Gard v. Davis

Filing 19

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 1/29/2019) (edm)

U.S. DISTRICT COURT

NORTHERN lJISTRICTOFTEXAS

FILED
IN THE UNITED STATES DISTRI T COlRT
FOR THE NORTHERN DISTRICT 0 TEX 1S JAN
FORT WORTH DIVISION
RICHARD ALLAN GARD,
Pe ti ti oner,

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

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2 g 2019

CLERK, U.S. DISTRICT COURT

B~---;;,:=--­
bcputy
No.

4:17-CV-925-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, Richard Allan Gard, 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 February 17, 2011, following a short trial, a jury in
Tarrant County, Texas, Case No. 1184098D, found petitioner guilty
on one count of possession of a controlled substance,
methamphetamine, in the amount of four grams or more but less
than 200 grams, with intent to deliver.

(Clerk's R. 53, doc. 11-

11.) Subsequently, the trial court found the habitual-offender

notice in the indictment not true and assessed petitioner's
punishment at 30 years' confinement in TDCJ.

(Reporter's R., vol.

6, 70, doc. 11-18.) Petitioner's conviction was affirmed on
appeal and the Texas Court of Criminal Appeals refused his
petition for discretionary review.

(Docket Sheet 1-2, doc. 11-2.)

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 1 2-31 &

Action Taken.) This federal petition followed.
The state appellate court summarized the factual background
of the case as follows:
In December 2009, Euless Police Department Officer
Hung Ho obtained a search warrant for [petitioner]'s
home and car. Several plain clothes officers, including
Officer Ho, were stationed near [petitioner]'s home to
wait for his arrival. The officers saw [petitioner]
drive toward his home and then continue past it.
Officer Ho followed [petitioner] in an unmarked police
car and witnessed three traffic violations. Officer Ho
then called marked patrol units to the scene to stop
[petitioner]. [Petitioner] stopped his car, and Officer
Ho approached him, commanding him to get out of the
car. Because [petitioner] did not immediately do so,
Officer Ho pulled him from the car, put him on the
ground on his stomach, and placed him in handcuffs.
According to Officer Ho's testimony at trial, when
officers rolled [petitioner] onto his back, they found,
where [petitioner]'s stomach had been, two baggies
containing methamphetamine and three empty plastic
baggies. Officer Ho testified that these items were not
on the street before he put [petitioner] on the ground.

1

"SHR02" refers to the record of petitioner's state habeas proceeding in
WR-83,445-02.

2

The police searched [petitioner], finding a cell
phone and $590. The police also searched [petitioner]'s
car and found another plastic bag containing
methamphetamine, a digital scale, and "some other
various pills." The police later searched
[petitioner]'s home and found three more bags of
methamphetamine.
A Tarrant County grand jury indicted [petitioner]
for possessing more than four grams but less than two
hundred grams of methamphetamine with intent to
deliver. [Petitioner] pled not guilty. Before trial,
[petitioner] filed a motion to suppress evidence
concerning items "seized from his person, the ground
around him, and the motor vehicle .
. as such was
obtained as a result of an illegal search .
. in
violation of his rights." Under a broad construction of
the motion to suppress, [petitioner] argued, among
other assertions, that the search of his car was made
without a warrant or another ground supporting the
search. The trial court denied [petitioner]'s motion.
(Mem. Op. 2-3, doc. 11-6.)
II. ISSUES
Petitioner asserts that he received ineffective assistance
of trial and appellate counsel in various respects and that the
state courts' decision to deny state habeas relief involved an
unreasonable application of United State Supreme Court precedent
and/or was based on an unreasonable determination of the facts in
light of the evidence presented in state court.

(Pet. 6-7

&

Pet'r's Mem. 16, doc. 1. 2 )
III. RULE 5 STATEMENT
Respondent does not allege that the petition is barred by
2
Because petitioner's memorandum in support and appendices, some of
which are not paginated, are attached to the form petition, those documents
are referred to and cited as part of the petition and the pagination in the
ECF header is used.

3

successiveness, the federal statute of limitations, or a failure
to exhaust state-court remedies.

(Resp' t' s Answer 5.)

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.
210 F.3d 481, 485

Hill v. Johnson,

(5th Cir. 2000). Section 2254 (e) (1) provides

that a determination of a factual issue made by a state court
shall be presumed to be correct. A petitioner has the burden of
rebutting the presumption of correctness by clear and convincing
evidence. 28 U.S.C.

