Hall v. Quarterman

Filing 11

MEMORANDUM OPINION AND ORDER GRANTING 6 MOTION for Summary Judgment with Brief in Support; DISMISSING this case with prejudice. Any and all pending motions are DENIED as moot. A certificate of appealiability is DENIED. (Signed by Judge Gray H. Miller) Parties notified.(rkonieczny)

IN THE UNITED STATES DISTRICT COURT F O R THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION B ERTHENIA WILLIAMS HALL, P e titio n e r , v. N ATHANIEL QUARTERMAN, R e s p o n d e n t. § § § § § § § § §

C IVIL ACTION NO. H-08-1298

MEMORANDUM OPINION AND ORDER
Petitioner Berthenia Williams Hall,1 a state inmate proceeding pro se, seeks habeas re lie f under section 2254 challenging her felony conviction for possession of cocaine. R e sp o n d e n t filed a motion for summary judgment (Docket Entry No. 6), to which petitioner f ile d a response (Docket Entry No. 9). After careful consideration of the motion, the response, the record, and the applicable la w , the Court GRANTS summary judgment and DISMISSES this lawsuit for the reasons th a t follow. Procedural Background P e ti ti o n e r was convicted of possession of cocaine. The jury found "true" to two e n h a n ce m e n t paragraphs and assessed punishment at thirty-five years incarceration. The c o n v ic tio n was affirmed on direct appeal. Hall v. State, No. 14-05-0444-CR (Tex. App. ­

The record shows that petitioner is also known as Brenda Allen, Lisa Robinson, and Ber thenia Williams. S.F., Vol. 5, p. 35.

1

H o u s to n [14th Dist.] 2006, pet. ref'd) (not designated for publication). The Texas Court of C rim in a l Appeals refused discretionary review, and denied petitioner's application for state h a b e a s relief without a written order based on the findings of the trial court. Ex parte Hall, N o . WR-69,463-01, at cover. Petitioner filed the instant habeas petition on April 25, 2008. G r o u n d s for Federal Habeas Relief P e titio n e r raises the following federal habeas grounds: (1 ) (2 ) (3 ) (4 ) (5) (6) (7 ) (8) (9 ) (1 0 ) a c tu a l innocence; use of unlawfully seized evidence at trial; in s u f f ic ie n t evidence; in e f f e c tiv e assistance of trial counsel; u se of perjured testimony; d e n ia l of full appellate review; in s u f f ic ie n t evidence of prior conviction; im p r o p e r ly "stacked" sentences; a defective jury charge; and in e f f e c tiv e assistance of appellate counsel.

R e sp o n d e n t argues that these claims are procedurally defaulted or without merit and s h o u ld be summarily dismissed.

2

T h e Applicable Legal Standards T h is petition is governed by applicable provisions of the Antiterrorism and Effective D e a th Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2254. Under the AEDPA, federal relief c a n n o t be granted on legal issues adjudicated on the merits in state court unless the state a d ju d ic a tio n was contrary to clearly established federal law as determined by the Supreme C o u rt, or involved an unreasonable application of clearly established federal law as d e te rm in e d by the Supreme Court. Williams v. Taylor, 529 U.S. 362, 404-05 (2000); 28 U .S .C . §§ 2254(d)(1), (2). A state court decision is contrary to federal precedent if it applies a rule that contradicts the governing law set forth by the Supreme Court, or if it confronts a s e t of facts that are materially indistinguishable from a Supreme Court decision, and arrives a t a result different from the Supreme Court's precedent. Early v. Packer, 537 U.S. 3, 7-8 (2 0 0 2 ). 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. 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 3

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 proceeding. Miller-El v. C o c k re ll, 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 su m p tio n of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see a ls o Miller-El, 537 U.S. at 330-31. Claim of Actual Innocence P e titio n e r asserts that she is actually innocent of the crime for which she was c o n v icte d . As correctly argued by respondent, a claim of "actual innocence" is not a c o g n iz a b le section 2254 habeas claim. Foster v. Quarterman, 466 F.3d 359, 367-68 (5th Cir. 2 0 0 6 ). To the extent petitioner is claiming actual innocence based on factually insufficient ev iden ce to support her conviction, her claim constitutes a factual sufficiency challenge. It is well settled that a factual sufficiency challenge is a creation of state law, see Clewis v. S ta te , 922 S.W.2d 126, 133 (Tex. Crim. App. 1996), and therefore is not cognizable as a b a s is for federal habeas relief. See 28 U.S.C. §§ 2254(a) and (d)(1); Woods v. Cockrell, 307 F .3 d 353, 358 (5th Cir. 2002). Respondent is entitled to summary judgment dismissing p e titio n e r's claim of actual innocence. C la im of Illegally-Seized Evidence P e titio n e r claims that the cocaine made the basis of her conviction was obtained in v io latio n of her Fourth Amendment rights. As correctly noted by respondent, this claim is

4

b a rre d by Stone v. Powell, 428 U.S. 465 (1976). In Stone, the Supreme Court held that, w h e re a petitioner received a full and fair opportunity to litigate a Fourth Amendment claim in state court, he may not receive federal habeas relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at trial. Id. at 494. The record in the in s ta n t case undisputably shows that the trial court held a full and complete suppression h e a rin g on petitioner's Fourth Amendment issues regarding the evidence, and that the trial c o u rt denied the suppression motion. Accordingly, petitioner received a full and fair o p p o rtu n ity to litigate her Fourth Amendment claim in state court, and she is precluded from p u rs u ing her Fourth Amendment claim on federal habeas. See also ShisInday v. Quarterman, 5 1 1 F.3d 514, 524-25 (5th Cir. 2007). Claim of Insufficient Evidence P e titio n e r alleges that the evidence is insufficient to support her conviction. Petitioner fa iled to challenge the sufficiency of the evidence on direct appeal. A review of petitioner's s ta te habeas application reveals that she presented a "no evidence" challenge to the evidence o n collateral review. Id., p. 8. In rejecting the claim, the state habeas court found that, " A p p lica n t's challenges to the sufficiency of the evidence are not cognizable in postc o n v ic tio n habeas proceedings." Ex parte Hall, p. 180 (citation omitted). Any factual insufficiency challenge raised by petitioner fails to state a cognizable f e d e ra l habeas claim. See Estelle v. McGuire, 502 U.S. 62, 67 (1991). Further, because p e titio n e r did not challenge the legal sufficiency of the evidence on direct appeal, the issue 5

