Garza v. Davis-Director TDCJ-CID
Memorandum Opinion and Order... The court ORDERS the petition of petitioner 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 or that the court's procedural rulings are debatable or wrong. (Ordered by Judge John McBryde on 3/6/2018) (wxc)
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IN THE UNITED STATES DISTRICF COUF,T MAR
FOR THE NORTHERN DISTRICT Of TEXAS
FORT WORTH DIVISION L~-11-i':.,
RAUL VILLEGAS GARZA,
B ; = u.u,
LORIE DAVIS, Director, 1
Texas Department of Criminal
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This is a petition for a writ of habeas corpus pursuant to
2254 filed by petitioner Raul Villegas Garza, a state
prisoner confined 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.
Factual and Procedural History
By way of this federal habeas action, petitioner challenges
his 2014 state court conviction in Hood County, Texas, Case No.
CR12706, for tampering or fabricating evidence.
(Pet. 2, doc. 1.)
Petitioner's jury trial commenced on March 31, 2014. The state
1Lorie Davis has replaced William Stephens as director of the
Correctional Institutions Division of the Texas Department of Criminal
Justice. Therefore, pursuant to Federal Rule of Civil Procedure 25(d), Davis
is automatically substituted as the party of record.
appellate court summarized the background facts of the case as
In 2004, [petitioner] was convicted on four counts
of indecency with a child and sentenced to twenty
years' confinement for each count, to run concurrently.
During his incarceration, [petitioner] filed six
applications for postconviction habeas relief.
[Petitioner]'s sixth application was filed on February
When the Hood County District Attorney, Robert
Christian, received a copy of the sixth application, he
noted that the application contained two affidavits
that had not been included in [petitioner]'s previous
applications. One, entitled "Affidavit to Recant My
False Testimony,n was purportedly written by
[petitioner]'s ex-wife, Priscilla Sides, formerly known
as Priscilla Kindle. The affidavit used the spelling
"Priscilla Kendaln and was signed by "Priscilla
Kendall.n The affidavit stated that Sides had lied on
the witness stand during [petitioner]'s trial. The
other affidavit was purportedly written by Dr. H. Pat
Hezmall and stated that [petitioner] "has no capacity
for sexual arousal.n
On March 4, 2013, Robert Young, an investigator
for the district attorney of Hood County, interviewed
[petitioner] in prison. Young recorded the interview
with both a video camera and an audiotape recorder. He
gave [petitioner] a Miranda warning and asked if he
would be willing to answer questions. [Petitioner]
agreed to talk. While Young was interviewing
[petitioner], prison guards removed all of
[petitioner]'s files and documents from his cell. The
guards brought the documents to the interview room, and
Young got [petitioner]'s permission to go through them
and discuss them.
Young interviewed [petitioner] for about an hour
and a half, at which time [petitioner] asked Young to
turn off the video recorder. Unaware that he was still
being recorded by audiotape, [petitioner] confessed to
making the false affidavits with the help of some other
[Petitioner] took a break for dinner, and when he
returned, Young asked him to complete a written
statement regarding his confession. He also asked
[petitioner] to sign a consent form to allow him to
take the documents from the prison. At the top of the
statement form, [petitioner] initialed that he
understood his rights. The consent form also had his
rights listed at the top of the page. Young took all of
[petitioner]'s documents except for a copy of a court
[Petitioner] was charged with aggravated perjury
and tampering with or fabricating evidence. Before
trial, [petitioner] filed a motion to suppress the
tangible evidence removed from his prison cell and all
statements he made to law enforcement officers. After a
hearing, the trial court denied the motion.
Also prior to trial, [petitioner] filed a motion
to disqualify or recuse Judge Ralph Walton, Jr. from
presiding over the case. Judge Walton had represented
[petitioner] against charges of sexual abuse of a child
that were unrelated to his 2004 conviction, and
[petitioner] claimed that he intended to call Judge
Walton as a witness. Judge Jeff Walker, then presiding
for the 8th Administrative Judicial Region, denied this
motion after a hearing.
At trial, Priscilla testified that on the date the
affidavit was signed, her last name was Sides, not
Kindle, that she had never spelled Kindle as "Kendal 0
or "Kendall, 0 and that she did not sign the affidavit
purporting to be from her. The notaries whose stamps
were on the questioned affidavits both testified that
they did not notarize the affidavits.
A man named John Pizer testified that he had been
assisting [petitioner] with his applications. He
testified that he had sent Hezmall the affidavit for
him to sign, but that Hezmall had never responded.
Pizer stated that he eventually received the signed
copy of the Hezmall affidavit and Kendall affidavit in
envelopes with no return address. He did not know who
mailed them to him. Pizer then filed [petitioner]'s
writ for him, using the affidavits as exhibits and
signing [petitioner]'s name.
