Schroeder v. Stephens
Filing
37
MEMORANDUM OPINION AND ORDER; The Respondent's motion for extension of time and motion for summary judgment 23 and 26 are GRANTED. The habeas corpus petition 1 is DISMISSED WITH PREJUDICE. A certificate of appealability is DENIED.(Signed by Judge George C Hanks, Jr) Parties notified.(dperez, 3)
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
KENNETH L. SCHROEDER,
TDCJ #01813989,
Petitioner,
VS.
LORIE DAVIS, Director, Texas
Department of Criminal Justice,
Correctional Institutions Division,
Respondent.
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September 15, 2016
David J. Bradley, Clerk
CIVIL ACTION NO. 3:15-CV-109
MEMORANDUM OPINION AND ORDER
The petitioner, Kenneth Schroeder (TDCJ #01813989), is a state inmate
incarcerated in the Texas Department of Criminal Justice - Correctional Institutions
Division (“TDCJ”). Schroeder has filed a petition for a writ of habeas corpus under 28
U.S.C. § 2254 challenging a state court conviction. Respondent Lorie Davis has filed a
motion for summary judgment accompanied by the appropriate state-court records (Dkt.
24–Dkt. 27). Schroeder has responded (Dkt. 35).
After reviewing all of the pleadings, the record, and the applicable law, the Court
concludes that the Respondent is entitled to summary judgment.
I.
BACKGROUND
On April 25, 2012, a Galveston County jury convicted Schroeder of one count of
driving while intoxicated, finding that he drove a car while impaired by prescription
medication. See TEX. PENAL CODE §§ 49.01(2)(A), 49.04; Galveston County Criminal
Case Number 10CR2872. Schroeder conceded to the jury that he had prescription drugs
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in his bloodstream when he was arrested but argued that those drugs were present at
concentrations within or below their respective therapeutic ranges and that any
impairment was the result of dehydration. Prior convictions elevated the DWI charge to a
felony, and prior felony convictions elevated the punishment range to a minimum of 25
years and a maximum of 99. See TEX. PENAL CODE §§ 12.42(d), 49.09(b)(2). Schroeder
received the minimum.
At trial, the State introduced evidence, including a video, showing that a Texas
state trooper pulled Schroeder over on September 18, 2010 for going 67 miles per hour in
a 55-mile-per-hour zone (Dkt. 24-17 at pp. 12–15). The trooper testified that Schroeder,
when approached, “gave [the trooper] kind of a blank stare” with “red, glassy eyes” (Dkt.
24-17 at p. 15). Suspecting intoxication, the trooper ordered Schroeder to exit his car and
meet the trooper in front of the police cruiser (Dkt. 24-17 at p. 16). Schroeder got out of
his car and walked over to the trooper, who asked Schroeder about his activities
immediately prior to the traffic stop. The trooper’s testimony and the video, which the
Court has viewed, established that Schroeder noticeably slurred his words and took a
remarkably long time to answer even simple questions (Dkt. 24-17 at pp. 16–17; Dkt.
27). For instance, Schroeder spent 25 seconds trying to remember where he had just been;
when he finally recalled the name of the establishment (Legends), he spent another 20
seconds trying to remember what kind of place it was (a pool hall) and could only do so
with a prompt from the trooper. Schroeder also told the trooper that he had taken
prescription medication earlier, but it took him another long delay to remember that the
medication was a muscle relaxer. When Schroeder subsequently performed poorly on a
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battery of field sobriety tests, the trooper placed him under arrest and took him to
Mainland Medical Center to have a blood specimen drawn (Dkt. 24-17 at pp. 16–29).
