Jackson v. Davis

Filing 27

Memorandum Opinion and Order : For the reasons discussed herein, The court ORDERS that the petition of petitioner for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be, and is hereby, denied. The court further ORDERS that a certificate of appealability be, and is hereby, denied. (Ordered by Senior Judge John McBryde on 1/11/2019) (edm)

U.S. DISTRICT COIJRT
NORTHERN DISTRICT OF TllXAS

FILED
IN THE UNITED STATES DISTRICT COUR 0
FOR THE NORTHERN DISTRICT OF TEXA~
FORT WORTH DIVISION

JAN 1 1 2019

CLERK, U.S. DISTRICT COURT

JOEMAR JACKSON,
Petitioner,
v.

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

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By·--...,....---bcputy

No. 4:17-CV-844-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, Joemar Jackson, a state

prisoner confined in the Correctional Institutions Division of
the Texas Department of Criminal Justice (TDCJ), against Lorie
Davis, director of TDCJ, respondent. After having considered the
pleadings, state court records, and relief sought by petitioner,
the court has concluded that the petition should be denied.
I. FACTUAL AND PROCEDURAL HISTORY

On January 12, 2009, a jury in Tarrant County, Texas, Case
No. 1132560R, found petitioner guilty of capital murder and, the
state having waived the death penalty, the trial court assessed
his punishment at life imprisonment without parole.

(Clerk's R.

199, 123.) Petitioner's conviction was affirmed on appeal and the
Texas Court of Criminal Appeals refused his petition for

discretionary review.

(Docket Sheet 1-2.) Petitioner also sought

postconviction state habeas-corpus relief by challenging his
conviction in a state habeas application, which was denied by the
Texas Court of Criminal Appeals without written order on the
findings of the trial court.

(SHR02 2-31 & Action Taken.) This

federal petition followed.
The state appellate court summarized the factual background
of the case as follows:
Eric Witt was a drug dealer in the Como area of
Fort Worth. He was at his home one evening with his
friend Kretearria Porter when [petitioner] came over,
purchased some drugs from Witt, and left. Another man
showed up to buy drugs after [petitioner] left. As the
man was leaving Witt's house, two men carrying guns
forced their way inside. The first man carried a black
gun, and the second man carried a silver gun; both men
had bandanas covering their faces below their eyes. The
first man shot Witt in the hand as he was trying to
shut the door on the men, and Witt fell to the ground.
One of the men ordered Porter to lay on the floor.
The man with the silver gun asked Witt, "E, where's the
dope at?n Witt told him it was in a cracker box in the
kitchen. One of the men searched Witt's pockets as he
lay on the floor. The man with the black gun stood over
Witt and shot Witt in the back of the head as they were
leaving. The two men left, and the man who had just
purchased drugs fled out the front door after them.
Witt died from the gunshot wound to his head.
Police eventually arrested James Phillips, Kenneth
Francis,[tJ Nathaniel Baldwin, and [petitioner] in
connection with Witt's murder. Francis admitted to
participating in the robbery, and he told detectives
that [petitioner] was the robber who shot Witt.
Phillips also admitted to participating in the robbery
1Kenneth Francis's last name is spelled as Francis and Frances in the
state court records. The court uses Francis unless otherwise spelled as
Frances in quoted materials.

2

and told detectives that [petitioner] was the shooter.
At [petitioner]'s trial, Francis testified that
Phillips, Baldwin, and [petitioner] had planned to rob
Witt and that Francis's role was to go to Witt's house
to buy drugs so that he could determine how many people
were inside Witt's house. By the time Francis got to
Witt's house, Phillips and [petitioner] were already
inside; Francis saw Witt and Porter laying on the
floor, Phillips standing over Witt with a chrome gun,
and [petitioner] in the kitchen with a black gun. Witt
was pleading for them not to kill him and was saying,
"It's in the box. It's in the box." Francis ran back to
his car and heard a gunshot. Sometime after the
robbery, Francis saw [petitioner] and asked him why he
had shot Witt. [Petitioner] told him, "When I shot E,
[Phillips] threw up." Francis testified that he had
agreed to testify for the State in exchange for an
eight-year sentence for conspiracy to commit robbery.
Phillips testified that on the day of Witt's
murder, Baldwin had showed up at his house and had told
him, "Let's go get this money." Phillips did not know
exactly what he was talking about, but he knew that
Baldwin was asking if he wanted to go rob someone.
Phillips got in the car with Baldwin, [petitioner], and
Francis and learned that they planned to rob Witt.
Phillips testified that Baldwin's role in the robbery
was "[j]ust getting the door open." According to
Phillips, Baldwin approached Witt's house first under
the guise of purchasing drugs, and while Baldwin was
inside, [petitioner] "bust[ed] up in there." Phillips
said that he and Francis were still outside when they
heard a gunshot. Phillips went inside and saw that Witt
had been shot in the hand. Phillips started grabbing
money and drugs. He was carrying a chrome-plated
revolver. He testified that he ran to his mother's
house after the robbery and threw up at her house from
running so hard. Phillips explained that he had agreed
to testify for the State in exchange for a
twenty-five-year sentence for capital murder.
LaTonia Clark testified that Francis was her
boyfriend when Witt was murdered. On the night of
Witt's murder, Clark heard Phillips tell Francis that
he wanted to rob Witt because he and [petitioner] had
seen "a lot of money or drugs" at Witt's house. Later
that night, Francis was taking a bath when he told
3