is procedurally defaulted. See Coleman v. Thompson, 501 U.S. 722, 729-30 (1991); Amos v . Scott, 61 F.3d 333, 338 (5th Cir. 1995). Federal habeas relief will not be granted on a p ro c e d u ra lly defaulted claim unless the petitioner can demonstrate both good cause for the d e f a u lt and actual prejudice as a result of the alleged violation of federal law, or demonstrate th a t failure to consider the claim will result in a fundamental miscarriage of justice in that he is actually innocent of the offense. Petitioner does not dispute that her legal insufficiency claim is procedurally defaulted. S h e argues, however, that she shows good cause and prejudice under Coleman because a p p e lla te counsel ignored her request to challenge the sufficiency of the evidence on direct a p p e al. 501 U.S. at 750. Under certain circumstances, a counsel's ineffectiveness in failing p ro p e rly to preserve a claim for review in state court will suffice as the required "cause." M u r r a y v. Carrier, 477 U.S. 478, 488-489 (1986). Not just any deficiency in counsel's p e rf o rm a n c e will do, however; the assistance must have been so ineffective as to violate the f e d e ra l Constitution. Id. In other words, ineffective assistance adequate to establish cause f o r the procedural default of some other constitutional claim is itself an independent c o n stitu tio n a l claim. As shown infra, petitioner fails to show that appellate counsel's failure to raise this issue constituted ineffective assistance of counsel, and no good cause is shown f o r the procedural default. Respondent is entitled to summary judgment dismissing petitioner's insufficiency of th e evidence claim. 6

C la im s of Ineffective Assistance of Trial Counsel T h e Sixth Amendment to the United States Constitution guarantees a criminal d e f en d a n t the right to the effective assistance of counsel. U.S. CONST. amend. VI. A federal h a b e a s corpus petitioner's claim that he was denied effective assistance of counsel is m e a su re d by the standards set out in Strickland v. Washington, 466 U.S. 668 (1984). To a ss e rt a successful ineffectiveness claim, a petitioner must establish both constitutionally d e f ic ie n t performance by counsel and actual prejudice as a result of counsel's deficient p e rf o rm a n c e . Id. at 687. The failure to demonstrate either deficient performance or actual p re ju d ic e is fatal to an ineffective assistance claim. Green 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 i o n a l ly 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. 7

A c tu a l prejudice from a deficiency is shown if there is a reasonable probability that, b u 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. 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 failed: (1) (2 ) (3 ) (4) (5) (6) (7) (8) (9 ) (1 0 ) (11) (1 2 ) to move to quash the indictment; to challenge petitioner's competency to stand trial; to prepare adequately for trial; to locate witnesses; to interview witnesses; to review police and laboratory reports; to subpoena witnesses; to hire an investigator; to investigate the facts of the case; to represent petitioner before the grand jury; to file defense motions; to investigate petitioner's state of mind; 8

(13) (1 4 ) (1 5 ) (1 6 ) (17) (1 8 ) (1 9 ) (2 0 ) (21) (22) (23) (2 4 ) (2 5 )

to investigate the enhancement paragraphs; to conduct an adequate voir dire; to make an opening statement; to move for a continuance; to interview an alibi witness; to object to prejudicial evidence; to object to inadmissible evidence; to request fingerprinting; to contact eyewitnesses; to object to the jury instructions; to make wise strategic choices; to argue adequately at the punishment hearing; and to object to cumulative sentencing.

T h e Court has grouped these claims below for clarity and to avoid redundancy. F a ilu r e to Move to Quash the Indictment U n d e r her first ground for ineffective assistance of counsel, petitioner argues that trial c o u n se l should have moved to quash the indictment because the evidence linking her to the c o n tra b a n d was illegally seized and insufficient. In his affidavit submitted to the state court on collateral review, trial counsel testified, in relevant part, that: 9

T h e indictment, in my opinion, was not deficient. The question of linking the b a g g ie [of cocaine] to Applicant was not an indictment issue as I see it. We c h a lle n g e d the evidence but the jury apparently believed the testimony that the c a r, where the purse was found, was registered to Applicant and that A p p lic a n t's identification was in the purse along with the alleged cocaine. Ex parte Hall, p. 176. In rejecting petitioner's claim on collateral review, the state court made the following re lev a n t findings of fact: 10. 11. A p p lica n t fails to prove she received ineffective assistance of counsel. A p p lic a n t fails to prove that any of counsel's representation fell below a n objective standard of reasonableness. A p p lica n t fails to prove that but for counsel's alleged errors, the result o f the proceeding would have been different. A p p lic a n t fails to show that trial counsel failed to file appropriate pretr ia l motions. B a s e d on the credible and reliable affidavit of [trial counsel], and o f f icia l court records in this case, the court finds that counsel did file a p p r o p r ia te pre-trial motions. * 20. * * *

12.

13.

14.

B a se d on the credible and reliable affidavit of [trial counsel], and o f f icia l court records in this case, the court finds that counsel did p re se n t the case in a manner sufficient to protect Applicant's right to re a so n a b ly effective assistance of counsel.

Id ., p. 181 (citations omitted). The Texas Court of Criminal Appeals relied on these findings in denying habeas relief. Ex parte Hall, at cover.

10

Texas state law does not recognize insufficiency of the evidence as viable grounds f o r a motion to quash the indictment. Woods v. State, 153 S.W.3d 413, 415 (Tex. Crim. App. 2 0 0 5 ) . Petitioner fails to show that, had counsel filed a motion to quash the indictment, it w o u ld have been granted, and fails to rebut the presumption that counsel's decision not to m o v e to quash the indictment was reasonable trial strategy. d e m o n s tra te s neither deficient performance nor prejudice. The state habeas courts denied relief on this issue. Petitioner fails to show that the s ta te court's determination was contrary to, or involved an unreasonable application of, S tr ic k la n d or was an unreasonable determination of the facts based on the evidence in the re c o rd . No basis for habeas relief is shown, and respondent is entitled to summary judgment o n this issue. F a ilu r e to Hire an Investigator P e titio n e r claims that counsel should have hired an investigator to investigate and in te rv ie w the material witnesses in this case. In his affidavit submitted to the trial court on c o lla te ra l review, trial counsel testified that he did not hire an investigator because he did not n e e d one. Ex parte Hall, p. 176. He further testified that, "At no time did Applicant request o r mention the need for an investigator and nothing that I have now read indicates the need f o r an investigator." Id. In rejecting petitioner's claim on collateral review, the state court made the following re lev a n t findings of fact: 11 Accordingly, petitioner

10. 11.