Analysis of the blood sample revealed that Schroeder’s blood was free of alcohol
but contained hydrocodone, a painkiller, in a concentration of .03 milligrams per liter;
carisoprodol, a muscle relaxer, at 8.5 milligrams per liter; and meprobamate, a metabolite
of carisoprodol, at 26 milligrams per liter (Dkt. 24-17 at p. 96–97). A forensic scientist
for the State testified that, according to National Highway Traffic Safety Administration
(“NHTSA”) literature, the carisoprodol level was 70 percent higher than the top end of
the therapeutic range, with “therapeutic range” described as “the concentration that would
be found in your blood had you been taking it as it is generally prescribed” (Dkt. 24-17 at
pp. 97–99). According to that literature, the carisoprodol level was the only level that was
outside its therapeutic range; the hydrocodone and meprobamate levels were within theirs
(Dkt. 24-17 at pp. 97–99). However, the State’s scientist emphasized that “it’s been
shown in studies that these and even lower levels of carisoprodol and meprobamate
together can cause impairment” (Dkt. 24-17 at pp. 97–99). The scientist further stated
that the NHTSA literature indicated that the concentrations and combination of drugs
found in Schroeder’s blood would affect the normal use of mental and physical faculties
(Dkt. 24-17 at pp. 97–99, 105). A pharmacy record admitted into evidence showed that
Schroeder had repeatedly refilled prescriptions for hydrocodone and carisoprodol over a
period of years before his arrest (Dkt. 24-20 at pp. 17–18).
Schroeder countered with his own experts, a pharmacist and a licensed master
peace officer, as well as evidence that he was treated for dehydration after being involved
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in a car wreck two months before his arrest. The pharmacist testified that the amount of
carisoprodol in Schroeder’s bloodstream was actually below the therapeutic range, not
above it, because the State’s expert did not apply the proper range (Dkt. 24-18 at pp. 20,
27–29). The pharmacist added that a concentration within the therapeutic range indicated
that a medication “was probably being used within the doctor’s order” but made clear that
a concentration above the therapeutic range would not necessarily signal ingestion in
excess of the prescribed dosage because “everyone metabolizes medication differently”
(Dkt. 24-18 at p. 33). The pharmacist also testified that several medical conditions,
including dehydration, can cause a person to appear intoxicated (Dkt. 24-18 at pp. 24).
The master peace officer echoed the pharmacist’s statement that dehydration, among
other conditions, can cause a person to appear intoxicated and added that those conditions
can cause poor performance on field sobriety tests (Dkt. 24-18 at pp. 43–44). Schroeder
also offered medical records into evidence showing that, two months prior to his arrest,
he was taken to the emergency room and treated for dehydration after rear-ending a
recreational vehicle (Dkt. 25-2). In that instance, the dehydration evidently made
Schroeder display symptoms consistent with intoxication; an officer at the scene of the
wreck attempted to secure a blood sample, but the paramedics did not have the requisite
training or equipment to draw blood for a DWI investigation (Dkt. 25-2 at p. 11).
After the jury found him guilty, Schroeder appealed, arguing that the evidence was
insufficient to sustain his conviction and that his trial counsel had provided ineffective
assistance. The Fourteenth Court of Appeals of Texas remanded the matter to the trial
court so that Schroeder could file a motion for new trial and develop a more extensive
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record on the ineffective-assistance issue. The trial court held a hearing at which
testimony was given by five witnesses: Schroeder; Schroeder’s trial counsel; Schroeder’s
pharmacist expert; another pharmacist who was mentioned as a potential expert witness
but never called by Schroeder’s trial counsel; and a lifelong friend of Schroeder’s who
held power of attorney for him (Dkt. 25-4). After the hearing, the trial court denied
Schroeder’s motion for new trial. Schroeder then returned to the Fourteenth Court, which
affirmed his conviction. See Schroeder v. State, No. 14-12-00523-CR, 2014 WL 129312
(Tex. App.—Houston [14th Dist.] Jan. 14, 2014, pet. ref’d). The Texas Court of Criminal
Appeals denied discretionary review. See Texas Court of Criminal Appeals Case Number
PD-0145-14. Schroeder pursued collateral review by filing a state habeas petition, which
the Texas Court of Criminal Appeals denied without opinion. See Texas Court of
Criminal Appeals Case Number WR-68,677-02.
Schroeder then filed this federal habeas petition. As he did on direct appeal,
Schroeder argues that his conviction was supported by insufficient evidence and that his
trial counsel provided ineffective assistance (Dkt. 1 at p. 6).
