Schermerhorn v. Davis-Director TDCJ-CID
Filing
37
OPINION AND ORDER: For the reasons discussed, the Court DENIES Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has not made a showing that reasonable jurists would question this Court's resolution of his constitutional claims. Therefore, a certificate of appealability should not issue. (Ordered by Senior Judge Terry R Means on 8/17/2018) (tln)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
RONALD FAY SCHERMERHORN JR.,
Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.
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No. 4:17-CV-559-Y
OPINION AND ORDER
Before the Court is a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 filed by petitioner Ronald Fay
Schermerhorn, a state prisoner, against Lorie Davis, director of
the Texas Department of Criminal Justice, Correctional Institutions
Division, Respondent. After having considered the pleadings and
relief sought by Petitioner, the Court has concluded that the
petition should be denied.
I.
FACTUAL AND PROCEDURAL HISTORY
Petitioner was indicted in Criminal District Court Number
Four, Tarrant County, Texas, in Case No. 1323955R, for continuous
sexual abuse of Q.S., a child younger than 14 years of age.
(Clerk’s R. 6, doc. 30-5.) On July 9, 2013, a jury found him guilty
of the offense and, on July 10, assessed his punishment at life
imprisonment. (Id. 78, 84, doc. 30-5.) Petitioner appealed his
conviction, but the Eighth 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 certiorari. (Electronic R., doc.
30-1.) Petitioner also filed a postconviction state habeas-corpus
application challenging his conviction, which was denied by the
Texas Court of Criminal Appeals without written order on the
findings of the trial court. (WR-86,330-01 Clerk’s R. 2-17, doc.
30-23; Action Taken, doc. 30-17.)
The testimony at trial reflects that Petitioner and his family
befriended Q.S.’s family while camping. Thereafter, Q.S. and her
brother often spent nights with Petitioner’s grandchildren at his
camper and his home. Petitioner began to engage in sexual activity
with Q.S. in 2006 when she was 9 years old and the abuse continued
until she was 12 or 13.
II.
ISSUES
Petitioner raises the following five grounds for relief:
(1)
his
conviction
constitutes
application of the state’s
assault statute;
(2)
improper pleading in the indictment and the jury
charge violates due process;
(3)
he is actually innocent;
(4)
he received ineffective assistance of appellate
counsel; and
(5)
he
received
ineffective
2
an
ex-post-facto
continuous-sexual-
assistance
of
trial
counsel.
(Pet. 6-7, 11-14, doc. 1.)
Though Petitioner’s grounds are
multifaceted, they are addressed as thoroughly as practical below.
III.
RULE 5 STATEMENT
Respondent believes that Petitioner failed to exhaust his
state-court remedies as to one or more of his claims but does not
otherwise assert that the petition is untimely or successive.
(Resp’t’s Answer 4-5, doc. 32.) Notwithstanding a petitioner’s
failure to exhaust his state-court remedies as to a claim(s), a
court may deny a petition on the merits. 28 U.S.C. § 2254(b)(2).
IV.
STANDARD OF REVIEW
A § 2254 habeas petition is governed by the heightened
standard of review provided for by the Anti-Terrorism and Effective
Death Penalty Act (AEDPA). See 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. Id. § 2254(d)(1)–(2); Harrington v. Richter, 562 U.S. 86,
100-01 (2011). This standard is difficult to meet but “stops short
of imposing a complete bar on federal court relitigation of claims
already rejected in state proceedings.” Richter, 562 U.S. at 102.
3
Additionally, the AEDPA 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. Further, when the Texas
Court of Criminal Appeals denies relief in a state habeas-corpus
application without written order, it is “presumed that the state
court adjudicated the claim on the merits in the absence of any
indication or state-law procedural principles to the contrary.”
Richter, 562 U.S. at 99. In such a situation, a federal court may
assume the state court applied correct standards of federal law to
the facts, unless there is evidence that an incorrect standard was
applied. Townsend v. Sain, 372 U.S. 293, 314 (1963)1; Catalan v.
Cockrell,
315
F.3d
491,
493
n.3
(5th
Cir.
2002);
Valdez
v.
Cockrell, 274 F.3d 941, 948 n.11 (5th Cir. 2001); Goodwin v.
Johnson, 132 F.3d 162, 183 (5th Cir. 1997). A petitioner has the
burden of rebutting the presumption of correctness by clear and
convincing evidence. See 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).
In this case, the state habeas court entered findings of fact
and conclusions of law relevant to the majority of Petitioner’s
1
The standards of Townsend v. Sain have been incorporated into 28 U.S.C.
§ 2254(d). Harris v. Oliver, 645 F.2d 327, 330 n.2 (5th Cir. 1981).