A p p lica n t fails to prove she received ineffective assistance of counsel. A p p lic a n t fails to prove that any of counsel's representation fell below a n objective standard of reasonableness. A p p lica n t fails to prove that but for counsel's alleged errors, the result o f the proceeding would have been different. * * * *

12.

20.

B a se d on the credible and reliable affidavit of [trial counsel], and o f f icia l court records in this case, the court finds that counsel did p r e s e n t the case in a manner sufficient to protect Applicant's right to re a so n a b ly effective assistance of counsel.

Id ., p. 181 (citations omitted). The Texas Court of Criminal Appeals relied on these findings in denying habeas relief. Ex parte Hall, at cover. In support of her claim, petitioner argues that an investigator could have attempted to lo c a te and interview witnesses and investigate the case. She fails, however, to demonstrate w h y an investigator was necessary in her particular case. Trial counsel was of the

p ro f e ss io n a l opinion that an investigator was not needed. To establish a failure to investigate c laim , petitioner must allege with specificity what a proper investigation would have revealed a n d how it would have benefitted her. See United States v. Glinsey, 209 F.3d 386, 393 (5th C ir. 2000). Petitioner must also show a reasonable probability that, but for her counsel's f a ilu re to hire an investigator, the result of the trial would have been different. P e titio n e r presents no probative summary judgment evidence establishing that this d ec isio n was unreasonable under the circumstances, or that, but for counsel's failure to hire

12

a n investigator, there is a reasonable probability that the result of her trial would have been d iffe ren t. Neither deficient performance nor prejudice under Strickland is shown. T h e state habeas courts denied relief on this issue. Petitioner fails to show that the s ta te court's determination was contrary to, or involved an unreasonable application of, S tr ic k la n d or was an unreasonable determination of the facts based on the evidence in the re c o rd . No basis for habeas relief is shown, and respondent is entitled to summary judgment o n this issue. F a ilu r e to Challenge Petitioner's Competency Under ineffective assistance grounds (2), (11), and (12), petitioner complains that trial c o u n se l failed to challenge her competency to stand trial. She contends that counsel was put o n notice that she was incompetent and mentally unsound when, immediately prior to voir d ire , she began to cry and state that she was "scared." This incident appears in the record. P e titio n e r's additional underlying allegations, however ­ that she had been placed on a n tid e p re ss a n ts and diagnosed as schizophrenic ten years earlier ­ are conclusory and not s u p p o rte d by the record. In his affidavit submitted to the state court on collateral review, trial counsel testified, in relevant part, that, "There was never an issue of competence at the time of trial and in re v ie w in g my correspondence with Applicant, especially her letters to me, it is apparent that s h e was competent." Ex parte Hall, p. 176. In rejecting petitioner's claim on collateral re v iew , the state court made the following relevant findings of fact: 13

15.

A p p lica n t fails to show that trial counsel failed to properly inquire into A p p lic a n t's competency. A p p lic a n t fails to show that here was any genuine issue as to her c o m p e t e n c y.

16.

E x parte Hall, p. 181 (citations omitted). The Texas Court of Criminal Appeals relied on th e s e findings in denying habeas relief. Ex parte Hall, at cover. The test for determining competency is whether, at the time of trial, the defendant had s u f f ic ie n t present ability to consult with his lawyer with a reasonable degree of rational u n d e rs ta n d in g , and whether he has a rational as well as factual understanding of the p ro c e e d in g s against him. Bouchillon v. Collins, 907 F.2d 589, 592 (5th Cir. 1990). To p re v a il on an ineffective assistance claim based on counsel's failure to obtain a competency e v a lu a tio n , the petitioner must demonstrate a reasonable probability that he was incompetent to stand trial. Id. at 595. In arguing that counsel failed to investigate properly her

c o m p e te n c y and mental status prior to trial, petitioner here fails to present probative evidence sh o w in g that, had such an investigation been undertaken, there is a reasonable probability th a t she would have been found incompetent to stand trial. Her conclusory allegations of in c o m p e te n c y do not stand as probative evidence sufficient to raise a genuine issue of m a ter ial fact regarding her competency to stand trial. Thus, petitioner fails to demonstrate e ith e r deficient performance or prejudice. The state habeas courts denied relief on this issue. Petitioner fails to show that the s ta te court's determination was contrary to, or involved an unreasonable application of, 14

S tr ic k la n d or was an unreasonable determination of the facts based on the evidence in the re c o rd . No basis for habeas relief is shown, and respondent is entitled to summary judgment o n this issue. F a i lu r e s to Investigate, Obtain, and Subpoena Witness Petitioner contends under ineffective assistance grounds (4), (5), (7), (17), and (21), th a t trial counsel was ineffective in failing to interview, obtain, and subpoena defense w itn e ss e s, including her co-defendant, Margaret Florence. Under ground (16), she complains th a t trial counsel failed to request a continuance to call Florence as a defense witness. A c c o rd in g to petitioner's claims, Florence would have testified that the drugs and drug p a ra p h e rn a lia seized during the offense were her own, and that petitioner was unaware that th e y were in her vehicle. Petitioner further believes that other omitted witnesses may have b e e n able to impeach the police officers and establish her innocence. No affidavits or other re c o rd e d testimony of Florence or any other allegedly omitted witness appear in the record. In his affidavit submitted to the state court on collateral review, trial counsel testified, in relevant part, as follows: I have no recollection of interviewing the co-defendant or notes to support an interv iew , of course I could not have interviewed her without her attorney's c o n se n t and I do not remember who her attorney was or if I ever requested to in te rv ie w her. If I made such a request and was immediately turned down I d o u b t I would [have] even recorded it on my time sheet. E x parte Hall, p. 176. Trial counsel further testified that no continuance was requested b e c a u s e he felt he did not need additional time to prepare for trial. Ex parte Hall, p. 176. 15

In denying habeas relief, the state court made the following relevant findings on c o lla te ra l review: 17. 18. A p p lica n t fails to show that trial counsel failed to prepare for trial. B a s e d on the credible and reliable affidavit of [trial counsel], and o f f icia l court records in this case, the court finds that counsel did p re p a re sufficiently to protect Applicant's right to reasonably effective a ss ista n c e of counsel. A p p lica n t fails to show that trial counsel was ineffective in his p re se n tatio n at trial. B a se d on the credible and reliable affidavit of [trial counsel], and o f f i c ia l court records in this case, the court finds that counsel did p re se n t the case in a manner sufficient to protect Applicant's right to re a s o n a b ly effective assistance of counsel.

