Curtis v. Quarterman

Filing 35

MEMORANDUM OPINION AND ORDER GRANTING 12 Motion for Summary Judgment. The petition for writ of habeas corpus is DENIED and this case is DISMISSED WITH PREJUDICE. A certificate of appealability is DENIED. Any and all pending motions are DENIED AS MOOT.(Signed by Judge Gray H. Miller) Parties notified.(gseidl)

IN THE UNITED STATES DISTRICT COURT F O R THE SOUTHERN DISTRICT OF TEXAS H O U S T O N DIVISION J IRRON DEMON CURTIS, P e titio n e r , v. R ICK THALER, R e s p o n d e n t. § § § § § § § § §

C IVIL ACTION NO. H-06-4042

MEMORANDUM OPINION AND ORDER
P e titio n e r Jirron Demon Curtis, a state inmate proceeding pro se, filed this habeas p ro c e ed in g under 28 U.S.C. § 2254 challenging his state court conviction. Respondent filed a motion for summary judgment (Docket Entry No. 12), to which petitioner responded (D o c k e t Entry No. 32). Based on consideration of the pleadings, the motion and response, the record, and the a p p lica b le law, the Court GRANTS the motion for summary judgment and DISMISSES this c a s e for the reasons that follow. P r o c e d u ra l Background Petitioner was convicted of aggravated robbery in Harris County, Texas, and s e n te n c e d to sixty-five years incarceration. The conviction was affirmed on appeal. Curtis v . State, No. 01-03-00687-CR (Tex. App. ­ Houston [1st Dist.] 2004, pet. ref'd) (not

d esig n ated for publication). The Texas Court of Criminal Appeals refused discretionary re v ie w and denied state habeas relief. Ex parte Curtis, Application No. 65,333-01. P e titio n e r raises the following grounds for federal habeas relief in the instant petition: (1 ) (2 ) (3 ) (4 ) (5 ) d e n ia l of counsel at his line-up; in e f f e c tiv e assistance of trial counsel; a Brady violation; a n unduly suggestive identification procedure; and in e f f e c tiv e assistance of appellate counsel.

R esp o n d en t argues that these grounds are without merit and/or are procedurally barred a n d that the petition should be dismissed. Factual Background T h e state appellate court set forth the following statement of facts in its opinion: O n Friday, May 24, 2002, three men, armed with pistols and stun guns, entered G o o d m a n 's Air Conditioning and proceeded to rob the individuals inside the s to re and to steal money from the store's registers. A fourth man waited in a g e t-a w a y van. The victims were made to lie face down on the floor, and the ro b b e rs held guns to or pointed them at the victims' heads, shocked them with th e stun guns, and, in one case, caused a victim's head to bleed. One of the ro b b e rs ­ later identified as appellant ­ saw a victim, Robert Reynolds, throw a n envelope containing a large sum of cash under a vending machine. A p p e lla n t then received a call on the cell phone that he was carrying, after w h ic h the robbers decided to leave. As the robbers were leaving, appellant s to o p e d to grab Reynolds's cash from under the vending machine. When a p p e lla n t did so, however, his cell phone dropped out of his pocket. Reynolds re trie v e d the phone.

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B a s e d on reports of calls to and from the cell phone, the police eventually lo c a te d a suspect, who was appellant. The State presented evidence from some o f the victims that appellant was one of the robbers. In contrast, appellant o f f e re d evidence supporting an alibi. C u rtis , at *1. The Applicable Legal Standards T h is petition is governed by the applicable provisions of the Antiterrorism and E f f e c tiv e Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2254. Under the AEDPA, fe d era l habeas relief cannot be granted on legal issues adjudicated on the merits in state court u n le ss the state adjudication of the claim was contrary to clearly established federal law as d e ter m in e d by the Supreme Court, or involved an unreasonable application of clearly e s ta b lis h e d federal law as determined by the Supreme Court. Williams v. Taylor, 529 U.S. 3 6 2 , 404-05 (2000); 28 U.S.C. §§ 2254(d)(1), (2). A state court decision is contrary to f e d era l precedent if it applies a rule that contradicts the governing law set forth by the S u p re m e Court or if it confronts a set of facts that are materially indistinguishable from a S u p re m e Court decision and arrives at a result different from the Supreme Court's precedent. E a r ly v. Packer, 537 U.S. 3, 7-8 (2002). A state court unreasonably applies Supreme Court precedent if it unreasonably applies th e correct legal rule to the facts of a particular case, or unreasonably extends a legal p rin c ip le from Supreme Court precedent to a new context where it should not apply, or u n re a s o n a b ly refuses to extend that principle to a new context where it should apply.

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W illia m s, 529 U.S. at 409. In deciding whether a state court's application was unreasonable, th is Court considers whether the application was objectively unreasonable. Id. at 411. T h e AEDPA affords deference to a state court's resolution of factual issues. Under 2 8 U.S.C. § 2254(d)(2), a decision adjudicated on the merits in a state court and based on a f a c tu a l determination will not be overturned on factual grounds unless it is objectively u n re a s o n a b le in light of the evidence presented in the state court proceedings. Miller-El v. C o c k r e l l, 537 U.S. 322, 343 (2003). A federal habeas court must presume the underlying f a ctu a l determination of the state court to be correct, unless the petitioner rebuts the p re s u m p tio n of correctness by clear and convincing evidence. Miller-El, 537 U.S. at 330-31; 2 8 U.S.C. § 2254(e)(1). D e n ia l of Counsel at the Line-Up P e titio n e r complains that he was denied counsel at his pretrial line-up. In rejecting h a b e a s relief on this claim, the trial court found as follows: 1. S in c e the lineup was conducted during a non-critical stage, prior to A p p lic a n t being charged or indicted for the aggravated robbery offense in [this case], the Applicant fails to show that he was improperly denied h is request for counsel during the lineup[.]

Ex parte Curtis, p. 228 (citations omitted). The Texas Court of Criminal Appeals relied on th is finding in denying habeas relief. Petitioner shows no constitutional violation. It is well settled that no Sixth

A m e n d m e n t right to counsel arises regarding a line-up undertaken prior to arraignment,

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in d ic tm e n t, or formal charge. Kirby v. Illinois, 406 U.S. 682, 688-91 (1972); McGee v. E ste lle, 625 F.2d 1206, 1208-09 (5th Cir. 1980). Accordingly, petitioner is afforded no b e n e fit by his reliance on United States v. Wade, 388 U.S. 218, 220-21 (1967) ("The question h e re is whether courtroom identifications of an accused at trial are to be excluded from e v id e n c e because the accused was exhibited to the witnesses before trial at a post-indictment lin e u p conducted for identification purposes without notice to and in the absence of the ac cu sed 's appointed counsel."). M o re o v e r, the right to counsel is offense specific. Cobb v. Texas, 532 U.S. 162, 1676 8 (2001). Even if this Court were to accept petitioner's assertion that he was under arrest o n other charges at the time of the line-up, it does not change the fact that he had not been c h a rg e d or indicted in the instant case at the time. The state court denied habeas relief under this issue. Petitioner fails to show that the sta te court's determination is in conflict with established federal law or is objectively u n re a so n a b le , and fails to rebut the presumption of factual correctness with clear and c o n v in c in g evidence. See Miller-El, 537 U.S. at 330-31, 343; 28 U.S.C. §§ 2254(d)(1), (2), (e)(1). No grounds for habeas relief are shown, and respondent is entitled to summary ju d g m e n t dismissing this issue. I n e ffe c tiv e Assistance of Trial Counsel T h e Sixth Amendment to the United States Constitution guarantees a criminal d e f e n d a n t the right to the effective assistance of counsel. A federal habeas petitioner's claim