A jury found [petitioner] not guilty of aggravated
perjury, but guilty of tampering with or fabricating
evidence, and assessed a punishment of twenty years'
(Mem. Op. 2-4, doc. 27-3.)
The appellate court affirmed the trial court's judgment as
modified, and the Texas Court of Criminal Appeals refused
petitioner's petition for discretionary review. 2 (Id. at 20.)
Petitioner also filed two relevant state habeas-corpus
applications challenging.his conviction. The first was dismissed
by the Texas Court of Criminal Appeals for noncompliance with the
court's form requirements.
Action Taken, doc. 28-21.)
The second was denied by the Texas Court of Criminal Appeals
without written order. This federal habeas petition followed.
Petitioner's claims are multifarious and addressed as
thoroughly as practical. They fall within the following general
violation of his right to due process;
violation of his right to effective assistance of
prosecutorial misconduct; and
improper joinder of offenses.
l; Pet'r's Mem. 13-20, doc. 2.)
2The court modified the judgment by deleting the assessment of
$10,880.27 in attorney's fees.
3''08SHR" refers to the state court record of petitioner's state habeas
proceeding in WR-63,980-08; "09SHR" refers to the state court record of his
state habeas proceeding in WR-63,980-09.
Rule 5 Statement
Respondent does not move to dismiss petitioner's petition
for failure to exhaust state court remedies. Nor does she believe
that the petition is barred by limitations or subject to the
(Resp't's Answer 7, doc. 19.) 28 U.S.C.
2254 (b) (1).
Legal Standard for Granting Habeas Corpus Relief
2254 habeas petition is governed by the heightened
standard of review provided for in 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
established by the United States Supreme Court or that is based
on an unreasonable determination of the facts in light of the
record before the state court. 28 U.S.C.
Harrington v. Richter, 562 U.S. 86, 100 (2011). This standard is
difficult to meet and "stops short of imposing a complete bar on
federal court relitigation of claims already rejected in state
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,
Hill v. Johnson,
(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 presumption of correctness
applies to both express and implied factual findings.
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
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" and applied the correct
"clearly established federal law" in making its decision. Johnson
v Williams, 568 U.S. 289, 298
(2013); Richter, 562 U.S. at 99;
Schaetzle v. Cockrell, 343 F.3d 440, 444
(5th Cir. 2004).
Under his first ground, petitioner claims that he is
actually innocent of the offense.
(Pet. 6, doc. 1.) A stand alone
claim of "actual innocence" is itself not an independent ground
for habeas-corpus relief. Herrera v. Collins, 506 U.S. 390, 400
(1993); Foster v. Quarterman, 466 F.3d 359, 367
Dowthitt v. Johnson, 230 F.3d 733, 741-42
(5th Cir. 2006);
(5th Cir. 2000). The
United States Supreme Court reaffirmed in McQuiggin v. Perkins,
569 U.S. 383, 392 (2013), that it has not resolved whether a
prisoner may be entitled to habeas corpus relief based on a
freestanding claim of actual innocence. Until that time, such a
claim it not cognizable on federal habeas review. See Foster v.
Quarterman, 466 F.3d 359, 367
(5th Cir. 2006).
Under his second ground for relief, petitioner claims his
constitutional right to due process was violated because the
"language [is] in error in the jury's instructionu and because
the trial court failed to enter the jury's notes into evidence
and refused to answer the jury notes.
Mem. 15-17, doc. 2.)
Petitioner was originally indicted in Case No. CR12502 with
regard to the charges but was subsequently re-indicted in Case
(Clerk's R. 10, 96, 100, doc. 28-10.) In two counts,
the re-indictment alleged that on or about February 13, 2013,
did, then and there, with intent to deceive and with
knowledge of the statement's meaning, make a false
unsworn declaration under Chapter 132 of the Texas
Civil Practices and Remedies Code, and the false
statement was made during or in connection with an
official proceeding, and the false statement is
material, to wit: the filing of an application for a
writ of habeas corpus in the 355th Judicial District
Court of Hood County, Texas, assigned cause number
W92232-6, returnable to the Texas Court of Criminal
Appeals and related to defendant's prior conviction on
June 9, 2004 in Cause Number 9232 in the 355th Judicial
District Court of Hood County, Texas styled the State
of Texas vs. Raul Villegas Garza and the said false
unsworn declaration was then and there material to said
writ proceeding in that false statements made in the
application for a writ of habeas corpus and false facts
contained in affidavits included in the application for
a writ of habeas corpus were offered by defendant as
new evidence in support of defendant's claim of actual
innocence and could have affected the course or outcome
of the official writ proceeding.