§

2254(e)(l); 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

4

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

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 a first appeal as of right. U.S. CONST. amend. VI,
XIV; Evitts v. Lucey, 469 U.S. 387, 393-95 (1985); Strickland v.
Washington,

466 U.S. 668, 688

(1984); Anders v. California, 386

U.S. 7 38, 7 4 4 ( 1967) . To establish ineffective assistance of
counsel, a petitioner must show (1) that counsel's performance
fell below an objective standard of reasonableness, and (2) that
but for counsel's deficient performance the result of the
proceeding would have 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.

5

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§ 2254(d) (1).
See Gregory v.

Thaler, 601 F.3d 347, 351 (5th Cir. 2010). Where,

as here, the state courts adjudicated the ineffective-assistance
claims on the merits, this court must review petitioner's claims
under the "doubly deferential" standards of both Strickland and §
2254(d). Cullen v. Pinholster, 563 U.S. 170, 190 (2011). In such
cases, the "pivotal question" for this court is not "whether
defense counsel's performance fell below Strickland's standard";
it is "whether the state court's application of the Strickland
standard was unreasonable." Richter, 562 U.S. at 101. See also
id. at 105 ("Establishing that a state court's application of
Strickland was unreasonable under§ 2254(d) is all the more
difficult. The standards created by Strickland and§ 2254(d) are
both 'highly deferential,' and when the two apply in tandem,
review is 'doubly' so.

(internal quotation marks and citations

omitted)).
Petitioner asserts that his counsel was ineffective in the
following respects:
(1)

trial counsel failed to investigate the facts

6

before he wrote and filed the motion to suppress
and failed to "connect any specific issues of
police misconduct in using excessive force in a
non felony traffic violation arrest as a reason to
suppress; causing error of specific 4th Amendment
violation";
(2)

trial counsel entered "the search warrant by
attaching it to the written motion to suppress
when the State had not entered it at [the]
pretrial hearing on [the] motion to suppress and
counsel 'challenged the existence of the search
warrant at the hearing but failed to object to
every mention of it throughout that hearing";

(3)

trial counsel failed to file a motion in limine to
stop the state from eliciting testimony concerning
his bad character;

(4)

trial counsel failed to interview or call the Fort
Worth patrol officers who videotaped the stop and
arrest "to testify about the videos [sic]
completeness and the actual alleged stop sign
violation";

(5)

trial counsel failed to object to testimony
alluding to his character on two separate
occasions during direct examination of Officer Ho;

(6)

trial counsel failed to object to the jury's
request during its deliberation for a copy of both
parts of the search warrant and a list of items of
proof of intent;

(7)

trial counsel failed to request an article 38.23
instruction be given to the jury "concerning
illegal arrest, police miscinduct [sic] using
excessive force in non felony traffic stop
arrest"; and

(8)

appellate counsel failed to argue "for a proper
4th Amendment analysis and/or a deferential review
of video of arrest and stop on direct appeal."

(Pet. 24, doc. 1; SHR02 9, doc. 11-27.) Petitioner's claims are
addressed in this opinion to the extent they were exhausted in

7

state court.
Counsel Danny Burns represented petitioner at trial and on
appeal. He submitted an affidavit in the state habeas proceeding
responding to petitioner's allegations, in relevant part, as
follows

(all spelling, grammatical, and/or punctuation errors are

in the original):
I was retained to represent [petitioner] on a
charge of Possession of a Controlled Substance with
intent to deliver over 4 grams but less than 200 grams
of Methamphetamine in 2010. His aunt and uncle hired at
his request and I talked with him about the case and
how he got arrested. After I obtained discovery from
the State, I went over the allegations and the State's
version of what happened. His version was not much
different from the State's version. On December 17,
2009 he was driving to his home and noticed the
suspicious cars around the house and he decided to keep
going by the house. He still had some drugs he had not
been able to sell in his vehicle. When he noticed the
vehicles following him, he took off. The officers
pursued him. He claims he got out of their sight and
considered getting rid of the dope, but he decided to
try to lose the cops and keep the methamphetamine. The
officers had a search warrant for his house and the
vehicle. I filed a motion to suppress on the search
warrant and the pursuant chase. The State had not
relied on the search warrant and so we did not address
those issues, because the State refused to introduce
any search warrant during the Motion to Suppress
hearing nor attempt to prove if up as admissible even
at the end of the trial when the trial court admitted
it. The defense contested that any search warrant
existed because the State had not produced it. The two
issues raised on appeal regarding the search and
seizure were based upon the absence of the search
warrant being produced by the State. The Court of
Appeals ignored the fact that the State did not produce
nor prove the admissibility of the search warrant even
when the State offered it without proof, at the end of
the trial. The appellate courts give greater leeway to
a search conducted pursuant to a search warrant
required by both the Texas and United States