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th a t he was denied effective assistance of counsel is measured by the standards set out in S tr ic k la n d v. Washington, 466 U.S. 668 (1984). To assert a successful ineffectiveness claim, a petitioner must establish both constitutionally deficient performance by counsel and actual p re ju d ic e as a result of such deficient performance. Id. at 687. The failure to demonstrate e ith e r deficient performance or actual prejudice is fatal to an ineffective assistance claim. G r e e n v. Johnson, 160 F.3d 1029, 1035 (5th Cir. 1998). A counsel's performance is deficient if it falls below an objective standard of re a s o n a b le n e s s . Strickland, 466 U.S. at 688. In determining whether counsel's performance w a s deficient, judicial scrutiny must be highly deferential, with a strong presumption in favor o f finding that trial counsel rendered adequate assistance and that the challenged conduct was th e product of a reasoned trial strategy. West v. Johnson, 92 F.3d 1385, 1400 (5th Cir. 1996). T o overcome this presumption, a petitioner must identify the acts or omissions of counsel th a t are alleged not to have been the result of reasonable professional judgment. Wilkerson v . Collins, 950 F.2d 1054, 1065 (5th Cir. 1992). However, a mere error by counsel, even if p ro f e ss io n a lly unreasonable, does not warrant setting aside the judgment of a criminal p ro c e e d in g if the error had no effect on the judgment. Strickland, 466 U.S. at 691. A c tu a l prejudice from a deficiency is shown if there is a reasonable probability that, bu t for counsel's unprofessional error, the result of the proceeding would have been different. Id . at 694. To determine prejudice, the question focuses on whether counsel's deficient p erf o rm an ce renders the result of the trial unreliable or the proceeding fundamentally unfair. 6

L o c k h a rt v. Fretwell, 506 U.S. 364, 372 (1993). In that regard, unreliability or unfairness d o e s not result if the ineffectiveness does not deprive the petitioner of any substantive or p ro c e d u ra l right to which he is entitled. Id. P e titio n e r asserts that trial counsel was ineffective at the guilt-innocence phase of trial in the following instances: (a) failing to investigate adequately his alibi defense or present a misidentification defense; (b) failing to explain a plea offer; (c) failing to suppress the u n d u ly suggestive line-up; (d) failing to object to a motion in limine violation; (e) failing to d is c o v e r the actual owner of the recovered cell phone; (f) failing to object to testimony lin k in g him to "Jyro Jackson"; (g) denying him his right to testify at trial; (h) failing to in v o k e the rule of witnesses; (i) failing to object to repeated hearsay testimony; and (j) failing to correct factually-incorrect testimony. He further asserts that trial counsel was ineffective a t the punishment phase of trial in (k) failing to object to extraneous offense and "bogus" e v i d e n c e during punishment; and (l) failing to object to sexual assault hearsay testimony. E a c h instance is discussed separately, below. A. A lib i and Misidentification Defenses

P e titio n e r claims that trial counsel failed to conduct any pretrial investigation into his alib i defense, and failed to present a misidentification defense. He claims that Larry W illiam s, Christopher Williams, Roland Williams, and his own common-law wife would h a v e testified that petitioner was at work during the robbery. He further claims that he was m is id e n tif ie d as the robber, and that counsel did nothing to counter that misidentification. 7

In response to this claim, trial counsel submitted an affidavit to the state court on c o l la te r a l review, in which he testified as follows: I did conduct interviews with the witnesses, his co-workers, that [petitioner] a sk e d me to contact. I spoke with Chris Williams, Larry Williams, and Roland W illiam s. Roland was the least forthcoming of the three and I decided not to s u b p o e n a him. I spoke at some length with Chris and Larry Williams about [ p e titio n e r] and what they remembered of the day of the offense. They did not s p e c if ic a lly recall that day, but were able to explain [petitioner's] job d e s c rip tio n and how it affected theirs. I called both Chris and Larry Williams a s alibi witnesses at trial. I don't remember ever speaking to [petitioner's] c o m m o n law wife, nor do I remember his ever asking me to or telling me that s h e had any information about the case. [Petitioner] did not ask me to present h e r testimony at any stage of the trial. * * * *

I discussed the misidentification issue during my opening arguments with the ju ry, cross-examined the complainants at length on the issue and argued m isid e n tific a tio n in closing. [Petitioner's] primary defense was alibi, but it w a s buttressed by the misidentification defense. I cross-examined [Detective] W rig h t and the complainants as well on the misidentification. Ex parte Curtis, p. 223. In rejecting petitioner's state habeas claims of ineffective assistance o f counsel, the trial court found that the facts asserted in trial counsel's affidavit were true a n d that the totality of the representation afforded petitioner was sufficient to protect his right to reasonably effective assistance of trial counsel. Ex parte Curtis, p. 228. The Texas Court o f Criminal Appeals relied on this finding in denying habeas relief. In his petition and response to the motion for summary judgment, petitioner sets forth n o th in g more than his own conclusory assertions that trial counsel failed to pursue the two d e f en s e s. His conclusory claims are unsupported by probative evidence, are rebutted by the 8

rec o rd itself, and are insufficient to raise a genuine issue of material fact precluding summary ju d g m e n t. The state court denied habeas relief on this issue. Petitioner fails to show that the state c o u rt's determination was contrary to, or involved an unreasonable application of, Strickland, o r that it was an unreasonable determination of the facts based on the evidence in the record. N o basis for habeas relief is shown, and respondent is entitled to summary judgment. B. P le a Offer

P e titio n e r complains that trial counsel failed to explain and advise him prior to trial as to the State's proposed plea offer. Although petitioner baldly claims that "the record su p p o rts this assertion," he directs this Court to Volume 1, pages 3 and 4 of the Reporter's R e c o rd , which is a portion of the Master Index containing nothing of any evidentiary or testim o n ial nature. (Docket Entry No. 1-4, p. 23.) In contravention of petitioner's unsupported claim, trial counsel testified in his a f f i d a v it as follows: D u rin g the course of my representation of [petitioner], the State made several p le a bargain offers. The first was 40 years TDC. The last was 15 years TDC in each of seven cases, or 25 years TDC on Aggravated Robbery, Sexual A s s a u lt and Burglary of a Habitation, and dismissal of the remaining cases. I discussed each offer with [petitioner] and he understood the consequences of a n y plea. He never told me that he did not understand the offers and was able to state the offer for the record at trial. [Petitioner] rejected all plea bargain o f f e r s.

