Barksdale v. Davis
Filing
20
Memorandum Opinion and Order...court denies petitioner's petition under 28 USC 2254...COA shall not issue. (Ordered by Senior Judge Terry R Means on 10/10/2018) (wrb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
MATTHEW ALLEN BARKSDALE,
Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.
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No. 4:18-CV-082-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, Matthew Allen
Barksdale, 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 Erath County, Texas, Case No.
CR13859, for aggravated sexual assault of [L.G.], a child younger
than 14 years of age. (Clerk’s R. 4, doc. 16-13.) On May 13, 2013,
following a jury trial, the jury found Petitioner guilty of the
offense and, the next day, assessed his punishment at 99 years’
imprisonment. (Id. at 36.) Petitioner appealed his conviction, but
the state appellate court affirmed the trial court’s judgment and
the Texas Court of Criminal Appeals refused his petition for
discretionary review. (Docket Sheet 2, doc. 16-2.) Petitioner also
filed a post-conviction state habeas-corpus application challenging
his conviction, which was denied by the Texas Court of Criminal
Appeals without written order. (SHR 3-19 & Action Taken, docs. 1629 & 16-27, respectively.1)
The state appellate court summarized the facts of the case as
follows:
C.C. is the mother of three children, including the
victim in this case, four year-old [L.G.]. [Petitioner]
is not [L.G.]’s biological father. C.C. met [Petitioner]
in 2008 while working at a McDonald’s restaurant in
Brownwood, and the two developed a romantic relationship.
[Petitioner] and C.C., along with [L.G.] and another
child the couple had together, K.B., began living
together in a home in Stephenville in July 2012.
[Petitioner] was the only father figure that [L.G.] had
known, and she referred to him as “Daddy.” On the night
of August 31, 2012, [Petitioner] and C.C. left for work
at a cleaning service and returned home around 2:45 a.m.
C.C.’s father watched the children while C.C. and
[Petitioner] were at work.
[Petitioner] and C.C. went to bed around 4:00 a.m.
on September 1. C.C. was awakened during the night by
K.B.’s crying. C.C. picked up K.B. from her bed in
another room and brought her back into bed with her and
[Petitioner] in the master bedroom. C.C. awoke again
around 9:00 a.m. and discovered that [Petitioner] was no
longer in bed with her. C.C. walked down the hallway and
found [Petitioner] lying in bed with [L.G.] [Petitioner]
woke up and returned to the master bedroom where he fell
back asleep.
While eating breakfast that morning, [L.G.] told
C.C. that “Daddy did the tee-tee thing.” C.C. asked
1
“SHR” refers to the record of Petitioner’s state habeas proceeding in WR86,974-01.
2
[L.G.] what she meant, and [L.G.] stated that
[Petitioner] spit in his hand and then rubbed it on her
“tee-tee.” C.C. then attempted to call a clinic, which
was closed, and then called her father. C.C. then woke
[Petitioner] and confronted him about what [L.G.] had
told her. [Petitioner] denied that anything had happened
and began crying.
C.C. took her daughters into the master bedroom and
asked [L.G.] once more what had happened. [L.G.] repeated
that “Daddy did the tee-tee thing,” meaning that he spit
in his hand and rubbed it on her “tee-tee.” She then told
her mother that he touched her “tee-tee” with his hand
and with his “thing.” Upon further inquiry by her mother,
[L.G.] described her father's “thing” as “the thing that
has all the hair on it.” [L.G.] then demonstrated to C.C.
that she was lying in bed in the fetal position when
[Petitioner] then pulled down her pants and underwear.
C.C. asked [L.G.], “[D]id he stick his finger or his
thing inside of you?” [L.G.] replied that he did not.
[L.G.] continued and said that “he had touched her
tee-tee with his fingers and with his thing—rubbed his
thing on her tee-tee.” Following this conversation, C.C.
took [L.G.] to the local hospital.
At the hospital, C.C. was told that they first
needed to see the police. After going to the police
station, C.C. next took [L.G.] to Cook Children’s
Hospital in Fort Worth. The C.A.R.E. team at Cook
Children’s Hospital interviewed [L.G.]. Following the
interview, [L.G.] underwent a physical examination.