II.
STANDARDS OF REVIEW
A.
Habeas Corpus
Schroeder’s federal habeas petition is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA). Lindh v. Murphy, 117 S. Ct. 2059, 2068 (1997).
The intent of the AEDPA is to avoid federal habeas “retrials” and “ensure that state-court
convictions are given effect to the extent possible under [the] law.” Bell v. Cone, 122 S.
Ct. 1843, 1849 (2002).
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The provisions of Section 2254(d) create a highly deferential standard, thereby
demanding that state court decisions be given the benefit of the doubt. Woodford v.
Visciotti, 123 S. Ct. 357, 360 (2002). A federal court cannot grant a writ of habeas corpus
with respect to any claim that was adjudicated on the merits in state court unless the state
court’s decision:
(1)
resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2)
resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
“Pure questions of law and mixed questions of law and fact are reviewed under §
2254(d)(1), and questions of fact are reviewed under § 2254(d)(2).” Martin v. Cain, 246
F.3d 471, 475–76 (5th Cir. 2001) (quotation marks omitted).
A state court decision is contrary to clearly established law if the decision
contradicts the governing law set forth by the Supreme Court or if the state court decides
a case differently than the Court’s precedent when the facts are materially
indistinguishable. Early v. Packard, 123 S. Ct. 362, 365 (2002). A state court
unreasonably applies federal law if the court “identifies the correct governing legal
principle . . . but unreasonably applies that principle to the facts of the prisoner’s case.”
Williams v. Taylor, 120 S. Ct. 1495, 1523 (2000). To be an unreasonable application of
federal law, the state court decision must be objectively unreasonable and more than
simply incorrect or erroneous. Lockyer v. Andrade, 123 S. Ct. 1166, 1174 (2003).
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Because the AEDPA grants great deference to state determinations of factual
issues, a claim adjudicated on its merits in state court and based on factual decisions will
not be overturned on factual grounds unless the court determines that the decision was
both incorrect and objectively unreasonable. Williams, 120 S. Ct. at 1522. In reviewing a
federal habeas petition, the court must presume that a factual determination made by the
state court is correct unless the petitioner rebuts this presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1).
B.
Summary Judgment
A court may grant summary judgment when the evidence shows that there is no
genuine issue of material fact and that the movant is entitled to judgment as a matter of
law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2552 (1986). The
moving party has the responsibility of informing the court of the basis for its summary
judgment motion and “identifying those portions of ‘the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits . . .’” that
demonstrate that there is no genuine issue of material fact. Celotex, 106 S. Ct. at 2553. In
response, the nonmovant must go beyond the pleadings and by affidavits, depositions,
answers to interrogatories, or admissions on file show that there is a genuine issue of
material fact requiring resolution through a trial. Id. If the nonmoving party is unable to
meet this burden, the motion for summary judgment will be granted. FED. R. CIV. P.
56(c).
Rule 56 of the Federal Rules of Civil Procedure “applies with equal force in the
context of habeas corpus cases.” Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000).
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The rule, however, only applies to the extent that it does not conflict with the habeas
rules. Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002), overruled on other grounds,
Tennard v. Dretke, 124 S. Ct. 2562 (2004). Generally, in ruling on a motion for summary
judgment, the court resolves any doubts and draws any inferences in favor of the
nonmoving party—Hunt v. Cromartie, 119 S. Ct. 1545, 1551–52 (1999)—but 28 U.S.C.
§ 2254(e)(1) commands that factual findings of the state court are to be presumed correct.
Thus, 28 U.S.C. § 2254(e)(1) overrides the general summary judgment rule. Smith, 311
F.3d at 668. The petitioner is required to rebut the presumption of correctness by clear
and convincing evidence; otherwise, the court will presume the factual determination of
the state court is correct. Id.; 28 U.S.C. § 2254(e)(1).
III.