4
claims and the Texas Court of Criminal Appeals adopted those
findings in denying relief. Petitioner has failed to rebut the
presumptive correctness of the state court’s factual findings with
clear
and
convincing
evidence;
thus,
this
Court
applies
the
presumption of correctness to those findings, including the court’s
credibility findings, in considering Petitioner’s claims.
See
Richards v. Quarterman, 566 F.3d 553, 563-64 (5th Cir. 2009);
Galvan v. Cockrell, 293 F.3d 760, 764 (5th Cir. 2002).
V.
A.
DISCUSSION
Ex-Post-Facto Violation
Under his first ground, Petitioner claims that the charges are
based on a statute enacted after the alleged offense began or was
committed,
in
violation
of
the
Constitution’s
ex-post-facto
prohibition. (Pet. 11, doc. 1; Pet’r’s Mem. 1-5, doc. 21.) Texas’s
continuous-sexual-abuse statute was effective on September 1, 2007.
See Act of May 17, 2007, 80th Leg., R.S., ch. 593, § 1.17, 2007
Tex. Gen. Laws 1122, 1129. The indictment alleged offense dates of
on or about September 15, 2007, to August 31, 2010. (WR-86,330-01
Clerk’s R. 347, doc. 30-24.)
A state is prohibited from enacting an ex-post-facto law. U.S.
CONST., art. I, § 10. “The critical question [for an ex-post-facto
violation] is whether the law changes the legal consequences of
acts completed before its effective date.” Carmell v. Texas, 529
5
U.S. 513, 520 (2000) (quoting Weaver v. Graham, 450 U.S. 24, 31
(1981)). The Ex-Post-Facto Clause prohibits any law that: (1) makes
an act done before the passing of the law, which was innocent when
done, criminal; (2) aggravates a crime and makes it greater than it
was when it was committed; (3) changes the punishment and inflicts
a greater punishment for the crime than when it was committed; or
(4) alters the legal rules of evidence and requires less or
different testimony to convict the defendant than was required at
the time the crime was committed. Carmell, 529 U.S. at 522.
Relying on Carmell, the state habeas court concluded that
because the alleged offenses occurred after the effective date of
the statute, Petitioner failed to prove an ex-post-facto violation.
(Id. at 357.)
The
state
court’s
decision
is a reasonable
application of Carmell. Petitioner’s sexual abuse of Q.S. continued
through at least August 31, 2010, well after the effective date of
the statute, and he was neither charged nor convicted of any acts
of abuse that were innocent when committed. Thus, application of
the continuous-sexual-abuse statute to Petitioner’s conduct does
not implicate the Ex Post Facto Clause.
B.
Due-Process Violation
Under his second ground, Petitioner claims that his right to
due process was violated because of “improper pleading” in the
indictment and the court’s charge. (Pet. 6, doc. 1.) Specifically,
he asserts that the indictment failed to give him fair notice of
6
the charges against him because it was confusing and unclear by
“intermix[ing] charges and elements” in one count and that he was
arraigned and pleaded “not guilty” to the offense of aggravated
sexual assault of a child, not continuous sexual abuse of a child.
(Id. at 11.) As determined by the state court, the latter claim is
refuted by the record. (Reporter’s R., vol. 2, 4-5, doc. 30-7 &
vol. 3, 9-10, doc. 30-8.)
As a matter of federal constitutional due process, a criminal
defendant is entitled to notice of the charges against him so that
he can prepare a trial defense. See Ables v. Scott, 73 F.3d 591,
593–04 (5th Cir. 1996) (citing Cole v. Arkansas, 333 U.S. 196, 201
(1948)); McKay v. Collins, 12 F.3d 66, 69 (5th Cir. 1994). Under §
21.02 of the Texas Penal Code, a person commits an offense, then
and now, if “during a period that is 30 or more days in duration,
the person commits two or more acts of sexual abuse” and “at the
time of the commission of each of the acts of sexual abuse, the
actor is 17 years of age or older and the victim is a child younger
than 14 years of age.” TEX. PENAL CODE ANN. § 21.02(b)(1)-(2) (West
Supp. 2014). An “act of sexual abuse” is defined, among other
things, as any act of indecency with a child or aggravated sexual
assault of a child under penal code §§ 21.11(a)(1) and 22.021. Id.
§ 21.02(c)(2), (4).
Petitioner’s indictment alleged that on or about September 15,
2007, through August 31, 2010, he—
7
did intentionally or knowingly during a period of time
that is 30 days or more in duration, commit two or more
acts of sexual abuse, to wit: aggravated sexual assault
of a child under 14, by causing the sexual organ of
[Petitioner] to contact the sexual organ of Q.S., and/or
by causing the penetration of the sexual organ of Q.S. by
inserting his finger into her sexual organ, and/or by
causing the sexual organ of Q.S. to contact the mouth of
[Petitioner], and/or indecency with a child by causing
Q.S. to contact the genitals of [Petitioner], and/or by
[Petitioner] touching the genitalis of Q.S. . . .
