Bridges v. Davis
Filing
22
MEMORANDUM OPINION AND ORDER GRANTING 12 MOTION for Summary Judgment and Answer with Brief in Support. Petition for Writ of Habeas Corpus DISMISSED. COA DENIED. Judgment will issue.(Signed by Judge George C Hanks, Jr) Parties notified.(dwilkerson, 3)
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
TROY LEE BRIDGES,
TDCJ # 01945334,
Petitioner,
VS.
LORIE DAVIS,
Respondent.
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September 25, 2018
David J. Bradley, Clerk
CIVIL ACTION NO. 3:17-CV-0136
MEMORANDUM OPINION AND ORDER
Petitioner Troy Lee Bridges, an inmate in the Texas Department of Criminal
Justice–Correctional Institutions Division (“TDCJ”), filed a petition for a writ of habeas
corpus seeking relief from a state court conviction (Dkt. 1), along with supportive
briefing (Dkt. 2, Dkt. 4). Bridges proceeds pro se. Respondent Lorie Davis has filed a
motion for summary judgment (Dkt. 12) and a copy of the state court records (Dkt. 13).
Petitioner has filed a response (Dkt. 19), and the motion is ripe for decision. Having now
considered the petition, briefing, all matters of record, and applicable legal authorities,
the Court determines that summary judgment should be granted for Respondent and that
all claims in the petition should be denied.
I.
BACKGROUND
A.
Procedural Background
Petitioner Troy Lee Bridges is serving a sentence for aggravated assault with a
deadly weapon. Bridges was tried in the 344th Judicial District Court of Chambers
County, Texas, Case No. 17438, Honorable Randy McDonald presiding. Attorney Gary
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F. Dennison represented Bridges at trial. On August 13, 2014, the jury returned a verdict
of guilty (Dkt. 13-14, at 36).1 Bridges and the State agreed to a term of thirty-two years
incarceration in TDCJ (Dkt. 13-15, at 2). The court entered judgment and sentence (id. at
10-11).
Bridges was represented on appeal by attorney James Keegan. On October 15,
2015, the Court of Appeals for the Fourteenth Court of Appeals affirmed the conviction,
Case No. 14-14-00682-CR (Dkt. 13-3). Bridges filed a petition for discretionary review
(Dkt. 13-16), which the Texas Court of Criminal Appeals refused on February 3, 2016,
No. PD-1476-15 (Dkt. 13-17).
On December 7, 2016, Bridges executed a pro se state habeas writ, WR-86,398-01
(Dkt. 13-31, at 18-41). On February 6, 2017, the trial court entered Findings of Fact and
Conclusions of Law recommending denial of relief (id. at 117-18). On March 29, 2017,
the Texas Court of Criminal Appeals denied the writ without written order (Dkt. 13-30).
On April 13, 2017, Bridges executed his petition for a writ of habeas corpus (Dkt.
1) in this Court.
B.
Factual Background
Bridges was tried before a Chambers County jury and was convicted of aggravated
assault with a deadly weapon. See TEX. PENAL CODE § 22.02. On direct appeal, the
Fourteenth Court of Appeals summarized the relevant facts as follows:
1
Throughout this Memorandum, the Court’s citations to specific pages in the record refer
to the pagination of docket entries on the Court’s electronic case filing (“ECF”) system.
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[Bridges] was indicted for aggravated assault. The indictment alleged that,
on or about August 12, 2013, [Bridges] assaulted the complainant [Leann
Ball] by placing a firearm to her head and threatening her. Following the
jury’s guilty verdict, [Bridges] changed his election from jury punishment
to trial court punishment. The State and [Bridges] reached an agreement as
to punishment. Pursuant to that agreement, the trial court found the
[Bridges] had twice before been convicted of felony offenses and then
assessed punishment at confinement for 32 years in the Institutional
Division of the Texas Department of Criminal Justice. [Bridges] timely
appealed.
(Dkt. 13-3, at 2). See Dkt. 13-15, at 2, 4-6 (stipulation to two enhancement paragraphs
based on prior felony convictions and plea agreement for thirty-two years imprisonment).
Bridges raised three punishment phase issues on appeal: first, that the trial court
should not have accepted the punishment agreement due to lack of notice that Bridges
was being tried as a habitual offender; second, that Bridges did not voluntarily enter into
the punishment agreement because he was erroneously advised regarding the range of
punishment; and third, that Bridges received ineffective assistance of counsel with regard
to his punishment agreement (Dkt. 13-3, at 2). The appellate court rejected the State’s
argument that Bridges had waived his right to appeal his sentence, but went on to deny
relief on all three issues and affirmed the trial court’s judgment.
The Texas Court of
Criminal Appeals denied Bridges’ petition for discretionary review.
Bridges then filed a state habeas petition raising eight claims for relief, including
ineffective assistance of trial and appellate counsel (Dkt. 13-31, at 18-41). Trial counsel
did not file an affidavit responding to Bridges’ claims. The trial court made findings that
Bridges “received effective assistance of counsel,” that he “fail[ed] to raise any new
evidence,” and that he “fail[e]d to state sufficient specific facts to support his grounds for
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relief.” (id. at 117). The court then entered one conclusion of law: “There are no
material, previously unresolved issues of fact which are material to the legality of
[Bridges’] conviction and sentence and there [is] ample evidence in the record for the
Court to rule on the relief sought” (id. at 118). The Texas Court of Criminal Appeals
denied the writ without written order (Dkt. 13-30).
Bridges’ federal habeas petition brings eight claims that correspond to the claims
in his state habeas petition, including ineffective assistance of trial and appellate counsel.
II.
LEGAL STANDARDS
A.