SUFFICIENCY OF THE EVIDENCE
Schroeder first challenges the sufficiency of the evidence used to convict him. In
order to obtain habeas relief on this ground, Schroeder must show that, “upon the record
evidence adduced at the trial, no rational trier of fact could have found proof of guilt
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324 (1979). The evidence
is viewed in the light most favorable to the prosecution. Id. at 319. The essential
substantive elements of the criminal offense are established by the state’s criminal law.
Id. at 324 n.16; Hughes v. Johnson, 191 F.3d 607, 619 (5th Cir. 1999).
Schroeder was convicted under Section 49.04 of the Texas Penal Code. A person
commits an offense under that statute when he or she “is intoxicated while operating a
motor vehicle in a public place.” TEX. PENAL CODE § 49.04(a). “‘Intoxicated’ means . . .
not having the normal use of mental or physical faculties by reason of the introduction of
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alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more
of those substances, or any other substance into the body[.]” TEX. PENAL CODE §
49.01(2)(A). DWI is a strict-liability crime in Texas; the State does not have to prove a
specific culpable mental state such as intent, recklessness, or knowledge. Farmer v. State,
411 S.W.3d 901, 905 (Tex. Crim. App. 2013).
Schroeder characterizes the evidence adduced to prove that he was driving while
intoxicated as “fatally equivocal” and analogizes it to the evidence in Redwine v. State,
305 S.W.3d 360 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d), in which the
Fourteenth Court reversed a conviction because the prosecution had presented only the
equivocal, uncorroborated testimony of one witness to prove an essential element of a
crime (Dkt. 1-1 at p. 5). See Redwine, 305 S.W.3d at 366–68 & n. 17. Convictions are
occasionally reversed on such grounds; the element in question is typically identity. For
instance, the Fifth Circuit has held that “[i]f . . . the sole witness is unsure [about the
perpetrator’s identity] and there are no other connecting or corroborating facts or
circumstances the jury is left without evidence upon which to translate unrelieved
uncertainty into belief from the evidence beyond a reasonable doubt.” United States v.
Johnson, 427 F.2d 957, 961 (5th Cir. 1970). Schroeder claims that his is such a case,
arguing that:
[t]he closest the State got to demonstrating that the Petitioner was impaired
by reason of introduction of substances (prescription drugs) to his body,
was the testimony of DPS Scientist Paris. As noted above, Ms. Paris stated
nothing more definite than that the drugs could cause drowsiness or
dizziness, lack of coordination or slurred speech and that the various drugs
“can” cause impairment. Ms. Paris stopped well short of even stating that
the drugs probably caused Petitioner’s condition, let alone demonstrating
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actual cause beyond a reasonable doubt, but could only guess as to her
accuracy.
Dkt. 1-1 at p. 5 (record citations omitted).
In Redwine, the defendant was convicted of evading arrest using a vehicle. The
essential element on which the State’s proof was deficient was the defendant’s
knowledge that police officers were attempting to arrest or detain him while he was
driving his truck. Redwine, 305 S.W.3d at 368. There was no direct evidence of such
knowledge. The State could have shown knowledge circumstantially by establishing that
the officers had turned on their cruiser’s overhead lights while they were following the
defendant; but one of the officers could not remember whether the lights were on, and the
other unequivocally testified that the lights were off. Id. at 364–65. There was no video of
the incident. Id. The officers’ report did not mention the emergency lights. Id. The
prosecution even candidly admitted in its closing argument that the lights were never
turned on because the officers did not want to alert the defendant to their presence. Id.
Schroeder seems to be drawing a parallel between the State’s scientific testimony in his
case and the testimony of the Redwine officer who could not remember whether the
cruiser’s lights were on.