Clark about the robbery. He was crying, and he told
Clark that [petitioner] had shot Witt in the back of
the head and that Phillips had thrown up in Witt's
house.
Lee Hall testified that he lives in Como and knows
[petitioner], Phillips, Francis, and Baldwin. After
Witt's murder, Hall overheard a conversation between
[petitioner] and a man ["Fat Roy"] who lives next door
to Hall's grandmother. [Petitioner] was talking about
Phillips and said, "I hope the boy can hold water. I
ain't never did no crime. I ain't never did no dirt
with him. I just hope he don't snitch on me." Hall
explained that when [petitioner] said he "ain't never
did no dirt with [Phillips]," [petitioner] meant that
he had never committed a crime with Phillips. Hall also
overheard [petitioner] tell the man, "Man, I should
have murked [Phillips]," which is a street term for
murder.
Donald Coleman testified that he had a sexual
relationship with Phillips at the time of Witt's murder
and that Phillips had told him that Phillips,
[petitioner], and Francis robbed "the dope man."
Coleman testified that Phillips had told him that
[petitioner] shot Witt during the robbery.
Marquies Amos testified that he knows Phillips,
Francis, Baldwin, and [petitioner] and that he had
known Witt. Amos said that Phillips had told him that
[petitioner] shot Witt during the robbery. Amos also
testified that [petitioner] confessed to him that he
had shot Witt because, during the robbery, Phillips was
calling [petitioner] by his name in front of Witt and
because Witt was telling [petitioner], "I know where
y'all live." Amos agreed to testify for the State in
exchange for a plea agreement with his brother
regarding unrelated charges.
(SHR02 at 317-20.)
II. ISSUES
Petitioner raises the following grounds for habeas relief:
(1)

his right to due process was violated due to the
state's use of material false testimony at trial;

4

(2)

his right to remain silent was violated by the
prosecution's comment on his failure to testify;

(3)

he received ineffective assistance of trial
counsel because counsel failed to call his alibi
witnesses, Ronald and Sheree Hawkins; and

(4)

he received ineffective assistance of trial
counsel because counsel failed to conduct an
adequate investigation and present evidence
favorable to petitioner's alibi.

(Pet. 6-7.)
III. RULE 5 STATEMENT

Respondent does not allege that the petition is barred by
successiveness, the federal statute of limitations, or a failure
to exhaust state-court remedies.

(Resp't's Answer 6.)

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). 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).

The statute also requires that federal courts give great
deference to a state court's factual findings.

5

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. A 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)

Additionally, when the Texas Court of Criminal Appeals, the
state's highest criminal court, denies relief on a state
habeas-corpus application without written order, typically it is
an adjudication on the merits, which is likewise entitled to this
presumption. Richter, 562 U.S. at 100; Ex parte Torres, 943
S.W.2d 469, 472

(Tex. Crim. App. 1997). In such a situation, a

federal court "should 'look through' the unexplained decision to
the last related state-court decision providing" particular
reasons, both legal and factual, "presume that the unexplained
decision adopted the same reasoning," and give appropriate
deference to that decision. Wilson v. Sellers, 138 S. Ct. 1188,
1191-92

(2018).
V. DISCUSSION

A. Material False Testimony

Under his first ground, petitioner claims that his Fifth
Amendment right to due process was violated by the prosecution's
knowing use of "material false testimony" at trial and/or failure
to correct the false testimony.