Pro Se Pleadings
Federal courts do not hold pro se habeas petitions “to the same stringent and
rigorous standards as . . . pleadings filed by lawyers.” Hernandez v. Thaler, 630 F.3d
420, 426 (5th Cir. 2011) (internal quotation marks and citation omitted). “The filings of a
federal habeas petitioner who is proceeding pro se are entitled to the benefit of liberal
construction.” Id.
B.
The Anti-Terrorism and Effective Death Penalty Act
This federal petition for habeas corpus relief is governed by the applicable
provisions of the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). See
Woodford v. Garceau, 538 U.S. 202, 205-08 (2003); Lindh v. Murphy, 521 U.S. 320,
335-36 (1997). Under the AEDPA, federal habeas relief based upon claims that were
adjudicated on the merits by the state courts cannot be granted unless the state court’s
decision (1) “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)
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“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); Early v. Packer, 537 U.S.
3, 7-8 (2002); Cobb v. Thaler, 682 F.3d 364, 372-73 (5th Cir. 2012).
Federal courts look to the “last reasoned opinion” as the state court’s “decision.”
Salts v. Epps, 676 F.3d 468, 479 (5th Cir. 2012); see Wilson v. Sellers, 138 S. Ct. 1188,
1192 (2018). “Where a state court’s decision is unaccompanied by an explanation,” and
the lower courts did not issue a reasoned opinion, “the habeas petitioner’s burden still
must be met by showing there was no reasonable basis for the state court to deny relief.”
Harrington v. Richter, 526 U.S. 86, 98 (2011); see Johnson v. Williams, 568 U.S. 289,
293 (2013) (holding that there is a rebuttable presumption that the federal claim was
adjudicated on the merits when the state court addresses some claims, but not others, in
its opinion).
Review under the AEDPA is “highly deferential” to the state court’s decision.
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam). To merit relief under
AEDPA, a petitioner may not merely show legal error in the state court’s “decision.”
White v. Woodall, 517 U.S. 415, 419 (2014) (stating being “merely wrong” or in “clear
error” will not suffice federal relief under AEDPA). AEDPA review exists only to
“guard against extreme malfunctions in the state criminal justice systems.” Woods v.
Donald, 135 S. Ct. 1372, 1376 (2015) (internal citation and quotation marks omitted).
“[F]ocus[ing] on what a state court knew and did,” Cullen v. Pinholster, 563 U.S. 170,
182 (2011), AEDPA requires inmates to “‘show that the state court’s ruling on the claim
being presented in federal court was so lacking in justification that there was an error
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well understood and comprehended in existing law beyond any possibility for fairminded
disagreement.’” Woodall, 572 U.S. at 419-20 (quoting Richter, 562 U.S. at 103). “If this
standard is difficult to meet, that is because it was meant to be.” Richter, 562 U.S. at 102.
For questions of law or mixed questions of law and fact adjudicated on the merits
in state court, this Court may grant habeas relief under 28 U.S.C. § 2254(d)(1) only if the
state court decision “was contrary to, or involved an unreasonable application of, clearly
established” Supreme Court precedent. See Kittelson v. Dretke, 426 F.3d 306, 318 (5th
Cir. 2005). Under the “contrary to” clause, this Court may afford habeas relief if the state
court “reaches a legal conclusion in direct conflict with a prior decision of the Supreme
Court or if it reaches a different conclusion than the Supreme Court on materially
indistinguishable facts.” Matamoros v. Stephens, 783 F.3d 212, 215 (5th Cir. 2015)
(internal quotation marks and citations omitted).
To constitute an “unreasonable
application” of clearly established federal law, the state court’s determination “must be
objectively unreasonable, not merely wrong; even clear error will not suffice.” Woods,
135 S. Ct. at 1376 (internal citation and quotation marks omitted).
On factual issues, the AEDPA precludes federal habeas relief unless the state
court’s adjudication of the merits was based on an “unreasonable determination of the
facts in light of the evidence presented in the state court proceeding.” See 28 U.S.C.
§ 2254(d)(2); Martinez v. Caldwell, 644 F.3d 238, 241-42 (5th Cir. 2011).
C.
Summary Judgment Standard in Habeas Corpus Proceedings
In ordinary civil cases, a district court considering a motion for summary
judgment is required to construe the facts of the case in the light most favorable to the
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non-moving party. See Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). “As a
general principle, Rule 56 of the Federal Rules of Civil Procedure, relating to summary
judgment, applies with equal force in the context of habeas corpus cases.” Clark v.
Johnson, 202 F.3d 760, 764 (5th Cir. 2000). However, AEDPA modifies summary
judgment principles in the habeas context, and Rule 56 “applies only 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 by Tennard v. Dretke, 542 U.S. 274 (2004); see
Torres v. Thaler, 395 F. App’x 101, 106 n.17 (5th Cir. 2010). “Therefore, § 2254(e)(1)—
which mandates that findings of fact made by a state court are presumed to be correct—
overrides the ordinary summary judgment rule that all disputed facts must be construed in
the light most favorable to the nonmoving party.” Smith, 311 F.3d at 668.
III.
ANALYSIS
Bridges brings federal habeas claims of ineffective assistance of trial counsel,
ineffective assistance of appellate counsel, constructive denial of counsel, and improper
enhancement of his sentence.
A.
Ineffective Assistance of Trial Counsel (Claims 1, 2, 4, 7a)
Petitioner claims that his trial counsel rendered ineffective assistance when he
failed to raise a claim under Batson v. Kentucky, 476 U.S. 79 (1986), during jury
selection (Claim 1); when he failed to file a motion for new trial based on the Batson
issue (Claim 2); when he failed to investigate, prepare a defense, present evidence, and
subpoena witnesses (Claim 4); and when he failed to object to the trial court’s response to
the jury’s request to review certain evidence during deliberations (Claim 7(a)).