8

Constitutions than to a warrantless search. My
arguments were that the State did not rely on any
search warrant. The fact that [petitioner] ran the stop
sign gave at least some grounds for the stop but the
excessive force, complained of and questioned about
during the hearing was an issue raised with the trial
court and should have been addressed by the Court of
Appeals. I had agreed to do the appeal without pay (pro
bono) to the Second Court of Appeals but I never agreed
to go further for no payments. I did agree that if they
would pay $250.00 for the expense of my secretary,
paper and postage, I would file for a Petition for
Discretionary Review but no one would pay the expenses.
On the sufficiency of the evidence, there was never any
evidence of the methamphetamine bing in [petitioner]'s
hands, pockets, or otherwise than that after being
thrown to the ground he was laying on the packets. At
the suppression hearing, I asked the Judge to allow me
to talk with [petitioner] and he allowed me to talk
with him and [petitioner] did not want to testify or
call any witnesses on the Motion.
As regards my not asking for a continuance in
order to subpoena the missing officers so they could
give even more harmful, corroborating, and prejudicial
evidence, I believe that having the State proceed
without all their guns on board was and is the correct
decision for the defense.
The issues regarding the extraneous matters
brought up were trivial and even I do not believe they
could have affected his substantial rights as .required
by Texas Rules of Appellate Procedure, Rule44.2(b). I
made the proper objections during the trial but did not
go so far as emphasizing his bad character and I did
not open the door to his extensive criminal history, a
copy of which from the Tarrant County District Clerk's
website is attached .
. and made a part hereof by
reference. As for the admission of the search warrant,
it was admitted over my objections and the jury never
received the Affidavit for the Search Warrant because
it was admitted for record purposes only. The admission
of the search warrant was without a proper predicate
and I feel should not have been considered by the trial
court or the appellate court since the State did not
admit it at the time of the hearing on the Motion to
Suppress. The only jury note was asking for the search
warrant and the affidavit for search warrant. The trial

9

court's reply was to send in the search warrant which
he had admitted into evidence over my objections and
telling the jury that that was all that had been
admitted for their consideration. I filed a Motion for
New Trial to allow us to get a copy of the record and
also to bring before the trial judge the major issues
which had already been briefed before the Court as
evidenced by the record. I admitted the tape showing
the force used to drag [petitioner] out of the vehicle
and throw/place him on the ground. The inconsistent
testimony of Officer Ho alleged by [petitioner] does
address what he claims are inconsistencies. I argued
the inconsistencies of Mr. Ho's testimony .
. and it
was the juries job to consider and apply those
inconsistencies, which they did. The decision to
believe or disbelieve all or part of the testimony of
any witness is the exclusive prerogative and duty of
the jury. The decision to believe or disbelieve a
witness is not an appellate issue.
As far as the search issues, I discussed the
problems we had and the fact that if the Appellate
Court considered the search warrant, we lose those
issues but [petitioner] acknowledged that he understood
and wanted to proceed in that manner.
On the comments on his silence, the error was not
direct and egregious enough to warrant a reversal, and
the objection to the statue rather than saying comment
on his failure to testify stopped the State's use of
his silence and rendered any harm minimal and subject
to a harmless error finding.
As for a request for a 38.23 instruction, there
must be a disputed fact for the jury to decide. The
only disputed fact was whether the State had connected
the drugs to [petitioner] and that issue was in play
when the case was argued and the jury did in fact
return a verdict finding that the drugs under his
prostrate body on the asphalt were connected to
[petitioner].
[Petitioner] cannot point to any disputed fact to
give rise to a request for a 38.23 instruction.
(SHR02 62-68, doc. 11-27 (citations omitted).)
In a supplemental affidavit, counsel provided the following