The analogy is false. The State’s scientific testimony in Schroeder’s trial was
bolstered by, and bolstered, abundant other evidence offered by the State. There is no
question that Schroeder took prescription drugs on the night on which he was arrested (he
told the trooper that he had taken two Somas—Soma is a brand name for carisoprodol—
in the video). There is no question that drugs were found in a sample of his blood taken
immediately after his arrest. There is no question as to which drugs were found in that
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sample, or in what amounts. The trooper’s testimony and the video of the traffic stop
provided compelling evidence that Schroeder was operating a motor vehicle in a public
place without the normal use of his mental or physical faculties; even Schroeder had to
admit at his motion-for-new-trial hearing that, when he saw the video, he “didn’t think it
looked very good” (Dkt. 25-4 at p. 77). The State’s scientific testimony established that
medical and scientific literature linked the concentrations and combination of drugs
found in Schroeder’s bloodstream to the loss of the normal use of mental and physical
faculties. Together, these basic facts would allow a rational factfinder to draw the
reasonable inference that Schroeder operated a motor vehicle in a public place while not
having the normal use of his mental or physical faculties by reason of the introduction of
prescription medications into his body. The drawing of such inferences is not only within
the jury’s power but part of the jury’s responsibility. Jackson, 443 U.S. at 319.
At bottom, Schroeder seems to think that the State’s evidence was “equivocal,”
and therefore insufficient, because the State’s forensic scientist did not specifically
address dehydration, which was Schroeder’s explanation for his impairment. But the
prosecution is not “under an affirmative duty to rule out every hypothesis except that of
guilt beyond a reasonable doubt[,]” and the evidence of guilt is not insufficient simply
because the record might support conflicting inferences. Id. at 319, 326. In fact, the
resolution of conflicting inferences and hypotheses is perhaps the factfinder’s most
important role, and one that Jackson took great pains to preserve. See id. (“This familiar
standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts
in the testimony, to weigh the evidence, and to draw reasonable inferences from basic
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facts to ultimate facts.”). The state courts’ adjudication of Schroeder’s sufficiency-of-theevidence claim did not result in a decision that was contrary to, or involved an
unreasonable application of, the Supreme Court’s decision in Jackson.
IV.
INEFFECTIVENESS OF TRIAL COUNSEL
Schroeder’s argument that his trial counsel was ineffective is summarized on page
6 of his petition:
Petitioner received ineffective assistance from his retained counsel, who
clearly used this case to benefit himself financially rather than help his
client or present a viable defense. For reasons of financial benefit, trial
counsel misadvised Appellant [sic] as to the merits of his defense, and
misplaced funds which were specifically paid and earmarked to employ an
expert. Trial Counsel did not even interview or consult with a
Pharmacologist, but instead selected a pharmacist client who was not paid,
who was not qualified, and who was ill-prepared. The testimony of that
pharmacist actually harmed Petitioner, and served no purpose at the time of
trial other than to buttress the State’s case and to lend some credence to the
Trial Counsel’s false claim to his client that $9,500.00 had actually been
spent on an expert.
Dkt. 1 at p. 6.
Even though Schroeder devotes several pages of his briefing to detailing alleged
financial chicanery on the part of his counsel, what his claims really boil down to is the
allegation that his counsel allowed self-interest to affect his trial strategy. An argument
that trial counsel had a conflict of interest can be governed by either Strickland v.
Washington, 466 U.S. 668 (1984), or Cuyler v. Sullivan, 446 U.S. 335 (1980), depending
on the nature of the alleged conflict. The Fifth Circuit has limited the reach of Cuyler to
cases in which an alleged attorney conflict resulted from serial representation or
simultaneous multiple representation of criminal defendants, reasoning that “Strickland
offers a superior framework for addressing attorney conflicts outside the multiple or
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serial client context.” Beets v. Scott, 65 F.3d 1258, 1265–66 & n.8 (5th Cir. 1995) (en
banc), cert. denied, 517 U.S. 1252 (1996); see also Hernandez v. Johnson, 108 F.3d 554,
559 (5th Cir. 1997) (“This circuit has limited Cuyler to actual conflicts resulting from a
lawyer’s representation of multiple criminal defendants.”). “Under Beets, cases in which
it is alleged that the attorney’s representation was affected by his own self-interest are
evaluated under the more relaxed Strickland standard.” Moreland v. Scott, 175 F.3d 347,
349 (5th Cir. 1999).