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1.
Legal Standards
Under Strickland v. Washington, 466 U.S. 668 (1984), a criminal defendant
claiming ineffective assistance of counsel must show that defense counsel rendered
deficient performance and that the defendant was prejudiced:
To demonstrate deficient performance, the defendant must show that, in
light of the circumstances as they appeared at the time of the conduct,
“counsel’s representation fell below an objective standard of
reasonableness” as measured by “prevailing professional norms.” There is
a “strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” . . . .
To demonstrate prejudice under Strickland, [the defendant] must show that
counsel’s deficient performance was “so serious as to deprive him of a fair
trial, a trial whose result is reliable.” This requires the showing of a
reasonable probability that but for counsel’s deficiencies, the result of the
proceeding would have been different.
Rhoades v. Davis, 852 F.3d 422, 431-32 (5th Cir. 2017) (quoting Strickland, 466 U.S. at
687-89, 694). Strickland defines a “reasonable probability” as “a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694. This requires a
“substantial, not just conceivable, likelihood of a different result.” Pinholster, 563 U.S. at
189 (internal citation and quotation marks omitted). The petitioner’s burden to show a
“reasonable probability” of changed outcome is less than a preponderance:
The question is not whether the defendant would more likely than not have
received a different verdict . . . , but whether in its absence he received a
fair trial, understood as a trial resulting in a verdict worthy of confidence.
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Kyles v. Whitley, 514 U.S. 419, 434 (1995).2 The prejudice inquiry is focused on the
“fairness of the trial and the reliability of the . . . verdict in light of any errors made by
counsel, and not solely the outcome of the case.” White v. Thaler, 610 F.3d 890, 912 (5th
Cir. 2010) (internal citations and quotation marks omitted).
Review of counsel’s performance is deferential, and counsel enjoy a strong
presumption that their conduct is within the “wide range” of the bounds of professional
norms. Strickland, 466 U.S. at 689. A petitioner’s burden is to show “that counsel made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Id. at 687. Any “strategic decisions” made by trial
counsel “must be given a strong degree of deference.” Rhoades, 852 F.3d at 432.
On habeas review, when a state court has adjudicated a claim of ineffective
assistance of counsel on the merits, the petitioner bears an especially heavy burden. The
question is not whether the state court’s application of Strickland was incorrect, but rather
whether it was unreasonable.
The standards created by Strickland and § 2254(d) are both highly
deferential, and when the two apply in tandem, review is doubly so. The
Strickland standard is a general one, so the range of reasonable applications
is substantial. Federal habeas courts must guard against the danger of
equating unreasonableness under Strickland with unreasonableness under
§ 2254(d). When § 2254(d) applies, the question is not whether counsel’s
See United States v. Dominguez Benitez, 542 U.S. 74, 83 n.9 (2004) (“The reasonableprobability standard is not the same as, and should not be confused with, a requirement that a
defendant prove by a preponderance of the evidence that but for error things would have been
different”); Nix v. Whiteside, 475 U.S. 157, 175 (1986) (“[A] defendant need not establish that
the attorney’s deficient performance more likely than not altered the outcome in order to
establish prejudice under Strickland ”); Strickland, 466 U.S. at 693 (“W]e believe that a
defendant need not show that counsel’s deficient conduct more likely than not altered the
outcome in the case”).
2
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actions were reasonable. The question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.
Richter, 562 U.S. at 105 (internal citations and quotation marks omitted). See Trottie v.
Stephens, 720 F.3d 231, 240-41 (5th Cir. 2013) (“‘even a strong case for relief does not
mean the state court’s contrary conclusion was unreasonable’” (quoting Richter, 562
U.S. at 102)).
The state habeas court determined that Bridges was not entitled to habeas relief on
his Strickland claims because Bridges “received effective assistance of counsel” (Dkt. 1331, at 117).
2.
Failure to Raise a Batson challenge (Claim 1)
Bridges claims that trial counsel rendered ineffective assistance when he failed to
raise a challenge under Batson v. Kentucky, 476 U.S. 79 (1986), to the State’s peremptory
strikes against two African-American persons on his venire panel. Under Batson, the
courts engage in a three-step burden-shifting framework “for determining whether the
prosecution has engaged in invidious racial discrimination during jury selection”:
First, the claimant must make a prima facie showing that the peremptory
challenges have been exercised on the basis of race. The burden then shifts
to the party accused of discrimination to articulate race-neutral explanations
for the peremptory challenges. Finally, the trial court must
determine whether the claimant has carried her burden of proving
purposeful discrimination. . . . Throughout, the party making the claim of
purposeful discrimination bears the ultimate burden of persuasion.
Chamberlin v. Fisher, 885 F.3d 832, 837-38 (5th Cir. 2018) (en banc) (internal citations,
quotation marks, and alterations omitted).
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Bridges, who is African-American, states that his venire panel of eighty-two
people contained four African-Americans (Jurors 22, 39, 43, and 82) (Dkt. 19, at 8-19).
Bridges maintains that the prosecution used peremptory challenges to strike Juror 22,
who potentially could have been seated on the jury, and Juror 39, who potentially could
have been seated as an alternate.
Bridges further claims that the State’s strike against
Juror 39 was its eleventh peremptory challenge and that the State was only entitled to ten
(id. at 9-10). He claims that because of these strikes, the jury that convicted him had no
African-American jurors.3
As support for his claim, Bridges cites to the “strike lists” from the State and the
defense, which he attaches as Exhibits A and G to his summary judgment response (id. at
54-56; id. at 65-67). However, apart from Petitioner’s handwritten notations on his
exhibits, the strike lists do not provide any indication of the race of any venire persons.