Detective Orlando Gaitan subsequently interviewed
[Petitioner] about the sexual assault. Detective Gaitan
recorded this interview. [Petitioner] initially denied
that any sexual assault had taken place. However, he
later acknowledged that he “fingered” [L.G.], apparently
referring to digital penetration. In this regard,
Detective Gaitan testified that [Petitioner] confessed to
penetrating [L.G.]’s vagina. [Petitioner]’s trial counsel
objected to Detective Gaitan’s testimony on the grounds
that it was hearsay and that the recording would
constitute “the best evidence of what he said.” The trial
court overruled [Petitioner]’s objection. Detective
Gaitan further testified that [Petitioner] specifically
stated that “he had penetrated [L.G.]’s vagina with his
finger.”
[Petitioner]’s
recorded
statement
was
subsequently entered into evidence by the State without
3
objection from [Petitioner].
(Mem. Op. 2-3, doc. 16-4.)
II.
ISSUES
Petitioner raises the following two grounds for relief:
(1)
the evidence was legally and factually insufficient
to support his conviction; and
(2)
his
trial
counsel
deficient assistance.
rendered
constitutionally
(Pet. 6, doc. 1.)
III.
RULE 5 STATEMENT
Respondent believes that Petitioner failed to exhaust his
state-court
remedies
as
to
one
or
more
of
his
ineffective-
assistance-of-counsel claims but does not otherwise assert that the
petition is untimely or successive. (Resp’t’s Answer 6, doc. 15.)
IV.
A
§
2254
habeas
STANDARD OF REVIEW
petition
is
governed
by
the
heightened
standard of review provided for in 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 established by
the United States Supreme Court or that is based on an unreasonable
determination of the facts in light of the record before the state
4
court. See 28 U.S.C. § 2254(d)(1)–(2); Harrington v. Richter, 562
U.S. 86, 100 (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.
Additionally, the statute requires that federal courts give
great deference to a state court’s factual findings. Hill v.
Johnson, 210 F.3d 481, 485 (5th Cir. 2000). Section 2254(e)(1)
provides that a determination of a factual issue made by a state
court
shall
be
presumed
to
be
correct.
This
presumption
of
correctness applies to both express and implied findings of fact.
Valdez v. Cockrell, 274 F.3d 941, 948 (5th Cir. 2001).
When the Texas Court of Criminal Appeals 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. Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim.
App. 1997). In such a situation, a federal court may infer fact
findings consistent with the state court’s disposition and assume
that 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); Schartzle v.
Cockrell, 343 F.3d 440, 443 (5th Cir. 2003); Catalan v. Cockrell,
315 F.3d 491, 493 n.3 (5th Cir. 2002); Valdez, 274 F.3d at 948
n.11; Goodwin v. Johnson, 132 F.3d 162, 183 (5th Cir. 1997). A
5
petitioner
has
correctness
by
the
burden
clear
and
of
rebutting
convincing
the
presumption
evidence.
28
U.S.C.
of
§
2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003);
Williams v. Taylor, 529 U.S. 362, 399 (2000).
V.
A.
DISCUSSION
Sufficiency of the Evidence
Under his first ground, Petitioner claims that the evidence
was legally and factually insufficient to prove the element of
penetration. (Pet. 6, 11-13, doc. 1.) Petitioner raised this claim
on
appeal,
but
the
Texas
Court
of
Criminal
Appeals
refused
Petitioner’s petition for discretionary review without written
order. Thus, this 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, --- U.S.
---, 138 S. Ct. 1188, 1191-92 (2018).
Petitioner challenged both the legal and factual sufficiency
of the evidence on appeal; however, in light of the Texas Court of
Criminal Appeals’s holding in Brooks v. State, 323 S.W.3d 893 (Tex.
Crim.
App.
2010),
the
appellate
court
analyzed
Petitioner’s
insufficiency claim under only the familiar legal sufficiency
standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). (Mem.
6
Op. 4, doc. 16-4.) Likewise, for purposes of federal habeas-corpus
review, a
state
conviction
need
only
satisfy
the
Jackson
v.