(Pet.
6

6; Pet' r's Mem. 5-26.) The

state's knowing use or failure to correct materially false
testimony constitutes a due process violation. See Giglio v.
United States 1 4 05 U.S. 150, 153-54

( 197 2) ; Napue v.

Illinois 1

360 U.S. 264, 269 (1959).
Petitioner asserts that Lee Hall, Marquies Amos, and Kenneth
Francis testified falsely and that the state knew their testimony
was false and failed to correct it.

(Pet'r's Mem. 7.) In support,

petitioner presented the affidavits/unsworn declarations of Hall
and Francis.

(SHR02 89, 104.) The state investigated petitioner's

allegations and, in response, submitted affidavits by two state
investigators, Richard Nutt and J. Bryan Moody, and a second
affidavit by Francis asserting that he was threatened to sign the
affidavit by petitioner, which the state court found credible.
(SHR02 290-93.)
The state habeas court adopted and entered the following
proposed findings of fact relevant to the issue, which were later
adopted by the Texas Court of Criminal Appeals:
1.

[Petitioner] alleges that the State presented
false evidence that Lee Hall overheard
[petitioner] admitting to "Fat Roy" that he was
involved in the shooting of the victim.

2.

Lee Hall testified that [petitioner] told "Fat
Roy" he was worried about Phillips snitching on
[petitioner] and that he should have killed
Phillips to keep him quiet.

3.

Lee Hall did not testify about what date he was
present for the conversation between [petitioner]
and "Fat Roy."

7

4.

[Petitioner) presents no evidence to support his
claim that "Fat Roy" was incarcerated during the
time period that Hall testified he overheard the
conversation.

5.

Investigators Richard Nutt and J. Bryan Moody met
with Lee Hall on April 4, 2016.

6.

[Petitioner) filed an unsworn declaration signed
by Hall stating that he gave false testimony at
[petitioner)'s trial.

7.

[Petitioner) threatened Hall into signing the
unsworn declaration.

12.

Hall's unsworn declaration filed by [petitioner)
is not credible and was signed under duress.

13.

Amos testified that both Phillips and [petitioner)
told him [petitioner) shot the victim.

14.

Amos did not testify about what date [petitioner]
admitting [sic] committing the offense to him.

15.

Amos did not know the exact date that he had his
conversation with [petitioner].

16.

[Petitioner] claims that he was in custody at the
specific time Amos testified he admitted
committing the offense to him outside of a store.

17.

[Petitioner) presents no evidence to support his
claim that he was in custody.

18.

[Petitioner] filed an unsworn declaration from
"Kenneth Francis" stating that he gave false
testimony against [petitioner).

19.

Kenneth Frances, Jr., intentionally misspelled his
name as "Francis" in the unsworn declaration that
he signed for [petitioner) because he did not want
to sign it.

20.

Frances signed the unsworn declaration
[petitioner) filed under duress.

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21.

Frances' unsworn declaration filed by [petitioner]
is not credible.

22.

The testimony Frances gave at [petitioner]'s trial
was true and correct.

23.

Frances has not changed his trial testimony.

(SHR02 264-66 (record citations omitted).)
Based on its factual findings and relying solely on state
law, the state habeas court entered the following legal
conclusions:
1.

"The Due Process Clause of the Fourteenth
Amendment can be violated when the State uses
false testimony to obtain a conviction, regardless
of whether it does so knowingly or unknowingly."

2.

The testimony need only be "false" and not perjury
to constitute a due process violation.

3.

The test is whether the testimony, considered as a
whole, "gives the trier of fact a false
impression."

4.

Regardless of whether the use of false testimony
was knowing or unknowing, "the 'applicant has the
burden to prove by a preponderance of the evidence
that the error contributed to his conviction or
punishment.'"

5.

[Petitioner] has failed to prove that the State
either knowingly or unknowingly presented false
evidence.

6.

[Petitioner] has failed to prove that Lee Hall
testified falsely at trial.

7.

[Petitioner] has failed to prove that Marquies
Amos testified falsely at trial,

8.

[Petitioner] has failed to prove that Kenneth
Frances, Jr., testified falsely at trial.

9.

[Petitioner] has failed to prove that false
9

testimony was used to obtain a conviction.
10.

[Petitioner] has failed to prove that he was
denied due process.