19.

20.

Ex parte Hall, p. 181. The Texas Court of Criminal Appeals relied on these findings in d e n yin g habeas relief. Id., at cover. Complaints of uncalled witnesses are not favored in federal habeas corpus review b e c au s e allegations of what a witness would have testified are largely speculative. Where, a s here, the only evidence of a missing witnesses's testimony is from the petitioner, this C o u rt views claims of ineffective assistance with great caution. See Sayre v. Anderson, 238 F .3 d 631, 635 (5th Cir. 2001). Petitioner has provided no competent evidence showing a re a so n a b le probability that trial counsel's investigation and subpoenaing of Florence would h a v e changed the verdict in her trial. Petitioner has supplied no affidavits from, or probative e v id e n c e of, any material omitted witnesses, their availability, or their proposed testimony.

16

P e titio n e r's own speculation as to what these witnesses might have said is insufficient to s h o w a reasonable probability that, but for counsel's failure to investigate and subpoena th e m , the result of the trial would have been different. U.S. v. Cockrell, 720 F.2d 1423, 1427 (5 th Cir. 1983). Hypothetical or theoretical testimony will not justify the granting of federal h a b e a s relief. Martin v. McCotter, 796 F.2d 813, 819 (5th Cir. 1981). Nor does petitioner p re se n t probative summary judgment evidence that, had counsel requested a trial c o n tin u a n c e, it would have been granted, and that there is a reasonable probability that the re s u lt of her trial would have been different. The state habeas courts denied relief on this issue. Petitioner fails to show that the s ta te court's determination was contrary to, or involved an unreasonable application of, S tr ic k la n d or was an unreasonable determination of the facts based on the evidence in the re c o rd . No basis for habeas relief is shown, and respondent is entitled to summary judgment o n this issue. F a i lu r e to Represent Petitioner Before the Grand Jury Petitioner asserts that her original court-appointed attorney failed to ask for an e x a m in in g trial or present her to the grand jury prior to her indictment. She states that had c o u n se l done so, there was a reasonable probability that she would not have been indicted b e c a u s e the evidence against her was the result of an illegal search and seizure. In denying habeas relief, the state court on collateral review made the following r e le v a n t findings: 17

10. 11.

A p p lica n t fails to prove she received ineffective assistance of counsel. A p p lic a n t fails to prove that any of counsel's representation fell below a n objective standard of reasonableness. A p p lica n t fails to prove that but for counsel's alleged errors, the result o f the proceeding would have been different.

12.

Ex parte Hall, p. 181 (citations omitted). The Texas Court of Criminal Appeals relied on th e s e findings in denying habeas relief. Ex parte Hall, at cover. Even if the Court were to assume that counsel were deficient, petitioner's conclusory a lle g a tio n s of prejudice are unsupported two-fold in the record. As the trial court denied p e titio n e r's motion to suppress the evidence, the record does not support her allegation that th e evidence was unlawfully obtained. Nor does petitioner present any probative evidence, a n d none appears in the record, that, but for counsel's errors, there is a reasonable probability th a t she would not have been indicted. The state habeas courts denied relief on this issue. Petitioner fails to show that the s ta te court's determination was contrary to, or involved an unreasonable application of, S tr ic k la n d or was an unreasonable determination of the facts based on the evidence in the re c o rd . No basis for habeas relief is shown, and respondent is entitled to summary judgment o n this issue. F a i lu r e to Investigate the Enhancement Paragraphs Petitioner complains that trial counsel failed to investigate whether she was re p re s e n te d by counsel in her two enhancement convictions, and failed to object to two 18

d is c r e p a n c ie s appearing within her "pen packet." She argues that the State's fingerprint e x p e rt identified one of the convictions as from the 263nd District Court of Harris County, w h ile the actual court documents reflected the conviction as from the 262nd District Court. P e titio n e r further asserts that the documents inconsistently reflect May 18, 1988, and May 1 9 , 1988, as the judgment date for the second conviction. According to petitioner, these e rro rs rendered the enhancements void and resulted in an unlawfully enhanced sentence, to w h ic h counsel should have objected. In denying habeas relief, the state court on collateral review made the following r e le v a n t findings: 10. 11. A p p lica n t fails to prove she received ineffective assistance of counsel. A p p lic a n t fails to prove that any of counsel's representation fell below a n objective standard of reasonableness. A p p lica n t fails to prove that but for counsel's alleged errors, the result o f the proceeding would have been different.

12.

Ex parte Hall, p. 181 (citations omitted). The Texas Court of Criminal Appeals relied on th e s e findings in denying habeas relief. Ex parte Hall, at cover. Nothing in the record establishes that petitioner was not represented by counsel in her tw o prior convictions; indeed, petitioner herself does not even assert she was without c o u n se l. To the contrary, the "pen packet" judgments show that petitioner was represented b y counsel on both occasions. S.F., Vol. 6, State's Exhibits P-1, P-3. Accordingly, neither d e f ic ie n t performance nor prejudice in this regard are shown. 19

F u r th e r, no discrepancy appears in the State's "pen packet" evidence regarding the e n h a n ce m e n t paragraph conviction date. Petitioner relies on the notice of intent to use prior c o n v ictio n s filed by the State on March 29, 2005, which pleading reflects a disposition date o f May 18, 1988, for conviction number 0501607. Clerk's Record at 47. However, both the c o n tro llin g document and evidence ­ the indictment and the "pen packet" ­ reflect a c o n v ic tio n date of May 19, 1988. Clerk's Record at 20; S.F., Vol. 6, State's Exhibit P-3. A g a in , neither deficient performance nor prejudice are shown. D u rin g the punishment phase of trial, the State's fingerprint expert witness identified o n e of the two enhancement convictions as arising from the 263rd District Court of Harris C o u n ty, Texas. S.F., Vol. 5, p. 45. The "pen packet" exhibits reflected that the conviction a ro s e from the 262nd District Court. S.F., Vol. 6, State's Exhibit P-1. Trial counsel utilized th i s inconsistency to the benefit the defense during closing argument, as follows: S ec o n d ly, the witness testified very clearly that the conviction was in the 263rd D is tric t Court. This indictment and this charge alleges the 262nd District C o u rt. Maybe those are technicalities, but it's my job to point out whatever I c a n to defend my client the best I can. S .F ., Vol. 5, p. 54. Counsel then asked the jury to find "not true" to that prior conviction and, a c c o rd in g ly, to then assess punishment under the lower statutory range. Id., pp. 54-55. The ju ry, however, found the enhancement paragraphs "true." Petitioner fails to show that, had c o u n se l objected to the discrepancy, the objection would have been sustained and the