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E x parte Curtis, p. 223. In rejecting petitioner's state habeas claims of ineffective assistance o f counsel, the trial court found that the facts asserted in trial counsel's affidavit were true a n d that the totality of the representation afforded petitioner was sufficient to protect his right to reasonably effective assistance of trial counsel. Ex parte Curtis, p. 228. The Texas Court o f Criminal Appeals relied on this finding in denying habeas relief. Petitioner again fails to set forth any probative summary judgment evidence in support o f his argument. His conclusory allegations are insufficient to raise a genuine issue of m a te ria l fact precluding summary judgment. The state court denied habeas relief on this issue. Petitioner fails to show that the state c o u rt's determination was contrary to, or involved an unreasonable application of, Strickland, o r that it was an unreasonable determination of the facts based on the evidence in the record. N o basis for habeas relief is shown, and respondent is entitled to summary judgment. C. L in e -u p

P e titio n e r next complains that trial counsel failed to file a pretrial motion to suppress th e line-up based on the denial of his right to have counsel present at the line-up and that the lin e -u p was unduly suggestive. T h is Court has already determined under petitioner's first habeas ground that he was n o t entitled to counsel at the pretrial line-up; accordingly, trial counsel was not deficient in f a ilin g to move to suppress the line-up under such argument. See Koch v. Puckett, 907 F.2d

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5 2 4 , 527 (5th Cir. 1990) (holding that counsel is not ineffective in failing to raise futile or m e ritle s s objections). Nor does petitioner meet his burden of proving that counsel was ineffective in failing s u p p re ss the unduly suggestive line-up. In contravention of petitioner's unsupported and c o n c lu so ry allegations of an unduly suggestive line-up, trial counsel testified in his affidavit a s follows: I had the opportunity to view the video and photo line-ups and, in my view, th e re were no grounds to contest them. They appeared to have been put to g e th e r with forethought and were within the limits of any suggestibility. [P etitio n er] was in custody on other charges at the time the lineups were c o n d u c te d and did not have a right to counsel at that time on the Aggravated R o b b e ry. In fact, the first lineup was beneficial to the defense of the case as o n e of the complainants positively identified someone other than [petitioner]. E x parte Curtis, p. 223. In rejecting petitioner's state habeas claims of ineffective assistance of counsel, the trial court found that the facts asserted in trial counsel's affidavit were true and that: 4. T ria l counsel . . . made the decision not to challenge the pre-trial id e n tif ic a tio n procedure because he did not believe it was im p e rm is s ib ly suggestive[.] T h e totality of the representation afforded Applicant was sufficient to p ro te c t his right to reasonably effective assistance of counsel in trial a n d on direct appeal[.]

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E x parte Curtis, p. 228. The Texas Court of Criminal Appeals relied on these findings in d e n yin g habeas relief.

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T h e state court denied habeas relief on this issue. Petitioner fails to show that the state co urt's determination was contrary to, or involved an unreasonable application of, Strickland, o r that it was an unreasonable determination of the facts based on the evidence in the record. N o basis for habeas relief is shown, and respondent is entitled to summary judgment. D. M o tio n in Limine

P e titio n e r states that, during the guilt-innocence phase of trial, the State made re f ere n c e to the fact that petitioner was already in jail when he was arrested on the a g g ra v a ted robbery charges. Petitioner complains that trial counsel should have objected to th e reference because it violated the defense's pretrial motion in limine. In the interest of ju s tic e , the Court liberally construes this claim as a challenge to counsel's failure to object to the purportedly inadmissible evidence. In his affidavit submitted to the state court on collateral review, trial counsel testified, in relevant part, as follows: W h e n [Detective] Wright made mention of [petitioner] being in custody before th e lineup, I chose not to object as a part of trial strategy. The prosecutor s o u g h t to de-emphasize the witness's response, and I didn't want to bring f u rth e r notice of the remark by objecting to it in front of the jury. I felt, h o w e v e r, that it would be prudent to bring the Motion in Limine to the a tten tio n of the court and the prosecutor in a bench conference so that it would n o t happen again. I did so in a conference at the bench. E x parte Curtis, pp. 223-24. In rejecting petitioner's state habeas claims of ineffective a ss ista n c e of counsel, the trial court found that the facts asserted in trial counsel's affidavit w e re true and that the totality of the representation afforded petitioner was sufficient to 12

p ro te c t his right to reasonably effective assistance of trial counsel. Ex parte Curtis, p. 228. T h e Texas Court of Criminal Appeals relied on this finding in denying habeas relief. Trial counsel was of the professional opinion that objecting to the witness's remark w o u ld have simply emphasized to the jury the unfavorable fact of petitioner's incarceration. P etitio ne r must overcome the presumption afforded counsel by Strickland that the challenged a c tio n `might be considered sound trial strategy.' 466 U.S. at 689. By arguing only that the re m a rk was inadmissible and violated the motion in limine, petitioner fails to meet this b u rd e n of proof. Nor does petitioner establish that, but for counsel's decision not to object, th e re is a reasonable probability that the result of his trial would have been different. The state court denied habeas relief on this issue. Petitioner fails to show that the state c o u rt's determination was contrary to, or involved an unreasonable application of, Strickland, o r that it was an unreasonable determination of the facts based on the evidence in the record. N o basis for habeas relief is shown, and respondent is entitled to summary judgment. E. C e ll Phone Ownership

P e titio n e r asserts that trial counsel was ineffective in failing to discover that the actual o w n e r of the cell phone found at the robbery scene belonged to Demond Nunn. Petitioner c o m p la in s that, had counsel properly investigated the phone's ownership, he could have s h o w n that it was Nunn, not petitioner, who used the phone during the robbery. In his affidavit submitted to the state court on collateral review, trial counsel testified, in relevant part, as follows: 13

I hired an investigator, Kenny Rodgers, to help in the defense of this case. He s o u g h t to get information about the ownership of the cell phone, but was u n a b le to do so. We found that the cell phone had been issued to Harry Cox an d that the address listed for him was bogus. I don't recall or have a record o f [petitioner] telling me of anyone named Demond Nunn. Had he done so, I would have had the investigator check out that information. E x parte Curtis, p. 224. In rejecting petitioner's state habeas claims of ineffective assistance o f counsel, the trial court found that the facts asserted in trial counsel's affidavit were true a n d that: 4. T r ia l counsel (a) unsuccessfully conducted [an] investigation to d e te rm in e the owner of the cell phone left at the robbery scene and (b) m ad e the decision not to challenge the pre-trial identification procedure b e c a u s e he did not believe it was impermissibly suggestive[.] T h e totality of the representation afforded Applicant was sufficient to p ro te c t his right to reasonably effective assistance of counsel in trial a n d on direct appeal[.]