(Id. at 266 (citations omitted).)
Petitioner also presented in state court the affidavit/
unsworn declaration of Clarence McGee stating that Phillips
testified falsely at trial that petitioner was the shooter,

(Id.

at 221.) The state habeas court made no express findings in this
regard, however this court may imply fact and credibility
findings consistent with the state court's denial of habeas
relief. See Valdez v. Cockrell, 274 F.3d 941, 948 n.11

(5th Cir.

2001); Goodwin v. Johnson, 132 F.3d 162, 183 (5th Cir. 1997).
The state court's denial of habeas relief implies a finding that
McGee's affidavit is not credible.
Petitioner fails to rebut the presumption that the state
court's express and implied factual findings, including the
court's credibility determinations, are correct.' Thus, deferring
to those findings, the state court's decision is consistent, in
2

Petitioner asserts that the presumption of correctness should not apply
because the correct procedure was not followed by the state habeas judge, who
did not preside at his trial, in making credibility determinations because he
could not compare the affidavits/unsworn declarations with trial testimony and
did not conduct a live evidentiary hearing to determine for himself whether
the affidavits/unsworn declarations were ~worthy of belief.~ {Pet'r's Mem. 1214.) However, petitioner relies upon pre-AEDPA case law in support of his
argument. In contrast to pre-AEDPA law, deference to a state court's factual
determinations is not dependent upon the quality of the state court's
evidentiary hearing or whether the same judge presided at trial and on state
habeas review. See Valdez v. Cockrell, 274 F.3d 941, 951 (5th Cir.2001). Under
the AEDPA, a federal court must afford the state's factual findings, including
its findings on credibility, the presumption of correctness unless the
findings are rebutted by clear and convincing evidence. 28 U.S.C. §
2254 (e) (1).

10

relevant part, with Supreme Court law on the issue, and its
application of that law is not objectively unreasonable. 3
Recanting affidavits and witnesses are viewed with extreme
suspicion by the courts, especially, as in this case, where they
are recanting earlier testimony.

See Spence v.

Johnson, 80 F.3d

989, 1003 (5th Cir. 1996); May v. Collins, 955 F.2d 299, 314

(5th

Cir. 1992). Further, in light of the apparent motive by Hall and
Francis to recant their trial testimony, the court agrees that
the recanting statements do not prove that their trial testimony
was false.
2. Right to Remain Silent
Under his second ground, petitioner claims that his Fifth
Amendment right to remain silent was violated by the
prosecution's comment on his failure to testify during closing
argument in the guilt/innocence phase of trial.

(Pet. 6.) The

Fifth Amendment prohibits a prosecutor from commenting on a
defendant's failure to testify, Griffin v. California, 380 U.S.
609,

615 (1965), if "the prosecutor's manifest intent in making

the remark must have been to comment on the defendant's silence,
or the character of the remark must have been such that the jury
would naturally and necessarily construe it as a comment on the

3

No Supreme Court case holds that the state's unknowing use of false
testimony violates the Due Process Clause. See Piere v. Vannoy, 891 F.3d 224,
227-28 (5th Cir. 2018). Thus, to the extent petitioner argued that the state
unknowingly presented false testimony, he does not allege a federal
constitutional error. Id. at 229.

11

defendant's silence." Jackson v. Johnson, 194 F.3d 641, 652

(5th

Cir. 1999). "The prosecutor's intent is not manifest if there is
some other, equally plausible explanation for the remark." United
States v. Grosz, 76 F.3d 1318, 1326 (5th Cir. 1996). As for
whether a jury would naturally and necessarily construe a remark
as a comment on the defendant's failure to testify, "the question
is not whether the jury possibly or even probably would view the
challenged remark in this manner, but whether the jury
necessarily would have done so." Id.

(quoting United States v.

Collins, 972 F.2d 1385, 1406 (5th Cir. 1992)). Additionally,
challenged comments are evaluated in the context of the trial
within which they are made.

United States v. Robinson, 485 U.S.