Virginia legal-sufficiency standard. See Ramirez v. Dretke, 398
F.3d 691, 694 (5th Cir. 2005).
Federal
habeas
review
of
a
legal
sufficiency
claim
is
extremely limited. The required inquiry in a legal-sufficiency
analysis is only that a reviewing court determine whether, after
viewing
the
evidence
in
the
light
most
favorable
to
the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson,
443
U.S.
at
319.
This
standard
applies
to
both
direct
and
circumstantial evidence. Schrader v. Whitley, 904 F.2d 282, 287
(5th Cir. 1990). In conducting a Jackson review, a federal habeas
court may not substitute its view of the evidence for that of the
factfinder, but must consider all of the evidence in the light most
favorable to the prosecution, with all reasonable inferences to be
made in support of the jury’s verdict. United States v. Moser, 123
F.3d 813, 819 (5th C ir. 1997); Weeks v. Scott, 55 F.3d 1059, 1061
(5th Cir. 1995). Where a state appellate court has conducted a
thoughtful review of the evidence, its determination is entitled to
great deference. Callins v. Collins, 998 F.2d 269, 276 (5th Cir.
1993).
Based on the evidence adduced at trial, the state appellate
court, applying the Jackson standard, addressed the issue as
7
follows:
We review a sufficiency of the evidence issue under
the standard of review set forth in Jackson v. Virginia.
Under the Jackson standard, we review all of the evidence
in the light most favorable to the verdict and determine
whether any rational trier of fact could have found the
elements of the offense beyond a reasonable doubt. When
conducting a sufficiency review, we consider all the
evidence admitted at trial, including pieces of evidence
that may have been improperly admitted. We defer to the
factfinder’s role as the sole judge of the witnesses’
credibility and the weight their testimony is to be
afforded. This standard accounts for the factfinder’s
duty to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic
facts to ultimate facts. When the record supports
conflicting inferences, we presume that the factfinder
resolved the conflicts in favor of the verdict and defer
to that determination.
We note at the outset that [Petitioner] bases his
sufficiency challenge on the premise that we are not to
consider the testimony from Detective Gaitan that
[Petitioner] admitted to penetration or [Petitioner]’s
own recorded statement to this same effect because these
items of evidence were not properly admitted into
evidence. This is a faulty premise. As noted previously,
we consider all of the evidence in the record when
conducting a sufficiency review, whether it was
admissible or inadmissible. Accordingly, we consider
these items of evidence in conducting our sufficiency
review.
A person commits the offense of aggravated sexual
assault of a child if he intentionally or knowingly, by
any means, causes the penetration of the sexual organ of
a
child.
The
State
may
prove
penetration
by
circumstantial evidence, and the victim need not
specifically testify that there was penetration. Contact
that is “more intrusive than contact with [the victim’s]
outer vaginal lips” amounts to penetration sufficient to
sustain a conviction for aggravated sexual assault.
[Petitioner] points out that much of the evidence,
including the testimony of C.C., suggests that no
penetration occurred. C.C. testified, “[A]nd then I asked
her, well, did he stick -- did he penetrate you, and when
8
I -- and how I said that to her was, did he stick his
finger or his thing inside of you, and she said, no, she
said, he did not.” The prosecution then asked, “Did you
use the word ‘penetrate’ or did you use ‘stick it inside
you’?” C.C. replied, “I said inside her tee-tee.” The
prosecution again asked, “So you never used the word
‘penetrate’?” C.C. replied, “No, no.”
[Petitioner] also points out that Rebecca Sullivan,
a pediatric nurse practitioner who spoke with and
examined [L.G.], never indicated that [Petitioner]
penetrated [L.G.]’s sexual organ with his finger.
However, Sullivan’s testimony is inconclusive as to
whether penetration occurred. She stated that it is
possible that penetration or manipulation of the vulva
could have occurred without causing pain or sensitivity
to [L.G.].