[petitioner] did then and there, knowing that
an official proceeding was pending or in progress,
to-wit: the filing of an application for writ of habeas
corpus in the 355th Judicial District Court of Hood
County, Texas, assigned cause number W9232-6,
returnable to the Texas Court of Criminal Appeals,
related to defendant's prior conviction on June 9,
2004, in Cause Number 9232 in the 355th Judicial
District Court of Hood County, Texas, styled The State
of Texas vs. Raul Villegas Garza, intentionally or
knowingly make, present and use documents, to-wit: the
purported affidavits of "Priscilla Kendall" and "Dr. H.
Pat Hezmall," with knowledge of their falsity and with
intent to affect the course or outcome of the official
(Id. at 100-01, doc. 28-10.)
Petitioner complains that the trial court erroneously
"broadened" the charges contained in the indictment, in violation
of Texas Code of Criminal Procedure articles 21.02
of an indictment") and 21.03
("What should be stated"), by
instructing the jury that it could find him guilty as a party if
it found that petitioner acted alone or with John Pizer at
(Pet'r's Mem. 15, doc. 2; Clerk's R. 211-
12, doc. 28-11.) TEX. CODE CRIM. PROC. ANN. arts. 21.02, 21.03 (West
2009) . Improper jury instructions in state criminal trials do not
generally provide a basis for federal habeas relief. Estelle v.
McGuire, 502 U.S.
(stating that federal habeas
courts do not grant relief solely on the basis that a jury charge
was erroneous). An improper instruction violates due process only
if the petitioner demonstrates that the error "had a substantial
and injurious effect or influence in determining the jury's
verdict." Brecht v. Abrahamson, 507 U.S. 619,
Texas law is clear that the prosecution may obtain a conviction
for a substantive offense under the law of parties even if the
law of parties is not pleaded in the indictment. See TEX. PENAL
CODE ANN. §§ 7.01 (Parties to Offenses), 7.02 (Criminal
Responsibility for Conduct of Another)
State, 353 S.W.3d 854, 861
State, 85 S.W.3d 287, 287
(West 2011); Adames v.
(Tex. Crim. App. 2011); Marable v.
(Tex. Crim. App. 2002). Further, the
Fifth Circuit has held that "one who has been indicted as a
principal may, on proper instructions, be convicted on evidence
showing only that he aided and abetted the commission of the
offense." United States v. Robles-Pantoja, 887 F.2d 1250, 1255
(5th Cir. 1975). Thus, petitioner's conviction under the law of
parties did not violate either Texas law or the Constitution.
Petitioner also claims that in violation of his right to due
process, the trial court failed to enter two jury notes into
evidence and refused to answer the notes.
(Pet. 6, doc. 1.
Although the jury notes themselves were not entered into
evidence, the trial court read the notes into the record at
(Reporter's R., vol. 8, 190-91, doc. 27-13.) Petitioner
cites to no statutory or legal precedent established by the
United States Supreme Court requiring that jury notes be entered
into evidence at trial. The first claim therefore has no legal
Further, in the notes, the jury asked:
. does [petitioner] have to
"In count one,
have knowledge of the act of filing to be found
"Can you please define "to-wit."
(Id.) To the first note, the judge responded, "I cannot answer
your question. Follow the law as contained in the charge and the
evidence." To the second, the judge responded, "I cannot answer
your question." (Id. at 191.) Petitioner was acquitted of count
one; thus, he cannot establish that he was prejudiced by the
trial court's failure to provide a substantive-law instruction to
the first note. As to the second note, petitioner cites to no
precedent established by the United States Supreme Court holding
that "to-wit" must be defined to the jury nor does he demonstrate
that the failure to define the term had a probable effect on the
outcome of his trial.
Effective Assistance of Counsel
Petitioner claims that he received ineffective assistance of
counsel at trial and on appeal.
(Pet. 7, doc. 1; Pet' r's Mem. 1 7-
19, doc. 2.) A criminal defendant has a constitutional right to
the effective assistance of counsel at trial and on a first
appeal as of right. U.S. CONST. amend. VI, XIV; Evitts v. Lucey,
469 U.S. 387, 393-95 (1985); Strickland v. Washington,
(1984); Anders v. California,
386 U.S. 738,
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. In applying this
test, a court must indulge a strong presumption that counsel's
conduct fell within the wide range of reasonable professional
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.
Ineffective-assistance-of-counsel claims are considered
mixed questions of law and fact and, therefore, are analyzed
under the "unreasonable application" standard of§ 2254(d) (1)
See Gregory v.
