. amend. VI, XIV; Evitts v. Lucey, 469 U.S.
387, 396 (1985); Strickland v. Washington, 466

u.s.

668, 688

(1984). See also Smith v. Robbins, 528 U.S. 259, 287-88

(2000)

(applying Strickland standard to ineffective assistance claims
against appellate counsel) . 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
6

demonstrate ineffective assistance. Id. at 687, 697. In applying
this test, a court must indulge a strong presumption that
counsel's conduct fell within the wide range of reasonable
professional assistance. Id. 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.

The Supreme Court recently clarified the manner in which 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.
Harrington,

562 U.S. at 101 (quoting Williams, 529 U.S. at 410).

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

7

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).

Petitioner's ineffective assistance claims are construed as
follows: Trial counsel, Brian Walker, was ineffective by(l)

failing to file a motion to suppress or to object
to evidence of a gun and drugs found in the firstfloor bedroom and drugs found in the kitchen;

(2)

failing to have a firm command of the facts and
governing law so as to object and preserve
appealable issues;

(3)

failing to investigate evidence favorable to the
defense;

(4)

allowing the state to misstate material evidence
and make inflammatory attacks on him during
closing argument without objection; and

(5)

representing him with a conflict of interest.

(Pet. at 6; Pet'r's Mem. 2-4.)
Respondent asserts that one or more of petitioner's claims
are unexhausted and procedurally barred from federal habeas
review. Applicants seeking habeas corpus relief under

§

2254 are

required to exhaust all claims in state court before requesting
federal collateral relief. 28 U.S.C.
Texas,

§

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

8

claim has been fairly presented to the highest court of the
state, in this case the Texas Court of Criminal Appeals, on
direct appeal or in state postconviction proceedings. TEx. CoDE
CRIM. PRoc. ANN. art. 11.07 (West 2015); 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 for the
first time. Reed v. Stephens, 739 F.3d 753, 780 (5th Cir. 2014)
(quoting Anderson v. Johnson, 338 F.3d 382, 386 (5th Cir. 2003)).
Respondent asserts that petitioner did not raise one or more
of his ineffective assistance claims in his state habeas
application or raised one or more of the claims in an untimely
memorandum and that the claims are therefore unexhausted and
procedurally barred.

(Resp't's Answer at 7-12.) In his state

habeas application, petitioner alleged (all spelling and
grammatical errors are in the original)Mr. Walker whom only made one objection and passively
allowed the prosecutor to present irrelevant issues and
make unsupported claims. As well as took advantage of
my ignorance to the rules of trial and prevented me
from exhibiing fully my case fictitiously standing to
restrain the defence in favor of the prosecutor to
undermined the fair trial process.
(State Habeas R., WR-54,131-03, at 7.) The application was not

9

accompanied by a memorandum or any further factual development or
legal citation. The state habeas judge, who also,presided at
petitioner's trial and observed counsel's actions before and
during trial, found that petitioner's claim was "not supported by
specific facts demonstrating that the Hon. Brian Walker engaged
in deficient conduct or that the result of the applicant's
prosecution would have been different but for deficient conduct
by Mr. Walker."

(State Habeas R., WR-54,131-03, at 34.) In turn,

the Texas Court of Criminal Appeals denied the application
without a hearing on the findings of the trial court.
After the trial court forwarded its findings and
recommendation to the Texas Court of Criminal Appeals, petitioner
filed a supplemental memorandum in the trial court, asserting
additional claims and providing additional facts and legal
argument. The trial court transmitted the supplemental memorandum
to the Texas Court of Criminal Appeals, and it was received by
the clerk of that court on July 21, 2014. Seven days later, after
the Texas Court of Criminal Appeals had already denied the
application, the supplemental memorandum was placed in the "writ
file."

(Id.,

First Supp. R., at cover, 2-12.) Therefore, it does

not appear that the memorandum was presented to and considered by
the state court. See Ex parte Pond, 418 S.W.3d 94, 95 n.13
10

(Tex.

