Youngstrom v. Davis-Director TDCJ-CID

Filing 20

Memorandum Opinion and Order...petition for writ 28 USC 2254 is denied. COA denied. (Ordered by Judge John McBryde on 2/13/2018) (wrb)

COUR~-·······

IN THE UNITED STATES DISTRIC
FOR THE NORTHERN DISTRICT 0 I TEXAl..'~EB
FORT WORTH DIVISION 1
WILLIAM WALTER YOUNGSTROM,
Petitioner,

v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.

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l 3 201il

CLEIU\:, U.S. DlSTlUCl COURT

No. 4:16-CV-672-A

MEMORANDUM OPINION
and
ORDER

This is a petition for a writ of habeas corpus pursuant to
28 U.S.C.

§

2254 filed by petitioner, William Walter Youngstrom,

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

Petitioner was charged in Hood County, Texas, Case No.
CR12355, with delivery of four grams or more but less than 200
grams of rnethamphetamine.

(Clerk's R. 8-10, doc. 11-11.)

Following a jury trial, the jury found him guilty and assessed
his punishment at 27 years' imprisonment and a $2,500 fine.
at 44; Mern. Op. 7-8, doc. 11-4.) Petitioner appealed his

(Id.

conviction, but the Seventh District Court of Appeals of Texas
affirmed the trial court's judgment as modified and the Texas
Court of Criminal Appeals refused his petition for discretionary
review.

(Electronic R., doc. 11-1.) Petitioner also filed a state

habeas-corpus application challenging his conviction, which was
denied by the Texas Court of Criminal Appeals on the findings of
the trial court. This federal petition followed.
The state appellate court summarized the facts of the case
as follows:
In December 2012, an indictment was filed alleging
that, on or about September 8, 2012, [petitioner]
intentionally and knowingly delivered four grams or
more but less than two hundred grams including any
adulterants and dilutants, of a controlled substance,
to-wit: methamphetamine, by actually transferring the
drug to Ray Miller.
. The indictment also included
a second count alleging the offense of possession of a
controlled substance of less than one gram including
adulterants and dilutants.
. As to the second count
in the indictment, following the assessment of
sentence, it was voluntarily dismissed by the State.
Prior to trial, [petitioner] filed a Motion to Suppress
[his] Written and Oral Statements made while he was
under arrest or following his request for an attorney.
There is no evidence or transcription of a pretrial
suppression hearing in the record.
At trial, Ray Miller, a narcotics investigator for
Hood County Sheriff's Office, testified that, in
September 2012, he was told by an informant that he
could purchase drugs if he called [petitioner]'s
telephone number. Miller texted [petitioner]'s number
and negotiated the price of a quarter ounce of
methamphetamine--$550. Miller also negotiated the
transaction and arranged its location at a halfway
point between the west side of Fort Worth and Granburya Tiger Mart in Cresson. [Petitioner] texted Miller
that he would arrive in a black 2010 Ford Taurus.

2

The transaction occurred as the parties had
negotiated in their texts. Miller arrived at the Tiger
Mart and awaited the Ford Taurus. The Taurus arrived
and pulled in front of Miller's car. Miller walked up
to the Taurus and entered through the rear passenger
door. Two persons were in the front seat--the driver
and [petitioner]. [Petitioner] identified himself as
"Willn and almost in a continual motion, turned around
and displayed a baggie containing methamphetamine.
Miller handed [petitioner] $550, and [petitioner]
handed him the baggie. Miller then gave a visual bust
signal, officers approached the Taurus, and
[petitioner] was arrested.
After [petitioner]'s arrest, Miller located
[petitioner]'s activated cellphone in the front seat of
the Taurus. On his way to the station, Miller accessed
the cellphone's text messaging system and took pictures
of the texting correspondence between himself and
[petitioner]. No passcode or password was necessary.
The texts on [petitioner]'s phone were the same as the
texts on Miller's phone. Both sets of texts were
admitted into evidence. [Petitioner]'s attorney
asserted the admission of [petitioner]'s text messages
was illegal because [petitioner]'s search was
warrantless. Miller testified it would take
approximately an hour and a half to obtain a warrant
and he was concerned the texts would be erased. The
trial court overruled [petitioner]'s objection. William
Watt, a narcotics investigator who assisted Miller,
corroborated Miller's testimony.
At the conclusion of the State's case,
[petitioner] re-urged his motion to suppress and was
overruled.
(Mem. Op. 3, doc. 11-4.) Also introduced into evidence at trial
were video recordings of the drug transaction and of petitioner's
custodial interrogation with officer Watt, in which he apparently
confessed to the crime. 1 (Reporter's R., vol. 3, 39, 84-86, doc.
11-8.) Petitioner did not testify or call any witnesses during

1

The recordings were not provided to the court by the parties.