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E x parte Curtis, p. 228. The Texas Court of Criminal Appeals relied on these findings in d e n yin g habeas relief. The record shows that trial counsel investigated ownership of the cell phone, and that h is investigation revealed someone other than Damon Nunn as the registered owner. P e titio n e r presents no probative summary judgment evidence showing that Nunn was the re g is te r e d owner of the cell phone at the time of the robbery, or that petitioner told trial c o u n se l that Nunn owned the phone. Even assuming Nunn were the actual registered owner o f the cell phone, no prejudice is shown, as witnesses testified at trial that petitioner was

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p re se n t at the robbery and had used the cell phone. Contrary to petitioner's argument, o w n e rs h ip of the cell phone did not dictate the identification of its user at the robbery. The state court denied habeas relief on this issue. Petitioner fails to show that the state c o u rt's determination was contrary to, or involved an unreasonable application of, Strickland, o r that it was an unreasonable determination of the facts based on the evidence in the record. N o basis for habeas relief is shown, and respondent is entitled to summary judgment. F. " Jyro Jackson"

P e titio n e r next claims that trial counsel failed to object to perjured testimony linking h im to "Jyro Jackson," a name found stored in the cell phone's directory. Petitioner c o m p la in s that, by failing to object, trial counsel allowed the jury to speculate that petitioner a n d Jyro Jackson were the same individual. In his affidavit submitted to the state court on collateral review, trial counsel testified, in relevant part, as follows: W h i le [Detective] Wright's testimony about his investigation of `Jyro Jackson' w a s harmful, I did not think it was objectionable. I certainly have no reason to believe that it was perjured testimony. [Detective] Wright was detailing his in v e stig a tio n into the phone numbers found on the cell phone dropped at the s c e n e and how he came in contact with Delton Horrace. It was Horrace who f irs t mentioned a `Jyro Jackson.' I cleared up on cross-examination that no o n e ever said that [petitioner] and `Jyro Jackson' were the same person. Ex parte Curtis, p. 224. In rejecting petitioner's state habeas claims of ineffective assistance o f counsel, the trial court found that the facts asserted in trial counsel's affidavit were true a n d that the totality of the representation afforded petitioner was sufficient to protect his right 15

to reasonably effective assistance of trial counsel. Ex parte Curtis, p. 228. The Texas Court o f Criminal Appeals relied on this finding in denying habeas relief. Petitioner presents no probative summary judgment evidence that Detective Wright p re se n te d perjured testimony, and his conclusory allegations to the contrary are insufficient to raise a genuine issue of material fact precluding summary judgment. See Koch v. Puckett, 9 0 7 F.2d 524, 530 (5th Cir. 1990). Further, trial counsel elicited testimony during crosse x a m in a tio n showing that petitioner and `Jyro Jackson' were not the same individual, and n e ith e r deficient performance nor prejudice are shown. T h e state court denied habeas relief on this issue. Petitioner fails to show that the state c o u rt's determination was contrary to, or involved an unreasonable application of, Strickland, o r that it was an unreasonable determination of the facts based on the evidence in the record. N o basis for habeas relief is shown, and respondent is entitled to summary judgment. G. R ig h t to Testify

P e titio n e r asserts that trial counsel denied him his right to testify in his own defense a t the guilt-innocence phase of trial. He further complains that, "Counsel further threatened [ p e titio n e r] that he would withdraw from his defense and tell the judge that [petitioner's] te stim o n y would be false regarding Demond Nunn and the cell phone." (Docket Entry No, 1 -4, p. 30.) Petitioner reports that he had intended to take the stand and tell the jury where h e was the day of the robbery, identify the cell phone's true owner, and that he, not his m o th e r, owned the house located on Grenshaw Street, but that counsel stopped him. 16

In response to this claim, trial counsel submitted an affidavit to the state court on c o l la te r a l review, in which counsel testified as follows: A f te r [petitioner] was found guilty of Aggravated Robbery, I had the o p p o rtu n ity to discuss with him AGAIN the evidence I anticipated at p u n ish m e n t. We had discussed this before when I explained the plea bargain o f f e rs . I told him that the State would be allowed to elicit testimony regarding a ll of the other cases in which he was charged. I discussed with him his right to testify in his own behalf. I explained that I would question him first and w h a t my questions would be. I also told him that the State would seek to e m p h a siz e the violent nature of the other cases and would seek to cast him in th e worst possible light. [Petitioner] fully understood the pros and cons of ta k in g the stand. He even went so far as to ask me if it would help if he tes tified falsely about the ownership of the cell phone. I told him that I could n o t knowingly allow him to give perjured testimony. [Petitioner] was fully in fo r m e d when he made the choice not to testify. I never threatened [petitioner] in any way on any subject. When [he] told me th a t he was going to offer perjured testimony, I told him I could not allow him to do so. I told him I wasn't sure what I would have to do, but I thought I m ig h t have to inform the court that a conflict of interest of some magnitude h a d arisen and that I would ask to withdraw from the case. I explained that, if I had to do so, it could have a seriously negative outcome in this case. He to ld me that he understood, and after further discussion, he elected not to t e s t i f y. E x parte Curtis, p. 224 (original and added emphasis). In rejecting petitioner's state habeas c la im s of ineffective assistance of counsel, the trial court found that the facts asserted in trial c o u n se l's affidavit were true and that the totality of the representation afforded petitioner was s u f f ic ie n t to protect his right to reasonably effective assistance of trial counsel. Ex parte C u rtis , p. 228. The Texas Court of Criminal Appeals relied on this finding in denying habeas re lie f .

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P e titio n e r's conclusory allegations are unsupported in the record and presents no p ro b a tiv e summary judgment evidence that trial counsel denied him his right to testify. To th e contrary, the record shows that petitioner wanted to present perjured testimony through t ria l counsel, a strategy in which trial counsel properly refused to participate or condone. P e titio n e r also wanted to controvert certain statements made by other witnesses, but trial c o u n se l advised against it as petitioner's testimony would have harmed petitioner's defense. T h e trial court found as true counsel's affidavit testimony that it was petitioner's decision not to testify, and petitioner has not rebutted the presumed correctness of this finding with clear a n d convincing evidence. The state court denied habeas relief on this issue. Petitioner fails to show that the state c o u rt's determination was contrary to, or involved an unreasonable application of, Strickland, o r that it was an unreasonable determination of the facts based on the evidence in the record. N o basis for habeas relief is shown, and respondent is entitled to summary judgment. H. In v o c a tio n of Rule

U n d e r this ground, petitioner claims that trial counsel failed to "invoke the Rule" w h ich would have excluded witnesses from hearing testimony of other witnesses prior to th e ir own testimony. In response to this claim, trial counsel submitted an affidavit to the state court on c o l la te r a l review, in which counsel testified as follows:

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A f te r a search of the record, I cannot find where either side invoked the Rule. N o rm a lly, the Court will inquire whether either side wishes to do so, but this w a s not done in this case. I don't think that invocation of the Rule would have c h a n g ed the outcome in this case. I saw no evidence of witness tampering or o f witnesses discussing their testimony. Ex parte Curtis, p. 224. In rejecting petitioner's state habeas claims of ineffective assistance o f counsel, the trial court found that the facts asserted in trial counsel's affidavit were true a n d that the totality of the representation afforded petitioner was sufficient to protect his right to reasonably effective assistance of trial counsel. Ex parte Curtis, p. 228. The Texas Court o f Criminal Appeals relied on this finding in denying habeas relief. Trial counsel admits that he did not invoke the Rule. Petitioner fails to show that this fa ilu re constituted deficient performance. Even assuming this were professional error, p e titio n e r fails to show that, but for counsel's failure to invoke the Rule, there is a reasonable p ro b a b ility that the result of the trial would have been different. This Court's own careful rev iew of the record reveals no prejudice caused by counsel's failure to invoke the Rule. In a b s e n c e of a showing that he was prejudiced, petitioner does not merit habeas relief. The state court denied habeas relief on this issue. Petitioner fails to show that the state c o u rt's determination was contrary to, or involved an unreasonable application of, Strickland, o r that it was an unreasonable determination of the facts based on the evidence in the record. N o basis for habeas relief is shown, and respondent is entitled to summary judgment.