20

en h ancem en t paragraph would have been stricken. Petitioner presents no probative summary jud g m en t evidence of deficient performance or prejudice under Strickland. The state habeas courts denied relief on this issue. Petitioner fails to show that the s ta te court's determination was contrary to or involved an unreasonable application of S tr ic k la n d or was an unreasonable determination of the facts based on the evidence in the re c o rd . No basis for habeas relief is shown, and respondent is entitled to summary judgment o n this issue. Failures to Conduct an Adequate Voir Dire or Make an Opening Statement P e titio n e r complains that trial counsel failed to discuss the concept of "reasonable d o u b t" during voir dire and failed to make an opening statement at trial. In denying habeas relief, the state court made the following relevant findings on c o lla te ra l review: 19. A p p lica n t fails to show that trial counsel was ineffective in his p re se n tatio n at trial. B a se d on the credible and reliable affidavit of [trial counsel], and o f f ic ia l court records in this case, the court finds that counsel did p re se n t the case in a manner sufficient to protect Applicant's right to re a s o n a b ly effective assistance of counsel.

20.

Ex parte Hall, p. 181 (citations omitted). The Texas Court of Criminal Appeals relied on th e s e findings in denying habeas relief. Ex parte Hall, at cover. As a general rule, a habeas petitioner complaining of a trial counsel's failure to make a n opening statement must establish resulting prejudice, including suggesting what the 21

a tto rn e y should have said and showing how he was harmed by the attorney's failure to avail h im s e lf of the opportunity. Murray v. Maggio, 736 F.2d 279, 283 (5th Cir. 1984) (noting that w h e th e r or not to make an opening statement "falls within the zone of trial strategy.") E v e n assuming counsel were deficient in these two instances, petitioner fails to d em o n strat e prejudice under Strickland. Her conclusory allegations of harm are unsupported in the record, and she fails to present probative summary judgment evidence that, but for c o u n se l's two alleged errors, there is a reasonable probability that the results of her trial w o u ld have been different. The state habeas courts denied relief on this issue. Petitioner fails to show that the s ta te court's determination was contrary to or involved an unreasonable application of S tr ic k la n d or was an unreasonable determination of the facts based on the evidence in the re c o rd . No basis for habeas relief is shown, and respondent is entitled to summary judgment o n this issue. Failures to Object to Inadmissible and Prejudicial Evidence P e titio n e r complains that trial counsel failed to object to the State's references to, and i t s evidentiary use of, the cocaine and other incriminating evidence removed from her v e h icle . She asserts that the unlawfully-seized evidence was inadmissible under the Fourth A m e n d m e n t. She further complains that trial counsel failed to object to prejudicial evidence o f her crying and being "scared" prior to trial.

22

In rejecting petitioner's claims on collateral review, the state court made the following re lev a n t findings of fact: 19. A p p lica n t fails to show that trial counsel was ineffective in his p re se n tatio n at trial. B a s e d on the credible and reliable affidavit of [trial counsel], and o f f i c i a l court records in this case, the court finds that counsel did p re se n t the case in a manner sufficient to protect Applicant's right to re a s o n a b ly effective assistance of counsel.

20.

Ex parte Hall, p. 181. The Texas Court of Criminal Appeals relied on these findings in d e n yin g habeas relief. Id., at cover. The record shows that the trial court overruled petitioner's motion to suppress the e v id e n c e under these arguments, and found the evidence admissible. Accordingly, there was n o legal basis for counsel to continue objecting to the evidence throughout trial, and his f a ilu re to do so did not constitute ineffective assistance of counsel. See Koch v. Puckett, 907 F .2 d 524, 527 (5th Cir. 1990) (holding that counsel is not required to make futile motions or o b je c tio n s ). Petitioner fails to show that, had counsel continued to object to the evidence, th a t the objections would have been sustained and the evidence excluded. Neither deficient p e rf o rm a n c e nor prejudice are shown. F u r t h e r, the incident regarding petitioner's crying and being "scared" prior to trial a p p e ars in the record, but took place prior to voir dire outside the presence of the v e n ire m e m b e rs . Indeed, the trial court told petitioner that they were "thirty seconds out from the first juror walking in this door" and for her to "quit that crying." He stated that, "There 23

w ill be plenty of time when you're called as a witness; but until then, I don't want any of that a t counsel table while I'm trying to pick a jury." S.F., Volume II, p. 5. Petitioner articulates n o viable grounds for objection that, had counsel pursued, would have been granted, or that, b u t for such failure to object, there is a reasonable probability that the results of the trial w o u ld have been different. The state habeas courts denied relief on this issue. Petitioner fails to show that the s ta te court's determination was contrary to, or involved an unreasonable application of, S tr ic k la n d or was an unreasonable determination of the facts based on the evidence in the re c o rd . No basis for habeas relief is shown, and respondent is entitled to summary judgment o n this issue. Failure to Request Fingerprinting Petitioner complains that trial counsel failed to request that fingerprint testing be u n d e rta k e n on the baggie of cocaine found in her vehicle. She argues that, had such testing b e e n undertaken, it would have revealed that her fingerprints were not on the baggie. In his affidavit submitted to the state court on collateral review, trial counsel testified, in relevant part, as follows: T h e State did not have Applicant's fingerprints on the baggie because they n e v e r even tested the baggie for fingerprints. I felt it was in Applicant's best in te re s ts to leave this alone and argue it at trial. Ex parte Hall, p. 176. In rejecting petitioner's claim on collateral review, the state court m a d e the following relevant findings of fact: 24

10. 11.

A p p lica n t fails to prove she received ineffective assistance of counsel. A p p lic a n t fails to prove that any of counsel's representation fell below a n objective standard of reasonableness. A p p lica n t fails to prove that but for counsel's alleged errors, the result o f the proceeding would have been different. A p p lic a n t fails to show that trial counsel failed to file appropriate pretr ia l motions. B a se d on the credible and reliable affidavit of [trial counsel], and o f f i c i a l court records in this case, the court finds that counsel did file a p p r o p r ia te pre-trial motions. * * * *

12.

13.

14.

20.