Despite C.C.’s and Sullivan’s testimony, there still
existed evidence of penetration. In the video recording
of his police interview, [Petitioner] confessed that he
consciously “fingered” [L.G.]. He additionally provided
details concerning her body position at the time, noted
that she awoke when it happened, and stated that she did
not say anything to him when it happened. Additionally,
Detective Gaitan testified that [Petitioner] admitted
“[t]hat he had penetrated her vagina with his finger.”
Under the applicable standard of review, we must presume
that the jury resolved any conflicts in the testimony in
favor of the verdict. After reviewing the evidence in the
light most favorable to the verdict, we conclude that a
rational trier of fact could have found the element of
penetration beyond a reasonable doubt.
. . .
(Mem. Op. 4-7, doc. 16-4 (citations omitted).)
Petitioner’s claim that the evidence is insufficient rests
primarily on his contention that his confession was inadmissible
for noncompliance with article 38.22 of the Texas Code of Criminal
Procedure (“When statements may be used”). TEX. CODE CRIM. PROC. ANN.
art. 38.22 (West Supp. 2017). However, the state appellate court
9
determined
that
his
statement
did
not
stem
from
custodial
interrogation, and, thus, the warnings required by article 38.22
were not required in Petitioner’s case. (Mem. Op. 9-11, doc. 16-4.)
Nevertheless, as the state court pointed out, even erroneously
admitted evidence is considered in a sufficiency review. See United
States v. Miller, 146 F.3d 274, 280 (5th Cir. 1998). And, it was
the jury’s role to resolve any conflicts or inconsistencies in the
evidence. See United States v. Barksdale-Contreras, 972 F.2d 111,
114 (5th Cir. 1992). Accordingly, considering all the evidence
adduced at Petitioner’s trial in the light most favorable to the
jury’s
verdict,
a
rational
jury
could
have
concluded
that
Petitioner penetrated [L.G.]’s vagina with his finger. Petitioner’s
confession that he “fingered” [L.G.], alone, infers penetration.
Thus,
the
state
court’s
application
of
Jackson
was
not
unreasonable.
B. Ineffective Assistance of Counsel
Under his second ground, Petitioner claims that he received
ineffective assistance of trial counsel. (Pet. 6, 14-16, doc. 1.)
A criminal defendant has a constitutional right to the effective
assistance of counsel at trial. 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
10
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 strategy. 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. 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)).
Petitioner claims his trial counsel was ineffective by failing
to–
11
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
subject the state’s case to any meaningful
adversarial testing;
quash the indictment because the evidence was
contrary to the alleged criminal activity;
contest the designation of the state’s outcry
witness because her statement did not comport with
Texas Code of Criminal Procedure article 38.071;
request a “reliability hearing” for the outcry
witness’s statement;
request a Texas Rule of Evidence 403 balancing test
for
“noncharged
alleged
extraneous
offense
evidence” from the outcry witness;
object and request a mistrial for each instance of
prosecutorial misconduct which included statements
calculated to inflame the minds of the jurors,
“contaminating rationality”;
provide an expert witness to refute the onslaught
of the state’s witnesses;
suppress petitioner’s statement to the police for
noncompliance with Texas Code of Criminal Procedure
article 38.22;
request a Jackson v. Denno hearing to determine the
voluntariness of his statement to police “due to
police manipulation”;
make
a
hearsay
objection
regarding
Rebecca
Sullivan’s testimony about [L.G.]’s self-reported
medical history “as some testimony contained
uncharged extraneous acts”;
make a proper Texas Rule of Evidence 404(b)
objection
regarding
all
alleged
extraneous
offenses; and
request a hearing pursuant to Texas Code of
Criminal Procedure article 38.37 to determine the
admissibility
of
alleged
extraneous-offense
evidence.
(Pet. 6, 14-16, doc. 1.)
As a preliminary matter, Respondent asserts that Petitioner’s
claims (b) and (d) through (j) are unexhausted and procedurally
barred because they were not raised in state court. (Resp’t’s
Answer 6-11, doc. 15.)