In order to prevail under Strickland, a criminal defendant must show that counsel
failed to act reasonably considering all the circumstances and that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011). Counsel is
strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment; and the defendant cannot
meet the “reasonable probability” standard without showing a substantial, as opposed to
conceivable, likelihood of a different result. Id. Review of Strickland claims on federal
habeas is “doubly deferential” because the Strickland standard is applied in tandem with
the approach commanded by 28 U.S.C. § 2254(d). Id. As the Supreme Court puts it, this
Court must therefore “take a highly deferential look at counsel’s performance through the
deferential lens of 2254(d).” Id. (quotation marks and citations omitted). The prejudice
prong of the Strickland test may be addressed before the performance prong, as the
absence of either prong is dispositive. Strickland, 466 U.S. at 697.
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A.
Calling the pharmacist and not calling a pharmacologist
Schroeder first argues that his trial counsel should have consulted and called a
pharmacologist instead of a pharmacist as an expert witness. There appear to be two
distinct, though related, claims: a claim that counsel should have consulted and called a
pharmacologist and a claim that counsel should not have called the particular pharmacist
that he called. According to Schroeder, the pharmacist his trial counsel called was
unqualified and ill-prepared and did more harm than good; a pharmacologist, Schroeder
argues, could have more effectively rebutted the State’s scientific testimony (Dkt. 35 at p.
2). At the hearing on Schroeder’s motion for new trial, Schroeder’s trial counsel testified
that he “did not speak with any pharmacologist about this case as [he] didn’t see it would
add anything to the defense” (Dkt. 25-4 at p. 46). Counsel elaborated by saying that:
[t]here was no question that there were drugs in Mr. Schroeder’s system.
There’s no question as to the amount of the drugs. The only question was
the physiological effect on the human body; and I thought a pharmacist
who’s been in practice for years and years would be able to describe that
quite well, and I believe that occurred.
Dkt. 25-4 at p. 46.
Schroeder’s claim that his counsel was ineffective for not calling a pharmacologist
at trial fails. In the Fifth Circuit, “to prevail on an ineffective assistance claim based on
counsel’s failure to call a witness, the petitioner must name the witness, demonstrate that
the witness was available to testify and would have done so, set out the content of the
witness’s proposed testimony, and show that the testimony would have been favorable to
a particular defense.” Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009). The Fifth
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Circuit “require[s] this showing for claims regarding uncalled lay and expert witnesses
alike.” Id. Schroeder has not provided any evidence on any of the required points, so the
Court has “no evidence beyond speculation” that Schroeder’s counsel, at the time of trial,
“could have found and presented an expert witness who would have testified as
[Schroeder] claimed in his post-conviction applications.” Woodfox v. Cain, 609 F.3d 774,
808 (5th Cir. 2010). Similarly, Schroeder’s claim that his counsel was ineffective for not
consulting a pharmacologist (as opposed to calling one at trial) must fail because he has
not “allege[d] with specificity what such an investigation would have revealed and how it
could have altered the outcome of the trial.” United States v. Bernard, 762 F.3d 467, 473
(5th Cir. 2014). His vague, unsupported allegations that consultations with a hypothetical
pharmacologist could have provided insight into “residuals (the fact that drugs stay in the
system for weeks)” and “resistance (the tolerance built up over time)” do not meet this
burden (Dkt. 35 at p. 2).
Schroeder has also failed to satisfy the Strickland test with regard to his claim that
his trial counsel was ineffective for calling the pharmacist. Schroeder’s claim that the
pharmacist torpedoed Schroeder’s defense is based on two bits of testimony (Dkt. 1-1 at
pp. 10–11). The first was the following exchange on direct examination:
[Schroeder’s counsel]:
Would you expect somebody to appear
intoxicated on the levels that are shown in this
blood test?
[Pharmacist]:
Dkt. 24-18 at p. 23.
Not always.
The second was the following exchange on cross-examination:
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[Prosecutor]:
And are you familiar at all with certain cocktails
that, you know, people who do come to your
pharmacy who are drug seekers try to combine
drugs together? Are you familiar at all with any
cocktail mixtures?