Crim. App. 2013)
S.W.3d 434, 453

(Cochran, J., concurring); Green v. State, 374
(Tex. Crim. App. 2012)

(Price, J., concurring).

Given the ambiguity of petitioner's ineffective assistance
claim in his state habeas application, this court is hard pressed
to conclude that any of petitioner's claims raised in this
federal petition sufficiently correspond to the state claim for
purposes of exhaustion. Nevertheless, to the extent addressed by
the state courts and deferring to the state courts' adjudication
of petitioner's claim, the state courts' application of
Strickland was not unreasonable. Vague and conclusory

allegations, unsupported by anything contained in the record, are
insufficient to merit relief and do not raise a constitutional
issue in a federal habeas proceeding. United States v. Pineda,
988 F.2d 22, 23

(5th Cir. 1993); Ross v. Estelle, 694 F.2d 1008,

1012 (5th Cir. 1983).
To the extent petitioner raised his ineffective assistance
claims in his supplemental memorandum in the state habeas
proceeding or for the first time in this federal petition, the
claims 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(a)-(c). The abuse-of-the-writ doctrine represents

II

an adequate state procedural bar to federal habeas review. See
Nobles v. Johnson, 127 F.3d 409, 423

(5th Cir. 1997). Where a

petitioner has committed a procedural default, federal habeas
corpus review is available only if he can demonstrate:

(1)

"cause

for the default and actual prejudice as a result of the alleged
violation of federal law,• or (2) that "failure to consider the
claims will result in a fundamental miscarriage of justice.•
Coleman v. Thompson, 501 U.S. 722, 750 (1991). Cause is

demonstrated by showing "some objective factor external to the
defense impeded

. . efforts to comply with the State's

procedural rule.• Murray v. Carrier, 477 U.S. 478, 488

(1986);

accord Meanes v. Johnson, 138 F.3d 1007, 1011 (5th Cir. 1998)

(citation omitted). The prejudice requirement likely rests on a
determination of whether the petitioner has "suffered .

.

.

[to

a] degree sufficient to justify collateral relief.• United States
v. Frady, 456 U.S. 152, 168 (1982). In the alternative, to

establish a fundamental miscarriage of justice, a petitioner must
provide the court with evidence that would support a "colorable
showing of factual innocence.• Kuhlmann v. Wilson, 477 U.S. 436,
454

(1986). Petitioner makes no such showing here. Accordingly,

review of petitioner's ineffective assistance claims, and any
other claims that may be procedurally defaulted, see infra,
12

depends on whether he can demonstrate the requisite cause for the
default and actual prejudice. Coleman, 501 u.s. at 750.
Petitioner has not put forth any explanation as to why he
did not raise his ineffective assistance claims in his initial
state application. However, in a pair of recent decisions, the
United States Supreme Court has recognized a narrow exception to
the procedural-default doctrine. In Martinez, the Supreme Court
held that "a procedural default will not bar a federal habeas
court from hearing a substantial claim of ineffective assistance
at trial if, in the [State's]

initial-review collateral

proceeding, there was no counsel or counsel in that proceeding
was ineffective." Martinez v. Ryan, 132 S. Ct. 1309, 1320 (2012)
See also Trevino v. Thaler,

133 S. Ct. 1911, 1917 (2013)

(recognizing that the "narrow exception" created by Martinez
applies in Texas cases) . This means that a habeas petitioner can
use either his state habeas counsel's ineffectiveness or his own
status as a pro se litigant as cause to excuse the procedural
default where ineffective assistance of trial counsel is
asserted. Although petitioner does not invoke Martinez/Trevino,
he was not represented by counsel in his state habeas
proceedings. Therefore, the court, sua sponte, reviews his
ineffective assistance claims to determine whether one or more
13

are substantial.
Petitioner claims trial counsel was ineffective by failing
to file a motion to suppress a gun and drugs found in a firstfloor bedroom, where rental receipts in petitioner's name,
capsules containing a brown powder substance, petitioner's social
security card, and mail addressed to petitioner were also found,
and drugs found on the stove in the kitchen. He also claims
counsel was ineffective by failing to object during trial to the
admission of extraneous offense evidence of the gun because it
made him "look like a killer."