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I.

H e a rs a y

A c c o r d in g to petitioner, trial counsel denied him effective assistance by repeatedly fa iling to object to Detective Wright's hearsay testimony regarding Delton Horrace and "Jyro J a c k so n " and to other hearsay statements presented during guilt-innocence. Petitioner does n o t direct this Court to any specific portions of the record in support of his argument in either h is federal petition (Docket Entry No. 1, p. 32) or his response to the motion for summary ju d g m e n t. To the contrary, petitioner asks the Court to "review the entire record" for the a lle g e d errors because the errors "continued from the genesis throughout punishment." He " re sp e c tf u lly direct[s] the Court to the record" because with "multiplicious (sic) hearsay is s u e s [it] is impossible to include [everything]" in his pleadings. Id., pp. 32-33. This Court declines petitioner's invitation to review the entire record to discover f a c tu a l support for his argument. It is petitioner's burden to present this Court with viable g rou n d s for habeas relief and support them with evidence in the record. Although the Court a f f o rd s a pro se litigant's pleadings a liberal construction under Haines v. Kerner, 404 U.S. 5 1 9 , 520 (1972), it is not the Court's duty to construct those pleadings for the litigant. Even u n d er the rule of liberal construction, "mere conclusory allegations on a critical issue are in s u f f ic ie n t," United States v. Pineda, 988 F.2d 22, 23 (5th Cir. 1993), and pro se litigants a re required to provide sufficient facts in support of their claims. Id. Petitioner has not done s o in the instant case.

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R e g a rd le ss , trial counsel stated in his affidavit that he objected several times to the h e a rs a y testimony of Detective Wright, and was variously sustained and overruled. Counsel te stif ie d further that, "As the testimony went forward, I decided that my continued objections w o u ld serve only to alienate the jury and I felt that I could and that I did set matters straight o n cross." Ex parte Curtis, p. 224. In rejecting petitioner's state habeas claims of ineffective a ss ista n c e of counsel, the trial court found that the facts asserted in trial counsel's affidavit w e re true and that the totality of the representation afforded petitioner was sufficient to p ro te c t his right to reasonably effective assistance of trial counsel. Ex parte Curtis, p. 228. T h e Texas Court of Criminal Appeals relied on this finding in denying habeas relief. Petitioner presents no probative summary judgment evidence in support of this claim, a n d fails to rebut the presumed correctness of the trial court's findings by clear and c o n v in c in g evidence. Nor does he show that trial counsel's strategy was unreasonable under th e circumstances, or that, but for counsel's actions, there is a reasonable probability that the re su lt of the trial would have been different. Consequently, petitioner establishes neither d ef icien t performance nor prejudice under Strickland. The state court denied habeas relief on this issue. Petitioner fails to show that the state court's determination was contrary to, or involved an unreasonable application of, Strickland, o r that it was an unreasonable determination of the facts based on the evidence in the record. N o basis for habeas relief is shown, and respondent is entitled to summary judgment.

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J.

In c o rre c t testimony

P e titio n e r complains that trial counsel failed to correct certain misstatements made by w itn e ss e s at trial. In particular, petitioner asserts that counsel failed to correct Detective W rig h t's perjured testimony that a house on Grenshaw Street belonged to petitioner's m o th e r; petitioner told trial counsel that the house belonged to him. In his affidavit submitted to the trial court on collateral review, trial counsel testified, in relevant part, as follows: I have no reason to believe that [Detective] Wright's testimony was perjury or e v e n that he was mistaken. I chose not to question [Detective] Wright on the su b jec t at all. It was and is my belief that to have done so ­ especially to tell th e jury that the home on Grenshaw belonged to [petitioner] ­ would have b e e n highly prejudicial to [petitioner's] case. It was to that address that [ D e te c tiv e ] Wright's investigation led based on the information given him by D e lto n Horrace. Any distance that I could introduce between [petitioner] and th e Grenshaw address, I felt, was favorable to his defense. E x parte Curtis, p. 224 (original and added emphasis). In rejecting petitioner's state habeas c la im s of ineffective assistance of counsel, the trial court found that the facts asserted in trial c o u n se l's affidavit were true and that the totality of the representation afforded petitioner was s u f f ic ie n t to protect his right to reasonably effective assistance of trial counsel. Ex parte C u rtis , p. 228. The Texas Court of Criminal Appeals relied on this finding in denying habeas re lie f . Petitioner presents no probative summary judgment evidence showing that Detective W rig h t's testimony regarding ownership of the house was mistaken or perjured. Nor does

22

p e titio n e r establish that, even assuming Detective Wright's testimony were wrong, that trial co u n sel's reason for not correcting the error was not reasonable trial strategy. Moreover, p e titio n e r fails to demonstrate that, but for trial counsel's failure to correct any mistaken te stim o n y, there is a reasonable probability that the result of his trial would have been d if f ere n t. In short, petitioner proves neither deficient performance nor prejudice under S t r i c k la n d . The state court denied habeas relief on this issue. Petitioner fails to show that the state c o u rt's determination was contrary to, or involved an unreasonable application of, Strickland, o r that it was an unreasonable determination of the facts based on the evidence in the record. N o basis for habeas relief is shown, and respondent is entitled to summary judgment. K. E x tra n e o u s Offense Evidence at Punishment

P e titio n e r complains that trial counsel failed to object to the hearsay testimony of two c o u rt employees regarding his testing positive for the illegal drug PCP. He further argues th a t trial counsel failed to object to the inadmissible and "bogus" testimony of Deputy Dianna M u r r at punishment that petitioner was found with a large amount of cash tainted with c o c a in e near a weighing scale that had visible cocaine residue. In rejecting these claims on direct appeal, the state court of appeals held as follows: A. T e stim o n y of the Trial-Court Clerk, Joleen Eller

A p p e lla n t argues that trial counsel was ineffective because he did not object to the testimony of Joleen Eller, the trial-court clerk, who testified to a p p e llan t's extraneous bad act of having forfeited bond. Eller testified that, in 23