[Pharmacist]:
Yes.
[Prosecutor]:
What are the most popular drug mixtures?
[Pharmacist]:
There is Soma, hydrocodone, Xanax.
[Prosecutor]:
And so people usually combine those together
to get whatever type of effect they’re trying to
get?
[Pharmacist]:
Yeah, yeah. That’s the ones we see from the
pain clinics a lot of times.
Dkt. 24-18 at p. 32.
The Court disagrees with Schroeder’s argument that the quoted statements by the
pharmacist are emblematic of unreasonable performance by trial counsel. The first
exchange was consistent with the pharmacist’s testimony that drug metabolism is not
uniform. And the second exchange was not an admission that Schroeder himself was
making drug cocktails—the pharmacist emphasized elsewhere in his testimony that the
drug levels in Schroeder’s bloodstream were consistent with his taking the drugs as
prescribed. While testimony about Schroeder’s compliance with his prescriptions might
seem incidental given the lack of a mens rea requirement, that testimony lent credence to
Schroeder’s dehydration defense, especially coupled with evidence showing that
Schroeder had recently been medically treated for dehydration after having displayed
symptoms consistent with intoxication.
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Calling the pharmacist was an informed strategic decision by Schroeder’s counsel
that is due a heavy measure of deference. Looking at the pharmacist’s testimony as a
whole, the statements that some drug addicts mix hydrocodone and Soma and that some
people with blood test results equivalent to Schroeder’s could appear intoxicated were not
particularly damaging, assuming they were harmful at all. Those statements certainly do
not render the decision to call the pharmacist unreasonable. Cf. Raby v. Dretke, 78 Fed.
App’x 324, 328–29 (5th Cir. 2003) (holding that the first prong of Strickland was not met
when a defense expert referred to the defendant during the punishment phase as a
“psychopath” because other witnesses provided effective mitigation testimony and the
attorney thought that the expert’s testimony would help establish that the Texas prison
system would contain any future dangerousness on the petitioner’s part). In any event,
Schroeder has not shown a substantial likelihood that he would have been acquitted had
his counsel not called the pharmacist to testify. The State’s evidence was sufficient to
prove Schroeder’s guilt beyond a reasonable doubt, and Schroeder would have had no
defense without the testimony of the pharmacist.
B.
The plea negotiations
Schroeder also claims that he turned down an eight-year plea offer from the State
because his counsel, who was only interested in going to trial and collecting legal fees,
advised him “not to agree to any plea bargain offered by the Prosecutor” (Dkt. 1 at p. 6;
Dkt. 1-1 at pp. 7, 10). The Strickland standard extends to plea negotiations. When a
criminal defendant argues that he rejected a plea offer and chose to stand trial based on
ineffective assistance of counsel, he must show a reasonable probability that, but for
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counsel’s ineffective advice, he would have accepted the plea offer; the prosecution
would not have withdrawn the offer in light of intervening circumstances; the court
would have accepted the plea offer’s terms; and the conviction or sentence (or both)
under the plea offer would have been less severe than under the judgment and sentence
that were in fact imposed. Lafler v. Cooper, 132 S.Ct. 1376, 1384–85 (2012).
It is undisputed that Schroeder, instead of taking the eight-year offer, asked his
counsel to counter it with a two-year offer, which the prosecution rejected (Dkt. 25-4 at
pp. 29–30, 68–69). Apart from that, the accounts of the plea negotiations given by
Schroeder and his counsel sharply conflict. Schroeder’s counsel testified that he told
Schroeder that rejecting the eight-year offer was “damn foolish” because Schroeder was
facing a minimum of 25 years in prison if convicted (Dkt. 25-4 at pp. 29–34). Schroeder
testified that his counsel “never advised [him] to take a plea or that [he] should take a
plea” (Dkt. 25-4 at p. 68).