(WR-86,330-01 Clerk’s R. 371, doc. 30-24.)
Although the state habeas court did not specifically address
Petitioner’s due-process claim, the indictment gave Petitioner
constitutionally adequate notice of the charges against him. State
law is clear that an indictment may allege different manners or
means of committing a single offense in the same paragraph. See
Marinos v. State, 186 S.W.3d 167, 175 (Tex. App.-Austin 2006, pet.
ref’d). In charging an offense for continuous sexual abuse of a
child, the state is not required to allege the specific manner and
means by which the defendant allegedly committed the predicate
offenses or the specific number and dates of the sexual acts to
provide adequate notice. See Jacobsen v. State, 325 S.W.3d 733, 738
(Tex. App.-Austin 2010). The indictment here tracks the applicable
statutory language by alleging each element of the offense of
continuous sexual abuse of a child. The indictment also alleges the
different means by which Petitioner was alleged to have committed
the offense of continuous sexual abuse of a child by listing the
specific acts of sexual abuse allegedly committed by him, and the
8
acts listed constitute an “act of sexual abuse” under the statute.
Further, the indictment alleged a time of commission after the
effective date of the continuous-sexual-abuse statute.
Petitioner also claims that his right to due process was
violated because the jury charge did not require jury unanimity on
which specific acts of sexual abuse were committed by Petitioner or
the exact date when those acts were committed. (Pet’r’s Mem. 6-9,
doc. 21.) He also complains of the inclusion of instructions on the
separate offenses of aggravated sexual assault of a child and
indecency with a child as alternatives to an acquittal. (Pet. Mem.
6-9, doc. 21.)
Improper jury instructions in state criminal trials generally
do not provide a basis for federal habeas-corpus relief. See
Estelle v. McGuire, 502 U.S. 62, 71-72 (1991)(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, 637-38 (1993).
The continuous-sexual-abuse statute expressly provides that
“[i]f a jury is the trier of fact, members of the jury are not
required to agree unanimously on which specific acts of sexual
abuse were committed by the defendant or the exact date when those
acts were committed.” TEX. PENAL CODE ANN. § 21.02(d) (West Supp.
9
2014). Nor was it improper for the jury to be instructed on the
predicate offenses of aggravated sexual assault of a child and
indecency with a child. Both offenses are specifically enumerated
under § 21.02(c) and are lesser-included offenses of the offense of
continuous sexual abuse. See Price v. State, 434 S.W.3d 601, 606
(Tex. Crim. App. 2014). Thus, the jury instructions were proper as
a matter of state law, and Petitioner presents no persuasive
argument that, even if wrong, the instructions had a substantial
and injurious effect or influence on the jury’s verdict.
C. Actual Innocence
Under his third ground, Petitioner claims that he is actually
innocent of the offense. (Pet. 7, 12, doc. 1.) “Actual innocence”
is 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 (5th Cir. 2006); Dowthitt v. Johnson, 230 F.3d 733, 741-42
(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 it does,
such a claim is not cognizable on federal habeas review. Moreover,
to establish actual innocence, a petitioner “must support his
allegations with new, reliable evidence that was not presented at
trial and show that it was ‘more likely than not that no reasonable
juror would have convicted him in the light of the new evidence.’”
10
Fairman v. Anderson, 188 F.3d 635, 664 (5th Cir. 1999) (quoting
Schlup v. Delo, 513 U.S. 298, 327 (1995)); accord Finley v.
Johnson, 243 F.3d 215, 221 (5th Cir. 2001). Petitioner merely
asserts a lack of evidence as the basis for this claim and offers
no new, reliable evidence sufficient to refute the jury’s verdict.
D. Ineffective Assistance of Counsel
Under his fourth and fifth grounds, Petitioner claims that he
received ineffective assistance of trial and appellate counsel. A
criminal defendant has a constitutional right to the effective
assistance of counsel at trial and on the first appeal as of right.
U.S. CONST. amend. VI, XIV; Evitts v. Lucey, 469 U.S. 387, 396
(1985); Strickland v. Washington, 466 U.S. 668, 688 (1984). To
establish ineffective assistance of counsel a petitioner must show
(1) that counsel’s performance fell below an objective standard of
reasonableness and (2) that but for counsel’s deficient performance
the result of the proceeding would have been different. Strickland,
466 U.S. at 688. Both prongs of the Strickland test must be met to
demonstrate ineffective assistance. Id. at 687, 697.