(Pet'r's Mem. at 3.) The first

claim is rebutted by the record, which reflects that counsel
filed a motion in limine addressing extraneous offense evidence,
and the motion was granted by the trial court.

(Clerk's R. at 39-

41.) Further, petitioner fails to demonstrate that an objection
would have been sustained had counsel raised the issue during
trial. Texas Rule of Evidence 404(b) prohibits the admission of
evidence of other crimes, wrongs, or acts to prove the character
of the defendant. See Tex. R. Evid. 404(b). However, the rule
specifically allows the use of such evidence to prove elements
including motive, intent, preparation, plan, knowledge, and
absence of mistake or accident. Id. The items seized during the
raid, including the drugs and the gun, were relevant and
14

admissible to the government's theory that the house was a place
where drugs were sold and that petitioner not only possessed the
drugs with which he was charged, but that he intended to deliver
them for sale. See United States v. Perez, 648 F.2d 219, 224 (5th
Cir.), cert. denied, 454

u.s.

1055 (1981)

(recognizing that

firearms are "tools of the trade" of those engaged in illegal
drug activities and are highly probative in proving criminal
intent). Counsel is not required to make futile objections. Koch
v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990).
Petitioner claims counsel was ineffective by failing to have
a firm command of the facts and governing law so as to preserve
his evidentiary and prosecutorial misconduct claims for appeal.
This claim is conclusory and fails to raise a constitutional
issue on federal habeas review. Ross v. Estelle, 694 F.2d 1008,
1012 (5th Cir. 1983). Absent evidence to the contrary, counsel is
presumed to know the facts of his case and applicable law. Nor
does petitioner allege any potentially meritorious issues that
were not raised on appeal. Therefore, he cannot show that the
outcome of his appeal would have been different had the issues
been raised.
Petitioner claims counsel was ineffective by failing to
investigate his only possible defense-i.e., that the baggie of

15

drugs dropped when people were filing out the back door belonged
to someone else-by requesting forensic and fingerprint testing on
the baggie.

(Pet'r's Mem. at 3.) Counsel has a duty to make a

reasonable investigation of defendant's case or to make a
reasonable decision that a particular investigation is
unnecessary. Strickland, 466 U.S. at 691; Ransom v. Johnson, 126
F.3d 716, 723

(5th Cir. 1997). Counsel is presumed to have

conducted an adequate investigation. Strickland, 466 U.S. at 689.
In this case, counsel also retained an investigator who testified
that he was asked to locate witnesses, interview petitioner,
review the case file,

and take photographs, among other things.

(Reporter's R., vol. 3, at 48-51.) To establish counsel's failure
to investigate, a petitioner must allege with specificity what
the investigation would have revealed and how it would have
benefitted him. United States v. Green, 882 F.2d 999, 1003 (5th
Cir. 1989). Petitioner has not demonstrated that the outcome of
his case would have been any different had the owner of any
fingerprints on the baggie been identified. Instead, counsel
established through cross-examination that no fingerprint
investigation was conducted by police and he used the absence of
fingerprints, as well as the absence of photographs, see infra,
as part of his defensive strategy.
16

(Reporter's R., vol. 2, at

169, 247, 265-66 & vol. 3, at 58-59.} Such strategic decisions by
counsel are virtually unchallengeable and do not generally
provide a basis for habeas relief. Knowles v. Mirzayance, 556
U.S. 111, 124 (2009); Strickland, 460 U.S. at 689.
Petitioner claims counsel was ineffective by allowing the
state to misstate material evidence and make inflammatory attacks
on him without objection. Specifically, he complains that the
state "tainted" officer Sandoval's testimony by changing the
"position" that he exited the back door from third to last out of
the door.