Bridges does not cite to any portion of the voir dire transcript (Dkt. 13-25) that provides a
record of the persons’ race.
Moreover, because no objection was made at trial, the
record does not reveal any other facts relevant to a Batson claim, such as race-neutral
reasons proffered by the prosecution. At this post-conviction stage, Petitioner’s bare
allegation that two African-American jurors were struck by the prosecution is
insufficient. See Murphy v. Dretke, 416 F.3d 427, 436-37 (5th Cir. 2005).4 Similarly,
3
Bridges states that Jurors 43 and 82 were excused without use of peremptory challenges
because the court excused all jurors with numbers 43 and higher.
4
Petitioner also alleges that the number of African-Americans on his venire panel was
disproportionate to the percentage of African-Americans in the Chambers County population.
See Dkt. 19, at 11; Dkt. 19, at 70 (Exhibit J). Petitioner presents no evidence demonstrating the
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although Bridges alleges that he was prejudiced by his counsel’s failure to object, his
statements are speculative and unsupported by citations to the record:
[Trial counsel] should have made a Batson objection because the prosecutor
would not have been able to provide a race neutral explanation as to why it
improperly struck Juror # 39 after it has already used all ‘ten” strikes . . . .
Without a doubt the trial court would have sustained the Batson objection
because the 14th Amendment protects and forbids anyone from racial
discrimination during jury selection through the Equal Protection Clause.
(Dkt. 19, at 10). In the absence of any record support, Bridges’ speculation that he was
prejudiced is insufficient. See Hebert v. Rogers, 890 F.3d 213, 224 (5th Cir. 2018) (in
case in which habeas petitioner brought a Strickland claim that trial counsel had failed to
raise a Batson challenge to the prosecution’s peremptory strikes, the court holds that,
because petitioner had “not met her burden to prove that the State used its peremptory
strikes with the intent to discriminate,” she therefore had “failed to show that her
attorney’s representation was prejudicial when he did not object”). Bridges has failed to
demonstrate a genuine issue of material fact as to a “reasonable probability” that, but for
trial counsel’s alleged deficiency, he would have been acquitted by the jury.
See
Rhoades, 852 F.3d at 432.5
Finally, Section 2254 requires this Court to defer to the determination by the state
habeas court, which reviewed a record from Bridges’ trial and state habeas proceedings
that did not have a developed record regarding any Batson violation. Given the record
race of the members of his venire or the seated jurors and, in any event, has not brought a claim
regarding the composition of his jury pool. See Berghuis v. Smith, 559 U.S. 314 (2010).
5
Although Bridges also argues that prejudice should be presumed because he has shown
structural error (Dkt. 19, at 17-18), the Strickland prejudice inquiry is properly applied to his
claim. See Hebert, 890 F.3d at 224.
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that was before the state habeas court, Bridges has not met his burden to show that the
state habeas court’s determination was an “unreasonable application” of Strickland, nor
has he shown that the state habeas court made an “unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.” See 28 U.S.C.
§ 2254(d).
3.
Failure to File a Motion for New Trial (Claim 2)
Bridges claims that trial counsel was ineffective under Strickland failed when he
to file a motion for new trial based on the prosecution’s two peremptory strikes, which
Petitioner alleges violated Batson. As stated above, the trial record contains no evidence
of the venire persons’ race or other evidence essential to a Batson claim.
There is,
therefore, no record evidence supporting Bridges’ claim that counsel’s performance was
deficient or that a motion for a new trial would have resulted in a different verdict. See
Rhoades, 852 F.3d at 432.
Based on the record before the state habeas court, Bridges
has not shown that the state habeas court’s determination that he received effective
assistance of counsel was an unreasonable application of Strickland, or an unreasonable
determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d).6
6
Petitioner also appears to cast this claim as a “constructive denial of counsel” claim (Dkt.
19, at 21). The Supreme Court set out the standards for a constructive denial of counsel claim in
United States v. Cronic, 466 U.S. 648 (1984); see Bell v. Cone, 535 U.S. 685 (2002). In contrast
to a Strickland claim, “Cronic applies in those cases in which defense counsel ‘entirely fails to
subject the prosecution’s case to meaningful adversarial testing.’” Haynes v. Cain, 298 F.3d 375,
377 (5th Cir. 2002) (en banc) (quoting Bell, 535 U.S. at 697). “[A]n attorney’s failure must be
complete,” and “the difference between the situations addressed by Strickland and Cronic is not
of degree but of kind.” Id. (internal citations and quotation marks omitted). See Black v. Davis,
No. 16-10159, 2018 WL 4214980, at *5 (5th Cir. Sept. 5, 2018); Smith v. Quarterman, 471 F.3d
565, 569 n.2 (5th Cir. 2006). As discussed below regarding Claim 4, the record does not support
a finding that trial counsel “entirely fail[ed] to subject the prosecution’s case to meaningful
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4.
Failure to Investigate and Prepare for Trial (Claim 4)
Bridges claims that counsel rendered ineffective assistance when he failed to
investigate the case, prepare a defense, present evidence, and subpoena witnesses.
As
held in Strickland, “counsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.” Strickland, 466
U.S. at 691; see Newbury v. Stephens, 756 F.3d 850, 873 (5th Cir. 2014); Ransom v.
Johnson, 126 F.3d 716, 723 (5th Cir. 1997). “In any ineffectiveness case, a particular
decision not to investigate must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to counsel’s judgments.”
Strickland, 466 U.S. at 691.
Counsel’s investigation decisions “depend[] critically” on
“information supplied by the defendant.”
Id.
The reasonableness of counsel’s
investigation decisions “can be assessed by taking into account the defendant’s own
statements, actions, and information supplied by the defendant; whether counsel has
reason to believe that pursuing certain investigations would be fruitless or even
harmful; resource constraints; and whether the information that might be discovered
would be of only collateral significance.” Hoffman v. Cain, 752 F.3d 430, 440 (5th Cir.