25, 33 (1988).
Petitioner complains of two instances, which were addressed
on direct appeal. The state appellate court, relying solely on
state case and statutory law, addressed the claim as follows:
[Petitioner] argues that the State twice commented
on his failure to testify during its closing argument
at the guilt-innocence stage of trial and that the
trial court erred by overruling both of his objections
to the comments. [Petitioner] claims that this error
violated his state and federal constitutional rights
against self-incrimination and article 38.08 of the
code of criminal procedure.
A. The Complained-Of Comments

During its closing arguments, the State argued
that [Petitioner]'s alibi witnesses had lied on the
witness stand. The State then stated,
And [petitioner's alibi witnesses]
12

testified that [petitioner] was with them
after [six] o'clock all night long. That's
what the testimony was.
But [petitioner] didn't know that we
knew he went back to the scene, so he had to
shift gears a little bit. And now all of a
sudden, he went back to the scene. Yes, he
admits he was there. "I was there, but if I
was there"[Petitioner] objected that this was an improper
comment on his failure to testify, to which the State
replied, "Defense counsel, Your Honor, is who I'm
referring to." The trial court overruled the objection.
The State continued, "This is what it comes down to.
You heard the testimony on Friday. You know they were
lying, okay? And if he's going to get them to come here
and lie to you, it's because he is guilty of the
offense."
Later in its closing argument, the State argued,
And their defense theory about Como
turning [petitioner] in was shot out of the
water on day two. And now Friday afternoon to
Monday morning, the alibi witnesses that we
called up here were shot out of the water.
That is not true.
If he was going to lie to you about
that, then he's guilty of capital murder.
Jackson again objected that this was a comment on his
failure to testify, and the trial court overruled his
objection.
B. Law on Comment on Failure to Testify

A comment on an accused's failure to testify
violates the accused's state and federal constitutional
privileges against self-incrimination. In addition, the
code of criminal procedure provides that a defendant's
failure to testify on his own behalf may not be held
against him and that counsel may not allude to the
defendant's failure to testify.
To determine whether a comment violates a
13

defendant's right against self-incrimination or article
38.08, we must decide whether the language used was
manifestly intended or was of such a character that the
jury naturally and necessarily would have considered it
to be a comment on the defendant's failure to testify.
The offending language must be viewed from the jury's
standpoint, and the implication that the comment
referred to the accused's failure to testify must be
clear. A mere indirect or implied allusion to the
defendant's failure to testify does not violate the
accused's right to remain silent. A statement
referencing evidence that can come only from the
defendant is, however, a direct comment on the
defendant's failure to testify.
C. State Did Not Comment on [Petitioner]'s
Failure to Testify

In the instant case, a review of [petitioner]'s
defensive theory and closing argument provides some
insight into the complained-of comments made by the
State in its closing argument. At trial, [petitioner]
called Brandi Hawkins and Andre Hawkins to testify on
his behalf. Brandi is the mother of [petitioner]'s
girlfriend, and Andre is the brother of [petitioner]'s
girlfriend. Both testified that [petitioner] was at
their house the entire evening of Witt's murder and
that [petitioner] had slept there that night. On
cross-examination, Brandi admitted that [petitioner]
had sent her a handwritten affidavit to sign, stating
that [petitioner] was at her house on the night of
Witt's murder. In rebuttal, the State called two
witnesses to testify that they had seen [petitioner] in
the crowd of bystanders at Witt's house after Witt's
murder, contradicting Brandi's and Andre's testimony.
During defense counsel's closing argument, he addressed
the State's rebuttal and said that Brandi Hawkins's
testimony was discredited. He argued,
But I'm not going to stand in front of
you and argue that [petitioner] didn't go to
[Witt's] house. I believe he did.
But if he went to the house, his
interest in this is no different than the
interest of everybody else at the house about
what happened.

14

When the State commented later in its closing
argument that [petitioner] "admits he was there [at
Witt's house after the murder]. 'I was there, but if I
was there,' "the State was clearly addressing defense
counsel's closing argument, not any failure to testify
on [petitioner]'s part. The State's comment was also
addressing [petitioner]'s defensive theory and the
impeachment of his alibi witnesses. This same reasoning
applies to the second complained-of argument-that
[petitioner] had lied about his alibi defense. The
State was summarizing the evidence and addressing
testimony from [petitioner]'s alibi witnesses and the
fact that [petitioner] had written affidavits for them
to sign, stating that he was with them on the night of
Witt's murder.
Viewing the State's comments from the jury's
standpoint, we hold that the complained-of comments did
not naturally and necessarily refer to [petitioner]'s
failure to testify; rather, they were proper comments
on [petitioner]'s defensive theory and testimony from
his alibi witnesses and were answers to defense
counsel's arguments. The complained-of comments were
not manifestly intended or of such a character that the
jury naturally and necessarily would have considered
them to be comments on [petitioner]'s failure to
testify.