B a se d on the credible and reliable affidavit of [trial counsel], and o f f icia l court records in this case, the court finds that counsel did p re se n t the case in a manner sufficient to protect Applicant's right to re a so n a b ly effective assistance of counsel.

Id ., p. 181 (citations omitted). The Texas Court of Criminal Appeals relied on these findings in denying habeas relief. Ex parte Hall, at cover. Under Strickland, judicial scrutiny of counsel's performance must be highly d e f e re n tial. A court must indulge a strong presumption that counsel's conduct falls within th e wide range of reasonable professional assistance. Strickland, 466 U.S. at 689. With re g a rd to the second prong of the Strickland test, a "mere possibility" that a different result m ig h t have occurred is not sufficient to demonstrate prejudice. Lamb v. Johnson, 179 F.3d 3 5 2 , 359 (5th Cir. 1999).

25

In support of her argument, petitioner presents only her own conclusory allegation that te stin g would have revealed that her fingerprints were not on the baggie. Nor does she p re se n t probative evidence demonstrating that, but for counsel's failure to procure fingerprint te stin g , the results of the trial would have been different. As a result, petitioner fails to rebut th e presumption that counsel's decision to not undertake fingerprint testing was reasonable tria l strategy. Neither deficient performance nor prejudice are established. T h e state habeas courts denied relief on this issue. Petitioner fails to show that the s ta te court's determination was contrary to, or involved an unreasonable application of, S tr ic k la n d or was an unreasonable determination of the facts based on the evidence in the re c o rd . No basis for habeas relief is shown, and respondent is entitled to summary judgment o n this issue. F a ilu r e to Object to the Jury Instructions P e titio n e r complains that trial counsel failed to object to lack of a definition of "re a s o n ab le doubt" or "circumstantial evidence" in the jury charge. These arguments are w ith o u t merit. Texas state law and the federal Constitution do not require a jury instruction o n "reasonable doubt." See Victor v. Nebraska, 511 U.S. 1, 5 (1994) ("The beyond a re a so n a b le doubt standard is a requirement of due process, but the Constitution neither p ro h ib its trial courts from defining reasonable doubt nor requires them to do so as a matter o f course."). See also Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000). Nor d o e s Texas law require a circumstantial evidence charge. See Hankins v. State, 646 S.W.2d 26

191, 198-99 (Tex. Crim. App.1983) (op. on reh'g) (abolishing circumstantial evidence charge a n d holding that if jury is properly instructed on burden of proof, "charge on circumstantial e v id e n c e is valueless and invites confusion"). Accordingly, trial counsel was not ineffective in failing to request, or object to the lack of, a reasonable doubt or circumstantial evidence ju ry charge. See Koch v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990) (holding that counsel is not required to make futile motions or objections). R e s p o n d e n t is entitled to summary judgment dismissing this habeas claim. Failure to Present Mitigating Evidence at the Punishment Hearing Petitioner complains that trial counsel failed to present mitigating evidence of her " m a jo r emotional illness" to the jury during the punishment phase of trial. In support of her a rg u m e n t, petitioner refers to her episode of crying and being "scared" prior to voir dire, and to her alleged depression and schizophrenia ten years earlier. She asserts that counsel's f a ilu re to present this evidence to the jury during punishment stands as ineffective assistance w h ic h prejudiced her at sentencing. In denying habeas relief on collateral review, the trial court made the following r e le v a n t findings: 10. 11. A p p lica n t fails to prove she received ineffective assistance of counsel. A p p lic a n t fails to prove that any of counsel's representation fell below a n objective standard of reasonableness. A p p lica n t fails to prove that but for counsel's alleged errors, the result o f the proceeding would have been different. 27

12.

13.

A p p lic a n t fails to show that trial counsel failed to file appropriate pretr ia l motions. B a se d on the credible and reliable affidavit of [trial counsel], and o f f icia l court records in this case, the court finds that counsel did file a p p r o p r ia te pre-trial motions. * * * *

14.

20.

B a se d on the credible and reliable affidavit of [trial counsel], and o f f icia l court records in this case, the court finds that counsel did p re se n t the case in a manner sufficient to protect Applicant's right to re a so n a b ly effective assistance of counsel.

Id ., p. 181 (citations omitted). The Texas Court of Criminal Appeals relied on these findings in denying habeas relief. Ex parte Hall, at cover. Petitioner's claims of suffering from a "major emotional illness" at time of trial an d /or a decade prior are conclusory allegations unsupported by probative summary jud g m en t evidence in the record. Although her episode of crying and being scared appears in the record, no probative evidence establishes this as constituting mental illness or a major m e d ic a l condition. Petitioner's conclusory factual allegations of having a past and present m e n ta l illness are unsupported in the record and fail to raise a genuine issue of material fact p re c lu d in g summary judgment. The state habeas courts denied relief on this issue. Petitioner fails to show that the s ta te court's determination was contrary to, or involved an unreasonable application of, S tr ic k la n d or was an unreasonable determination of the facts based on the evidence in the

28

re c o rd . No basis for habeas relief is shown, and respondent is entitled to summary judgment o n this issue. F a ilu r e to Object to Cumulative Sentencing Petitioner complains that trial counsel failed to object to the trial court's order c u m u la tin g her sentences. In support, she argues that the trial court abused its discretion u n d e r state law and relied on incorrect information. She did not raise this issue on direct a p p e a l. In his affidavit submitted to the trial court on collateral review, trial counsel testified th a t he made no argument to prevent the trial court from cumulating the sentences because h e "did not know of any argument to prevent it." Ex parte Hall, p. 177. The trial court on c o lla te ra l review found that, "Applicant's claim that the trial court erred in cumulating her s e n te n c e is procedurally barred as a record claim." Id., p. 181 (citation omitted). Even assuming this issue were properly before this Court, it is without merit. P e titio n e r fails to show that, under state law, the trial court unlawfully cumulated the two se n ten c e s. Further, her allegation that the trial court relied on incorrect information in g ra n tin g the motion to cumulate is conclusory and unsupported in the record. Petitioner does n o t establish that, had counsel objected to the order cumulating the sentences, the objection w o u ld have been granted. Petitioner establishes neither deficient performance nor prejudice, a n d respondent is entitled to summary judgment dismissing this issue.