2014) (internal quotation marks, citations, and footnotes omitted). To establish prejudice
for failure to investigate, “a petitioner must allege with specificity what the investigation
would have revealed and how it would have changed the outcome of the trial.” Miller v.
adversarial testing.” See Haynes, 298 F.3d at 377. Petitioner’s claim that counsel failed to file a
motion for new trial is properly analyzed under Strickland standards.
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Dretke, 420 F.3d 356, 361 (5th Cir. 2005). See Woodfox v. Cain, 609 F.3d 774, 808 (5th
Cir. 2010).
Bridges claims that trial counsel (a) failed adequately to investigate Leanne Ball
(the complainant); (b) failed adequately to investigate Tina Phelps (a witness); (c) failed
to subpoena the text messages between Ball and Bridges; (d) declined to call Jessica Jolly
to the witness stand; and (e) failed to call other witnesses who were available to testify on
his behalf. He claims that, if not for the “cumulative effect” of counsel’s alleged errors,
there is a “reasonable probability” that he would not have been convicted (Dkt. 19, at 40).
a.
Ball
Bridges alleges that trial counsel failed to adequately investigate and raise the
alleged criminal history of complainant Leann Ball (id. at 34; id. at 68 (Exhibit H)).
Although Bridges attaches a printout that purports to show a 2014 record regarding Ball
from the sheriff of Upshur County, Texas, he has not demonstrated the presence of any
evidence that would have been admissible and relevant as character evidence or
impeachment evidence. See TEX. R. EVID. 404; TEX. R. EVID. 609. Moreover, he does
not demonstrate any probability of a changed outcome based on any such evidence
regarding Ball. See Day v. Quarterman, 566 F.3d 527, 540-41 (5th Cir. 2009) (noting
that petitioner had failed to “demonstrate a reasonable probability” that information not
located by trial counsel “would have altered the outcome at trial” and dismissing
petitioner’s claim of prejudice as “conclusory”).
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On the record before the state habeas court, the court’s determination that trial
counsel was not constitutionally ineffective was not unreasonable.
See 28 U.S.C.
§ 2254(d).
b.
Phelps
Bridges alleges that trial counsel was ineffective for his failure to investigate
Phelps’ account of the events and her alleged criminal history.
Bridges first claims that trial counsel was deficient because he failed to investigate
purportedly contradictory statements by Phelps. He cites to a “supplemental narrative”
from Chambers County Sheriff’s Office dated August 13, 2013, which reflects Phelps
statement that “she only heard the verbal confrontation and did not observe anything else
because the front door was closed.” See Dkt. 19, at 62 (Exhibit E). He asserts that,
because the door was closed, Phelps “never saw a gun like she testified to seeing at trial”
(Dkt. 19, at 34).
However, contrary to Bridges’ assertion, Phelps testified on cross-
examination that she had not seen a gun. See Dkt. 13-26, at 56-57 (on cross-examination,
counsel for Bridges elicited Phelps’ testimony that she “didn’t actually see [the pistol]”).
See also Dkt. 13-27, at 12 (counsel for Bridges emphasized in closing arguments the lack
of evidence regarding Bridges’ possession of a gun). Bridges’ assertions that counsel’s
performance was deficient on this issue are meritless and clearly contradicted by the
record.
Bridges also alleges that counsel failed to adequate investigate his claim that
Phelps had a criminal history (Dkt. 19, at 34; Dkt. 19, at 69 (Exhibit I)). As with Ball,
Bridges makes no showing that Phelps actually had a criminal record that was potentially
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admissible and relevant, and fails to demonstrate any prejudice. See TEX. R. EVID. 404;
TEX. R. EVID. 609; Day, 566 F.3d at 540-41.
On the record before the state habeas court, the court’s determination that trial
counsel was not constitutionally ineffective was not unreasonable.
See 28 U.S.C.
§ 2254(d).
c.
Text messages
Bridges alleges repeatedly that trial counsel was deficient for failing to subpoena
text messages between Bridges and Ball, as Bridges requested.
He maintains that the
text messages “before and after the alleged incident would have shown there was no
aggression between the two,” and that “there were never any gun threats . . . between the
two” (Dkt. 19, at 36), thus undermining the case that he had committed aggravated
assault with a deadly weapon. He also maintains that the text messages would have
demonstrated “beyond a reasonable doubt” that Ball “exaggerated” in her statement to
police (id. at 33-34).7
Bridges does not provide any information about the contents of the text messages
or how they might have supported his claims. To establish prejudice for failure to
investigate, “a petitioner must allege with specificity what the investigation would have
revealed and how it would have changed the outcome of the trial.” Miller, 420 F.3d at
7
See also id. at 60-61 (in his complaint to the State Bar regarding trial counsel, Bridges
claimed that the text messages would “show without a doubt 100% percent” that Ball was
“lying” and would “get [Bridges] released immediately upon review of these text messages back
and forth”); id. at 57 (informing trial counsel by letter of his belief that the text messages
between him and Ball would “prove and show my innocence, and that she committed perjury as
well”) (emphasis original).
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361. Bridges’ conclusory allegations are insufficient to demonstrate either deficient
performance or prejudice under Strickland. See Murphy, 416 F.3d at 436-37 (allegation
of constitutional violation is insufficient for habeas relief); Rhoades, 852 F.3d 431-32
(habeas petitioner bears burden to demonstrate entitlement to relief under Strickland).
On the record before the state habeas court, the court’s determination that trial
counsel was not constitutionally ineffective was not unreasonable.
See 28 U.S.C.
§ 2254(d).
d.