(Pet'r's Mem. at 3; Reporter's R., vol. 2, at 181.) The

Supreme Court has cautioned that "a criminal conviction is not to
be lightly overturned on the basis of a prosecutor's comments
standing alone, for the statements or conduct must be viewed in
context; only by so doing can it be determined whether the
prosecutor's conduct affected the fairness of the trial." United
States v.

Young, 470 U.S. 1, 11 (1985). Although the prosecutor

did misstate officer Sandoval's testimony by stating that
petitioner was the last one out of the house, it cannot be said
that in the context of the trial as a whole the misstatement
rendered the trial fundamentally unfair. A prosecutor's argument
by itself is a constitutional violation in only the most
egregious cases. Koch v. Puckett, 907 F.2d 524, 526 (5th Cir.
17

1990); Ortega v. McCotter, 808 F.2d 406, 410 (5th Cir. 1987).
Petitioner also claims the prosecutor improperly expressed
her personal opinions regarding the police officers' testimony
and investigation of the case during closing argument.

(Pet'r's

Mem. at 5-7.) However, the prosecutor was merely responding to
petitioner's argument that the officers lied or were mistaken
about what they observed, that the lack of fingerprint evidence
showed "sloppy police work," and that the officers were trying to
"put as much on as many people as they possibly" could in the
house. Therefore, the prosecutor's argument was proper. Bell v.
State, 724 S.W.2d 780, 802-03

(Tex. Crim. App. 1986); Campbell v.

State, 610 S.W.2d 754, 756 (Tex. Crim. App. 1980). Counsel is not

required to make frivolous objections. Johnson v. Cockrell, 306
F.3d 249, 255 (5th Cir. 2002); Koch, 907 F.2d at 527.
Finally, petitioner claims counsel was ineffective by
representing him with a conflict of interest.

(Pet'r's Mem. at

4.) Specifically, petitioner claims a conflict arose regarding
the defensive strategy to be used at trial after petitioner
suggested that a fingerprint analysis be conducted to rule out
"false testimony" material to his guilt or innocence.

(Id.) An

"actual conflict" means counsel was "compelled to compromise his

18

or her duty of loyalty or zealous advocacy." Bostick v.
Quarterman, 580 F.3d 303, 307 (5th Cir. 2009). An "adverse

effect" may be established by "evidence that some plausible
alternative defensive strategy or tactic could have been pursued,
but was not because of the actual conflict." Id. A mere
disagreement regarding trial strategy does not give rise to a
conflict. United States v. Fields, 483 F.3d 313, 353 (5th Cir.
2007); Vega v. Johnson, 149 F.3d 354, 360 (5th Cir. 1998).
In summary, petitioner has failed to establish a substantial
claim of ineffective assistance of counsel and, thus, he cannot
satisfy the cause-and-prejudice requirement. Accordingly, his
ineffective assistance claims raised for the first time in his
supplemental memorandum in the state habeas proceeding and/or
this federal petition are unexhausted and procedurally barred
from the court's review.

(2) Prosecutorial Misconduct
Petitioner claims the prosecution engaged in misconduct by
(1) suppressing evidence favorable to the defense;
using perjured testimony;

(3)

(2) knowingly

"submitting evidence that was not

photographed"; and (4) stating her own beliefs about the presence
of the gun found in the bedroom and making inflammatory attacks
against petitioner during closing argument.
19

(Pet'r's Mem. at 6.)