Ju n e 2002, appellant impermissibly left before checking back with the court f o r a case reset after having given a `rapid drug screen test'; in so testifying, E lle r stated (as the docket sheet partially reflected) that appellant had tested p o s itiv e for PCP during the test. Counsel had no objection to Eller's testimony o r to the docket sheet and reset form evidencing same. Appellant claims that c o u n se l should have objected on the ground that no qualified expert testimony s u p p o r te d the positive PCP result and that the testimony was hearsay because s o m e o n e else had performed the tests. T h e record is silent on counsel's strategy in not objecting to this evidence, and to guess that strategy in hindsight would require speculation. However, we n o te that it appears, based on counsel's questioning and closing argument, that c o u n se l himself used the docket sheet, reset form, and Eller's testimony to s h o w that appellant had complied with several court orders. For example, ap p ellan t appeared, as ordered, in May 2002 to have his case reset for jury tria l; appellant complied with the May 2002 reset order by again appearing, on tim e , before the court in June 2002 for docket call; and appellant further c o m p l ie d with the court's order to give a rapid drug screen test, even though h e failed to return to the court after that test. The point of counsel's q u e stio n in g appears to have been that appellant followed all but one of the o rd e rs given him in that time period. Counsel also obtained Eller's admission th a t she could not specifically recall the court's having instructed appellant to re tu rn after the drug test, although she testified that the court normally i n s t r u c te d defendants to do so. Additionally, counsel might have known or su sp e c ted that the State could call a chemist to testify about the test result if c o u n se l had objected to Eller's testimony. Given this record, we cannot say t h a t , assuming that Eller's mention of the rapid drug test result was in a d m is s ib le , this is one of those `rare cases' in which counsel's performance c a n be evaluated in hindsight absent a record of his strategy. B. T estim o n y of the Harris County Court Services Pretrial Officer, M e la n ie Wright

A p p e lla n t also asserts that trial counsel was ineffective for not objecting to the testim o n y of Melanie Wright, a Harris County Court Services pretrial officer, w h o testified to appellant's positive result for the rapid drug screen test to w h ic h Eller had testified immediately before. Counsel had no objection either to Wright's testimony or to the written drug screen sheet that was admitted d u rin g her testimony. Appellant again asserts that counsel should have 24

o b je c te d on the ground that no qualified expert testimony supported the p o s itiv e PCP test result and that the testimony was hearsay. O n c e again, the record is silent on counsel's strategy in not objecting to this e v id e n c e. Moreover, assuming that Wright's testimony was inadmissible, c o u n se l may well have realized that, because Eller had already testified to the P C P results, an objection to Wright's similar testimony would likely not have p rev ailed . And, as discussed above, counsel may have allowed in all of Eller's te st im o n y, as well as the docket sheet from which she testified, even though th e y showed a positive test result because he wanted to show that appellant had c o m p l ie d with several court orders from the same time period. Also as before, c o u n se l may have anticipated that the State could have provided a chemist to te s tif y to the test result had counsel objected. This is simply not one of those ra re cases in which we may evaluate counsel's performance without knowing h is actual strategy. * D. * * *

T estim o n y of Harris County Deputy Sheriff Dianna J. Murr

A p p e lla n t also asserts that trial counsel was deficient in not objecting to the te stim o n y of Deputy Murr, who, upon stopping appellant for a traffic violation, f o u n d a large amount of cash in his car and a scale in the open garage near w h e re the car had been parked. Specifically, Deputy Murr testified that a n o th e r officer had field-tested the cash, that she had field-tested the scale, and th a t both items had field-tested positive for cocaine. Counsel cross-examined th e deputy about the stop, detention, pat-down, and search, but did not object to the testimony concerning the field-test results. A p p e lla n t argues that counsel should have objected on the ground that no q u a lif ie d expert testimony supports the positive cocaine results and that the te stim o n y is hearsay to the extent that it concerns a field test that another o f f ic e r had performed. Again, nothing shows counsel's reasons for not o b je c tin g . Counsel also addressed the deficiency in the State's proof by re q u e stin g , during the charge conference, that the court [direct a verdict of not p ro v e n ] concerning the extraneous offense of cocaine possession arising from th is incident because a qualified expert had not testified that the substances w e re cocaine. The trial court overruled that request. Additionally, during c lo s in g argument, counsel asked the jury not to consider the extraneous 25

o f f e n s e of cocaine possession because `there was [no] evidence there was any c o c ain e on the scale' because `there wasn't a chemist up there. That's the way th a t those cases are proven.' Finally, counsel might have anticipated that the S t a te could have provided a chemist to testify to the test results had counsel o b jec ted . Again, this is not one of those rare cases in which we may evaluate c o u n s e l's performance without knowing his strategy. Moreover, with respect to all four challenged omissions of trial counsel, we n o te that counsel represented appellant vigorously throughout guilt-innocence a n d punishment. He continuously pursued appellant's alibi theory, both th ro u g h cross-examination and direct testimony; he presented two witnesses to support that defensive theory; he vigorously cross-examined most witnesses in both parts of the trial; he raised objections to the State's witnesses and took a n expert on voir dire; and he presented a cogent closing argument at p u n is h m en t that presented appellant's theories and downplayed appellant's m u ltip le extraneous offenses. Counsel is generally to be judged by the totality o f his representation, not by isolated acts or omissions. Curtis, at *4-6 (citations and footnotes omitted). In his affidavit submitted to the trial court on collateral review, trial counsel testified, in relevant part, as follows: I believe that the testimony of Joleen Eller, if hearsay, was subject to the b u s in e ss records exception to the hearsay rule. She is the head clerk of the 1 8 0 th District Court and was called to testify to matters in the court's file c o n c ern in g this cause. Melanie Wright, a pre-trial services officer, was called in punishment to testify to matters in the records of that agency as a custodian o f the records. Her testimony, if hearsay, I believe was a business records e x c ep tio n to the hearsay rule. It was and is my belief that the testimony of b o th Ms. Eller and Ms. Wright was permitted in punishment pursuant to A rtic le 37.07 of the Texas Code of Criminal Procedure. I believe that the testimony of Deputy Murr in punishment was permissive u n d e r the rules, but I sought to undermine the testimony on cross-examination. I was aggressive and forceful and was admonished several times by the court. T h e court apparently felt I was being `argumentative' with Deputy Murr and I certainly was aggressive in my efforts to show the jury the conclusory nature 26

