Kennedy v. Davis-Director TDCJ-CID

Filing 21

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 4/13/2018) (edm)

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U.S. DISTRICT COURT
NORTHERN DISTIUCT OF TEXAS

IN THE UNITED STATES DISTRICT COU T
FOR THE NORTHERN DISTRICT OF TEXA
FORT WORTH DIVISION
WILLIAM ALAN KENNEDY,
Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.

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rA;~~~~~IBJ

CI~ERK,

U.S. DISTRICT COURT

By----~ Uel:::~~~~~--.-_,. --~·--_1
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No.

4:16-CV-1075-A

MEMORANDUM OPINION
and
ORDER
This is a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 filed on behalf of petitioner, William Alan
Kennedy,

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 September 8, 2010,

petitioner was indicted in the 297th

District Court, Tarrant County, Texas, Case No. 1203407D, for
aggravated robbery.

(Clerk's R. 2-3, doc.

13-2. ) The indictment

also included deadly-weapon and habitual-offender notices. On
September 14, 2011, following a jury trial, the jury found
petitioner guilty as charged and found that he used or exhibited

a deadly weapon, a television set or a hand, during commission of
the offense.

(Id. at 103, 105.) Having chosen the trial court to

assess his punishment, petitioner pleaded true to the sentencingenhancement allegations in the indictment, and the trial court
assessed his punishment at life imprisonment.' (Id. at 100.)
Petitioner appealed, but the Second District Court of Appeals of
Texas affirmed the trial court's judgment, the Texas Court of
Criminal Appeals refused his petition for discretionary review,
and the United States Supreme Court denied writ of certiorari.
(Docket Sheet 1-2, doc. 12-2.)

Petitioner also filed a state

post-conviction application for writ of habeas corpus challenging
his conviction, which was denied by the Texas Court of Criminal
Appeals without written order on the findings of the trial
court. (SHR 2 & Action Taken, docs. 14-7 & 14-10.) This federal
petition for habeas-corpus relief followed.
The appellate court summarized the background facts of the
case as follows:
Carrying a television set he did not pay for,
[petitioner] ran over Walmart employee Bruce Florence
on the way out the door. After dropping the television
in the collision with Bruce, [petitioner] went directly
to a nearby Target, where he successfully stole another
one. Bruce had a serious pre-existing health conditionhe was on a waiting list for a liver transplant-and the
injuries he received when [petitioner] pushed him down
1Petitioner also pleaded guilty to four other pending criminal charges
and was sentenced in those cases. (Reporter's R., val. 5, 52, doc. 12-8.)
2''SHR" refers to the state court record of petitioner's state habeas
proceeding in WR-32,388-02.

2

on the concrete floor put him in the hospital, where he
died within a few days. Surveillance camera videos
taken from both stores had captured [petitioner]'s
image on tape, and he was arrested and tried for
aggravated robbery.
At [petitioner]'s trial, a forensic video analyst
testified for the State that analysis of the Walmart
video revealed that [petitioner] had pushed Bruce with
his hand and had run through him while trying to steal
the television.
(Mem. Op. 2, doc. 12-3.)
II. ISSUES

In three grounds, petitioner asserts that

(1) his right to

due process was violated by entry of a deadly-weapon finding
without proof of a mental state;

(2) there is no evidence that he

used or exhibited a deadly weapon; and (3) he received
ineffective assistance of counsel at trial.

(Pet.

6-7, doc. 1.)

III. RULE 5 STATEMENT

Respondent believes that petitioner has sufficiently
exhausted his state-court remedies but that his first claim is
procedurally barred from the court's review. Respondent does not
believe that the petition is untimely or subject to the
successive-petition bar.
§§

2244 (b),

(d)

&

(Resp't's Answer 4, doc. 15.) 28 U.S.C.

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
3

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 before the state court. 28 U.S.C.

§

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

Harrington v. Richter, 562 U.S. 86, 100-01 (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
proceedings." Richter, 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.