Jolly
Bridges argues that trial counsel was ineffective because he failed to call Jessica
Jolly to the witness stand. Bridges presents two statements by Jolly. The first, dated
October 22, 2014, after Bridges had been convicted, stated that Jolly had been prepared
to testify that Ball “lied against [Bridges] and made it all up about the assault against her
on August 12, 2013” but that she met with trial counsel during trial and, after counsel
interviewed her, he declined to call her to the stand (Dkt 19, at 63). In her second
statement, dated November 23, 2016, Jolly stated that she had told trial counsel that, after
Bridges was arrested for the incident with Ball, Jolly asked Ball “why she lied on
[Bridges] and said he had a gun and put it to her head,” and that Ball responded, “‘so
what, I am still not dropping the charges against him’” (id. at 64).
Bridges describes
Jolly as his “most important witness” and alleges that counsel sent her home for “no
apparent reason” (id. at 38-39).
The facts alleged by Bridges do not adequately demonstrate trial counsel’s failure
to investigate or call witnesses. The Jolly statements, on their face, state that trial counsel
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considered Jolly’s account, interviewed her, and decided not to call her as a witness.
Trial counsel’s decision is a classic strategic decision by counsel that is due a “strong
degree of deference.” See Rhoades, 852 F.3d at 432. Where, as here, counsel made a
“conscious and informed decision on trial tactics and strategy,” counsel’s decision
“cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill
chosen that it permeates the entire trial with obvious unfairness.” Miller, 420 F.3d at 361
(internal citation and quotation marks omitted).
Bridges has not made that showing.
On the record before the state habeas court, the court’s determination that trial
counsel was not constitutionally ineffective was not unreasonable.
See 28 U.S.C.
§ 2254(d).
e.
Other Witnesses
Finally, Bridges alleges that trial counsel was constitutionally ineffective because
he failed to call additional witnesses including Rosenvelt Jolly, Patrick Thomas, and
Thomas Moses. See Dkt. 19, at 34-35 (petitioner maintains that he provided counsel
“numerous” times with a list of witnesses who “were willing to testify at trial that [Ball]
was not telling the truth,” but that counsel failed to investigate); see id. at 57-58 (letter to
counsel dated Aug. 5, 2014); id. at 61 (letter to State Bar of Texas dated March 7, 2014).
Petitioner makes various claims regarding the testimony that these witnesses might have
given, including their testimony that Ball was not truthful and that they had never seen
Bridges with a gun. He alleges that he was prejudiced because of the cumulative effect
of the uncalled witnesses (id. at 36-37).
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Because counsel’s decision regarding “presentation of testimonial evidence is a
matter of trial strategy,” complaints regarding uncalled witnesses are “not favored.”
Miller, 420 F.3d at 362. The Fifth Circuit requires petitioners making claims that their
counsel was ineffective for failure to call a witness “to demonstrate prejudice by naming
the witness, demonstrating that the witness was available to testify and would have done
so, setting out the content of the witness’s proposed testimony, and showing that the
testimony would have been favorable to a particular defense.” Woodfox, 609 F.3d at 808
(internal quotation marks, citation, and alterations omitted). Bridges has not presented
statements from any of these witnesses attesting to the testimony they would have
offered, their willingness to testify, or the favorability of that testimony to the defense.
On the record before the state habeas court, the court’s determination that trial
counsel was not constitutionally ineffective was not unreasonable.
See 28 U.S.C.
§ 2254(d).
5.
Failure to Object Regarding Jury Inquiry (Claim 7a)
Petitioner next claims that counsel rendered ineffective assistance when he failed
to object to the court’s decision not to let the jury review the victim and witness
statements it requested.
He argues that the trial court erred under Texas Criminal
Procedure Code article 36.28. Article 36.28 governs a jury’s request to have a witness’
statement read to them:
In the trial of a criminal case in a court of record, if the jury disagree as to
the statement of any witness they may, upon applying to the court, have
read to them from the court reporter’s notes that part of such witness
testimony or the particular point in dispute, and no other; but if there be
no such reporter, or if his notes cannot be read to the jury, the court may
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cause such witness to be again brought upon the stand and the judge shall
direct him to repeat his testimony as to the point in dispute, and no other, as
nearly as he can in the language used on the trial.
TEX. CRIM. PROC. CODE § 36.28 (emphasis added). See Robison v. State, 888 S.W.2d
473, 480 (Tex. Crim. App. 1994).
In this case, the jurors sent a note to the court during deliberations requesting a
copy of “the testimony to the officer from [Ball and Phelps]” and “a copy of all [three]
testimon[ies] on the stand” (Dkt. 13-14, at 31). The judge responded in writing, “The
court is not allowed to give you the record. If there is a dispute regarding the evidence,
you must be specific as to the witness, whether on direct or cross examination (which
lawyer is asking the question) and the substance of the dispute” (id.).8 Bridges maintains
that the statements requested by the jury were the only evidence from the State’s two
witnesses against him and that the court improperly usurped the jury’s fact-finding role
(Dkt. 19 at 49-51). He claims that his trial counsel was ineffective because he did not
object to the judge’s response to the jury’s note.
Counsel’s failure to object to the court’s response was not ineffective under
Strickland because any objection would have been futile. As evidenced by the note relied
on by Bridges, the judge followed the dictates of Article 36.28, instructing the jurors that
“if there is a dispute regarding the evidence,” they were required to “be specific” about
the “substance of the dispute” (Dkt. 13-14, at 31). See Robison, 888 S.W.2d at 480
(“Under Art. 36.28 the jury must disagree as to the statement of any witness before the
8
The record contains no indication that the jury made an additional inquiry after receiving
the Court’s response.