In
applying
this
test,
a
court
must
indulge
a
strong
presumption that counsel’s conduct fell within the wide range of
reasonable professional assistance or sound trial or appellate
strategy. Id. at 668, 688-89. Judicial scrutiny of counsel’s
performance must be highly deferential and every effort must be
11
made to eliminate the distorting effects of hindsight. Id. at 689.
Where
a
petitioner’s
ineffective-assistance
claims
have
been
reviewed on their merits and denied by the state courts, federal
habeas relief will be granted only if the state courts’ decision
was contrary to or involved an unreasonable application of the
Strickland standard in light of the state-court record. Richter,
562 U.S. at 100-01 (quoting Williams v. Taylor, 529 U.S. 362, 410
(2000)); Bell v. Cone, 535 U.S. 685, 698-99 (2002). Thus, a federal
court’s review of state-court decisions regarding ineffective
assistance of counsel must be “doubly deferential” so as to afford
“both the state court and the defense attorney the benefit of the
doubt.” Burt v. Titlow, 134 S. Ct. 10, 13 (2013) (quoting Cullen v.
Pinholster, 563 U.S. 170, 190 (2011)).
Under his fifth ground, Petitioner claims his trial counsel
were ineffective by failing to–
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
object to the indictment;
object to the court’s charge;
object to the state’s closing argument bolstering
its own witnesses’ credibility;
object to hearsay testimony from the state’s
medical expert;
interview and investigate witnesses;
investigate the case as a whole;
put forth any defense or defensive theory;
cross-examine all of the state’s witnesses;
present defense witnesses during the guilt/
innocence phase;
allow Petitioner to testify;
impeach the state’s medical expert;
obtain a medical expert for the defense; and
file a motion for new trial during trial due to
errors of the trial court.
12
(Pet. 7, 14, doc. 1.)
The state habeas court conducted a hearing by affidavit, and
lead counsel Terry John Barlow, an experienced and board-certified
criminal-defense attorney, responded to the allegations as follows
(all spelling, grammatical, and/or punctuation errors are in the
original):
[I]n May of 2011 [Petitioner] had employed the firm to
represent him in connection with accusations of sexual
assaults on children and I was assigned to the cases as
lead counsel. Although initially there were two cases,
over time two additional cases were filed against
[Petitioner], raising the total to four, and each with a
separate alleged child victim. The cases were as follows:
Cause Number 1243959-Indecency Fondling;
Cause Number 1249555-Sexual Abuse of a Child Under
l4-Continuous;
(NOTE: This case was later re-indicted as
Cause Number 1323955)
Cause Number 1280534-Indecency Fondling;
Cause Number 1280537-Indecency Fondling;
Cause Number 1323955-Sexual Abuse of a Child Under
14-Continuous;
(NOTE: A re-indictment of Cause Number
1249555. This was the case that would
eventually be brought to jury trial)
From June 2011 through July 2013 I attended a total of 21
court settings with my client. At these settings
[Petitioner] was invariably accompanied by his wife Candy
Schermerhorn, who was heavily involved with the cases. At
these settings I would discuss the cases with the
assigned prosecutors and after we were excused by the
court would spend from several minutes to a half-hour or
more discussing the day’s events with the Schermerhorns.
In addition I spoke with them personally over the phone
13
over 21 times and met with them at the office at least 5
times for lengthy sessions. I also had separate meetings
outside of the court settings with the prosecutors on at
least 3 occasions. During this time we had also obtained
full discovery from the District Attorney’s office,
including offense reports, witness statements, medical
records, and so forth, and had discussed the contents of
these at the meetings with the Schermerhorns.
After review of the discovery and following consultation
with [Petitioner] it became very apparent that the major
issue in defending him would be the sheer number of
alleged injured parties. [Petitioner] was facing three
2nd degree felony cases for Indecency with a Child and a
25 to life case for Continuous Sexual Abuse of a Child,
with potential stacking implications depending on how the
State chose to proceed. Another major issue was that even
if the State chose to try one case at a time (which again
would raise the reasonable probability that the judge
might stack any sentences), we would have to be extremely
careful at trial not to open the door to any extraneous
offenses including those pending trial.
To summarize in general, the allegations were that over
a course of time, [Petitioner] had regular and routine
contact with all the alleged injured parties. These
contacts consisted of allowing them either individually
or severally into his home on a frequent basis providing
them with food and sweets, taking them on trips, buying
them expensive gifts, and engaging with them on a variety
of occasions. Most significantly, the vast majority of
these encounters occurred with either no other adult
present, or less frequently with his wife present but
asleep or leaving to run errands. One particular
allegation of note was that [Petitioner] engaged in a
“hot-tub party” with several of the victims. The sexual
assaults were alleged to have occurred during these
activities.