As with petitioner's ineffective assistance claims, his
prosecutorial misconduct claims are multitudinous and partially
unexhausted. To the extent petitioner raised the claims in his
initial state habeas application, the state habeas court found
that
the applicant's evidentiary and argument complaints are
not cognizable on writ of habeas corpus, and have been
procedurally defaulted because they were not raised on
direct appeal.
(State Habeas R., WR-54,131-03, at 34.)
Federal habeas review of a claim is procedurally barred if
the last state court to consider the claim expressly and
unambiguously based its denial of relief on a state procedural
default. Coleman v. Thompson, 501 U.S. 722, 729 (1991). The Texas
Court of Criminal Appeals has repeatedly held that claims that
could have been raised on direct appeal may not be raised in a
state habeas petition. Ex parte Gardner, 959 S.W.2d 189, 199-200
(Tex. Crim. App. 1998). The state habeas court clearly relied
upon a firmly established and regularly followed state procedural
rule to deny petitioner's prosecutorial misconduct claims that,
in turn, represents an adequate state procedural bar to federal
habeas review of the claims. Ex parte Gardner, 959 at 199. See
also Ex parte Banks, 769 S.W.2d 539, 540

20

(Tex. Crim. App. 1989)

(holding "the Great Writ should not be used to litigate matters
which should have been raised on appeal"). To the extent
petitioner raised his prosecutorial misconduct claims for the
first time in his supplemental memorandum in the state habeas
proceeding or in this federal petition, the claims are
unexhausted and procedurally barred. As such, these claims can
only be considered if petitioner can satisfy the cause-andprejudice requirement, supra at 11-12. Such showing not having
been demonstrated, the claims are procedurally barred from the
court's review.
The court notes that even if the claims were not
procedurally barred, they lack merit. Petitioner claims that the
prosecution suppressed his "request to have the contents of the
drugs tested for fingerprints to rule out false testimony" and
suppressed the fact that Amanda Oliver, one of the other persons
arrested following the raid, was also "found in possession of the
same drugs at the scene and in the county jail."

(Pet'r's Mem. at

5-6.) A valid Brady complaint contains three elements:
prosecution must suppress or withhold evidence,

(1) the

(2) which is

favorable, and (3) material to the defense. Moore v. Illinois,
408 U.S. 786, 794-95 (1972). There is no evidence that law
enforcement conducted any fingerprinting on the drugs or the

21

other items seized. In fact, officers testified that no
fingerprinting on the evidence was done and that it was uncommon
to fingerprint narcotics and baggies, and petitioner used the
absence of such evidence as a defensive strategy.

(Reporter's R.,

vol. 2, at 241, 249, 263.) Further, the record reflects that the
state •turned over• all the evidence in their file.

(Id. at 8-9.)

And, the fact that petitioner may have requested fingerprint
analysis on the evidence does not in itself establish that any
such examination would have been favorable to the defense. As to
the second claim, petitioner presents no evidentiary basis for
his assertion that the •same drugs• were attributed to both
Amanda Oliver and himself. To the contrary, officer Sandoval
testified that of the five arrested, none of the five were
arrested for the same contraband, and petitioner presents no
evidence to controvert that testimony.

(Reporter's R., vol. 2, at

201.)

Petitioner claims the prosecution engaged in misconduct by
using perjured testimony. Petitioner maintains that the testimony
of officer Sandoval that he saw petitioner drop the baggie as he
ran out the back door was false because photograph evidence,
defense exhibit number 1, shows that the officer was farther away
from the back door than the 10 feet testified to and the fact

22

that there were obstacles in the officer's line of sight.
Petitioner also maintains that officer Jones's testimony that
petitioner's social security card was found next to the drugs in
a dresser drawer in the bedroom was false because his social
security card was in his wallet.
To establish a due process violation based on the state's
knowing use of perjured testimony, petitioner must show that (1)
the statements were actually false;

(2) the state knew they were

false; and (3) the statements were material, i.e., a highly
significant factor reasonably likely to have affected the jury's
verdict. United States v. Blackburn,