Thaler, 601 F.3d 347, 351
(5th Cir. 2010). Where,
as here, the state court adjudicated the ineffective-assistance
claims on the merits, this court must review petitioner's claims
under the "doubly deferential" standards of both Strickland and §
2254 (d). Cullen v. Pinholster, 563 U.S. 170, 190 (2011). In such
cases, the "pivotal question" for this court is not "whether
defense counsel's performance fell below Strickland's standard";
it is "whether the state court's application of the Strickland
standard was unreasonable." Richter, 562 U.S. at 101. See also
id. at 105 ("Establishing that a state court's application of
Strickland was unreasonable under§ 2254(d) is all the more
difficult. The standards created by Strickland and§ 2254(d) are
both 'highly deferential,' and when the two apply in tandem,
review is 'doubly' so.
(internal quotation marks and citations
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 that there were "no
controverted, previously unresolved issues of fact material to
the legality of the Petitioner's conviction." (09SHR 162, doc.
28-26.) The recommendation was followed by the Texas Court of
Criminal Appeals, which denied relief without hearing or written
order. In the absence of express findings of fact or a written
opinion, this court assumes the state courts applied the
Strickland standard and made factual findings consistent with the
state courts' rejection of the claims.
Petitioner claims his trial counsel was ineffective by
subpoena key witnesses;
(2) object to the
erroneous jury instruction on the law of parties;
in the motion to disqualify or recuse" the trial
(4) object to the trial judge's refusal to read the charge
of the court instruction to the jury;
(5) object to the trial
judge's failure to answer the jury notes; and (6)
signature of state witnesses.' (Pet. 7, doc.
l; Pet'r's Mem. 17-
Petitioner asserts that trial counsel was ineffective by
failing to subpoena three investigators with the Arizona attorney
general's office who interviewed John Pizer a year before trial
and who could testify that Pizer forged his name without
17 & Ex.
2.) Complaints based
upon uncalled witnesses are not favored in federal habeas review
because "speculations as to what these witnesses would have
testified is too uncertain." Evans v. Cockrell, 285 F.3d 370, 377
(5th Cir. 2002); Alexander v. Mccotter, 775 F.2d 595,
Cir. 1985). Therefore, to show the prejudice required to support
an ineffective-assistance claim premised on the failure to call a
witness, a petitioner must show that the witness was available
and would in fact have testified at trial in a manner beneficial
to the defense. Evans, 285 F.2d at 377.
In the state habeas
To the extent petitioner raises additional claims for the first time in
his rebuttal brief, the claims are not properly before the court and are not
considered. See United States v, Cervantes, 132 F,3d 1106, 1111 (5th Cir.
proceeding, petitioner did not submit any affidavits by the
investigators themselves, or offer any evidence that they would
have been willing to testify on his behalf and that their
testimony would have been favorable.
If the only evidence of a
missing witness's testimony is from the defendant, courts view
with great caution claims of ineffective assistance based on
failure to call that witness. See Sayre v. Anderson, 238 F.3d
635 (5th Cir. 2001); Lockhart v. Mccotter,
782 F.2d 1275,
1282 (5th Cir. 1986). Failure to produce affidavits (or similar
evidentiary support) from the uncalled witnesses is fatal to
petitioner's claim of ineffective assistance. Sayre, 238 F.3d at
636 (complaint of uncalled witnesses failed where petitioner
failed to present affidavits from the missing witnesses).
Petitioner asserts that trial counsel was ineffective by
failing to object to the erroneous jury instruction.
Mem. 18, doc. 2.)
In support, he directs the court to Texas Code
of Criminal Procedure articles 21.02
indictment) and 21.03
(Requisites of an
(What should be stated) and urges that the
"charge language is to state what the language [is] in the
indictment." (Pet'r's Rebuttal 4, doc. 22.) This claim is vague
and conclusory. The court is left only to surmise that petitioner
is complaining about the instruction on the Texas law of parties.
However, as noted above, as a matter of state law, a trial court
may charge the jury on the law of parties even if there is no
such allegation in the indictment. Because it was unnecessary
under Texas law for the indictment to include such language or
provide notice to a defendant, counsel was not ineffective for
failing to raise a meritless objection to the indictment and/or
the jury instruction. See Emery v. Johnson, 139 F.3d 191, 198
(5th Cir. 1997).
Petitioner asserts that trial counsel was ineffective by
failing to raise additional complaints in his motion to
disqualify or recuse the trial judge.
(Pet'r's Mem. 18, doc. 2.)
This claim is inadequately briefed. The record reflects that
trial counsel filed a motion to disqualify or recuse judge Ralph
H. Walton Jr. on two grounds:
(1) while in private practice the
judge previously represented petitioner in an unrelated criminal
case and (2) petitioner intended to call the judge as a witness
in the underlying criminal case.
(Clerk's R. 59, doc. 28-10.) On
appeal, appellate counsel raised additional claims, including
claims that judge Walton was statutorily disqualified under Texas
Code of Criminal Procedure article 30.01 and Texas Rules of Civil
Procedure 18a (j) (1) (A) and otherwise disqualified because he was
the victim of the charged offense.