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

§

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

Taylor,

529 U.S.

362, 399 (2000). 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

4

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.
289, 298

Johnson v. Williams, 568 U.S.

(2013); Richter, 562 U.S. at 99; Schaetzle v. Cockrell,

343 F. 3d 440, 444

(5th Cir. 2003).

Because petitioner fails to present clear and convincing
evidence rebutting the state courts' factual findings,

this court

defers to those findings in the discussion below. 28 U.S.C.

§

2254 (e) (1).
(1) and (2) Deadly Weapon Finding

Under his first ground, petitioner claims his right to due
process was violated by entry of a deadly-weapon finding without
proof of a mental state.

(Pet. 6, doc. 1.) Respondent asserts

that this claim is procedurally barred from federal habeas
review. Petitioner raised this claim for the first time in his
state habeas application, and the state habeas court expressly
found that, as a result, the claim was forfeited for review.

(SHR

71-72,75, doc. 14-10.) Federal 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); Harris v. Reed, 489 U.S. 255, 262 (1989); Amos v. Scott,
61 F. 3d 333, 338 (5th Cir. 1995).

5

To overcome the state procedural bar, a petitioner must
demonstrate either cause for the procedural default and actual
prejudice as a result of the alleged violation of federal law, or
that failure to consider the claim will result in a fundamental
miscarriage of justice-i.e., the conviction of one who is
actually innocent. Coleman, 501 U.S. at 750; Finley v. Johnson,
243 F. 3d 215, 222-23

(5th Cir. 2001). Petitioner attempts to

establish cause for his procedural default by alleging that
defense counsel was ineffective for failing to object based on
his constitutional claim at trial.

(Pet'r's Reply 1, doc. 20.)

An attorney's ineffective assistance will only constitute
cause for a procedural default if the petitioner:

(1) exhausted

state remedies for the ineffective-assistance-of-counsel claim by
presenting it as an independent constitutional claim to the state
courts; and (2) the attorney actually provided constitutionally
deficient assistance. Edwards v. Carpenter, 529 U.S. 446, 451-52
(2000); Murray v. Carrier, 477 U.S. 478, 488-89 (1986).
Petitioner cannot meet the second requirement. As discussed
infra, counsel's omission does not support a finding of
ineffective assistance of counsel which would show good cause for
failing to raise the issue at trial. Petitioner fails to show
cause and prejudice for failing to raise the claim at trial. Nor
does he present proof of actual innocence based on "new, reliable
evidence" not presented at trial. Therefore, this claim is

6

procedurally barred from the court's review.

Petitioner is not

entitled to relief under his first ground.
Under his second ground, petitioner claims there is no
evidence that he used or exhibited a deadly weapon.

(Pet. 6, doc.

1.) In reviewing a sufficiency-of-the-evidence claim, the
applicable standard, as determined by the United States Supreme
Court, is "whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Applying the Jackson standard, and applicable state law, the
state appellate court addressed this claim as follows:
Deadly Weapon

[Petitioner] claims that the evidence is
insufficient to support the jury's finding that he used
or exhibited a deadly weapon, whether his hands or the
boxed television set. He correctly asserts that there
must be evidence in the record to establish that the
manner he used or intended to use his hands or the
television was capable of causing death or serious
bodily injury. [Petitioner] contends, however, that
"[o]n the record in this case, there is no evidence
supporting a deadly weapon finding."
Both sides agree that, in assessing the
sufficiency of the evidence to support a deadly-weapon
finding, an appellate court must review all the
evidence in the light most favorable to the verdict in
order to determine whether any rational trier of fact
could have found the finding beyond a reasonable doubt.
The State points out that a person who uses a
weapon to illegally assault another person must take
his victim as he finds them. The State argues that
given Bruce's serious pre-existing health condition,