D. Alternatively, Any Error Was Harmless
Alternatively, even assuming the State's arguments
were comments on [petitioner]'s failure to testify, we
conclude any error in the trial court's overruling
[petitioner]'s objections was harmless. Under Texas
Rule of Appellate Procedure 44.2(a), upon determining
constitutional error exists, we should reverse unless
we determine beyond a reasonable doubt that the error
did not contribute to the defendant's conviction or
punishment. Our primary inquiry is what effect the
error had, or reasonably may have had, on the jury's
decision. "We consider the source and nature of the
error, the extent that it was emphasized by the State,
its probable collateral implications, the weight a
juror would probably place on the error, and whether
declaring it harmless would likely encourage the State
to repeat it with impunity."
As we explained above, a review of the State's
15

entire argument, [petitioner]'s closing argument, and
[petitioner]'s defensive theories reveals that the
State was referring to testimony elicited from
[petitioner]'s alibi witnesses and defense counsel's
closing argument. Our neutral, impartial review of the
record further demonstrates that the comment was a
small part of the State's argument and was not
emphasized or mentioned again and that the jury likely
did not attribute much, if any, weight to the error.
Although the trial court overruled [petitioner]'s
objections, the court read its charge to the jury prior
to closing arguments. The charge included an
instruction not to consider [petitioner]'s failure to
testify, and the jury is presumed to follow this
instruction.
After carefully reviewing the record and
performing the harm analysis required under rule
44.2(a), we alternatively hold that if the trial court
erred by overruling [petitioner]'s objection to the
State's comments at issue, then beyond a reasonable
doubt, such error did not contribute to [petitioner]'s
conviction or punishment.
(Mem. Op. 19-26 (footnote and citations omitted).)
To the extent petitioner argues that the comments violate
Texas Rule of Criminal Procedure article 38.08, his claim is not
cognizable on federal habeas review. See 28 U.S.C.
Estelle v. McGuire, 502 U.S. 62,

§

2254(a);

68 (1991). To the extent he

argues that the comments violate the Fifth Amendment, the claim
fails. State law on the matter comports with Supreme Court law on
the issue, and, in view of the content and context in the record
as a whole, the state court's determination is not objectively
unreasonable.
C. Ineffective Assistance of Trial Counsel

Under his third and fourth grounds, petitioner claims that

16

he received ineffective assistance of trial counsel because
counsel failed to investigate and interview witnesses.

(Pet. 7.)

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
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
See Gregory v. Thaler, 601 F.3d 347, 351

§

2254 (d) (1).

(5th Cir. 2010). Where,

as here, the state court adjudicated the ineffective-assistance

claims on the merits, this court must review petitioner's claims
under the "doubly deferential" standards of both Strickland and
2254(d). Cullen v. Pinholster, 563 U.S. 170, 190 (2011). In such
cases, the "pivotal question" for this court is not "whether

17

§

defense counsel's performance fell below Strickland's standard";
it is uwhether the state court's application of the Strickland
standard was unreasonable." Harrington v. Richter, 562 U.S. 86,
101, 105

(2011).

In his state habeas application, petitioner provided the
following supporting facts relevant here (all spelling,
grammatical, and/or punctuation errors are in the original):
(1) trial counsel fail to conduct an adequate
investigation, whereby it would have been discovered,
that the [petitioner] had underwent a residue test and
polygraph examination, that was conducted by the Fort
Worth Police Department, and of which [petitioner] had
passed, and would have further discovered, that the
Fort Worth Police Department recovered a .38 caliber
revolver from [petitioner]'s residents, which could
have been compared to the bullet fragments, that were
recovered from the deceased for the purpose of
determining whether this was the gun, that the deceased
was shot with, or whether the gun had been fired. Such
finding would, have been consisted with the testimony
of the State's witness regarding the types of guns,
that fire the type of bullet, that the deceased was
shot with, since both types of a weapons, that are
distinguished amongst themselves as an automatic,
versus revolver.
(2) trial counsel fail to conduct an adequate
investigation, whereby it would have been discovered,
as to the role, if any, [petitioner] played in the
alleged robbery and murder of Eric Witt, had trial
counsel interviewed Nathaniel Baldwin, an alleged
co-conspirator to the offense, and person, that was not
charged in this case by the State, nor called as a
witness. Trial counsel never interviewed this witness,
nor investigated any statements, and/or police reports
regarding this individual.
(3) trial counsel fail to conduct an adequate
investigation, and/or present evidence favorable to
[petitioner]'s alibi defense, by calling witnesses
Sheree Hawkins, wham's Affidavit was on file and
18