9 F.3d 353, 357 (5th Cir.

1993). Nothing in the record suggests that the officers'
testimony was false or that the state was aware the testimony was
false. It was the jury's duty to determine the weight and
credibility of, and resolve any conflicts in, the testimony.
Petitioner claims the state engaged in misconduct by
"submitting evidence that was not photographed." Apparently,
petitioner's complaint is that the state should have introduced
photographs to support the testimony that officers found drugs
close to petitioner's belongings in the bedroom and on the stove
in the kitchen. Petitioner fails to demonstrate that any such
photographs were taken by the officers and were available to the
23

prosecution. Under the circumstances, the jury was free to accept
or reject the testimony of the officers without the introduction
of photographs supporting the testimony. And, as previously
noted, the defense used the absence of such evidence as a
defensive strategy.
Petitioner claims the prosecution engaged in misconduct by
stating her beliefs about the presence of the gun in the
house-i.e., that petitioner "had the gun to protect hisself [sic]
and his keep from robbers," and making inflammatory attacks
against him.

(Pet'r's' Mem. at 5.) Petitioner does not provide a

record reference for his first claim. And, relevant to his second
claim, he merely asserts that the prosecutor changed the
testimony of officer Sandoval, arguing that petitioner was the
last person out of the back door instead of the third person out.
(Pet'r's Mem. at 6.) Federal habeas relief does not lie on the
basis of an improper jury argument unless the argument •so
infected the trial with unfairness as to make the resulting
conviction a denial of due process." Darden v. Wainwright, 477
U.S. 168, 181 (1986)
637, 643

(quoting Donnelly v. DeCristoforo, 416 U.S.

(1974). Contrary to petitioner's argument, nothing in

the record suggests that the prosecutor manipulated the facts,
versus simply misstated the facts. Nevertheless, petitioner fails

24

to show that the misstatement affected the outcome of his trial.

III. Trial Court Error
Finally, petitioner claims the trial court erred and abused
its discretion by allowing the prosecutor to introduce extraneous
offense evidence and comment upon petitioner's prior criminal
convictions during the punishment phase of his trial.

(Pet'r's

Supp. Reply at 1-3.) This issue, raised for the first time in
this federal petition, is unexhausted for purposes of

§

2254(b) (1). Although petitioner alleges he has returned to state
court for purposes of exhausting the claim, he provides no proof
of his assertion and the website for the Texas judiciary does not
reflect that petitioner has done so. Petitioner offers no
explanation for his failure to raise the claim in his initial
state habeas application nor does he demonstrate prejudice.
Absent such a showing, the claim is procedurally barred from the
court's review.
Even if the claim were not procedurally barred, the claim
lacks merit. Petitioner claims the prosecutor stated that he had
a pending charge for the same crime during closing argument "for
the jury to consider during its deliberations."

(Pet'r's Supp.

Reply at 1.) The court finds no such statement made during the
guilt/innocence phase. Further, petitioner elected to have the

25

trial judge assess his punishment and under Texas law and for
purposes of sentencing,
evidence may be offered by the state and the defendant
as to any matter the court deems relevant to
sentencing, including but not limited to the prior
criminal record of the defendant, his general
reputation, his character, an opinion regarding his
character, the circumstances of the offense for which
he is being tried, and, notwithstanding Rules 404 and
405, Texas Rules of Evidence, any other evidence of an
extraneous crime or bad act that is shown beyond a
reasonable doubt by evidence to have been committed by
the defendant or for which he could be held criminally
responsible, regardless of whether he has previously
been charged with or finally convicted of the crime or
act.
TEX. CODE CRIM. PROC. ANN. art. 37.07,

§

3(a) (1)

(West Supp. 2015)

(emphasis added) . The state offered the police department offense
reports and the lab reports as proof of the unadjudicated
extraneous offenses and so-called "pen packets" as proof of
petitioner's prior convictions, which were admitted without
objection. This evidence was sufficient to establish beyond a
reasonable doubt the extraneous offenses committed by petitioner
or for which he could be held criminally responsible and to
establish his prior convictions.
For the reasons discussed herein,
The court ORDERS that petitioner's petition for a writ of
habeas corpus pursuant to 28 U.S.C.

26

§

2254 be, and is hereby,

denied. 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.
SIGNED December

'

2016.

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