IO

statement (all spelling, grammatical, and/or punctuation errors
are in the original):
a. A motion to suppress raises the issue of an
illegal search and seizure. At the suppression hearing,
new grounds can be alleged. A Motion to suppress is one
way to raise the arguments and it puts the State on
notice, however, an objection at the time the tainted
evidence is offered preserves the error as well. The
issues were addressed before the trial court.
b. The search warrant was addressed during the
suppression hearing. The failure to attach the search
warrant is not fatal to any arguments made. A
suppression hearing is intended to address the issues
to be suppressed. Addressing the search warrant was
necessary to the purpose of the hearing. Although the
State was not relying on the search warrant for the
stop and arrest, it was a part of the probable cause in
the case.
c. A motion in limine is used normally to keep out
prejudicial testimony that would otherwise be
admissible. The prosecutors in this case were and are
well aware of the law, know how to try a case and the
Motion was unnecessary. The testimony of Officer Ho was
objected to and sustained (assuming the complained of
testimony is the same as in the record) . The continued
emphasis on minimal issues simply adds to the harm in
some cases. I believed this was one of those cases.
d. The Motion for New Trial was filed to provide
the trial court an avenue to grant a new trial but also
to give the defendant time to decide if he wanted to
appeal and also to give the court reporter time to
prepare the record for appeal. The trial judge had
already ruled on the errors and there was no change in
the facts or the law in the intervening time.
e. There was no issue to raise on appeal regarding
the Motion for New Trial being overruled by operation
of law. If we had additional evidence to present, then
the Motion for New Trial would have had an evidentiary
hearing.
f. The jury arguments were not sufficiently
egregious to warrant a reversal. There was no reason to
11

raise the issue.
g. There was no good ground of error to be raised
in reference to "recitals".
h. The character evidence could have been an issue
to raise but the error, if any, was clearly harmless
error under 44.2(b) of the Texas Rules of Appellate
Procedure.
i. Trial courts do not make findings of fact and
conclusions of law regarding evidentiary rulings.
Explaining rulings, especially in front of the jury is
an improper comment on the evidence by the trial judge.
(Id. at 94-96.)
Based on the submitted affidavits, the documentary record,
and his own recollection of the trial proceedings, the state
habeas judge entered the following relevant findings of fact,
which, although numerous, are included to assist the reader (all
spelling, grammatical, and/or punctuation errors are in the
original) :
Factual Background-Pretrial

16.

Mr. Burns obtained discovery from the State in
this felony case and determined that the facts
alleged differed little from [petitioner]'s
version of what occurred.

17.

Mr. Burns believed that the traffic violations
[petitioner] committed during his flight from the
vicinity of his home were the basis for the
officers' stop of [petitioner]'s vehicle, as well
as the subsequent search of the vehicle, not the
already-obtained search warrant.

18.

Mr. Burns also believed that the State's evidence
proving [petitioner]'s "possession" of the
methamphetamine provided a viable defense attack
12

since the contraband was found on the ground below
[petitioner]'s body after he had been removed from
his vehicle.
19.

Mr. Burns filed a detailed motion to suppress; he
attached the search warrant to the motion to
suppress.

20.

The trial court held a suppression hearing in
April of 2010. Officer Ho was sole witness.
[Petitioner] decided not to testify at the motion
to suppress after he consulted with his counsel.

21.

Mr. Burns strategically decided not to subpoena
the myriad other officers involved in the stop,
believing that it better served [petitioner] for
"the State [to] proceed without all their guns on
board.n

22.

During the suppression hearing, [petitioner]
questioned the validity of the seizure of drugs
found on the ground underneath [petitioner], as
well as the seizure of drugs from the vehicle
based on the officers' purportedly illegal stop of
the vehicle and illegal search of the car.

23.

The trial court denied the motion to suppress,
concluding that the officers lawfully stopped
[petitioner]'s vehicle based on both the search
warrant and the three traffic violations.

24.

[Petitioner]'s counsel requested and the trial
judge entered written findings of fact and
conclusions of law.

25.

The trial court entered the following factfindings
after the conclusion of the suppression hearing:
1.

Officer Hung Ho was employed as a police
officer assigned to the Tarrant County,
Texas, narcotics unit on December 17, 2009.

2.

Officer Ho, on December 16, 2009, had
obtained a search warrant for a residence
located at 2604 Hale Avenue, Fort Worth,
Texas. Additionally, the search warrant
authorized the search of a 1999 tan Chevrolet
Blazer automobile with a license number of
13

the vehicle listed in the search warrant.
3.

4.

The vehicle drove past the residence and
Officer Ho began following the vehicle.

5.