presented, and Ronald Hawkins, whom would have
testified, that he went by the house, and informed
[petitioner] and Brandy Hawkins of the incident, and
after informing them of the incident, Sherre Hawkins,
him, and [petitioner] went to the scene of the offense.
(4) trial counsel fail to present evidence
favorable to the case, by calling Terrence Norton as
witness on behalf of the defense, whereby this witness,
had evidence and/or testimony, that would have casted
doubt on the State's case, as [petitioner] being the
shooter.
(5) trial counsel fail to present evidence
favorable to the case, by calling Tawayna Washington as
a witness on behalf of the defense, whereby this
witness, had evidence and/or testimony, that would have
casted doubt on State's casa against [petitioner] as
being the person, that shot Eric Witt.
(6) trial counsel fail to adequately investigate
and interview the State's witness Marauis Amos, whereby
had trial counsel done so, he would have learned, that
on the date in question, that he allegedly had a
conversation with [petitioner], [petitioner] was in
police custody; trial counsel did not ascertain the
specific date of the alleged conversation, or whether
the Store where the alleged conversation took place was
open for business.
(SHR02 27

(emphasis added) . 4 )

Petitioner's lead trial counsel, William S. Harris, licensed
to practice law over 35 years and board-certified in criminal
law, filed an affidavit in the state habeas proceeding responding
to petitioner's allegations as follows

(any spelling,

grammatical, and /or punctuation errors are in the original)
[Petitioner] alleges I performed an inadequate
investigation because I did not find out that he had
4
In his state habeas application, petitioner raised additional claims
that are not reasserted in this federal petition; thus, those claims are not
addressed,

19

taken a polygraph and been tested for gunshot residue.
This is not true. I knew about both tests, but they
were irrelevant to this case. The gunshot residue tests
were performed several days after this murder in
relation to another murder that occurred near his
house. With bathing and hand washing over several days
there is virtually no likelihood that gunshot residue
from the Eric Witt murder, if it had been on
[petitioner] hands after the shooting would, still be
there. Further, the polygraph, which was inadmissible,
only related to the second murder.
[Petitioner] also alleges that I did not discover
that a pistol had been recovered from his home. I did
have that information, it was included in the state's
discovery. The pistol was of the same caliber as the
pistol that killed Eric Witt, but the state's
ballistics report indicated that it was not the murder
weapon. Moreover, introduction of the fact that
[petitioner] possessed such a pistol would not have
excluded him from being a party to the murder or having
committed the murder with a different gun.
[Petitioner] complains of my failure to call
Sheree Hawkins as an alibi witness. I interviewed Ms.
Hawkins, but she contradicted the other alibi witnesses
who testified that [petitioner] did not leave their
home after they learned of the shooting. I also knew
she would appear as a witness in jail clothing and that
would have diminished her credibility. Had [petitioner]
informed me that he had in fact gone with her to the
scene later in the evening, I might have reconsidered
calling her, but he did not so inform me.
[[Petitioner] maintains I was ineffective in not
calling [Terrence] Norton after interviewing him.
Mr. Norton's original signed statement alleged that
[petitioner] admitted to him in jail that he and James
Phillips had robbed Eric Witt and Mr. Phillips shot Mr.
Witt. He also said [petitioner] told him that if he and
Mr. Phillips kept their mouths shut they would get away
with it. Obviously, this testimony would not have been
helpful to [petitioner]'s case.
[Petitioner]
alleges that I interviewed the witness, but I do not
recall doing so. In addition, I have reviewed the trial
record and it suggests that I did not interview the
witness. There is no evidence that Norton "backed off
his testimony.n The only suggestion that any of his