7

the evidence is sufficient for a rational factfinder to
conclude that [petitioner] used his hands or the
television set in such a manner that they were capable
of causing death or serious bodily injury.
The evidence showed that [petitioner] was
thirty-seven years old, six feet tall, and weighed 200
pounds. When he ran into Bruce, he was carrying a boxed
26-inch television set. The collision caused Bruce to
fall to the concrete floor and hit his head. When
paramedics arrived, they noticed Bruce had bumps and
bruises on his head. Bruce's wife testified that Bruce
had been feeling pretty good that morning when he went
to work, but an officer that arrived after [petitioner]
knocked Bruce to the floor testified that Bruce
appeared disoriented.
The medical examiner testified that Bruce's
injuries did not significantly contribute to his
death-he suffered a skull fracture and a brain bruise
with bleeding-but in light of his late-stage liver
disease, the push or strike from [petitioner] that led
to his injuries was capable of causing death or serious
bodily injury. He also testified as follows:
Q.
[Prosecutor] For someone with a
compromised system such as you found with Mr.
Florence, are the injuries that you see
capable of becoming, therefore, the traumatic
brain injury?
A.
There was a significant risk that he
would continue to bleed at a later time, yes.
I think that his demise from his liverdirectly from his liver disorder occurred
before these injuries developed further.
Q.
And, therefore, would the blow that-the
push or strike that produces such these
injuries be capable of causing death or
serious bodily injury, sir?
A.
yes.

In theory,

in a person of his condition,

Q.

Without reiterating, the injuries that

8

Bruce Florence sustained in his compromised
condition, you testified that they were
capable of causing death or serious bodily
injury given his compromised conditions,
correct, sir?
A.
He was certainly elevated risk for
developing complications that could have been
lethal, yes.
The medical examiner further testified that Bruce
was at a significant risk for internal bleeding, which
could have been precipitated from something as simple
as shaking his head, lowering his head to a pillow, or
plopping down into a chair. And, as the State points
out, the fact that Bruce succumbed to his liver disease
before he succumbed to the injuries caused by
[petitioner] running over him does not preclude a
rational finding that [petitioner) used his hands or
the television set in a manner capable of causing death
or serious bodily injury. The State was not required to
show that Bruce actually suffered serious bodily
injury, only that [petitioner) used his hands or the
television in a manner that was capable of causing
serious bodily injury.
In determining whether an object is a "deadly
weapon,u a jury may consider (1) the physical proximity
between the alleged victim ,and the object, (2) any
threats or words used by the accused, (3) the size and
shape of the object, (4) the potential of the object to
inflict death or serious injury, and (5) the manner in
which the accused allegedly used the object. Here, the
jury had the benefit of watching a video that showed
how [petitioner) used his hands or the television set
when he collided with Bruce. The evidence showed that
[petitioner) pushed Bruce with his hand as he ran
through him carrying a boxed television set, and there
was testimony that [petitioner) placed his hand
directly on Bruce's chest as he did so. The proximity
factor, therefore, weighs in favor of the deadly-weapon
finding. There is no evidence of any threats or words
used by [petitioner); the only eyewitness is deceased,
and the videotaped recording of the event had no audio.
Regarding size of the object and its potential to
inflict death or serious bodily injury, [petitioner) is
not a small man; he stood between five feet eleven
inches and six feet tall, and weighed approximately 200

9

pounds. The television had a twenty-six inch screen,
and there was no testimony regarding its weight. Still,
the jury could reasonably conclude that a man of
[petitioner]'s size, carrying a television set while
running into another man of compromised health could
mete out serious injury with his hands or the set.
Finally, regarding the manner in which [petitioner]
allegedly used his hands or the television set, he ran
into Bruce, who was sickly, and pushed him down to a
concrete floor, where he hit his head, became
disoriented, and had to go to the hospital, where he
died a few days later. Viewed in the light most
favorable to the verdict, a rational jury could have
combined the evidence from the video and the testimony
of the witnesses, including that of the medical
examiner, to conclude that [petitioner] used a deadly
weapon. We hold, therefore, that the evidence in this
case is sufficient to sustain the jury's deadly-weapon
finding.
(Mem. Op. 7-11, doc. 12-3.)
Petitioner has not shown that the state court's adjudication
of the claim, including its application of the Jackson standard,
is contrary to, or involves an unreasonable application of
federal law, as determined by the United States Supreme Court, or
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence, and any
reasonable inferences to be drawn therefrom.
Petitioner contends that the medical examiner's testimony
that his hand or the boxed television set could, "in theory," be
used in a manner capable of causing serious bodily injury or
death was not enough to establish that his hand or the television
were actually capable of causing serious bodily injury or death.
(Pet'r's Mem. 14-15, doc. 7.) While a hand or a boxed television