Officer Ho, during the period that he was
following the target vehicle, observed the
vehicle commit three traffic violations,
specifically, twice fail to signal a turn and
failure to stop at a stop sign.

6.

The target vehicle was stopped as a result of
the three traffic violations and for being
listed in the search warrant.

7.

[Petitioner] was the driver and sole occupant
of the vehicle.

8.

[Petitioner] was removed from the vehicle,
placed face down on the ground, and
handcuffed.

9.

Upon rolling [petitioner] over and attempting
to assist him to stand up, bags containing
methamphetamine were seen on the ground
directly underneath where [petitioner] had
been laying.

10.

26.

On December 17, 2009, Officer Ho, while
conducting surveillance of the residence at
2604 Hale Avenue, Fort North, Texas, observed
the target vehicle, the 1999 Chevrolet Blazer
automobile, approach the residence,

The search warrant that had been obtained on
December 16, 2009, was not introduced into
evidence by the State or the Defense [during
the motion to suppress] .

The trial court entered the following conclusions
of law after the conclusion of the suppression
hearing:
1.

Officer Ho had reasonable suspicion to detain
[petitioner] as a result of the search
warrant that was issued on December 16, 2009.

2.

Officer Ho's (sic) had reasonable suspicion
14

to detain [petitioner] as a result of the
commission of three traffic violations
committed by [petitioner] while driving the
target vehicle described in the search
warrant that had been obtained on the
previous day.
3.

The three traffic violations were offenses
that could result in an arrest of the person.

4.

Officer Ho was justified in the arrest of
[petitioner].

5.

The narcotics that were discovered as a
result of the arrest of [petitioner] on the
street directly underneath where [petitioner]
had been laying are admissible at trial.

Factual Background-Trial

28.

Trial counsel did not file any motion in limine,
instead, choosing to object when necessary.

29.

Trial counsel successfully objected to character
evidence, but decided not to continually emphasize
minimal issues by further objecting.

30.

Trial counsel avers that continued emphasis on
minimal issues via objecting during trial harms a
defendant's case; trial counsel opined that this
case would have been harmed had he repeatedly
objected regarding minimal matters, especially
since the prosecutors were experienced and
knowledgeable on the law.

31.

During the trial, [petitioner]'s counsel decided
when to object and when not to object in order to
protect [petitioner]'s rights and not open the
door to [petitioner]'s extensive criminal history,
but trial counsel also strategically sought not to
emphasis [petitioner]'s bad character with
objections.

32.

[Petitioner] does not identify the complained-of
character evidence admitted during his trial.

15

33.

[Petitioner] does not explain that there was a
reasonable probability that the result of the
proceeding would have been different, but for
counsel's alleged failure to object to evidence of
bad character.

34.

During the trial, the parties and trial judge
discussed the search warrant; the warrant-but not
the affidavit-was admitted as an exhibit over
[petitioner]'s objection.

35.

Trial counsel opined that the only disputed trial
issue involved whether [petitioner] possessed the
drugs found underneath his prostrate body on the
asphalt.

36.

[Petitioner] does not identify any affirmatively
contradicted evidence regarding the lawfulness of
the officers' discovery of contraband underneath
his body upon his arrest which would have required
the submission of an instruction pursuant to Tex.
Code Grim. Proc. 38.23(a).

37.

No evidence affirmatively contradicted the
lawfulness of the officers' discovery of
contraband underneath [petitioner]'s body when he
was arrested, hence trial counsel did not request
an instruction pursuant to article 38.23(a).

38.

The trial court did not submit an instruction
pursuant to Tex. Code Crim. App. art. 38.23(a) to
the jury.

39.

During jury argument, trial counsel's argument
addressed perceived inconsistencies in Officer
Ho's testimony.

40.

[Petitioner] does not identify State's arguments
that purportedly commented on his failure to
testify.

41.

Trial counsel believed that any comments made
during the State's jury arguments did not rise to
a harmful level.

42.

The trial court provided the jury with a copy of
the search warrant when requested, but not the
search warrant affidavit since it had not been
16

admitted into evidence.

Factual Background-Appeal

46.

Mr. Burns filed a detailed motion for new trial
that raised complaints alleging evidentiary
insufficiency and that the State's jury argument
commented on [petitioner]'s failure to testify.

47.

[Petitioner]'s trial counsel filed a motion for
new trial "to provide the trial court an avenue to
grant a new trial but also to give the defendant
time to decide if he wanted to appeal and also to
give the court reporter time to prepare the record
for appeal."