29

F a ilu re to Review the Police and Laboratory Reports P etitio n er asserts that trial counsel failed to review the relevant police and laboratory te st reports, and that, had he reviewed these materials, he would have been better prepared f o r trial and she would have been acquitted. In his affidavit submitted to the trial court on c o lla te ra l review, trial counsel testified that the trial court granted his discovery motion and th a t he reviewed the State's file on four different occasions in preparing for trial. Ex parte H a ll, p. 175-76. In rejecting petitioner's claim on collateral review, the state court made the following r e le v a n t findings: 17. 18. A p p lica n t fails to show that trial counsel failed to prepare for trial. B a se d on the credible and reliable affidavit of [trial counsel], and o f f ic ia l court records in this case, the court finds that counsel did p re p a re sufficiently to protect Applicant's right to reasonably effective a ss ista n c e of counsel. A p p lica n t fails to show that trial counsel was ineffective in his p re se n tatio n at trial. B a se d on the credible and reliable affidavit of [trial counsel], and o f f ic ia l court records in this case, the court finds that counsel did p re se n t the case in a manner sufficient to protect Applicant's right to re a s o n a b ly effective assistance of counsel.

19.

20.

Ex parte Hall, p. 181 (citations omitted). The Texas Court of Criminal Appeals relied on th e s e findings in denying habeas relief. Ex parte Hall, at cover.

30

P e titio n e r's allegations of what counsel specifically reviewed or failed to review prior to trial are conclusory, unsupported by the record, and do not constitute probative summary ju d g m e n t evidence raising a genuine issue of material fact as to his effectiveness. This C o u rt's own independent review of the record fails to reveal evidence supporting petitioner's claim . Petitioner demonstrates neither deficient performance nor prejudice under Strickland. T h e state habeas courts denied relief on this issue. Petitioner fails to show that the s ta te court's determination was contrary to, or involved an unreasonable application of, S tr ic k la n d or was an unreasonable determination of the facts based on the evidence in the re c o rd . No basis for habeas relief is shown, and respondent is entitled to summary judgment o n this issue. C la im of Perjured Testimony P e titio n e r contends that one police officer perjured himself by first testifying that the p u rse containing the cocaine was found in the car behind the driver's seat, and later, that it w a s found behind the passenger's seat. (Docket Entry No. 9, p. 37.) She further contends th a t another witness perjured himself by testifying, without objective or recorded proof, that h e personally saw petitioner shoplift two blouses shortly before her arrest. In rejecting petitioner's claims of perjury, the state court on collateral review made th e following relevant findings: 5. A p p lic a n t fails to prove that the State secured her conviction through th e use of perjured testimony.

31

6. 7.

A p p lic a n t fails to prove that the State presented any false testimony. A p p lic a n t fails to prove that the State knew or had any reason to know th a t any alleged perjured testimony was false. A p p lic a n t fails to prove that any alleged perjured testimony was m a ter ial.

8.

E x parte Hall, pp. 180-81 (citations omitted). The Texas Court of Criminal Appeals relied o n these findings in denying habeas relief. A state denies a criminal defendant due process of law when it knowingly uses p e rju re d testimony at trial or allows untrue testimony to remain uncorrected. Giglio v. United S ta te s, 405 U.S. 150, 154 (1972); Creel v. Johnson, 162 F.3d 385, 391 (5th Cir. 1998). To p re v a il on a Giglio habeas claim, a petitioner must show that false testimony was given, that th e falsity was material in that it would have affected the jury's verdict, and that the p ro s e c u tio n used the testimony knowing it was false. Creel, 162 F.3d at 391. Petitioner fails to show, and the record does not reflect, that the officers presented f a lse testimony, or that the State knowingly used false testimony. Testimony that is

in c o n sis te n t, contradictory, or conflicting, does not, standing alone, constitute perjured te s tim o n y. Kutzner v. Johnson, 242 F.3d 605, 609 (5th Cir. 2001). Contradictory testimony b e tw e e n or among witnesses or inconsistencies within a witness's testimony are to be re so lv e d by the trier of fact, and do not suffice to establish any certain testimony as perjured. K o c h v. Puckett, 907 F.2d 524, 531 (5th Cir. 1990). In the instant case, petitioner does

32

n o thing more than demonstrate inconsistencies and conflicts in the evidence that were re s o lv e d by the jury in reaching its verdict. Petitioner fails to rebut, with clear and convincing evidence, the presumed correctness o f the state court's findings on this issue. Petitioner further fails to show that the state court's d e n ial of habeas relief was contrary to, or involved an unreasonable application of, clearly e s ta b lis h e d federal law as determined by the Supreme Court. Williams, 529 U.S. at 404-05. R e s p o n d e n t is entitled to summary judgment on petitioner's habeas claim of perjury. Claim of Denial of Full Appellate Review P e titio n e r complains that the state court on direct appeal erred in affirming her c o n v ic tio n on federal constitutional grounds without consideration of state constitutional g ro u n d s. Her claim is without merit. T h e record shows that, on appeal, petitioner argued as her sole point of error that the tria l court abused its discretion in overruling her motion to suppress the evidence. She a rg u e d that the underlying search and seizure violated both federal and state constitutional p ro te c tio n s . In affirming the conviction, the state court of appeals found no violation of p e titio n e r' s constitutional rights. Hall v. State, No. 14-05-00444-CR (Tex. App. ­ Houston [1 4 th Dist.] 2006, pet ref'd) (not designated for publication). In doing so, the state court r e lie d on both state law and federal cases. Regardless, the constitutional protection against u n r e a s o n a b le searches and seizures is the same under both state and federal constitutional

33

la w . Johnson v. State, 803 S.W.2d 272, 288 (Tex. Crim. App. 1990). Habeas relief is not w a rr a n te d , and respondent is entitled to summary judgment dismissing this claim. Claim of Insufficient Evidence to Support the Enhancement Paragraph Petitioner states that the State failed to "prove up" one of the enhancement paragraphs b ec au se of a variance between the prior conviction records and testimony of the State's w itn e s s . During the punishment phase of trial, the State's fingerprint expert witness id e n tif ie d one of the prior convictions as from the 263rd District Court of Harris County. S .F ., Vol. 5, p. 45. The actual "pen packet" records, however, showed the conviction to be f ro m the 262nd District Court of Harris County, Texas. S.F., Vol. 6, State's Exhibit P-1. As a lre a d y noted by this Court, only a legal insufficiency challenge may be raised and reviewed u n d e r section 2254. Petitioner agrees that her conviction arose in the 262nd District Court, a n d the State presented evidence that the conviction arose in that court. Accordingly, p etitio n er's "no evidence" argument is without merit, and respondent is entitled to summary ju d g m e n t dismissing this claim. C la im of Improper "Stacking" of Sentences P e titio n e r argues that the trial court abused its discretion in granting the State's motion to cumulate ("stack") her sentences. The record shows that the trial court ordered petitioner's s e n te n c e in the instant conviction to run cumulatively with the sentence in her 1998 c o n v ic tio n for possession of a controlled substance. Clerk's Record at 49, 80. Petitioner a c k n o w le d g e s that this claim is procedurally defaulted, but urges that good cause and