State prisoners seeking habeas-corpus relief under § 2254 are
12
required to exhaust all claims in state court before requesting
federal collateral relief. 28 U.S.C. § 2254(b)(1); Fisher v. Texas,
169 F.3d 295, 302 (5th Cir. 1999). The exhaustion requirement is
satisfied when the substance of the federal habeas claim has been
fairly presented in a procedurally proper manner to the highest
court of the state on direct appeal or in state post-conviction
habeas proceedings. O’Sullivan v. Boerckel, 526 U.S. 838, 842-48
(1999); Fisher, 169 F.3d at 302; Carter v. Estelle, 677 F.2d 427,
443 (5th Cir. 1982). The exhaustion requirement is “not satisfied
if the petitioner presents new legal theories or factual claims in
his federal habeas petition.” Reed v. Stephens, 739 F.3d 753, 780
(5th Cir. 2014) (quoting Anderson v. Johnson, 338 F.3d 382, 386
(5th Cir. 2003)).
In Texas, the highest state court for criminal matters is the
Texas Court of Criminal Appeals. Richardson v. Procunier, 762 F.2d
429, 431-32 (5th Cir. 1985). Therefore, a Texas prisoner may
typically satisfy the exhaustion requirement by presenting both the
factual and legal substance of a claim to the Texas Court of
Criminal Appeals in either a petition for discretionary review or
a state post-conviction habeas-corpus application. See TEX. CODE
CRIM. PROC. ANN. art. 11.07 (West 2015); Depuy v. Butler, 837 F.2d
699, 702 (5th Cir. 1988).
Petitioner raised one or more of his ineffective-assistance
claims on appeal in appellant’s brief but did not reassert the
13
claims in his petition for discretionary review. (Appellant’s Br.
2,
doc.
16-7;
Pet.
for
Discretionary
Review,
doc.
16-11.)
Petitioner also raised one or more of his ineffective-assistanceof-counsel claims in his state habeas application, in addition to
a plethora of tangential claims in his memorandum in support of the
application. (SHR 8-12, 32-38, doc. 16-29.) Petitioner directs the
Court to various pages in his supporting memorandum at which he
asserts that one or more of the tangential claims were raised for
exhaustion
purposes.
(Pet’r’s
Resp.
1-2,
doc.
19.)
However,
fleeting references to an issue in a supporting memorandum is not
sufficient to alert the state court of the factual and legal basis
for a claim. See Phelan v. Quarterman, No. 4:06-CV-122-Y, 2006 WL
3392183, at *2 (N.D.Tex. Nov. 21, 2006). Consequently, his claims
properly
raised
in
his
state
habeas
application
sufficiently
correspond with claims (a), (c), (k), and (l) raised in this
petition. The remaining claims and the claims raised for the first
time in this federal petition are unexhausted for purposes of §
2254(b)(1)(A).
Under
Petitioner
the
cannot
Texas
now
abuse-of-the-writ
return
to
state
doctrine,
court
for
however,
purposes
of
exhausting the claims. See TEX. CODE CRIM. PROC. ANN. art. 11.07, §
4(a)-(c). The abuse-of-the-writ doctrine represents an adequate
state procedural bar to federal habeas review. Nobles v. Johnson,
127 F.3d 409, 423 (5th Cir. 1997). Therefore, absent a showing of
14
cause and prejudice or a miscarriage of justice, such showing not
having
been
demonstrated,
the
claims
are
unexhausted
and
procedurally barred from this Court’s review. Edwards v. Carpenter,
529 U.S. 446, 451 (2000); Coleman v. Thompson, 501 U.S. 722, 750
(2000). As such, the following discussion addresses only claims
(a), (c), (k), and (l).
The state habeas court conducted a hearing by affidavit, and,
to the extent raised in Petitioner’s state habeas application,
trial counsel Andrew Ottaway, an experienced criminal defense
attorney, responded to the allegations as follows (all spelling,
grammatical, and/or punctuation errors are in the original):
I was appointed to represent [Petitioner]. This was
a penetration case, with the penetration alleged to have
been made with [Petitioner]’s finger.
There was a considerable amount of evidence against
him, but one factor we had to work with in the case was
that he was a victim of sexual abuse as a child. I
thought this might mitigate his punishment. He had a
pleasant, good manner of speaking, and I thought he would
make a good witness in his own defense. We hoped to get
a lesser included charge on indecency with a child or
some other offense which would make him eligible for
probation. I explored the possibility of getting an
expert witness to testify that child victims of sexual
abuse are more likely to offend as adults but the
literature did not support that line of defense.