The Court will deny relief on this ground. The state trial court’s implied finding
that Schroeder rejected the eight-year plea offer against his counsel’s advice is presumed
to be correct. Garcia v. Quarterman, 454 F.3d 441, 444 (5th Cir. 2006) (holding that a
state court’s factual findings are presumed to be correct, whether those findings are
express or implicit). Schroeder has not rebutted that presumption of correctness. If
Schroeder rejected the offer against his counsel’s advice, then he obviously cannot obtain
habeas relief on the basis that his counsel gave ineffective advice. As the “master of his
own defense,” Moore v. Johnson, 194 F.3d 586, 605 (5th Cir. 1999), a defendant who
“blocks his attorney’s efforts to defend him . . . cannot later claim ineffective assistance
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of counsel.” Sonnier v. Quarterman, 476 F.3d 349, 362 (5th Cir. 2007) (quotation marks
and citation omitted).
C.
The motion for new trial
Schroeder also mentions that, after the verdict, his counsel “essentially
vanished[,]” refusing to answer letters or phone calls, and that Schroeder essentially had
to take over his own defense until his trial counsel withdrew and another lawyer was
appointed to represent him (Dkt. 1-1 at p. 7; Dkt. 35 at p. 5). In the meantime, Schroeder
missed his deadline to file a motion for new trial. The Court will deny relief on this
ground because Schroeder cannot show prejudice. The Fourteenth Court of Appeals
extended Schroeder’s deadline to file a motion for new trial and remanded the case to the
trial court so that Schroeder and his new counsel could request a hearing and develop a
record in support of Schroeder’s claim of ineffective assistance of trial counsel. See
Fourteenth Court of Appeals of Texas, Cause Number 14-12-00523-CR, Order of
Abatement dated Oct. 25, 2012. The Fourteenth Court then considered that record and
wrote a thoughtful opinion addressing all of Schroeder’s arguments. Schroeder has not
pointed out any arguments or points of error that were waived or inadequately preserved
on account of his counsel’s post-verdict actions.
The state courts’ adjudication of Schroeder’s claims of ineffective assistance of
counsel did not result in a decision that was contrary to, or involved an unreasonable
application of, Strickland. The Court will deny relief and dismiss Schroeder’s habeas
petition.
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V.
CERTIFICATE OF APPEALABILITY
The federal habeas corpus petition filed in this case is governed by the
Antiterrorism and Effective Death Penalty Act (the “AEDPA”), codified as amended at
28 U.S.C. § 2253. Therefore, a certificate of appealability is required before an appeal
may proceed. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); see also Hallmark v.
Johnson, 118 F.3d 1073, 1076 (5th Cir. 1997) (noting that actions filed under either 28
U.S.C. § 2254 or § 2255 require a certificate of appealability).
A certificate of appealability will not issue unless the petitioner makes “a
substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), which
requires a petitioner to demonstrate “that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Tennard v. Dretke, 542
U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Under the
controlling standard, a petitioner must show “that reasonable jurists could debate whether
(or, for that matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were ‘adequate to deserve encouragement to proceed
further.’” Miller-El, 537 U.S. at 336. Where denial of relief is based on procedural
grounds, the petitioner must show not only that “jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right,” but also
that they “would find it debatable whether the district court was correct in its procedural
ruling.” Slack, 529 U.S. at 484.
20 / 21
A district court may deny a certificate of appealability, sua sponte, without
requiring further briefing or argument. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir.
2000). After careful review of the pleadings and the applicable law, the Court concludes
that reasonable jurists would not find its assessment of the claims debatable or wrong.
Because the petitioner does not otherwise allege facts showing that his claims could be
resolved in a different manner, a certificate of appealability will not issue in this case.
IV.
CONCLUSION
Based on the foregoing, the Court ORDERS as follows:
1.
The Respondent’s motion for an extension of time and motion for summary
judgment (Dkt. 23 and Dkt. 26) are GRANTED.
2.
The habeas corpus petition (Dkt. 1) is DISMISSED WITH PREJUDICE.
3.
A certificate of appealability is DENIED.
The Clerk shall provide a copy of this order to the parties.
SIGNED at Galveston, Texas, this 15th day of September, 2016.
___________________________________
George C. Hanks Jr.
United States District Judge
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