(Mem. Op. 13-18, doc. 27-3.)
Finally, the record reflects that petitioner filed a complaint
with the State Commission on Judicial Conduct, but a copy of the
complaint is not found in the record. The court can only surmise
that petitioner's claim is that trial counsel should have raised
the additional grounds raised in appellant's brief on appeal.
Those claims, however, were rejected by the appellate court.
Counsel is not ineffective by failing to make frivolous
arguments. Johnson v. Cockrell, 306 F.3d 249, 255 (5th Cir.
Petitioner asserts that trial counsel was ineffective by
failing to object to the trial court's refusal to read the charge
of the court to the jury as required by Texas Code of Criminal
Procedure article 36.14.
PROC. art. 36.14
(Pet' r's Mem. 5, doc. 2.) TEX. CooE CRIM.
(West 2007). Assuming, without deciding, that
the trial court erred by not reading the charge aloud in open
court, petitioner has not demonstrated actual prejudice or harm.
See Brecht, 507 U.S. at 637. See also Casanova v. State, 383
S.W.3d 530, 540-44 (Tex. Crim. App. 2012)
must show egregious harm as a result of trial court's failure to
read charge aloud to the jury). Defense counsel had the
opportunity to object to the charge during the charge conference,
and petitioner has identified no meritorious objection to the
charge. Further, each member of the jury received a written copy
of the charge for their use during deliberations.
vol. 8, 172-73, 190, doc. 27-13.)
It does not appear from the
record that the jury ignored this instruction or received
improper instructions with respect to the law applicable to
Petitioner asserts that trial counsel was ineffective by
failing to object to the trial court's failure to answer the jury
(Pet. 7, doc. 1.) This claim is refuted by the record. As
previously discussed, after receiving the two notes, the trial
court did, in fact, provide a response, albeit a non-substantive
one. Nevertheless, the court's answers were neutral, and
petitioner fails to demonstrate that counsel had a valid
objection to raise. It follows that petitioner fails to establish
deficient performance or actual prejudice in connection with the
trial court's responses to the jury notes.
Finally, petitioner asserts that trial counsel was
ineffective by failing to investigate the signatures of state
(Pet' r's Mem. 19, doc. 2.) Specifically, he claims
that he did not sign the consent to search form allowing Young to
search and confiscate the documents in his prison cell and that,
based on newly discovered evidence, his ex-wife "Priscilla signed
the forged [recantation] affidavit, and [it is] highly probable
Pizer signed Dr. Hezmall's forge[d] affidavit."
(Id. & Ex. 10, 12
& 13.) Petitioner's first claim is refuted by the record, which
reflects that counsel did request that petitioner's handwriting
be analyzed and the expert testified at both the suppression
hearing and at trial that, in her opinion, petitioner did not
sign the consent to search form.
27-2; vol. 4,
(Reporter's R., vol. 2,
66, doc. 27-9; vol. 7, 166-67, 180, doc. 27-12.)
The expert also testified at trial that, in her opinion,
petitioner did not sign the forged affidavits.
(Id., vol. 7, 174.
179, doc. 27-12.)
Petitioner's latter two claims were not raised in state
court; thus, the claims raised for the first time in this federal
petition are unexhausted for purposes of § 2254 (b) (1) (A). Under
the Texas abuse-of-the-writ doctrine, however, he cannot now
return to state court for purposes of exhausting the claims. See
TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4(a)-(c)
(West 2015). The
abuse-of-the-writ doctrine represents an adequate state
procedural bar to federal habeas review.
Smith v. Johnson, 216
(5th Cir. 2000); Nobles v. Johnson, 127 F.3d
(5th Cir. 1997). Therefore, absent a showing of cause
and prejudice or a miscarriage of justice, such showing not
having been demonstrated by petitioner, the claims are
unexhausted and procedurally barred from this court's review.
Dretke v. Haley, 541 U.S. 386, 388 (2004).
In summary, deferring to the state courts' implied factual
and having independently reviewed petitioner's claims,
the state courts' application of Strickland was not unreasonable.
Petitioner's claims are conclusory, with no legal and/or
evidentiary basis, refuted by the record, involve matters of
state law, involve strategic and tactical decisions made by
counsel, or would have required counsel to make frivolous
objections or arguments, all of which generally do not entitle a
state petitioner to federal habeas relief. See, e.g., Strickland,
460 U.S. at 689 (holding strategic decisions by counsel are
virtually unchallengeable and generally do not provide a basis
for postconviction 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); Green v. Johnson, 160 F.3d 1029,
1042 (5th Cir. 1998)
(providing "(m]ere conclusory allegations in
support of a claim of ineffective assistance of counsel are
insufficient to raise a constitutional issue"); Alexander v.