o f her observations at the time she found the cash and drug scale. I felt that h e r testimony was bogus and that I could show that to the jury in cross. E x parte Curtis, pp. 224-225. In rejecting petitioner's state habeas claims of ineffective a ss ista n c e of counsel, the trial court found that the facts asserted in trial counsel's affidavit w e re true and that the totality of the representation afforded petitioner was sufficient to p ro te c t his right to reasonably effective assistance of trial counsel. Ex parte Curtis, p. 228. T h e Texas Court of Criminal Appeals relied on this finding in denying habeas relief. Trial counsel was of the professional opinion that the court employees' testimony was a d m is s ib le as an exception to the hearsay rule. Petitioner presents no applicable state law a u th o rity to the contrary. Even assuming error on the part of trial counsel in this regard, the sta te court of appeals determined that petitioner was not prejudiced, as follows: Additionally, we note that, for reasons in addition to those set out above, the re c o rd does not show that a reasonable probability exists that, but for the c o m p l a in e d - o f omissions, the trial's result would have been different. The p u n is h m e n t range was 5 to 99 years plus a possible $10,000 fine without the e n h a n ce m e n t paragraph, and it was 15 to 99 years plus a possible $10,000 fine w ith the enhancement paragraph. Appellant received 65 years in prison and n o fine. The State adduced evidence ­ in addition to the evidence proving the e n h a n c e m e n t allegation of robbery and the cocaine and PCP incidents c o n c ern in g which appellant contends that his counsel was ineffective ­ that a p p e lla n t had sexually assaulted a minor, committed burglary of a habitation, c h o k e d and pushed a jail guard, forfeited bail, and violated environmental laws b y allowing gasoline to flow down a street drain, all within approximately four ye a rs . Additionally, the aggravated robbery offense for which appellant was tried was violent: there were at least five victims, the perpetrators repeatedly s h o c k e d their victims with stun guns, the perpetrators held guns to or at the v ic tim s ' heads and threatened to shoot them, one of the perpetrators forced [a v i c ti m ' s ] head down with a gun and cut his head, and the victims feared for their life. Given these facts, there is not a reasonable probability that the trial's 27

o u tc o m e would have been different if counsel had objected as appellant now c la im s that counsel should have. C u r t i s , at *6 (citations omitted). Petitioner presents no cogent argument and no probative e v id e n c e disputing this determination, and establishes neither deficient performance nor p rejud ice under Strickland. The state court denied habeas relief on this issue. Petitioner fails to show that the state c o u rt's determination was contrary to, or involved an unreasonable application of, Strickland, o r that it was an unreasonable determination of the facts based on the evidence in the record. N o basis for habeas relief is shown, and respondent is entitled to summary judgment. L. S e x u a l Assault Hearsay at Punishment

P etitio n er complains that trial counsel failed to object to Officer Stephen Hein's in a d m is s ib le hearsay testimony during punishment regarding petitioner's sexual assault of a child. In rejecting this claim on direct appeal, the state court of appeals held as follows: C. T e stim o n y of Houston Police Department Officer Stephen Hein

A p p e lla n t further complains that trial counsel did not object to part of the te stim o n y of Houston Police Department Officer Hein, who testified about a p p e lla n t's sexual assault of a minor, D.M., in July 2000. Specifically, a p p e lla n t asserts that counsel should have objected when Officer Hein testified th a t D.M. told him that appellant had had sexual intercourse with her against h e r will. This is hearsay, but appellant has failed to show that counsel was d e f ic ie n t or that the trial's outcome would have differed. First, counsel may h a v e known that the State would later present D.M. to testify to the sexual a ss a u lt, rendering any hearsay objection moot. Therefore, because we have no re c o rd of counsel's strategy, we cannot say that counsel was necessarily 28

d e f ic ie n t in not objecting. More importantly, D.M.'s later testimony about the s e x u a l assault, which is not hearsay and which is far more detailed than the o f f i c e r ' s statements, shows that there is not a reasonable probability that the tria l's outcome would have been different had counsel objected. C u rtis , at *1 (citations omitted). P e titio n e r also raised this claim on state collateral review. In his affidavit submitted to the state court on collateral review, trial counsel testified, in relevant part, as follows: O f f ice r Hein's testimony regarding the extraneous sexual assault was harmful, b u t I felt it was a proper inquiry at punishment. I made several hearsay o b je c tio n s to this testimony, without success. Ex parte Curtis, p. 224. In rejecting petitioner's state habeas claims of ineffective assistance o f counsel, the trial court found that the facts asserted in trial counsel's affidavit were true a n d that the totality of the representation afforded petitioner was sufficient to protect his right to reasonably effective assistance of trial counsel. Ex parte Curtis, p. 228. The Texas Court o f Criminal Appeals relied on this finding in denying habeas relief. Petitioner fails to demonstrate that, under the circumstances, trial counsel was d e f icie n t in failing to object to the hearsay testimony or that, but for counsel's failure to o b jec t, there is a reasonable probability that the result of the trial would have been different. E v e n assuming Officer Hein's testimony regarding the sexual assault offense were hearsay, th e sexual assault complainant later testified in person regarding the details of the offense. M o reo v er, trial counsel testified that his hearsay objections to Officer Hein's testimony were o v e rr u le d by the trial court.

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T h e state court denied habeas relief on this issue. Petitioner fails to show that the state co urt's determination was contrary to, or involved an unreasonable application of, Strickland, o r that it was an unreasonable determination of the facts based on the evidence in the record. N o basis for habeas relief is shown, and respondent is entitled to summary judgment. B r a d y Violation P e titio n e r contends that the State suppressed evidence of the identity of the owner of th e cell phone recovered at the scene of the robbery offense, in violation of Brady v. M a r y la n d , 373 U.S. 83 (1963). To establish a Brady violation, a petitioner must show that the State suppressed evidence favorable and material to the defense and that the discovery o f the evidence was not the result of a lack of due diligence on the part of the defense. Id. a t 87. In rejecting petitioner's Brady claim and denying habeas relief, the state court e x p r e ss ly found as follows: 2. A p p lic a n t fails to show that the State suppressed Brady evidence since th e information concerning the cell phone left at the robbery scene was a v a ila b le to Applicant[.]

E x parte Curtis, p. 228 (citation omitted). The Texas Court of Criminal Appeals relied on th is finding in denying habeas relief. In his affidavit submitted to the state court on collateral review, trial counsel testified in relevant part as follows:

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I hired an investigator, Kenny Rodgers, to help in the defense of this case. He s o u g h t to get information about the ownership of the cell phone, but was u n a b le to do so. We found that the cell phone had been issued to Harry Cox an d that the address listed for him was bogus. I don't recall or have a record o f [petitioner] telling me of anyone named Demond Nunn. Had he done so, I would have had the investigator check out that information. Ex parte Curtis, p. 224. A t trial, the State's witness testified that the cell phone was registered to an individual n a m e d Harry Cox. R.R., Vol. 3, p. 44. Petitioner presents no probative evidence, and none a p p e a rs in the record, that the State knew that someone other than Harry Cox owned the cell p h o n e or, in particular, that the State knew the phone belonged to someone named Demond N u n n . In short, petitioner fails to establish a Brady violation. His conclusory allegations to the contrary are insufficient to raise a genuine issue of material fact precluding summary ju d g m e n t. Koch, 907 F.3d at 530. T h e state court denied habeas relief under this issue. Petitioner fails to show that the sta te court's determination conflicts with established federal law or is objectively u n re a so n a b le , and he fails to rebut the presumption of factual correctness with clear and c o n v in c in g evidence. See Miller-El, 537 U.S. at 330-31, 343; 28 U.S.C. §§ 2254(d)(1), (2), (e )(1 ). No basis for habeas relief is shown, and respondent is entitled to summary judgment.