10

are not deadly weapons per se, the evidence, as analyzed by the
appellate court, and viewed in the light most favorable to the
guilty verdict, was such that a rational jury could have found
beyond a reasonable doubt that the weapon alleged in the
indictment--a hand or a television set, were used in a manner
which placed other persons in his path in actual, rather than
merely hypothetical, danger. The state court's disposition of the
claim is consistent with Jackson. Petitioner is not entitled to
relief under his second ground.
(3) Ineffective Assistance of Counsel

Under his third ground, petitioner claims he received
ineffective assistance of counsel at trial.

(Pet. 7, doc. 1.) A

criminal defendant has a constitutional right to the effective
assistance of counsel at trial. U.S. CoNST. amend. VI, XIV;
Strickland v. Washington,

466 U.S. 668,

688

(1984). 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 assistance.
Id. at 668,

688-89. Judicial scrutiny of counsel's performance

must be highly deferential and every effort must be made to

11

eliminate the distorting effects of hindsight.

Id. at 689.

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 courts have adjudicated the ineffectiveassistance claims on the merits, this court must review the
petitioner's claims under the "doubly deferential" standards of
both Strickland and§ 2254(d). Cullen v. Pinholster, 563 U.S.
170, 190 (2011); Richter, 562 U.S. at 105. 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.
Petitioner claims that his trial counsel was ineffective in
the following respects:
(1)

failing to object to the state's incorrect
statement of the law in final argument concerning
when the jury was to consider the lesser included
offense;

(2)

failing to object to the lack of clarity in the
jury instructions on when the lesser included
offenses were to be considered;

(3)

failing to make a constitutional challenge to the
deadly-weapon finding; and

(4)

failing to object that the state's video expert
should not have been allowed to testify because
this was not a legitimate basis of expert
testimony.
12

(Pet. 7, doc. 1.)
The fourth claim was raised on direct appeal and the state
appellate court, applying the Strickland standard, and
acknowledging that the record was silent regarding counsel's
reasons for not "pursuing every conceivable objection to the
State's expert," addressed the claim as follows:
[C]ounsel's strategy is obvious. In his opening
statement counsel told the jurors that they would be
able to see for themselves from the video that
[petitioner] did not intentionally run into Bruce, but
rather that their "feet trip[ped] over each other." And
as the following excerpt from counsel's closing
argument makes clear, the strategy of playing the video
of [petitioner]'s collision with Bruce "frame by frame"
allowed counsel to argue that the State's analyst's
testimony is based on "junk science."
Ladies and gentlemen of the jury, one of
the things that came out in this trial is
words from Bruce Florence's own mouth. This
was a freak accident is what he told Mrs.
Florence. And we're going to play that video
back for you and stop it frame by frame. And
that was not done by the D.A.'s employee who
called himself a video expert. Didn't take
any pictures for you to say he's viewing this
video.
Why doesn't he have some evidence? It's
like junk science. There's no evidence. He's
just saying, I see the video, and that's the
way I see it. Kind of like Detective Moore. I
see the video, this is [the] way I see it.
Well, you can see it just as good as they can
see it. And you can see it even better
because we'll slow it down.
But he provided you no pictures for his
basis. He provided you no slower video or
frame-by-frame video, and that's junk
science. He said you can see what you can see
just as good as he can. He's watching the
13