Mccotter, 775 F.2d 595, 602
(5th Cir. 1985)
ineffective assistance claims "based upon uncalled witnesses
[are] not favored because the presentation of witness testimony
is essentially strategy and thus within the trial counsel's
domain, and .
speculations as to what these witnesses would
have testified is too uncertain"). Even if petitioner could
demonstrate defective assistance based on one or more of his
claims, in view of the overwhelming evidence of his guilt, he
cannot make a showing of Strickland prejudice. Strickland, 466
U.S. at 694-96.
Petitioner also asserts that his appellate counsel was
ineffective by failing to raise the issue of jury-charge error on
(Pet. 7, doc. 1.) This claim is vague and inadequately
briefed. Again, the court is left to surmise that petitioner is
complaining about the inclusion in the charge of the law-ofparties instruction. However, based upon the discussion above,
this claim fails. Appellate counsel is not required to raise
frivolous issues on appeal. See United States v. Gibson, 55 F.3d
173, 179 (5th Cir. 1995). Petitioner has not demonstrated the
claim is meritorious as a matter of state law; thus, he cannot
demonstrate a reasonable probability that, but for counsel's
failure to the raise the issue, he would have prevailed on his
Under his fifth ground, petitioner claims the state engaged
in prosecutorial misconduct, in violation of his rights under the
Fourth Amendment and his right to a fair trial and due process,
because investigator Young:
had no "search or seizure warrant to remove [his]
personal and legal files" from TDCJ;
"coerced [petitioner] to give a false confession"
by telling petitioner that he could keep his five
volumes of trial transcripts;
"perjured himself on the witness stand" by
testifying that he saw petitioner sign the consent
to search form;
"highly probably forged [petitioner]'s name on the
consent to search form";
did not have petitioner "initial the seven
"failed to produce [the] consent to search form
before [the] search";
"failed to follow up with clear facts that the
Arizona Attorney General investigators" came up
"intentionally overlooked clear facts that
[petitioner] did not mail" the state habeas
application in question to the Hood County court;
"failed to investigate state witness Priscilla's
signature on forge[d] affidavit.
(Pet. 7A, doc. 1; Pet' r's Mem. 19-20, doc. 2; 09SHR 21, doc. 282 6.)
As to petitioner's Fourth Amendment claims, the United
States Supreme Count has held that a prisoner has no reasonable
expectation of privacy in his prison cell or possessory interest
in personal property contained in his cell entitling him to
Fourth Amendment protection. See Hudson v.
Palmer, 468 U.S. 517,
526, 530 (1984). Based on Hudson, the state appellate court
concluded that the warrantless search of petitioner's prison
cell, conducted at Young's request, and seizure of the tangible
evidence was permissible.
(Mem. Op. 5-6, doc. 27-3.)
presumably, the state courts concluded that prior Miranda
warnings were not required under the facts of petitioner's case
and that it was not required that petitioner initial each of the
seven warnings on the consent form.
Stone v. Powell, 428 U.S.
(1976), bars relitigation of petitioner's Fourth
Amendment challenges on federal habeas review. Furthermore, the
state courts' adjudication of the first claim comports with
Hudson. Second, the state courts' determination of the second
issue comports with Fifth Circuit precedent. See, e.g., United
States v. Stevens, 487 F.3d 232, 242
(5th Cir. 2007); United
States v. Perez, 100 F.2d 952, 1996 WL 625320, at *l (5th Cir.
1996); United States v. Garcia, 496 F.2d 670,
675 (5th Cir. 1974)
(holding that Miranda warnings are not required to be
administered to a suspect in custody in order to validate a
420 U.S. 960
(1975). And, the
court finds no legal support established by the United States
Supreme Court for petitioner's claims that Young was required to
initial each of the seven warnings on the form.
As to petitioner's due-process claims, the United States
Supreme Court has recognized that prosecutorial misconduct may
"so infect the trial with unfairness as to make the resulting
conviction a denial of due process." Donnelly v. DeChristoforo,
(1974). To constitute a due process violation,
the prosecutorial misconduct must be "'of sufficient significance
to result in the denial of the defendant's right to a fair
trial.'" United States v. Bagley, 473 U.S. 667, 676 (1985)
(quoting United States v. Agurs, 427 U.S.
97, 108 (1976)).
Petitioner asserts that Young turned off the recording
devices and coerced his confession by telling him that he could
keep five volumes of court transcripts. The trial court conducted
a suppression hearing before trial and entered express factual
findings that petitioner's confession was voluntary and
(Clerk's R. 203-06, doc. 28-11.) At trial, petitioner
testified that his confession was coerced, and the jury was
instructed to disregard the confession if it found it was not
freely and voluntarily made by petitioner without compulsion or
(Id. at 211.) The state appellate court, in turn,
after reviewing the audiotaped interview, found no promise or
coercion by Young prior to the confession.