21 / 29
testimony may be read back . . . . A simple request for testimony does not, by itself,
reflect disagreement, implicit or express, and is not a proper request under Art. 36.28”)
(internal quotation marks and citations omitted). Counsel’s decision not to make a
meritless argument cannot serve as the basis for a claim of deficient performance. See
Parr v. Quarterman, 472 F.3d 245, 256 (5th Cir. 2006). Similarly, because any objection
by trial counsel would have been futile, Bridges cannot show prejudice under Strickland.
On the record before the state habeas court, the court’s determination that trial
counsel was not constitutionally ineffective was not unreasonable.
See 28 U.S.C.
§ 2254(d).
B.
Ineffective Assistance of Appellate Counsel (Claims 3, 7b, 8)
A criminal defendant is entitled to effective assistance of counsel on direct appeal.
Evitts v. Lucey, 469 U.S. 387 (1985); Dorsey v. Stephens, 720 F.3d 309, 319-21 (5th Cir.
2013). Claims of ineffective assistance of counsel on appeal are governed by Strickland
standards, which require a petitioner to show that counsel’s performance was deficient
and that the petitioner was prejudiced. Id. at 319 (citing Strickland, 466 U.S. at 687).
As with Strickland claims regarding trial counsel, the court’s review is “highly
deferential,” and “doubly deferential” on habeas review. Id. Appellate counsel is not
required to “raise every nonfrivolous ground of appeal available.” Id. at 320 (internal
citation and quotation marks omitted). “[A]ppellate counsel who files a merits brief need
not (and should not) raise every nonfrivolous claim, but rather may select from among
them in order to maximize the likelihood of success on appeal.” Smith v. Robbins, 528
U.S. 259, 288 (2000) (citing Jones v. Barnes, 463 U.S. 745 (1983)).
22 / 29
The state habeas court determined that Bridges was not entitled to habeas relief on
his Strickland claims because Bridges “received effective assistance of counsel” (Dkt. 1331, at 117).
1.
Failure to Bring Strickland Claim Regarding Batson (Claim 3)
Bridges claims that his appellate counsel rendered ineffective assistance when he
failed to raise a claim that trial counsel was ineffective for failure to challenge the State’s
peremptory strikes as contrary to Batson. He states that he discussed the issues with
appellate counsel, including the strike he characterizes as the State’s “illegal eleventh
strike,” before counsel prepared the appellate brief, but that counsel failed to raise the
issues in his appeal (Dkt. 19, at 30-31).
Because appellate counsel filed a merits brief raising three issues, the Court must
presume that he exercised reasonable professional judgment in selecting the issues for
appeal. See Smith, 428 U.S. at 288. Bridges’ statements in his briefing that he informed
appellate counsel of the issue reinforces the conclusion that counsel considered, but
decided not to raise, the claim. See id. (although it is possible to bring a Strickland claim
based on counsel’s failure to raise a particular claim, “it is difficult to demonstrate that
counsel was incompetent”). Moreover, although Bridges makes a conclusory allegation
that his claim “would have succeeded on appeal” (Dkt. 19, at 30), this assertion is
insufficient for the reasons stated above regarding Claim 1.9
9
Bridges cites the Court to Eagle v. Linahan, 279 F.3d 926 (11th Cir. 2001), a federal
habeas corpus proceeding that involved claims under Strickland and Batson. The Eagle decision
is not directly on point because, unlike in Bridges’ case, the Batson issue had been raised at trial.
23 / 29
On the record before the state habeas court, the court’s determination that trial
counsel was not constitutionally ineffective was not unreasonable.
See 28 U.S.C.
§ 2254(d).
2.
Failure to Bring Strickland Claim Regarding Jury Inquiry
(Claim 7b)
Bridges claims that appellate counsel was ineffective because he did not bring a
claim that trial counsel was ineffective for failure to object to the judge’s response to the
jury’s note. As held above when discussing Bridges’ claim of ineffective assistance of
trial counsel, any objection by trial counsel would have been futile because the judge’s
instructions actually complied with Texas Code of Criminal Procedure Article 36.28. For
the same reasons, any such claim on appeal would have been meritless. See Williams v.
Collins, 16 F.3d 626, 635 (5th Cir. 1994).
On the record before the state habeas court, the court’s determination that trial
counsel was not constitutionally ineffective was not unreasonable.
See 28 U.S.C.
§ 2254(d).
3.
Failure to Raise All Requested Arguments (Claim 8)
Bridges claims that appellate counsel was ineffective because he did not raise
“non-frivolous arguments requested by the client,” in particular, the claims raised in this
federal habeas petition (Dkt. 19, at 52). Bridges states that he consulted with appellate
counsel and requested that the issues be raised. As stated above, because counsel filed a
merits brief with three issues, he is presumed to have exercised reasonable professional
Moreover, as held by the Eagle court, the trial judge had “misapplied” the law governing Batson
claims. Eagle v. Linahan, 279 F.3d at 941.
24 / 29
judgment in selecting the issues for appeal. See Smith, 428 U.S. at 288. Bridges provides
no additional evidence that would support a determination that appellate counsel was
ineffective under Strickland.
On the record before the state habeas court, the court’s determination that trial
counsel was not constitutionally ineffective was not unreasonable.
See 28 U.S.C.
§ 2254(d).
C.
Constructive Denial of Counsel (Claim 5)
Bridges claims that he was constructively denied counsel when the trial court
reappointed trial counsel to his case despite a conflict of interest. See Bell, 535 U.S. 685;
Cronic, 466 U.S. 648. As stated above, “Cronic applies in those cases in which defense
counsel ‘entirely fails to subject the prosecution’s case to meaningful adversarial
testing.’” Haynes, 298 F.3d at 377.
See Black, 2018 WL 4214980, at *5; Smith, 471
F.3d at 569 n.2.