same video set. But you'll see it better
because we'll slow it down. He may have
slowed it down, too. He didn't testify to
that.
Counsel then replayed the video for the jury and
acknowledged that it showed, as the State's expert had
testified, that [petitioner] had pushed Bruce with his
hand. But as he suggested in his opening statement,
counsel used the video to argue that [petitioner] was
not guilty of aggravated robbery, only theft, because
he did not intentionally push Bruce down, merely
tripped over him:
Watch him go over to the left and cut
off and come back to the right. And you can
certainly see a pushing of the hand. But you
see their feet are close together.
[Petitioner] is tripping and falling forward.
And he is guilty today, there's no doubt
about that; guilty of felony theft. We can
see that with the intent to steal.
. He
acquired that TV with intent to steal, just
unsuccessful. That's not a defense. He's
guilty of felony theft. He pled guilty of
felony theft yesterday of the Target theft.
So he's not trying to get [off] Scott free
here. He's already got a felony theft
yesterday, asking for another felony theft
today.
Counsel also noted that the State brought three
witnesses to testify about what they thought the video
showed and counsel argued that although the defense
could have hired its own witnesses to testify that
[petitioner] tripped, what the video actually showed
was for the jury to decide.
A strategy is not outrageous simply because it
fails to produce an acquittal. Here, counsel reasonably
could have calculated that the risk of not making the
objections appellate counsel now faults him for not
making was outweighed by the payoff of playing the
video for the jury, slowly, frame-by-frame, and arguing
that the State's expert opinion was based on junk
science.

14

Although we need not recognize any strategy behind
an attorney's actions during trial to determine an
ineffective-assistance claim, in this case, counsel's
strategy is both obvious and reasonable. Moreover, we
refuse to second guess counsel's trial strategy simply
because it failed to result in an acquittal.
Accordingly, on the record presented here, we cannot
say that [petitioner] received ineffective assistance
(Mem. Op. 3-7, doc. 12-3 (citations omitted).)
Based on the documentary record and his own recollection of
the trial court proceedings, the state habeas judge entered the
following findings of fact regarding all four claims:
9. The jury charge instructed the jury as follows:
Unless you so find beyond a reasonable doubt,
or if you have a reasonable doubt thereof,
you will acquit the Defendant of the offense
of aggravated robbery and proceed to consider
whether the defendant is guilty of the lesser
included offense of robbery.
10.

The jury charge in this case is the same as the
charge that was approved of [by the Texas Court of
Criminal Appeals] in Barrios v. State, 283 S.W.3d
348, 349, 353 (Tex. Crim. App. 2009).

11.

Because the jury charge was proper, there is a
plausible basis in strategy or tactics for not
objecting to it.

12.

No reasonable likelihood exists that the outcome
of the proceeding would have been different had
counsel objected to the jury charge.

13.

During closing,
~only if all 12
[petitioner] is
then you are to
of robbery."

the State argued to the jury that
of you unanimously agree that this
not guilty of aggravated robbery,
next consider whether he's guilty

14.

During closing,

[petitioner]'s counsel argued;

15

In reality, if you turn on your Court's
Charge to Page 9, you don't even have to
consider that page because we're not asking
you to find him not guilty. We're asking you
to find him guilty of a lesser-included
offense on Page 8 at the bottom of the page,
the presiding juror, that he's guilty of
theft. Because that's what he did; he stole a
television set that day.
15.

The jury was advised that their verdict must be
unanimous.

16.

The jury reached their decision in less than three
hours.

17.

It is reasonable that the trial court would only
have instructed the jury to "follow the law in the
jury charge" if counsel had objected to the
State's argument.

18.

There is no evidence that a reasonable likelihood
exists that the outcome of the proceeding would
have been different had counsel objected to the
State's argument.

19.

Counsel did not raise a constitutional challenge
in the trial court as to the deadly weapon finding
in this case.

20.

There was evidence that [petitioner] intentionally
pushed the victim down onto the concrete floor in
an attempt to escape with the television.

21.