When questioned about these circumstances, [Petitioner]
never denied the multiple encounters and events mentioned
above, but only denied committing the sexual assaults
alleged. In other words there were multiple times and
places where the sexual assaults could have occurred, but
they were so frequent and numerous that it would be
difficult to find time and place discrepancies in the
victim’s stories. In addition [Petitioner]’s activities
would certainly be characterized by the prosecution as
14
grooming, even more so since some of the activities (such
as the hot-tub party) were at best questionable
decisions. Finally, [Petitioner] could never explain why
4 children for whom he had done nothing but good things
would suddenly turn on him and all 4 make various
allegations of sexual abuse.
After a thorough review of all the evidence and after
several consultations with [Petitioner] I strongly
recommended that he allow me to seek a plea bargain. The
initial offer from the state in October 2011 was 30 years
on the Continuous case with plea bargains on the
Indecency cases to run concurrent. This offer was
rejected by [Petitioner], who authorized me to seek a
probation plea offer. The State had strongly indicated to
me that they would never be offering a probated sentence,
but in September 2012 I was able to negotiate a 16 year
sentence wherein the State would dismiss the Continuous
case and allow the client to plead guilty to the
Indecency cases. In a meeting with [Petitioner] I
indicated to him that I had the reasonable belief that I
could talk the State into a something in the 12-to-15
year range if he agreed to allow me to seek it. I told
him again and again that a likely outcome of a trial on
the Continuous case would be a life sentence and begged
him to strongly consider something in the 12-to-15 year
range. He refused, however, and eventually the offer was
withdrawn. [Petitioner] stated to me that the reason for
his rejection was that any pen-time offer was a “death
sentence” for him, and there was nothing I could do to
persuade him to take any sort of offer which would result
in pen time.
During final pre-trial preparations [Petitioner] was
adamant that he did not want to testify, and I was in
agreement with this, as I felt that, due to his
appearance, demeanor, and lack of any sort of reasonable
explanation for his overall conduct, he would make a poor
witness. I was also very concerned that if he did testify
he would very likely open the door to the other
extraneous offenses. I did thoroughly advise him of his
rights in that regard, and that it was his decision, but
he never indicated any desire to testify, either then or
at any time during the trial.
Part of the pre-trial preparations included discussing
potential witnesses for the defense. Candy Schermerhorn
was a potential witness, but the issue with her was that
15
if she testified it would only serve to confirm the
multiple opportunities [Petitioner] was alone with the
alleged victims and the circumstances of what the
prosecution would characterize as grooming. In addition
she was not particularly keen about testifying, and again
I was in agreement with this, in part due to her
appearance and demeanor but also because other than to
deny that she ever saw an offense committed she would per
force have to confirm virtually every circumstance of the
prosecution’s
case.
The
potential
testimony
of
[Petitioner]’s grandson Micah was also discussed, but it
was ultimately decided that putting a child on to say
that he never saw the sexual assaults of other children
was not in either [Petitioner]’s nor Micah’s best
interest. We did discuss punishment witnesses and of
course these were prepared and eventually called at
trial.
In his writ [Petitioner] makes numerous claims, many of
which are directly contradicted by the record. For
example, he complains that he never pled “Not Guilty” to
the charge of Continuous Sexual Abuse when in fact he
did. He states that the charge mentions extraneous
offenses when it is actually a standard extraneous
offense instruction. He further claims that objections
were not made during closing argument when indeed several
were made and one was the subject of the appeal filed by
his appellate counsel.
[Petitioner] goes on to claim ineffectiveness of counsel
due to the lack of cross examination of Detective
Martinez. While true, the reason for it was that
Detective Martinez’ testimony as given did not hurt
[Petitioner]’s case. Throughout the discovery process it
was learned that Detective Martinez did have potentially
damaging information that he did not testify about at
trial, so a prudent strategy was to simply not open the
door through cross examination.
[Petitioner] also complains of the lack of a defense
medical expert and about the cross examination of Araceli
Desmarais [the sexual assault nurse examiner]. The idea
of employing a medical expert was discussed pre-trial in
detail, particularly since there were virtually no
physical findings consistent with sexual assault. It was
decided by the Schermerhorns that the expense of
employing a defense medical expert to review prosecution
evidence that was arguably favorable to the defense was
16
not necessary. Ms. Desmarais did testify regarding
hearsay given by the alleged victim during the course of
medical treatment, but this was of course admissible.
Finally, on cross examination Ms. Desmarais did concede
that someone who had been sexually assaulted hundreds of
times would likely have some physical findings.