(Mem. Op. 7, doc. 27-
3.) Absent clear and convincing evidence in rebuttal, this court
must defer to the state court's and the jury's factual findings,
including their credibility determinations. Applying the
appropriate deference, no basis exists for concluding that Young
coerced petitioner's confession in violation of his right to due
Petitioner asserts that Young violated his right to due
process by perjuring himself on the witness stand and forging
petitioner's signature on the consent to search form. At trial,
Young testified that he witnessed petitioner sign the consent
form. On the other hand, petitioner testified that he did not
sign the consent form,
and the handwriting expert opined that
petitioner did not sign the document.
(Reporter's R., vol. 7,
180, 230, doc. 27-12.) Conflicting or contradictory testimony
from witnesses does not, standing alone, establish perjury. See
Koch v. Puckett, 907 F.2d 524, 531 (5th Cir. 1990)
contradictory trial testimony merely establishes a credibility
question for the jury). The resolution of and weight to be given
conflicting or contradictory evidence is within the sole province
of the trier of fact.
See Jackson v. Virginia, 443 U.S. 307, 319
(1979). The jurors were entitled to believe Young's testimony and
disbelieve petitioner's testimony. This court cannot substitute
its independent judgment for that of the jury. See Weeks v.
Scott, 55 F.3d 1059, 1062 (5th Cir. 1995). Nor does the expert's
opinion that petitioner did not sign the document or her opinion,
after the fact,
that Young "did highly probably authorn
petitioner's name on the form clearly refute Young's testimony
that petitioner signed the document.
Petitioner asserts that Young violated his right to due
process because he "failed to follow up with clear facts that the
Arizona Attorney General investigatorsn discovered.
doc. 1; 09SHR 22, doc. 28-26.) Petitioner's mere assertion,
without more, does not state a claim for relief. In the state
habeas proceeding, petitioner alleged that Young "intentionally
failed to follow-up with clear evidence of facts that the Arizona
Attorney General investigators came up with the person (Pizer)
who made the two forged affidavits, downloaded the 11.07
application and forged [petitioner)'s name, and mailed it to then
(09SHR 22, doc. 28-26.) Under Brady v. Maryland, 373
(1963), the state has a duty to produce exculpatory
information in a criminal case, which encompasses the duty to
investigate "any favorable evidence known to others acting on the
government's behalf in the case." Kyles v. Whitley, 514 U.S. 419,
(1995). Brady does not however "place any burden upon the
Government to conduct a defendant's investigation or assist in
the presentation of the defense's case." United States v.
Marrero, 904 F.2d 251, 261 (5th Cir. 1990).
The record reflects that three Phoenix detectives, at the
behest of the Texas Attorney General's office, interviewed John
Pizer at his home, that the interview was recorded, and that the
contents of Pizer's file pertaining to petitioner's state habeas
application were copied onto "cd/disks" and sent to Young.
(Pet' r's Mem. Ex. 5, doc. 2.) In several instances during the
suppression hearing, Young could not recall the specifics of that
interview, including whether Pizer admitted to signing the
application during the interview and to mailing it to the Hood
(Reporter's R., vol. 4, 39-41, doc. 27-9.) However,
it is clear from the record that Young received and reviewed the
investigation report and listened to at least some of Pizer's
recorded interview. Petitioner fails to establish that Young had
a duty to investigate further.
(Resp't's Answer 41, doc. 19.)
The documents petitioner asserts would prove he did not mail the
i.e., prison mail logs and the envelop used
to mail the aplication, were just as accessible to petitioner.
(Pet. 7A, doc. l; Pet' r's Mem. Exs. 5 & 11, doc. 2.) The
prosecution was under no duty to furnish information that was
readily accessible to the defense. See Thompson v. Cain, 161 F.3d
(5th Cir. 1998).
Finally, petitioner asserts that Young violated his right to
due process by failing to investigate Priscilla's signature on
her forged affidavit.
(Pet. 7A, doc. 1.) Young contacted
Priscilla, showed her the affidavit, and she denied signing the
affidavit. Petitioner fails to establish that Young was required
to investigate further so as to disprove her contention. As
noted, the prosecution is not required "to conduct a defendant's
investigation or "assist in the presentation of the defense's
case." Marrero, .904 F.2d at 261.
Petitioner also asserts that the special prosecutor violated
his right to due process by(1)
adding "other to the crime to obtain a conviction,
when there no charge of other helping the
petitioner in the language in the indictment";
changing "the burden of prove from the state to
violating "the court instruction not to go into
case 9232"; and
lying in her closing argument about petitioner
"having a 'normal sexual function.'"