There was evidence that [petitioner] intended to
use his hands and the television box to make
contact with the victim and push him out of the
way.

22.

There was evidence that [petitioner] was a large
man carrying a large box when he pushed the victim
down.

23.

There was evidence that the victim suffered a
skull fracture as a result of [petitioner] pushing
him down.

24.

Due to his size and his actions, there was
16

evidence that [petitioner]'s hands and television
box were capable of causing serious bodily injury
or death.
25.

Because there was evidence to support that
[petitioner] intended to use his hands and the
television box in a way capable of causing serious
bodily injury or death, a due process challenge to
the deadly weapon finding would have been
frivolous.

26.

There is a plausible basis in strategy or tactics
for not raising a due process challenge.

27.

No reasonable likelihood exists that the outcome
of the proceeding would have been different had
counsel objected to the deadly weapon finding on
the basis of denial of due process.

28.

The Second Court of Appeals held that trial
counsel's strategy for not objecting to the video
expert testimony was obvious and reasonable.

29.

[Petitioner] presents no additional evidence
regarding whether counsel should have objected to
the video expert testimony.

30.

There is a plausible basis in strategy or tactics
for the alleged misconduct.

31.

No reasonable likelihood exists that the outcome
of the proceeding would have been different but
for the alleged misconduct.

(SHR 72-74, doc. 14-10 (all other citations omitted).)
Based on its factual findings, and applying the Strickland
standard and relevant state law, the state habeas judge entered
the following legal conclusions:
23.

Barrios v. State held that a jury instruction like
the one given here was proper.

24.

[Petitioner] has failed to prove that counsel
should have objected to the jury charge or
requested a clarification.
17

25.

"A facial challenge is based solely upon the fact
of the penal statute and the charging instrument,
while an applied challenge depends upon the
evidence adduced at a trial or hearing."

26.

The elements of a state offense are a matter of
state law.

27.

In Texas, a "deadly weapon" is statutorily defined
as:
(A) a firearm or anything manifestly
designed, made, or adapted for the purpose of
inflicting death or serious bodily injury; or
(B) anything that in the manner of its use or
intended use is capable of causing death or
serious bodily injury.

28.

A culpable mental state may be established through
circumstantial evidence.

29.

"The [deadly weapon] provision's plain language
does not require that the actor actually intend
death or serious bodily injury; an object is a
deadly weapon if the actor intends a use of the
object in which it would be capable of causing
death or serious bodily injury."

30.

"[T]he deadly weapon element of an aggravated
robbery charge does not carry a separate culpable
mental state, nor is it required to carry one.
Only each offense is required to have a culpable
mental state, not each element of an offense."

31.

Based on the legal authority at the time, and the
applicable evidence, a decision to not raise a due
process challenge to the deadly weapon finding on
the basis that [petitioner] did not know that he
was using an item capable of causing serious
bodily injury or death would have been the result
of reasonable trial strategy.

35.

"[S]pecific allegations of deficient attorney
performance that were rejected on direct appeal
are not cognizable on habeas corpus as part of a
larger ineffective assistance of counsel claim

18

when the defendant does not offer additional
evidence to support that specific claim of
deficient performance in the habeas proceeding.
36.

Because the specific allegation that counsel was
ineffective for failing to object to the video
expert testimony, and [petitioner] fails to
present any additional evidence for support, it is
not cognizable in this application for writ of
habeas corpus.

37.

Because there is a plausible basis in strategy or
tactics for the alleged actions, no affidavit is
needed from trial counsel.

38.

[Petitioner] has failed to prove that counsel's
representation fell below an objective standard of
reasonableness.

39.

A party fails to carry his burden to prove
ineffective assistance of counsel where the
probability of a different result absent the
alleged deficient conduct sufficient to undermine
confidence in the outcome is not established.

40.

"[A] court need not determine whether counsel's
performance was deficient before examining the
prejudice suffered by the defendant as a result of
the alleged deficiencies. The object of an
ineffective claim is not to grade counsel's
performance. If it is easier to dispose of an
ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often
be so, that course should be followed."