3

the guilt/innocent phase of his trial.
II.

ISSUES

Petitioner's claims for relief are not clearly delineated,
however they seem to fall within the following general
categories:

(A) admissibility of the text messages and video

recordings;

(B) sufficiency of the evidence; and (C)

assistance of counsel.

ineffective

(Pet. 6-7A, doc. l; Pet'r's Mem. 5-18,

doc. 2.)
III.

RULE 5 STATEMENT

Respondent believes that the petition is neither successive
nor barred by the statute of limitations, but that one or more of
petitioner's claims are unexhausted and/or procedurally barred.
(Resp't's Ans. 6, doc. 13.)
IV. DISCUSSION

A

§

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.

§

2254(d) (1)-(2);

Harrington v. Richter, 562 U.S. 86, 100 (2011). This standard is

4

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

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,

Young v.

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" 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).

A. Text Messages and Video Recordings

5

Petitioner claims that the text messages were inadmissible
as fruit of the poisonous tree because they were obtained without
his consent or a warrant to search of his cell phone, citing
Riley v. California, --- U.S. ---, 134 S. Ct. 2473 (2014)
(holding the search incident to arrest exception to the warrant
requirement does not extend to a search of digital contents of a
lawfully seized cell phone absent exigent circumstances), and
State v. Granville, 423 S.W.3d 399 (Tex. Crim. App. 2014).

(Pet.

6, doc. l; Pet'r's Mem. 5, doc. 2.) Stone v. Powell, 428 U.S.
465, 481-82

(1976), bars consideration of this claim. Petitioner

objected to admission of the text messages at trial and raised
the same or similar claim in his state habeas application.
(Reporter's R. 29, 107, doc. 11-8; State Habeas R. 11, doc. 121.) Thus, he had an opportunity to litigate the issue in the
Texas state courts, the issue was considered, and ultimately
decided by the trial court against petitioner.
Further, both cases cited by petitioner were decided after
the conclusion of petitioner's trial in August 2013. As recently
as 2012, the Fifth Circuit upheld a warrantless search of a cell
phone when done incident to an arrest. See United States v.
Rodriguez, 702 F.3d 206, 209 (5th Cir. 2012)
v. Finley,

[477 F.3d 250, 259-60

("In United States

(5th Cir. 2007)], we held that a

search incident to an arrest of the contents of a cell phone
found on an arrestee's person for evidence of the arrestee's

6

crime was allowable, analogizing it to a search of a container
found on an arrestee's person."). It was not until Riley was
issued in 2014 that it became clearly established (at least in
the Fifth Circuit) that warrantless searches of cell phones
violated the Fourth Amendment. The search here occurred on
September 8, 2012. Therefore, at the time of the search and
petitioner's trial in 2013, it was not "clearly established" that
in order to search a cell phone after a valid arrest a warrant
was needed.
Finally, the state appellate court assumed without deciding
that the trial court erred in admitting the text messages but
nevertheless concluded that the error was harmless beyond a
reasonable doubt.

(Mem. Op. 4-5, doc. 11-4.) Citing to relevant

state law, that court addressed the claim as follows:
Assuming, without deciding, the trial court erred
in admitting [petitioner]'s text messages, we find
beyond a reasonable doubt that any error did not
contribute to [petitioner]'s conviction or punishment.
That is, any error was harmless.
In applying the "harmless error" test, our primary
question is whether there is a "reasonable possibility"
that the error might have contributed to the
conviction. Our analysis does not focus on the
propriety of the outcome of the trial; instead, we
calculate as much as possible the probable impact on
the jury in light of the existence of other evidence.
In our analysis, we evaluate the entire record in a
neutral, impartial and even-handed manner.
[Petitioner]'s text messages aside, other evidence
at trial, including Miller's and Watt's testimony,
establishes the circumstances leading up to and during
[petitioner]'s arrest. Moreover, the text messages on