48.

Mr. Burns decided not to request a hearing on the
motion for new trial he filed because "the trial
judge had already ruled on the errors and there
was no change in the facts or the law in the
intervening time."

49.

Allowing a motion for new trial to be overruled by
operation of law provides a longer period of time
for record preparation and review than asking for
an earlier ruling.

50.

[Petitioner] does not identify any fact or
argument that necessitated a motion for new trial
hearing.

51.

No motion-for-new-trial issue involving additional
evidence existed.

52.

The trial court did not hold a hearing on the
motion for new trial.

53.

The motion for new trial was overruled by
operation of law.

54.

On appeal,
1.

[petitioner] raised three complaints:

The trial court erred by denying his motion
to suppress because the police officers used
17

excessive force while arresting him;
2.

3:

55.

The trial court erred by denying his motion
to suppress evidence found in the car because
the search violated Arizona v. Gant, 556 U.S.
332, 351 (2009); and
Insufficient evidence supported his
conviction.

The Second Court of Appeals affirmed
[petitioner]'s conviction resolving each issue as
follows:
1.

[Petitioner] forfeited his excessive force
argument because the complaint was not
preserved;

2.

The trial court did not err by expressly
finding that a warrant authorized the vehicle
search because the uncontradicted pretrial
testimony recognized the existence of the
warrant and [petitioner] had attached a copy
of the warrant to his motion to suppress; and

3.

Viewing the evidence in the light most
clearly to the jury's verdict, sufficient
evidence proved [petitioner] intentionally
possessed the methamphetamine found
underneath him when he was arrested.

56.

Mr. Burns raised an evidentiary sufficiency claim
on appeal because there was no direct evidence
that the contraband had been in [petitioner]'s
hands, pockets, or similar-only that it had been
found on the ground below his body; this issue
addressed the perceived inconsistencies arising
from Officer Ho's testimony.

57.

Mr. Burns determined that no viable appellate
claim existed regarding the jury argument that
purportedly commented on [petitioner]'s silence
since the comments were not direct, nor egregious.

58.

Mr. Burn[s] determined that no viable appellate
claim existed regarding the motion for new trial
being overruled by operation of law.

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59.

Mr. Burns determined that no viable appellate
claim existed regarding the jury's receipt of
"other" evidence including "recitals" based on the
trial court's providing the jury with the warrant
during deliberations when requested.

60.

Mr. Burns determined that no viable appellate
claim existed regarding claims of improper
admission of character evidence at trial because
any complaint would have been harmless.

61.

Mr. Burns determined that no viable appellate
claim existed regarding the standard of review
with respect to the trial court's findings of fact
and conclusions of law. In addition, trial counsel
explained these appellate concerns with
[petitioner].

62.

[Petitioner] does not identify cumulative errors
trial counsel should have preserved and how they
purportedly harmed him.

63.

The affidavits of Danny D. Burns' are credible and
reliable.

64.

The Writ Transcript and the Burns affidavits
undermine [petitioner]'s claims of pretrial,
trial, and appellate ineffective assistance.

(Id. at 115-25 (citations omitted).)
Based on its findings, and applying the Strickland standard,
as well as other relevant Supreme Court precedent and state law,
the state court entered the following legal conclusions:
Effective Assistance-Pretrial

9.

The Fourth Amendment provides, "The right of the
people to be secure in their persons, houses,
papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the
persons or things to be seized."

19

10.

There exists a constitutional preference for
searches to be conducted pursuant to a warrant.

11.

Unreasonable search and seizures are
unconstitutional.

12.

Warrantless searches are per se unreasonable
unless they fall under one of a few exceptions.

13.

Law enforcement officers were entitled to stop
[petitioner] based on their obtaining a search
warrant that specifically identified
[petitioner]'s vehicle.

14.

Law enforcement officers were entitled to stop
[petitioner] based on observed traffic violations
even though they actually sought [petitioner] for
drug-related activity.

15.

Trial courts reviewing a magistrate's probablecause determination act as the sole finder of fact
and judge of witness credibility to determine what
weight to give testimony, even if controverted.

16.

The trial judge found two legal bases supporting
the stop of [petitioner]'s vehicle: the search
warrant and the officers' observation of traffic
violations.

17.

A trial court's ruling must be upheld if it is
correct under any theory of law applicable to the
case. Since [petitioner] failed to assert facts
undermining the validity of both of these legal
theories, he failed to carry his habeas burden
regarding his counsel's assistance regarding the
motion to suppress.