(Pet'r's Mem. 20, doc. 2.)
The first two claims are clearly without merit. As noted in
subsection C, under state law, if the evidence supports a charge
on the law of parties, the trial court may charge on the law of
parties even though there is no such allegation in the indictment
without violating constitutional due process. See TEX. PENAL CODE
7.01, 7.02; Adames v. State, 353 S.W.2d 854, 861 (Tex.
Crim. App. 2011); Marable
v. State, 85 S.W.3d 287, 288 (Tex.
Crim. App. 2002). See also Ammons v. State, 782 S.W.2d 539, 541
(Tex. App-Houston [14th Dist.] 1989, not pet.)
application of the law of parties does not create an offense
separate from the one in the indictment). Further, the jury
charge contained an abstract instruction on the law of parties
and applied the law of parties to the facts of the case.
Therefore, the burden of proof was not shifted to petitioner and
there was sufficient evidence to support his conviction as a
party. See Jones v. State, 815 S.W.2d 667, 669 (Tex. Crim. App.
Petitioner asserts that the prosecutor violated his right to
due process by mentioning his criminal case in trial cause No.
9232 for indecency with a child against the trial court's
instructions and lying in her closing argument that petitioner
had a "normal sexual function.n
(Pet. 78A-7B, doc. 1.) Although
the state filed a motion in limine requesting, among other
things, that presentation of any evidence related to petitioner's
prior case be prohibited, petitioner fails to direct the court to
any order granting the motion or court instruction prohibiting
mention of the case.
(Clerk's R. 152-55, doc. 28-11.)
Additionally, in petitioner's confession to Young he persisted in
his innocence of the indecency charges and indicated that he only
falsified the affidavits in the underlying case in an effort to
obtain a hearing in the prior case. Further, at trial, petitioner
testified that he was innocent of the indecency charge; that he
wanted a new trial; and that his medical records would prove his
innocence and that he had no sex drive.
(Reporter's R., vol. 7,
113-15, doc. 27-12.). The defense also introduced the medical
records into evidence, which included the record indicating
petitioner "has had good sexual function since he has gotten
married[.]n (Reporter's R., vol. 9, State's Ex. BB, doc. 27-20 at
4). Consequently, matters related to the indecency case were
already before the jury.
The latter claim involves the following closing argument:
We are looking for the truth. We were looking for
the truth. When this case came to us in that first
case, why do you think we subpoenaed those medical
records? Do you think Ms. Kaspar wants any part of a
wrongful conviction? We do not. I guarantee you.
And what do those medical records show? He's been
lying all along. He said he was -- he's had normal
sexual function. He's been lying since writ one.
(Reporter's R., vol. 8, 188, doc. 27-13.)
The four areas of proper jury argument under state law are
summation of the evidence; reasonable inference from the
evidence; answer to opposing counsel's argument; and pleas for
law enforcement. See Buxton v. Collins, 925 F.2d 816, 825
Cir. 1991). Petitioner's credibility was at issue; thus the
complained-of argument amounts to a reasonable deduction from the
evidence relating to his credibility and a summation of the
evidence. Even if the argument was improper, improper jury
argument by the prosecution does not present a claim of
constitutional magnitude unless such argument is so prejudicial
that the petitioner's trial was rendered fundamentally unfair.
Such unfairness exists only if the misconduct was persistent and
pronounced or the evidence of guilt was so insubstantial that
conviction would not have occurred but for the improper remarks.
See Harris v. Cockrell, 313 F.3d 238, 245 (5th Cir. 2002). The
mention of petitioner's prior case was neither repeated nor
pronounced, and in light of the considerable evidence of
petitioner's guilt, there is no reasonable probability that,
absent the remarks, the result would have been different.
Joinder of Offenses
Lastly, petitioner claims his right to due process was
violated by the state's joinder of offenses in the same
(Pet. 7B, doc. 1.) In his state habeas application,
petitioner provided the following facts in support of this claim:
Count two states, "The defendant knowing that an
official proceeding was pending or in progress filed of
an application writ 11.07 to the 355th District Court
of Hood County, Texas which included two forged
affidavits. Count one has the same crime. Jury found
[petitioner] not guilty of aggravated perjury.
(09SHR 13, doc. 28-26.) As a matter of state law, "[a] defendant
may be prosecuted in a single criminal action for all offenses
arising out of the same criminal episode. See TEX. PENAL CODE ANN.
(West 2011). Deferring to the state courts' implied
finding that the offenses were properly joined, petitioner fails
to show that the state courts' rejection of the claim is contrary
to or an unreasonable application of federal law as determined by
the United States Supreme Court.
For the reasons discussed,
The court ORDERS the petition of petitioner 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 or that the court's procedural rulings are debatable or
SIGNED March 6, 2018.
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