He had given a videotaped confession. I did not file
a motion to suppress the confession, because at the time
the statement was given [Petitioner] was not under
arrest. He gave his statement, then he was allowed to
leave the Sheriffs Office. He was not in custody at the
time of the statement. The statement was not made during
a custodial interrogation.
Pretrial, the Trial Court made a determination that
15
the mother of the child was the proper outcry witness.
At the trial, the State introduced evidence to
support the allegations in the indictment, including DNA
evidence. [Petitioner] testified at the punishment phase.
The mother of the child also testified in the punishment
phase on behalf of the defendant, asking for leniency.
Post-trial, interviews of jurors indicated that the
testimony of the mother was not helpful, perhaps costing
[Petitioner] any chance of a reduced punishment based on
sympathy as a child victim of sexual assault himself.
(SHR 50-51, doc. 16-29.)
Based on counsel’s affidavit and the documentary record, the
state habeas judge, who also presided at Petitioner’s trial,
entered express findings that there were no unresolved material
facts requiring a hearing and that Petitioner’s application lacked
any legal or factual merit and concluded that relief should be
denied. (Id. at 52.) In turn, the Texas Court of Criminal Appeals
denied the application without written order. To the extent more
particularized findings were not made by the state court as to
petitioner’s claims, this Court will infer fact findings consistent
with the state courts’ disposition and, absent any evidence that
incorrect standards were applied, assume that the state courts
applied the Strickland standard to Petitioner’s claims. Thus,
deferring to the state courts’ implied factual findings, and having
independently reviewed Petitioner’s claims in conjunction with the
state-court records, the state courts’ application of Strickland
was not objectively unreasonable.
Petitioner has not demonstrated deficient performance or shown
16
any reasonable probability that the outcome of his trial would have
been different but for counsel’s alleged deficiencies. A petitioner
shoulders
a heavy
burden
to
overcome
a
presumption
that
his
counsel’s conduct is strategically motivated and 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 has presented no evidentiary, factual, or legal basis in
this federal habeas action that could allow the Court to conclude
that the state courts unreasonably applied the standards set forth
in Strickland based on the evidence presented in state court. See
28 U.S.C. § 2254(d). Petitioner’s claims are largely conclusory,
with no factual or legal basis; refuted by the record; involve
strategic and tactical decisions made by counsel; involve state
evidentiary rulings or other matters of state law; 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 Swarthout v. Cooke, 562 U.S. 216, 219 (2011)
(reinforcing that “federal habeas corpus relief does not lie for
errors of state law”); Strickland, 460 U.S. at 689 (providing
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); Kessler v. Dretke,
137 Fed. App’x 710, 2005 WL 1515483, at *1 (5th Cir. June 28,
17
2005), cert. denied, 546 U.S. 1105 (2006) (providing under state
law “evidence of extraneous evidence is more often admissible in
cases
involving
sexual
assaults
of
children,
notwithstanding
Texas’s normal rules of evidence”); Johnson v. Cockrell, 306 F.3d
249, 255 (5th Cir. 2002) (providing counsel is not required to make
futile motions or frivolous objections); Green v. Johnson, 160 F.3d
1029,
1042
(5th
Cir.
1998)
(providing
“[m]ere
conclusory
allegations in support of a claim of ineffective assistance of
counsel are insufficient to raise a constitutional issue”); Derden
v. McNeel, 978 F.2d 1453, 1458 (5th Cir. 1992) (providing “[e]rrors
of state law, including evidentiary errors, are not cognizable in
habeas corpus as such”).
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
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
18
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)). When the district court denies the petition on procedural
grounds without reaching the merits, the petitioner must show “that
jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and
that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.” Id. (quoting Slack,
529 U.S. at 484). Petitioner has not made a showing that reasonable
jurists would question this Court’s resolution of Petitioner’s
constitutional
claims
and/or
procedural
rulings.
Therefore,
certificate of appealability should not issue.
SIGNED October 10, 2018.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
19
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