Bridges asserts that his trial counsel, Gary Dennison, withdrew from
representation of Bridges on March 7, 2014, “due to conflicts of interest,” after which
Bridges’ family retained counsel. He alleges that, after his family was unable to pay
retain counsel and counsel withdrew, the trial court reappointed Dennison despite the
conflict of interest (Dkt. 19, at 44).
The record reflects that, on May 14, 2014, the trial court held docket call at which
Bridges was present (Dkt. 13-24, at 3). The court recounted Bridges’ series of attorneys
throughout the pretrial proceedings, noting that the initial appointed attorney had
withdrawn; that Dennison than had been appointed; that Dennison subsequently was
25 / 29
removed when Bridges’ family retained other counsel; and that retained counsel had then
withdrawn due to non-payment (id. at 3-4).10 The judge informed Bridges that he was
not entitled to request appointment of a specific attorney (Dkt. 13-24, at 4). When
Bridges protested that his appointed attorneys “didn’t call me” and that “[n]obody even
showed up” (id. at 5), the court told him that, “once they are appointed, [the lawyers]
make contact with you” (id. at 6). The judge stated that he would reappoint Dennison
“[b]ecause the only reason I took him off was because you hired someone else” (id.).
Bridges did not contest this statement by the court.
The Texas Court of Criminal Appeals has recognized the trial court’s discretion
regarding appointment and substitution of counsel:
The trial court has discretion to determine whether counsel should be
allowed to withdraw from a case. However, the right to counsel may not be
manipulated so as to obstruct the judicial process or interfere with the
administration of justice. Further, personality conflicts and disagreements
concerning trial strategy are typically not valid grounds for withdrawal. A
trial court has no duty to search for counsel agreeable to the defendant.
King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000) (internal quotation marks and
footnotes omitted). In this case, the court placed on the record the reasons for reappointing trial counsel, and noted that Bridges had been permitted to change counsel
multiple times before trial. Bridges was present at the proceeding and did not contest the
court’s reasons for reappointing Dennison. Contrary to his current habeas claim, Bridges
10
See also Dkt. 13-21 (January 8, 2014, transcript regarding counsel’s motion to withdraw);
Dkt. 13-23 (April 22, 2014, transcript regarding counsel’s motion to withdraw).
26 / 29
did not request that Dennison not be re-appointed because of a conflict of interest.11 The
trial judge stated unequivocally that the “only reason” Dennison had previously been
removed from Bridges’ case was that Bridges “hired someone else” (Dkt. 13-24, at 6).
Bridges cites to no evidence of an actual conflict of interest with Dennison.
Bridges has not shown that his trial counsel “entirely fail[ed] to subject the
prosecution’s case to meaningful adversarial testing,” as required for a Cronic claim. See
Haynes, 298 F.3d at 377. On the record before the state habeas court, the court’s denial
of relief on this claim was not unreasonable. See 28 U.S.C. § 2254(d).
D.
Punishment Enhancements (Claim 6)
Bridges claims that he is entitled to federal habeas relief from his sentence because
the sentence was enhanced by prior convictions that were more than ten years old,
alleging that the use of older convictions violates the Eighth and Fourteenth Amendment
(Dkt. 19, at 48).
After the jury found him guilty of second degree aggravated assault with a deadly
weapon, see TEX. PENAL CODE § 22.02, Bridges entered into an agreement with the
prosecution to serve a sentence of thirty-two years (Dkt. 13-15,at 1-2). He stipulated to
prior felony convictions from 1982 and 1991 (id. at 6). The court then sentenced him as
a habitual offender (id. at 10-11). As held by the appellate court, Bridges “was properly
11
See Dunn v. State, 819 S.W.2d 510, 520 (Tex. Crim. App. 1991) (“A criminal
defendant is not entitled to appointed counsel of choice” and appellant had “never made any
claim that there existed a conflict of interest which actually affected the adequacy of his
representation provided” by appointed counsel); Malcom v. State, 628 S.W.2d 790, 791 (Tex.
Crim. App. 1982) (“If a defendant is displeased with his appointed counsel, he must bring the
matter to the court’s attention”).
27 / 29
subject to being punished as a habitual offender with a range of punishment of 25 to 99
years, or life” (Dkt. 13-3, at 7). See TEX. PENAL CODE § 12.42(d).
Bridges cites no authority supporting his assertion that his sentence violated the
Eighth and Fourteenth Amendments. Because he has failed to demonstrate that the state
court’s determination was contrary to clearly established federal law, or an unreasonable
application of the law to the facts of his case, habeas relief is denied. See 28 U.S.C.
§ 2254(d).
IV.
CERTIFICATE OF APPEALABILITY
Habeas corpus actions under 28 U.S.C. § 2254 or § 2255 require a certificate of
appealability to proceed on appeal. 28 U.S.C. § 2253(c)(1); Miller-El v. Cockrell, 537
U.S. 322, 335-36 (2003). Rule 11 of the Rules Governing Section 2254 Cases requires a
district court to issue or deny a certificate of appealability when entering a final order that
is adverse to the petitioner.
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 (internal citation and quotation marks
28 / 29
omitted). 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.
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 record 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 allege facts showing that his claims could be resolved in a
different manner, a certificate of appealability will not issue in this case.
V.
CONCLUSION
For the reasons stated above the Court ORDERS that:
1.
Respondent’s motion for summary judgment (Dkt. 12) is GRANTED. The
petition for a writ of habeas corpus (Dkt. 1) is DISMISSED.
2.
A certificate of appealability is DENIED.
A separate final judgment will issue.
SIGNED at Galveston, Texas, this 25th day of September, 2018.
___________________________________
George C. Hanks Jr.
United States District Judge
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