In summary, the defense was the best that could be done
under difficult circumstances. The defense was hamstrung
due to the number of alleged victims, the undisputed
circumstances of [Petitioner]’s relationship with the
victims, and [Petitioner]’s inability to articulate a
reason for the victims to have fabricated the
allegations. [Petitioner] received effective assistance
of counsel.
(WR-86,330-01 Clerk’s R. 337-40, doc. 30-24.)
Barlow’s co-counsel also provided an affidavit, in which he
states (all spelling, grammatical, and/or punctuation errors are in
the original):
Mr. Barlow was the primary attorney who handled all trial
preparation and investigations.
Prior to trial, as part of my responsibilities and duties
. . ., I had met [Petitioner] when I reset the case for
Terry Barlow. I recall only appearing for [Petitioner]
once or twice prior to trial, I believe, mainly because
Mr. Barlow was out sick. During these brief interactions
at court, I only discussed the docket process with
[Petitioner]- nothing about his case. I was never
involved
in
the
trial
strategy
decisions
or
conversations.
Once the trail date came, I asked Mr. Barlow if I could
sit second chair for the experience. My responsibilities
were to keep up with the exhibits, attend to [Petitioner]
during trial, filter notes between he and Mr. Barlow, and
take the defense punishment witnesses on direct
examination- if it got to that point.
During the trial, I was privy to several conversations
between [Petitioner] and Mr. Barlow. Prior to voir dire,
I overheard Mr. Barlow remind [Petitioner] of the range
of punishment, explain [Petitioner]’s alleged extraneous
17
offenses, and discuss [Petitioner] taking the stand and
testifying. Mr. Barlow advised again, once the state
rested, that it would not be wise for [Petitioner] to
take the stand because, once he did, the defense would be
opening the door to all the extraneous offenses coming in
before the jury for purposes of guilt/innocence. Mr.
Barlow left that decision to [Petitioner] who opted to
exercise his 5th Amendment right and not testify.
It was determined that [Petitioner]’s best chance/
strategy to avoid a life sentence was to not . . . cross
examine and “beat up” on the punishment witnesses
provided by the state, but rather put on the witnesses
[Petitioner] had brought for punishment to tell the jury
their experiences with him and how much they loved him.
We tried to humanize him in hopes the jury would not give
the life sentence. We also feared that if [Petitioner]
took the stand during the punishment phase, once the
State was able to cross-examine him, it would not go
well. Mr. Barlow again discussed this with [Petitioner]
and again [Petitioner] decided not to take the stand.
Throughout the trial, I talked with the witnesses
[Petitioner] had wanted for punishment. I talked to one
of his daughters and some friends of his who had been
there for support. We discussed their loving experiences
with [Petitioner], what things made him a good person,
and that they loved him very much. They testified to the
same in front of the jury.
All that I have mentioned was my experience with
[Petitioner]’s case. I do believe we, and Mr. Barlow in
particular, put on a great defense for [Petitioner] while
avoiding opening the door to the extraneous offenses
during trial. I also believe that [Petitioner] made a
conscious decision not to testify in both the guilty/
innocence and punishment phases of trial.
(Id. at 342-43.)
Based on counsel’s affidavits and the documentary record, the
state habeas court entered factual findings, too numerous to list
here, refuting Petitioner’s claims. (Id. at 348-54.) Based on those
findings, and applying the Strickland standard and relevant state
18
law, the state court entered the following legal conclusions:
24.
Counsel properly did not object to the indictment.
25.
Counsel properly did not object to the court’s
charge.
26.
Counsel properly objected to the State’s closing
argument.
27.
Counsel properly did not object to the standard
extraneous offense instruction in the court’s
charge.
28.
Counsel properly interviewed witnesses.
29.
Counsel properly investigated witnesses.
30.
Counsel’s decision to not have [Petitioner]’s wife
testify was the result of reasonable trial
strategy.
31.
Counsel’s decision to not put [Petitioner] on the
stand after [Petitioner] decided not to testify was
the result of reasonable trial strategy.
32.
Counsel’s decision to not have [Petitioner]’s
grandson testify was the result of reasonable trial
strategy.
33.
Counsel’s choice of defense
reasonable trial strategy.
34.
Counsel’s decision to not cross-examine Detective
Martinez was the result of reasonable trial
strategy.
35.
Counsel’s choice of witnesses was the result of
reasonable trial strategy.
36.
Counsel’s decision to not hire a medical expert was
the result of reasonable trial strategy.
37.
Counsel’s cross-examination of Ms. Desmaris was the
result of reasonable trial strategy.
38.
The following are not excluded by the rule against
hearsay, regardless of whether the declarant is
19
was
the
result of
available as a witness:
(4)
Statement Made for Medical Diagnosis or
Treatment. A statement that:
(A) is made for—and
pertinent
to—medical
treatment; and
is reasonably
diagnosis
or
(B) describes medical history; past or
present symptoms or sensations; their
inception; or their general cause.