20

statement contains Brady material was made by the
prosecution. On reviewing the statement, I did not
think anything in it was helpful to [petitioner]. The
state rested and did not call Mr. Norton because the
trial court forced their hand and was not willing to
wait for further argument or case law from the state's
appellate section on their argument that they should be
allowed to call him even though they had not given the
defense adequate notice.]
[Petitioner] complains that I did not call as a
witness Tewayne Washington. Mr. Washington had given a
statement to the police that he had heard "Peddie",
Eric Witt's cousin, say that he and Eric Witt's brother
had killed Demarcus Lenear because he had killed Eric
Witt. No other evidence in my investigation or the
state's investigation, which I had access to, supported
the theory that Demarcus Lenear killed Eric Witt or
that "Peddie" had killed Lenear. In addition, Mr.
Washington's testimony would have clearly been
inadmissible hearsay in this case.
[Petitioner] complains that I did not interview or
call to the stand Marguis Amos and I did not check to
see what specific date he allegedly heard [petitioner]
admit participating in the murder so I could determine
whether the store he said he met [petitioner] at was
open. Mr. Amos testified as a state's witness. I had
the statement that he had given the state before trial.
He testified, over objection, that James Phillips had
told him that [petitioner] killed Eric Witt. He then
testified that he met [petitioner] outside a store in
Fort Worth. He said that [petitioner] admitted that he
had killed Eric Witt because Witt said he knew who
[petitioner] was. I cross examined Mr. Amos. He could
not say how long after he talked to James Phillips, he
talked to [petitioner]. I did not ask him what day he
talked to [petitioner], because his answer suggested he
did not know the date. Moreover, since he said the
meeting took place outside the store and that he saw
[petitioner] while they were in their respective cars,
whether the store was open was irrelevant. Instead, I
reinforced the defensive theme that we were pursuing,
that he was a long time member of the Como neighborhood
and that the neighborhood was very tight and clannish.
This had been [petitioner]'s explanation for why the
residents were placing the blame on him because he was
an outsider who had moved to Como from New Orleans
21

after Hurricane Katrina.
(Id. at 61-62

(emphasis added) . 5 )

Based on the record and the submitted affidavits, the state
habeas court entered factual findings consistent with counsel's
affidavit, too numerous to list here.

(Id. at 251, 254-57.) The

court also entered findings that counsel was appointed an
investigator who conducted over 124 hours of work on petitioner's
case; that the investigator attempted to locate Nathaniel
Baldwin, apparently to no avail; and that petitioner presented no
credible evidence as to what counsel would have discovered had
they done additional investigation.

(Id. at 253.) Based on its

findings, and applying the Strickland standard, the state court
concluded that counsel's decisions not to call the witnesses was
the result of reasonable trial strategy and that petitioner
failed to show a reasonable probability that the result of the
proceeding would have been different had counsel done more
investigation.

(Id. at 260-61.)

The state court applied the proper standard and, deferring
to the state court's factual findings, the court's application of
that standard is not objectively unreasonable. Counsel has a duty
to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.
5Counsel who assisted Harris, Navid Alband, also filed an affidavit in
the state habeas proceeding testifying similarly.
(Id. at 196-200.)

22

Strickland, 466 U.S. at 690-01. Contrary to petitioner's
assertion, it appears counsel conducted a thorough pretrial
investigation and formulated a strategy that was reasonable based
on the information known to counsel at the time. Counsel was
aware of the results of the gun residue and polygraph tests and
the gun found in petitioner's residence. And,

save for the

affidavits/unsworn statements from Sheree Hawkins, Lee Hall,
Kenneth Francis, and Clarence McGee, which were found to lack
credibility by the state courts, petitioner submitted no
affidavits from other witnesses or alleged with specificity what
additional investigation would have revealed. See Druery v.
Thaler, 647 F.3d 535, 541 (5th Cir. 2011). Conclusory allegations
of counsel's failure to investigate and/or call witnesses are
insufficient to demonstrate ineffective assistance. See United
States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989).
Further, it is well established that claims of uncalled
witnesses are disfavored in federal habeas-corpus review because
allegations of what a witness would have testified to is
speculative, especially if the claim is unsupported by evidence
indicating the witness's willingness to testify and the substance
of the proposed testimony. See Harrison v. Quarterman, 496 F.3d
419, 428

(5th Cir. 2007). Moreover, the decision whether to

present a witness is considered to be essentially strategic, and
such decisions by counsel are virtually unchallengeable and

23

generally do not provide a basis for habeas-corpus relief. See
Strickland, 466 U.S. at 689; Alexander v. Mccotter, 775 F.2d 595,

602 (5th Cir. 1985).
For the reasons discussed herein,
The court ORDERS that the petition of petitioner for a writ
of habeas corpus pursuant to 28 U.S.C.

§

2254 be, and is hereby,

denied. The court further ORDERS that a certificate of
appealability be, and is hereby, denied.
SIGNED January

~'-'-'

2019.

JUDGE

24