7

Miller's cellphone are near mirror images of the texts
admitted from [petitioner]'s phone. Given the
cumulative nature of [petitioner]'s texts and the
overwhelming evidence of [petitioner]'s guilt, we
cannot say that a juror would put much, if any, weight
on [petitioner]'s text messages. Accordingly, it was
unlikely the admission of [petitioner]'s text messages
greatly affected the jury after Miller testified, and
his text messages recounting the negotiations and
arrangements undertaken to complete the drug
transaction were entered into evidence. We find the
admission of [petitioner]'s text messages harmless
error, if there was error at all.
(Mem. Op. 4-5, doc. 11-4.)
This court must uphold the state court's resolution of
petitioner's claim on the basis of harmless error, so long as the
error, in light of the record as a whole, did not have a
substantial and injurious effect or influence on the verdict.
Brecht v. Abrahamson, 507 U.S. 619, 637-38

(1993); Robertson v.

Cain, 324 F.3d 297, 306-07 (5th Cir. 2003). As the state court
found, the evidence of petitioner's guilt was overwhelming even
without the text messages. As such, this court cannot conclude
that admission of the text messages had a substantial and
injurious effect or influence on the jury's verdict. Thus, under
§

2254(d) (1), we may not substitute our own judgment for that of

the state court. See Woodford v. Visciotti, 537 U.S. 19, 24-25
(2002).
Petitioner also claims that the trial court erroneously
admitted the video recordings of the drug transaction and his
custodial interrogation without affording him a jury instruction

8

under article 38.23 of the Texas Code of Criminal Procedure and
erroneously admitted extraneous offense evidence of the
methamphetamine found on his person incident to his arrest. No
objection was raised to the admission of the recording of the
drug transaction at trial.

(Reporter's R., vol. 3,

40, doc. 11-

8.) Thus, the trial court would not be in error by admitting same
at the state's request. Further, although, a motion to suppress
was filed regarding the admissibility of the recording of
petitioner's custodial interrogation, as noted by the state
appellate court, there is no evidence or transcription of a
pretrial suppression hearing in the record. Thus, it is
impossible for this court to determine what, if any, ruling was
made by the trial court and/or the legal and factual basis for
such ruling.
Lastly, petitioner claims that the trial court erroneously
admitted extraneous offense evidence of the methamphetamine found
on his person incident to his arrest.

(Reporter's R., vol. 3, 24-

26, doc. 11-8.) A state court's evidentiary rulings are not
inherently suspect and are generally not cognizable on federal
habeas review of a state conviction. See Estelle v. McGuire, 502,
U.S. 62, 67

(1991); Wood v. Quarterman, 503 F.3d 408, 414

(5th

Cir. 2007); Derden v. McNeel, 978 F.2d 1453, 1458 (5th Cir.
1983). A federal habeas court will disturb state court
evidentiary rulings on habeas review only if they render the

9

trial fundamentally unfair.

Payne v. Tennessee, 501 U.S. 808, 825

(1991). The admission of extraneous offense evidence does not
render a petitioner's trial fundamentally unfair if the state
"makes a strong showing that the defendant committed the offense
and if the extraneous offense is rationally connected with the
offense charged." Wood, 503 F.3d at 414. In this case, the
evidence of petitioner's guilt was very strong and the discovery
of a smaller amount of the same controlled substance on
petitioner's person bears a rational relationship to the charged
offense. Thus, admission of the extraneous offense evidence did
not render petitioner's trial fundamentally unfair.
B. Sufficiency of the Evidence

Petitioner claims that, absent the text messages or evidence
and corroborating officer Miller's testimony that the exchange
occurred, such as the "buy money," "there is no evidentiary
support of any pre-arranged sale of narcotics." (Pet'r's Mem. 78, 17, doc. 2.) Respondent asserts that this claim is
procedurally barred because it was not raised on direct appeal
and a sufficiency-of-the-evidence claim is not cognizable on
state habeas review.

(Resp't's Answer 10-12, doc. 13.)

Under Texas law, a sufficiency-of-the-evidence claim may
only be raised on direct appeal and may not be raised in a state
habeas proceeding. See West v. Johnson, 92 F.3d 1385, 1389 n.18
(5th Cir. 1996); Ex parte Grigsby, 137 S.W.3d 673, 674

10

(Tex.