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U n d u ly Suggestive Identification Procedure P e titio n e r claims that the "identification procedure" used in his case was unduly s u g g e stiv e and violated his constitutional rights. In rejecting petitioner's claim and denying h a b e a s relief, the state court expressly found as follows: 3. A p p lic a n t's challenge to the suggestiveness of the identification p r o c e d u r e should not be considered on habeas since this challenge is a `r e c o rd claim' and should have been presented on direct appeal.

Ex parte Curtis, p. 228 (citation omitted). The Texas Court of Criminal Appeals relied on th is finding in denying habeas relief. Under these circumstances, petitioner's challenge to the identification process has b e e n procedurally defaulted and is barred from consideration by this Court. See Coleman v. T h o m p s o n , 501 U.S. 722, 735 (1991); Brewer v. Quarterman, 466 F.3d 344, 357 (5th Cir. 2 0 0 6 ). Petitioner argues, however, that his procedural default should be excused because the d e f au lt was due to ineffective assistance of counsel. He claims that, had appellate counsel c h a llen g e d the police officers' identification and investigation procedures used in in v e stig a tin g the underlying robbery offense, there is a reasonable probability that his c o n v ic tio n would have been reversed on appeal. Accordingly, petitioner must establish that a p p e lla te counsel was ineffective in failing to challenge petitioner's identification procedure. T o prevail on this claim, petitioner must show that, but for counsel's failure to raise th e issue on appeal, there is a reasonable probability that the result of the appeal would have

32

b ee n different. In other words, petitioner must here prove that his identification procedure w a s unconstitutionally suggestive. In this regard, he fails. Petitioner asserts that the State's investigative procedures were so impermissibly s u g g e stiv e and improper that they tainted the identification procedure. (Docket Entry No. 1 , p. 8.) In support, he refers the Court to his state habeas application and memorandum. W ith in his state application and memorandum, petitioner does nothing more than assert in c o n c lu so ry terms that Detective Wright's investigation was so suggestive of petitioner as to h a v e created false evidence and testimony, denying him due process and a fair trial: [Petitioner] contends that suspicion focused upon him immediately after D e te c tiv e Sonny Wright was misled regarding the ownership of the cell phone le f t at the crime scene by Demond Nunn, one of the robbers. The detective tra c ed a phone number to [petitioner's] residence that allegedly was made by h im . The [S]tate suppressed a number of issues regarding this cell phone and th e witnesses it used in asserting this frivolous information. The police never lin k e d the phone to [petitioner], and never investigated his alibi. Because [ p e titio n e r] had been placed in jail on unrelated charges, the police simply a s s u m e d that he was implicated in the charge. Id., p. 42. It is clear that petitioner does not agree with the direction taken by police in their in v e stig a tio n of the crime, and faults the investigation for directing the officers to him rather th a n to other possible suspects. It is equally clear, however, that his disagreement with the d ire c tio n and results of that investigation do not set forth an issue of constitutional d im e n sio n . His conclusory claims of denials of due process and a fair trial are unsupported b y probative summary judgment evidence demonstrating any such denials, and are 33

in su f f icie n t to raise a genuine issue of material fact precluding summary judgment. A c c o rd in g ly, petitioner fails to show that, but for appellate counsel's failure to challenge the id e n tif ic a ti o n procedures utilized by the police, there is a reasonable probability that the re su lt of his appeal would have been different. Likewise, petitioner fails to show the p r e ju d i c e necessary to excuse his procedural default of the issue. Regardless, and for the re a so n s already expressed, petitioner fails to demonstrate any unconstitutionally suggestive id e n tific a tio n procedure that caused him the denial of due process or a fair trial, and his c la im s fail on the merits. Respondent is entitled to summary judgment dismissing this issue. Ineffective Assistance of Appellate Counsel P e rs o n s convicted of a crime also are entitled to effective assistance of counsel on d ire c t appeal. Evitts v. Lucey, 469 U.S. 387 (1985). This Court reviews counsel's appellate p e rf o rm a n c e under the Strickland standards. See Goodwin v. Johnson, 132 F.3d 162, 170 (5th Cir. 1998). Petitioner must allege and present facts showing that his appellate counsel's re p re se n ta tio n was deficient and that the deficient performance caused him prejudice. That is , petitioner must show that, but for appellate counsel's deficient performance, the outcome o f the appeal would have been different. See Strickland, 466 U.S. at 687-88, 692; Jones v. J o n e s, 163 F.3d 285, 300 (5th Cir. 1998). Effective assistance of appellate counsel does not m e a n that counsel will raise every available nonfrivolous ground for appeal. Evitts, 469 U.S. a t 394; West, 92 F.3d at 1396. Nor will counsel be deficient for failing to press a frivolous

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p o in t. Rather, it means, as it does at trial, that counsel performs in a reasonably effective m a n n e r. Evitts, 469 U.S. at 394. A reasonable attorney has an obligation to research relevant f a ct s and law and make informed decisions as to whether avenues will, or will not, prove f ru itfu l. Strickland, 466 U.S. at 690-91. P e titio n e r claims that appellate counsel was ineffective in failing to argue the issues r a is e d in the instant proceeding, several of which issues he claims are "dead-bang winners" th a t would have resulted in reversal of the conviction on appeal. Although petitioner does n o t identify with any particularity these "dead-bang winners," he does claim that, had a p p e lla te counsel raised on appeal he issues raises in this habeas proceeding, his conviction w o u ld have been reversed. In rejecting petitioner's claim of ineffective assistance of appellate counsel, the state c o u r t on collateral review expressly found as follows: 5. T h e totality of the representation afforded Applicant was sufficient to p ro te c t his right to reasonably effective assistance of counsel in trial a n d on direct appeal[.]

E x parte Curtis, p. 228. The Texas Court of Criminal Appeals relied on this finding in d e n yin g habeas relief. This Court has not found merit to any of the potential appellate issues raise by p e titio n e r in the instant petition. Consequently, petitioner cannot show that, but for appellate c o u n se l's failure to raise these meritless issues on appeal, there is a reasonable probability

35

th a t the result of his appeal would have been different. Neither deficient performance nor p re ju d ic e are shown. T h e state court denied habeas relief on this issue. Petitioner fails to show that the state c o u rt's determination was contrary to, or involved an unreasonable application of, Strickland, o r that it was an unreasonable determination of the facts based on the evidence in the record. N o basis for habeas relief is shown, and respondent is entitled to summary judgment. E v id e n tia ry Hearing P e titio n e r claims that he is entitled to an evidentiary hearing before this Court because h e was not provided a "full and fair" fact finding hearing regarding his habeas claims at the sta te court level. U n d e r the AEDPA, evidentiary hearings are granted only if a petitioner's claim relies o n "a new rule of constitutional law, made retroactive to cases on collateral review by the S u p r e m e Court, that was previously unavailable" or "a factual predicate that could not have b e e n previously discovered through the exercise of due diligence" and "the facts underlying th e claim would be sufficient to establish by clear and convincing evidence that but for c o n stitu tio n a l error, no reasonable fact finder would have found the applicant guilty of the u n d e rlyin g offense." 28 U.S.C. § 2254(e)(2). Here, petitioner presents only conclusory allegations and fails to show how any of his c la im s rely on eithe