41.

[Petitioner] has failed to show that there is a
reasonable probability .
. that the result of
the proceeding would have been different had
counsel objected to the State's closing argument
regarding the jury charge.

42.

[Petitioner] has failed to show that there is a
reasonable probability .
. that the result of
the proceeding would have been different had
counsel objected to the jury charge.

43.

[Petitioner] has failed to show that there is a
reasonable probability .
. that the result of
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the proceeding would have been different had
counsel requested a jury instruction
clarification.
44.

[Petitioner] has failed to show that there is a
reasonable probability .
. that the result of
the proceeding would have been different had
counsel raised a constitutional challenge to the
deadly weapon finding or the finding of guilty of
aggravated robbery with a deadly weapon.

45.

[Petitioner] has failed to show that there is a
reasonable probability .
. that the result of
the proceeding would have been different had
counsel objected to the video expert testimony.

46.

[Petitioner] has failed to show that there is a
reasonable probability that, but for the alleged
acts of misconduct, the result of the proceeding
would have been different.

47.

[Petitioner] has failed to prove that he received
ineffective assistance of trial counsel.

(Id. at 77-80

(citations omitted).)

The Texas Court of Criminal Appeals, in turn, denied relief
based on the trial court's findings.
correctness of the state courts'

Relying on the presumptive

factual findings, 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's claims are conclusory, with no legal and/or
evidentiary basis, involve matters of state law or strategic and
tactical decisions made by counsel, or would have required
counsel to make frivolous or futile objections, all of which

20

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 post-conviction relief on the grounds
of ineffective assistance of counsel); Johnson v. Cockrell, 306
F.3d 249, 255

(5th Cir. 2002)

(concluding that counsel is not

required to make futile motions or frivolous objections); Green
v. Johnson, 160 F.3d 1029, 1037, 1042 (5th Cir. 1998)

("[m]ere

conclusory allegations in support of a claim of ineffective
assistance of counsel are insufficient to raise a constitutional
issueu and "counsel is not required to file frivolous motions or
make frivolous objectionsu) . 3
Petitioner presents no evidentiary, factual, or legal basis
in this federal habeas action that could lead the court to

3
Although respondent agrees that the state's misstatement of the law in
closing argument was objectionable, she asserts that no prejudice resulted
from counsel's failure to object, which is the same conclusion reached by the
state habeas court. (Resp't's Answer 20, doc. 15.) Improper prosecutorial
argument does not present a constitutional claim cognizable on federal habeas
review unless, in the context of the entire trial, such argument was "so
prejudicial that the petitioner's state court trial was rendered fundamentally
unfair within the meaning of the Fourteenth Amendment Due Process Clause."
Ward v. Whitley, 21 F.3d 1355, 1364 (5th Cir. 1994); Felde v. Blackburn, 795
F.2d 400, 403 (5th Cir. 1986). To establish that a prosecutor's jury argument
is fundamentally unfair, "the petitioner must demonstrate either persistent
and pronounced misconduct or that the evidence was so insubstantial that (in
probability) but for the remarks no conviction would have occurred." Byrne v.
Butler, 845 F.2d 501, 507 (5th Cir. 1988); Blackburn, 795 F.3d at 403.
Assuming, without deciding, that the prosecutor's argument was a misstatement
of the law, the improper argument did not render petitioner's trial
fundamentally unfair. The challenged prosecutorial argument was an isolated
statement, not repeated or persistent misconduct. (Reporter's R. 1 vol. 4, 55,
doc. 12-7.) The ample evidence presented in this case regarding guilt was not
so insubstantial that but for this one misstatement petitioner would not have
been convicted. Therefore, despite the impropriety of the argument, it was not
so prejudicial that it rendered petitioner's trial fundamentally unfair.

21

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). Thus, he fails to overcome the
"doubly" deferential standard that must be accorded counsel in
the context of§ 2254(d).
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.
SIGNED

April~'

2018.

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