Crim. App. 2004). The Texas Court of Criminal Appeals has
confirmed that when a state habeas applicant challenges the
sufficiency of the evidence in a state habeas application, and it
subsequently disposes of the application by entering a denial
without written order, the applicant's sufficiency claim was
denied because the claim is not cognizable. Ex parte Grigsby, 137
S.W.3d at 674. Under these circumstances, reliance on the
procedural default by the state court is established and presents
an adequate state procedural ground barring federal habeas
review.

Ylst v. Nunnemaker, 501 U.S. 797, 801-07

(1991).

Therefore, absent a showing of cause and prejudice or a
miscarriage of justice, such showing not having been demonstrated
by petitioner, the claim is procedurally barred from this court's
review.
C. Ineffective Assistance of Counsel

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,
387, 393-95 (1985); Strickland v. Washington,

466 U.S.

(1984); Anders v. California, 386 U.S. 738, 744

469 U.S.
668, 688

(1967). 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

11

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
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 emphasized in Harrington v. Richter the
manner in which a federal court is to consider an ineffectiveassistance-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)). Accordingly, it is necessary only to determine whether
the state courts' rejection of petitioner's ineffectiveassistance claims was contrary to or an objectively unreasonable
application of Strickland. Bell v. Cone, 535 U.S. 685,
12

698-99

(2002); Kittelson v. Dretke, 426 F.3d 306, 315-17

(5th Cir.

2005); Schaetzle, 343 F.3d at 443.
From what the court gleans from petitioner's pleadings, he
claims his trial counsel was ineffective in the following
respects:
(a)

failing to file a motion to suppress his cell
phone and its contents prior to trial and to
supplement his motion to suppress the recording of
his custodial interrogation based on the fact that
"he was interrogated with the photographs of the
contents of his cell phone";

(b)

failing to supplement his request for a lesser
included offense charge of possession "based on
the fact that the alleged buy money was never
recovered or admitted into evidence to corroborate
the charge of delivery for remuneration" and
"based upon the absence of corroborating evidence
to establish a delivery by actual transfer"
pursuant to state statutes;

(c)

failing to move to suppress and/or
state's exhibits 30 (the recording
transaction) and 31 (the recording
custodial interrogation) as fruits
poisonous tree;

(d)

failing to object to admission of the extraneous
offense evidence of the methamphetamine found on
his person incident to his arrest because it was
not tested to show that it was, in fact,
methamphetamine, it was extraneous offense
evidence not proven by the state beyond a
reasonable doubt, and it was not relevant to the
offense charged after the state abandoned count
two of the indictment;

(e)

failing to request a jury instruction under
article 38.23 of the Texas Code of Criminal
Procedure;

(f)

failing to argue that the state had failed to
prove that he was in possession of any "buy
13

object to
of the drug
of his
of the

money"; and
(g)

failing to object to officer Miller's testimony
that officer Watt conducted a search of petitioner
and found the smaller baggie of methamphetamine as
hearsay and impermissible character evidence.

(Pet. 9-16, doc. 2.)
Respondent asserts that one or more of petitioner's claims
are unexhausted and procedurally barred." (Resp't's Answer 7-10,
doc. 13.) 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
postconviction proceedings. See O'Sullivan v. Boerckel, 526 U.S.
838,

842-48

(1999); Fisher v. Texas, 169 F.3d 295, 301 (5th Cir.

1999) . The exhaustion requirement is "not satisfied if the
petitioner presents new legal theories or factual claims in his
federal habeas petition." See Anderson v. Johnson, 338 F. 3d 381,
386 (5th Cir. 2003).
Having reviewed the state court records, the court agrees
that claims (d) and (g) do not sufficiently correspond with
petitioner's ineffective-assistance claims raised on appeal and
in his state habeas application. Thus,

the claims raised for the

first time in his federal petition are unexhausted for purposes
of

§

2254 (b) (1) (A). Under the Texas abuse-of-the-writ doctrine,

however, petitioner cannot now return to state court for purposes

2

The grounds as stated by respondent correspond only in part with the
court's interpretation of the grounds raised,

14

of exhausting the claims. See TEX. CODE CRIM. PROC. ANN. art. 11.07,
§

4 (West 2015). The abuse-of-the-writ doctrine represents an

adequate state procedural bar to federal habeas review. See
Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997). Therefore,
absent a showing of cause and prejudice or a miscarriage of
justice, such showing not having been demonstrated, claims

(d)

and (g) are unexhausted and procedurally barred from this court's
review. See Smith v. Johnson, 216 F.3d 521, 523-24

(5th Cir.