18.

A trial counsel's failure to file a motion to
suppress is not per se ineffective assistance of
counsel.

19.

In this case, counsel filed a motion to suppress;
trial counsel's decision to contest the traffic
stop in that motion, not the warrant, was the
result of reasonable trial strategy.

20.

Counsel's stated reason for not requesting to
continue the suppression hearing in order to call
20

all of the other officers who had been present at
the scene was the result of reasonable trial
strategy.
21.

[Petitioner]'s trial counsel provided reasonably
effective assistance of counsel pretrial.

Effective Assistance-Trial

22.

A motion in limine is a preliminary ruling that
preserves nothing for review.

23.

[Petitioner]'s decision not to file a motion in
limine and to, instead, object to trial evidence
was the result of reasonable trial strategy.

24.

By failing to point to specific unobjected-to
evidence of bad character, [petitioner] failed to
state facts that, if true, would entitle him to
the requested relief.

25.

The alleged improper admission of character
evidence is subject to a harmless error analysis.

26.

By failing to explain that there was a reasonable
probability that the result of the proceeding
would have been different, but for counsel's
alleged failure to object to evidence of bad
character; therefore, [petitioner] has failed to
state facts that, if true, would entitle him to
the requested relief.

27.

Trial counsel successfully objected to character
evidence, but decided not to continually emphasize
minimal issues; trial counsel's decisions were the
result of reasonable trial strategy.

28.

After receiving the jury's request during
deliberations, the trial court lawfully submitted
the search warrant exhibit to the jury in
compliance with Tex. Code Crim. Proc. art. 36.25.

29.

By failing to identify any affirmatively
contradicted evidence regarding the legality of
the officers' discovery of contraband underneath
his body upon his arrest, [petitioner] has failed
to state facts that, if true, would entitle him to
the requested relief.
21

30.

[Petitioner]'s trial counsel did not request an
instruction pursuant to article 38.23(a) because
no issue involved an affirmatively contested fact
that would give rise to such an instruction, nor
has [petitioner] pointed to any such fact.

31.

Trial counsel's decision not to request a jury
instruction pursuant to article 38.23(a) was the
result of reasonable trial strategy.

32.

Trial counsel's belief that the only disputed
trial issue-possession-was a factor for the jury
to decide was the result of an accurate assessment
of the law and reasonable trial strategy.

33.

[Petitioner]'s trial counsel provided reasonably
effective assistance of counsel at trial.

Effective Assistance-Appeal

34.

The Strickland v. Washington test governs the
standard of review for ineffective assistance of
appellate counsel claims, as well as ineffective
assistance of trial counsel claims.

35.

"To show that appellate counsel was
constitutionally ineffective for failing to assert
a particular point of error on appeal, an
[petitioner] must prove that (1) 'counsel's
decision not to raise a particular point of error
was objectively unreasonable,' and (2) there is a
reasonable probability that, but for counsel's
failure to raise that particular issue, he would
have prevailed on appeal. An attorney 'need not
advance every argument, regardless of merit, urged
by the appellant.' However, if appellate counsel
fails to raise a claim that has indisputable merit
under well-settled law and would necessarily
result in reversible error, appellate counsel is
ineffective for failing to raise it.

36.

An attorney is prohibited from raising claims on
appeal that are not founded in the record.

37.

An attorney is under an ethical obligation not to
raise frivolous issues on appeal.

38.

No absolute right to a hearing on a motion for new

22

trial exists.
39.

No hearing is required on a motion for new trial
when the issues raised in the motion can be
determined from the record.

40.

The issues Mr. Burns raised in the motion for new
trial did not require a hearing and Mr. Burns'
stated reason for the motion for new trial-allow
time to consider whether to pursue an
appeal-constituted reasonable appellate strategy.

41.

Mr. Burns' determination that there was no legal
reason to raise an appellate issue regarding the
lack of a hearing on the motion for new trial was
the result of reasonable appellate strategy.

42.

Proper jury argument is generally limited to the
following topics although the State is afforded
wide latitude: (1) summation of the evidence
presented at trial; (2) reasonable deductions
drawn from that evidence; (3) answers to opposing
counsel's argument; and (4) pleas for law
enforcement.

43.

Improper jury argument includes comments on a
defendant's failure to testify, violating the
right against compelled self-incrimination.

44.