39.
Counsel’s decision to not object to Ms. Desmaris’
hearsay testimony because it was admissible as
statements made during medical diagnosis was the
result of reasonable trial strategy.
40.
[Petitioner] has failed to prove that his
attorneys’ representation fell below an objective
standard of reasonableness.
. . .
43.
[Petitioner] has failed to show that there is a
reasonable probability that the result of the
proceeding would have been different had counsel
objected more.
44.
[Petitioner] has failed to show that there is a
reasonable probability that The result of the
proceeding would have been different had counsel
conducted more investigation.
45.
[Petitioner] has failed to show that there is a
reasonable probability that the result of the
proceeding would have been different had counsel
interviewed more witnesses.
46.
[Petitioner] has failed to show that there is a
reasonable probability that the result of the
proceeding would have been different had counsel
presented a different defense.
47.
[Petitioner] has failed to show that there is a
reasonable probability that the result of the
proceeding would have been different had counsel
cross examined Detective Martinez.
20
48.
[Petitioner] has failed to show that there is a
reasonable probability that the result of the
proceeding would have been different had counsel
hired a medical expert.
49.
[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.
50.
[Petitioner] has failed to prove that he received
ineffective assistance of trial counsel.
(Id. at 358-61 (citations omitted).)
Deferring to the state courts’ factual findings, and having
independently reviewed Petitioner’s claims in conjunction with the
state-court record, the state courts’ application of Strickland was
not objectively unreasonable. Petitioner’s claims are largely
conclusory, with no factual or legal basis, refuted by the record,
involve strategic and tactical decisions made by counsel, or would
have required counsel to make frivolous or futile motions or
objections,
all
of
which
generally
do
not
entitle
a
state
petitioner to federal habeas relief. See Strickland, 460 U.S. at
689 (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) (counsel is not
required to make futile motions or frivolous objections); Evans v.
Cockrell, 285 F.3d 370, 377 (5th Cir. 2002) (a petitioner must
“bring forth” evidence, such as affidavits, from uncalled witnesses
in support of an ineffective-assistance claim); Green v. Johnson,
21
160 F.3d 1029, 1042 (5th Cir. 1998) (“[m]ere conclusory allegations
in support of a claim of ineffective assistance of counsel are
insufficient to raise a constitutional issue”); United States v.
Green, 882 F.2d 999, 1003 (5th Cir. 1989) (“[a] defendant who
alleges a failure to investigate on the part of his counsel must
allege with specificity what the investigation would have revealed
and how it would have altered the outcome of the trial”); 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 [to]
is too uncertain”). Further, because Petitioner fails to establish
separate acts of deficient performance, it necessarily follows that
relief is not warranted under a cumulative Strickland analysis.
(Pet’r’s Traverse 10-11, doc. 36.)
Finally, under his fourth ground, Petitioner claims that his
appellate counsel was ineffective by failing to—
(1)
(2)
(3)
(4)
(5)
(6)
address the ex-post-facto violation;
timely notify him of the Eighth Court of Appeals’
decision;
address
the
“courts
charge,
pleadings,
and
indictment defects”;
address the “unbelievable testimony from state’s
witnesses, contradiction in testimony, sufficiency
of evidence and lack of physical evidence that also
contradicted testimony”;
address the five motions that were filed with the
trial court sixteen minutes before trial;
address all other improper rulings and issues; and
22
(7)
file an adequate brief.
(Pet. 7, 13, doc. 1.)
To the extent raised in Petitioner’s state habeas application,
appellate counsel Wayne Salvant responded to the allegations, also
via affidavit, as follows:
First, many of [Petitioner]’s claims are baseless.
The appeal that was done on behalf of [Petitioner] did
raise issues about objections during his trial. The
other claims by [Petitioner] are baseless in that
there was no legal reason to claim the issues that
he has put forward. Appellate counsel did not
believe that trial counsel was ineffective. Appellant
counsel did inform [Petitioner] of the 8th Court of
Appeal[s’] decision in a timely fashion. Appellant
[counsel] did not find error in motions filed before
trial and finally appellant counsel did prepare and
timely filed a brief on behalf of [Petitioner] based upon
the records that were provided and it was an adequate
brief. Appellant counsel could find no legal issue with
the jury charge.
All of the allegations made by [Petitioner] are
baseless and without merit.
(WR-86,330-01 Clerk’s R. 344, doc. 30-24.)
Based on counsel’s affidavit and the documentary record, the
state habeas court entered the following factual findings:
92.