2000) .
Petitioner was represented at trial by Richard Mitchell. The
state habeas judge, who also presided at petitioner's trial,
conducted a hearing by affidavit. Mitchell responded to one or
more of petitioner's allegations as follows

(all spelling,

punctuation and/or grammatical errors are in the original)':
Ground 1
[Petitioner]'s Trial Counsel [(counsel)] made a
correct objection to the admission of the pictures
which were taken from the petitioner's phone. This
objection should have been sustained by the trial court
under the 4th Amendment of the US constitution and Art
1 section 9 of the Texas Constitution. Seizure and
search of a cell phone without a warrant has been also
held unconstitutional absent exigent circumstances
under Riley v. California, 573 U.S.
(2014)
While [counsel] objected to the evidence, he
failed to have the jury instructed under Tex Code of
Crim Proc. 38.23. Under Strickland, an attorney renders
ineffective assistance if the attorney's representation

3

Counsel's grounds do not correspond with the claims as enumerated

above.

15

fell below an objective standard of reasonableness
under prevailing professional norms and whether there
is a "reasonable probability that the result of the
trial would have been different,n but for counsel's
deficient performance. 466 U.S. 668, 694 (1984).
"Reasonable probabilityn is probability sufficient to
undermine the confidence in the outcome.
In this case it was required that [counsel]
request the instruction or could and should have
objected to the court's charge that excluded the
instruction. Art 38.23 is not a novel or new statute
and is regularly cited in criminal actions.
The error is not sufficient to undermine the
confidence in the outcome. Ray Miller witnessed the
passing or attempted passing of the methamphetamine,
from the [petitioner]'s possession to his hands, he
testified about his role in setting up the transaction
from solicitation to completion with either the
[petitioner] or some unknown person. Joey Watt also
testified that he was at the scene when the
[petitioner] was arrested and reiterated what Mr Miller
testified. Without the text messages there was still
enough evidence to convict the [petitioner].
In conclusion while it was error to not request
for the instruction there is only a minor probability
that the outcome would have been different.
Ground 2
The Amarillo Court of Appeals in its opinion
confuses the reader when it writes "Moreover, the text
messages on Miller's cellphone are near mirror images
of the texts admitted from [petitioner]'s phone.n
Neither the State nor the Defendant offered Mr Miller's
text messages into evidence so it is confusing why
this sentence is even in the opinion. However, at the
paragraph's end .
. the language seems to suggest
that the court understood that it was only the text
messages on the [petitioner]'s phone that was admitted
into evidence.
[Counsel] has not viewed the video of the
interrogation to refresh my memory. However, I believe
that the video was edited and stopped prior to his
invocation of his right to counsel. The [petitioner]
16

was interrogated again by law enforcement but that
video was neither used nor was any information from it
used in trial.
The other sub-grounds are answered in the above
paragraphs.
Ground Three
[Counsel] has no memory of the interrogation
containing a discussion of the text messages.
[Counsel] did request two lesser included
instructions.
1) Possession instead of delivery of a controlled
substance over 4 grams under 200 grams and
2)

Delivery of less than one gram.

Ground 3 sub-parts are answered in the above
paragraphs
Ground 4
State's Exhibit 30 would have been admitted since
it was offered by the State and it has a tendency to
prove the existence of a transaction.
There were no exigent circumstances and the
admission of the text messages was erroneous.
Ground 4 sub-parts are answered in the above
paragraphs
Ground 5
If the photographs were used with the [petitioner]
after he invoked his right to counsel then that
portion would not have been played. [Counsel) has no
memory of .
. Watt showing the [petitioner] the
photographs during his interrogation.
Ground 5 sub-parts have been answered in
the above paragraphs
Ground 6

17

The photographs of Mr. Miller's text messages were
not offered at trial or admitted. It is unclear if the
Seventh Court of Appeals meant to say that they were
admitted into trial.
(Supp. State Habeas R. 13-15, doc. 11-20.)
The habeas court entered findings of fact consistent with
counsel's affidavit and, applying the Strickland standard,
concluded that petitioner had failed to prove that trial counsel
provided ineffective assistance and that any error that may have
been committed by counsel did not contribute to petitioner's
conviction or punishment in light of the overwhelming evidence of
his guilt.