A prosecutor's argument impermissibly comments on
a defendant's failure to testify only if, when
viewed from the jury's standpoint, the comment is
manifestly intended to be, or is of such character
that a typical jury would naturally and
necessarily take it to be, a comment on the
defendant's failure to testify; a defendant will
not prevail on appeal if the comment might only be
construed as an implied or indirect allusion to a
defendant's failure to testify.

45.

Courts review a trial court's ruling on an
objection to improper jury argument for abuse of
discretion.

46.

By failing to specify the jury argument that
purportedly commented on his failure to testify,
[petitioner] failed to state facts that, if true,
would entitle him to the requested relief.
23

47.

Mr. Burns' determination that no viable appellate
claim existed regarding the jury argument that
purportedly commented on [petitioner]'s silence
since the comments were not direct, nor egregious
was the result of reasonable appellate strategy.

48.

The trial court lawfully submitted only the search
warrant exhibit to the jury in compliance with
Tex. Code Crim. Proc. art. 36.25 ("There shall be
furnished to the jury upon its request any
exhibits admitted as evidence in the case.").

49.

Mr. Burns' determination that no viable appellate
claim existed regarding the jury's receipt of
"other" evidence including "recitals" was the
result of reasonable appellate strategy.

50.

On appeal, Mr. Burns raised, albeit
unsuccessfully, two search and seizure issues.

51.

Appellate courts review a trial court's
motion-to-suppress ruling-including a trial
judge's written findings-in the light most
favorable to the trial court's ruling. A trial
court's legal conclusions are reviewed de novo
unless its explicit factfindings that are
supported by the record are also dispositive of
the legal ruling.

52.

A trial court's ruling must be upheld if it is
correct under any theory of law applicable to the
case.

53.

Since the trial judge found two legal bases
supporting the stop of [petitioner]'s vehicle-the
search warrant and the traffic violations-and
[petitioner] failed to assert facts undermining
the validity of the search warrant, [petitioner]
failed to carry his habeas burden regarding
counsel's purported ineffectiveness relating to
any search and seizure claim on appeal.

54.

Mr. Burns' habeas averment that no viable
appellate claim existed regarding the standard of
review with respect to the trial court's findings
of fact and conclusions of law is the result of
sound legal strategy and does not reveal any
deficient appellate performance since counsel is

24

not required to pursue futile claims.
55.

Mr. Burns raised an evidentiary sufficiency claim
on appeal because there was no direct evidence
that the contraband had been in [petitioner]'s
hands, pockets, or similar-only that it had been
found on the ground below his body; Mr. Burns'
decision to raise this appellate issue addressed
the perceived inconsistencies arising from Officer
Ho's testimony and constituted a reasonable
exercise of appellate strategy.

56.

By failing to identify what cumulative errors his
trial counsel should have preserved and later
presented on appeal, [petitioner] failed to state
facts that, if true, would entitle him to the
requested relief.

57.

[Petitioner]'s trial counsel provided reasonably
effective assistance of counsel on appeal.

(Id. at 127-33 (citations omitted).)
The state court applied the proper legal standard and,
deferring to the state court's factual findings, including the
court's credibility determinations, the court's application of
that standard is not objectively unreasonable. Petitioner's
claims are largely conclusory, with no legal and/or evidentiary
basis, involve state evidentiary rulings or other matters of
state law,

involve strategic and tactical decisions made by

counsel, or would have required counsel to make frivolous motions
or objections, all of which generally do not entitle a state
petitioner to federal habeas relief. See, e.g., Strickland, 460
U.S. at 689 (holding strategic decisions by counsel are virtually
unchallengeable and generally do not provide a basis for
postconviction relief on the grounds of ineffective assistance of

25

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 issue" and "counsel is not required to
file frivolous motions or make frivolous objections"). Nor does
petitioner identify any potentially meritorious issues that
counsel should have raised on direct appeal.
A petitioner shoulders a heavy burden to refute the premise
that "an attorney's actions are strongly presumed to have fallen
within the wide range of reasonable professional assistance."
Messer v. Kemp, 760 F.2d 1080, 1090 (11th Cir. 1985). Petitioner
presents no evidentiary, factual, or legal basis in this federal
habeas action that could lead the court to conclude that the
state courts unreasonably applied the standards set forth in
Strickland based on the evidence presented in state court. 28

u.s.c.

§

2254(d).

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.

26

§

2254 be, and is hereby,

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

;l.

j ,

2019.

27