[Petitioner] was arraigned on the
continuous sexual abuse of a child.
93.
[Petitioner] pled not guilty to continuous sexual
abuse of a child.
94.
The jury was instructed on the offense dates of “on
or about the l5th day of September 2007, . . .
through the 31st day of August 2010.”
95.
Hon. Salvant did not attack the jury charge because
there was no legal reason to do so.
23
offense
of
96.
The indictment alleged offense dates of on or about
September 15, 2007, to August 31, 2010.
97.
The effective date of the continuous sexual abuse
statute was September 1, 2007.
98.
Hon. Salvant did not make an ex post facto
violation claim because there was no legal reason
for him to do so.
99.
Hon. Salvant concluded that trial counsel was not
ineffective.
100. Hon. Salvant advised [Petitioner] of the 8th Court
of Appeals’ decision in a timely fashion.
101. Hon. Salvant did not find any errors in the motions
filed.
102. Hon. Salvant did not find the motions filed were
untimely.
103. The appellate court decided [Petitioner]’s appeal
on the merits.
104. There is no evidence that Hon. Salvant's brief was
inadequate.
105. Hon. Salvant filed his brief timely.
. . .
107. There
is
evidence
that
Hon.
representation was the result of
appellate strategy.
Salvant’s
reasonable
108. There is no evidence that a reasonable likelihood
exists that the outcome of the appeal would have
been different had counsel alleged on direct appeal
that [Petitioner] received ineffective assistance
of trial counsel.
(Id. at 354-56 (citations omitted).)
Based on its findings, and applying the Strickland standard,
the state court concluded that appellate counsel’s choice of issue
24
and decision not to raise Petitioner’s claims on appeal was the
result of reasonable appellate strategy. (Id. at 362-63.)
Deferring to the state courts’ factual findings, the state
courts’ application of Strickland was not objectively unreasonable.
To prevail on a claim of ineffective assistance of counsel on
appeal, a petitioner must make a showing that had counsel performed
differently, he would have prevailed on appeal. Sharp v. Puckett,
930 F.2d 450, 453 (5th Cir. 1991) (citing Strickland, 466 U.S. at
687). Appellate counsel is not required to urge every possible
argument, regardless of merit. Smith v. Robbins, 528 U.S. 259, 288
(2000); Sharp, 930 F.2d at 452. 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).
in
this
Petitioner fails to raise any meritorious claims
petition.
Prejudice
does
not
result
from
appellate
counsel’s failure to assert meritless claims or arguments on
appeal. See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir.
1994).
E.
Evidentiary Hearing
Petitioner
seeks
an
evidentiary
hearing
for
purposes
of
further developing the record in support of his claims. (Pet’r’s
Mem. vii, doc. 21.) See 28 U.S.C. § 2254(e)(2); Rules Governing
Section 2254 Cases 7. However, review under § 2254(d)(1) is
generally limited to the record that was before the state court
25
that adjudicated a claim(s) on the merits. Cullen v. Pinholster,
563 U.S. 170, 181-82 (2011). Further, §
2254(e)(2) provides:
(e)(2) If the applicant has failed to develop the
factual basis of a claim in State court proceedings, the
court shall not hold an evidentiary hearing on the claim
unless the applicant shows that–
(A)
the claim relies on–
(i) a new rule of constitutional law,
made retroactive to cases on collateral review
by the Supreme Court, that was previously
unavailable; or
(ii) a factual predicate that could not
have been previously discovered through the
exercise of due diligence; and
(B) the facts underlying the claim would
be sufficient to establish by clear and
convincing evidence that but for
constitutional error, no reasonable factfinder
would have found the applicant guilty of
the underlying offense.
Id.
Petitioner has not met the statutory criteria and further
development of the record is not necessary in order to assess the
claims.
VI.
Conclusion
For the reasons discussed, the Court DENIES Petitioner’s
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Further, Federal Rule of Appellate Procedure 22 provides that
an appeal may not proceed unless a certificate of appealability is
issued under 28 U.S.C. § 2253. A certificate of appealability may
26
issue “only if the [Petitioner] has made a substantial showing of
the denial of a constitutional right.” Miller-El v. Cockrell, 537
U.S. 322, 336 (2003). “Under this standard, when a district court
denies habeas relief by rejecting constitutional claims on their
merits, ‘the petitioner must demonstrate that reasonable jurists
would find The district court’s assessment of The constitutional
claims debatable or wrong.’” McGowen v. Thaler, 675 F.3d 482, 498
(5th Cir. 2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)). Petitioner has not made a showing that reasonable jurists
would
question
this
Court’s
resolution
of
his
constitutional
claims. Therefore, a certificate of appealability should not issue.
SIGNED August 17, 2018.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
27
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