(Id. at 19-21.) In turn, the Texas Court of Criminal

Appeals rejected petitioner's claims based on the habeas court's
factual findings.

Petitioner fails to rebut those findings by

clear and convincing evidence. Therefore, relying on the
presumptive correctness of the state courts'

factual

determinations, and having independently reviewed petitioner's
claims in conjunction with the state court records, the state
courts' adjudication of the claims is not contrary to or an
unreasonable application of Strickland.
Petitioner claims counsel was ineffective by failing to file
a motion to suppress his cell phone and its contents prior to
trial. However, under the then existing law, petitioner cannot
demonstrate that such a motion would have been successful. See
Garland v. Maggio, 717 F.2d 199, 205-06 (5th Cir. 1983).

Furthermore, the state appellate court, applying state procedural
18

rules, rejected the claim as follows:
[Petitioner] asserts his counsel was ineffective
because he did not request a pretrial determination
whether [petitioner]'s text messages should have been
suppressed. During trial, the trial court had the
authority to admit or exclude [petitioner]'s text
messages. Moreover, a defendant's counsel may either
file a pretrial motion to suppress evidence or wait
until trial on the merits and object when the alleged
unlawfully obtained evidence is offered. Accordingly,
that [petitioner]'s attorney chose the latter approach
does not make his representation ineffective, but even
if he were, we find no harm because he objected to the
admission of [petitioner]'s text messages when the
trial court had authority to exclude the evidence and
admonish the jury not to consider it.
(Mem. Op. 5-6, doc. 11-4 (citations omitted).)
Petitioner claims counsel was ineffective by failing to file
a motion to suppress or object to admission of the video
recording of the drug transaction because it "does not show the
commission of any offense for which he was tried thus it has no
relevance as it does not corroborate officer Ray Miller[']s
testimony because the device was not working properly." (Pet' r's
Mem. 10, doc. 2.) This claim is conclusory, with no legal and/or
factual basis in the record. See Ross v. Estelle, 694 F.2d 1008,
1011-12 (5th Cir. 1983)

(providing conclusory allegations of

ineffective assistance of counsel do not raise a constitutional
issue in a federal habeas proceeding) . Such recordings of
conversations between a defendant and an undercover officer are
relevant and "probative of a defendant's willingness to
distribute drugs unlawfully." See United States v. Dunbar, 614

19

F. 2d 39, 42

(5th Cir. 1980) . Additionally, officer Miller

identified himself and officer Watt as participants, explained
how the pen camera worked, how the recording was made, that he
had used the device before, and that the indicator light on the
device was "working" at the time the recording was made.
(Reporter's R., vol. 3, 39-40, 53-54, doc. 11-8.) This provided
adequate indicia of reliability to be admissible. See United
States v. DeLeon, 247 F.3d 593, 597 (5th Cir. 2011); United
States v. Dixon, 132 F.3d 192, 198 (5th Cir. 1997).
Petitioner claims counsel was ineffective by failing to
supplement the motion to suppress the recording of his custodial
interrogation on the basis that "[he] was interrogated with'the
photographs of the contents of his cell phone" and after he
invoked his right to counsel.

(Pet. 6, doc. 1.) This claim is

equally conclusory, with no legal and/or evidentiary basis found
in the record. To the contrary, counsel's affidavit suggests that
no mention of the text messages was made to petitioner during the
interrogation and that the recording was "edited and stopped"
prior to petitioner's invocation of his right to counsel.
Additionally, the record indicates that counsel did raise an
objection to admission of the recording if it was not redacted
per prior agreement of the parties.

(Reporter's R., vol. 3, 85-

86, doc. 11-8.)
Petitioner claims counsel was ineffective by failing to

20

"supplement his request for a lesser included charge of
possession based upon the fact that when [he] was arrested and
searched the alleged buy money was never recovered or admitted
into evidence to corroborate the charge of delivery for
remuneration" and "based upon the absence of corroborating
evidence to establish a delivery by actual transfer" pursuant to
state statutes.

(Id. at 7.) As found by the state habeas court,

this claim is refuted by the record.

(Reporter's R., vol. 3, 108-

09, doc. 11-8.) Moreover, the state did not need to provide
evidence corroborating officer Miller's testimony that the
exchange occurred to support a verdict of guilty.
A petitioner shoulders a heavy burden to refute the premise
that "an attorney's actions are strongly presumed to have fallen
within the wide range of reasonable professional assistance."
Messer v. Kemp, 760 F.2d 1080, 1090 (11th Cir. 1985). Petitioner

presents no evidentiary, factual, or legal basis in this federal
habeas action that could lead the court to conclude that the
state courts unreasonably applied the standards set forth in
Strickland based on the evidence presented in state court. 28

U.S.C.

§

2254(d). In any event, even if petitioner could

demonstrate, or counsel does admit, defective assistance based on
one or more of the claims raised, petitioner has not made a
showing of Strickland prejudice.

Strickland, 466 U.S. at 694-96.

Given the overwhelming evidence of petitioner's guilt, there is

21

no reasonable probability that the jury would have acquitted him
but for counsel's acts or omissions.
Nor does petitioner identify any potentially meritorious
issues that appellate counsel should have raised on direct
appeal. Appellate counsel is not required to raise every
conceivable argument urged by his client on appeal, regardless of
merit. Smith v. Robbins, 528 U.S. 259, 287-88

(2000). It is

counsel's duty to choose among potential issues according to his
judgment as to their merits and the tactical approach taken.
Jones v. Barnes, 463 U.S. 745, 749 (1983).
Petitioner claims his appellate counsel was ineffective by
failing to file a motion for rehearing on appeal to correct the
appellate court's erroneous recitation of the facts and failing
to raise his ineffective-assistance claims in addition to the
other claims he now presents.

(Pet. 7A, doc. 1.) A criminal

defendant has no constitutional right to counsel on matters
related to filing a motion for rehearing following disposition of
his case on direct appeal; thus, petitioner cannot have received
"constitutionally deficient counsel" based on counsel's failure
to file a motion rehearing. See Jackson v. Johnson, 217 F.3d 360,
364-65 (5th Cir. 2000). 4
4Even if counsel had filed a motion for rehearing for the purpose of
correcting the appellate court's factual statement of the case, the
discrepancies are of little or no consequence, Petitioner points to two
factual errors in the appellate court's recitation of the facts. The first is
the misstatement that "Both sets of texts were admitted into evidence.u A
review of the reporter's record of the trial reflects that only the texts from

22

Furthermore, although, in Texas, claims of ineffective
assistance of trial counsel can be properly raised on appeal if
the appellate record is sufficiently developed, in most cases,
including this case, the trial record alone will be insufficient.
Consequently, appellate counsel was not ineffective in failing to
raise petitioner's claims on appeal. Evitts, 469 U.S. at 394;
United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995)
Petitioner fails to raise any meritorious claims in this
petition. Prejudice does not result from appellate counsel's
failure to assert meritless claims or arguments. See United
States v. Wilkes, 20 F.3d 651, 653

(5th Cir. 1994). Thus, it

follows that counsel was not ineffective for failing to raise one
or more of petitioner's claims on appeal.
A petitioner shoulders a heavy burden to refute the premise
that "an attorney's actions are strongly presumed to have fallen
within the wide range of reasonable professional assistance.u
Messer v. Kemp, 760 F.2d 1080, 1090 (11th Cir. 1985). Petitioner
presents no evidentiary, factual or legal basis in this federal
habeas action that could lead the court to conclude that the

petitioner's phone were actually admitted at trial. However, officer Miller
testified that he compared the text messages on both phones and that they were
the same. (Reporter's R., vol. 3, 100, doc. 11-8.) The second alleged
misstatement is that "Miller han9ed [petitioner] $550, and [petitioner] handed
him the baggie.u Petitioner asserts that Miller did not give him $550 and that
he did not have any alleged "buy money" on his person when he was arrested.
(Pet' r's Traverse 2, doc. 15.) Although the video recording did not capture
the actual transfer of the drugs and the money, the audio portion of the
transaction was captured and officer Miller testified that the exchange did
occur. (Reporter 1 s R., vol. 3, 43-44, doc, 11-8.)

23

state courts unreasonably applied the standards set forth in

Strickland based on the evidence presented in state court. 28

u.s.c.

§

2254(d).
V. CONCLUSION

For the reasons discussed herein,
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 or that reasonable jurists would question the court's
procedural rulings.
SIGNED

February~'

2018.

JUDGE

24