34

p rejud ice exist under Coleman in that appellate counsel ignored her request to raise this issue o n appeal. Even if this Court were to assume that petitioner asked counsel to raise this issue on a p p e al, she establishes no prejudice from his ensuing failure to do so. She does not show th a t, under state law, the trial court unlawfully cumulated these two sentences. Her

a lleg a tio n s that the trial court relied on incorrect information in granting the motion to c u m u late are conclusory and unsupported in the record. Petitioner does not establish that, b u t for counsel's failure to raise this issue on direct appeal, the result of her appeal would h a v e been different. Respondent is entitled to summary judgment dismissing this habeas issue. Claim of Improper Jury Charge P e titio n e r alleges that the trial court erroneously omitted a definition of "reasonable d o u b t" in the jury instructions. Texas state law and the federal Constitution do not require s u c h an instruction, and no cognizable habeas ground is presented. See Victor v. Nebraska, 5 1 1 U.S. 1, 5 (1994) ("The beyond a reasonable doubt standard is a requirement of due p ro c e ss , but the Constitution neither prohibits trial courts from defining reasonable doubt nor re q u ire s them to do so as a matter of course."). See also Paulson v. State, 28 S.W.3d 570, 5 7 3 (Tex. Crim. App. 2000). Respondent is entitled to summary judgment dismissing this habeas claim.

35

C la im of 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 appellate counsel's re p re se n ta tio n was deficient and that the deficient performance caused her 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 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 c t 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 asserts that appellate counsel was ineffective in failing to raise the claims sh e presents in the instant habeas proceeding. Because this Court has found these claims to b e without merit, petitioner cannot show that, but for appellate counsel's counsel failure to ra ise them on appeal, there is a reasonable probability that the results of the appeal would h a v e been different. Accordingly, petitioner establishes neither deficient performance nor 36

p rejud ice under Strickland, and respondent is entitled to summary judgment dismissing this c la im . R e q u es t for an Evidentiary Hearing In her response in opposition to the motion for summary judgment, petitioner requests a n evidentiary hearing to more fully develop the record regarding trial and appellate c o u n se ls' ineffectiveness. She complains that, by ordering trial counsel to submit an affidavit in lieu of an evidentiary hearing, she was denied a right to develop the record on habeas re v ie w . She additionally argues that an evidentiary hearing is necessary before this Court can m a k e any "credibility determinations" of the evidence in the record. (Docket Entry No. 9, p . 19.) Even assuming error, infirmities in state habeas proceedings on habeas review do not c o n s titu te grounds for habeas relief in federal court. See Trevino v. Johnson, 168 F.3d 173, 1 8 0 (5th Cir. 1999); see also Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995) ("An attack o n a state habeas proceeding does not entitle the petitioner to habeas relief in respect to his c o n v ic tio n , as it is an attack on a proceeding collateral to the detention and not the detention its e lf ." ). Petitioner has not asserted an error in the state habeas proceeding affecting the d e f ere n c e due the state courts' findings in the habeas proceedings. Petitioner contends that sh e was not afforded a full and fair adjudication of her claims in state court because the state co u rt did not hold a live evidentiary hearing on the merits of the claims. The Texas Court 37

o f Criminal Appeals denied petitioner's state habeas application without written order on the f in d in g s of the trial court. This ruling constitutes an adjudication of petitioner's claims on th e merits and is entitled to the presumption of correctness. See Bledsue v. Johnson, 188 F .3 d 250, 257 (5th Cir. 1999); May v. Collins, 955 F.2d 299, 311 (5th Cir. 1992). Moreover, if a petitioner fails to develop a factual basis for a claim in state court, a federal habeas court m a y not conduct an evidentiary hearing on the claim unless the claim relies on a new rule of c o n stitu tio n a l law or on a factual predicate that could not have been previously discovered th ro u g h the exercise of due diligence, and the facts would be sufficient to establish by clear a n d convincing evidence the petitioner's actual innocence. 28 U.S.C. § 2254(e)(2); Williams v . Taylor, 529 U.S. 420, 434-37 (2000). Petitioner does not met this burden. N o r is the quality of the state court's habeas proceeding relevant to deciding the ap p lica b ility of section 2254(e)'s presumption of correctness to the state habeas court's f in d in g s of fact or to applying the review standard of section 2254(d). Valdez v. Cockrell, 2 7 4 F.3d 941, 950-51 (5th Cir. 2001). See also Hudson v. Quarterman, 273 Fed. Appx. 331, 3 3 4 (5th Cir. 2008) (rejecting argument that state court findings are not entitled to deference w h e re the state court did not hold an evidentiary hearing and adopted the state's proposed f in d in g s and conclusions verbatim); Johnson v. Quarterman, 204 Fed. Appx. 367, 371 (5th C i r . 2006) (rejecting argument that the state court's findings should be not be given d e f e re n c e because "all credibility decisions were made from a cold record"); Morrow v. D r e tk e , 367 F.3d 309, 315 (5th Cir. 2004) (rejecting argument that the federal court should 38

n o t defer to the state court's findings where the state court did not allow an evidentiary h ea rin g and the habeas judge was not the trial judge). F u r th e r, state credibility determinations receive AEDPA deference on habeas review u n le s s rebutted by clear and convincing evidence appearing in the record. See Summers v. D r e tk e , 431 F.3d 861, 871 (5th Cir. 2005); 28 U.S.C. § 2254(e)(1); see also Miller-El v. C o c k re ll, 537 U.S. 322, 340 (2003) ("A federal court can disagree with a state court's c re d ib ility determination and, when guided by AEDPA, conclude the decision was u n rea so n ab le or that the factual premise was incorrect by clear and convincing evidence."). P e titio n e r fails here to rebut the presumed correctness of the state court's credibility d e te rm in a tio n by clear and convincing evidence. The decision whether to conduct an evidentiary hearing is committed to this Court's d is c re tio n . See Michael Williams v. Taylor, 529 U.S. 420, 436 (2000). An evidentiary h ea rin g is not required if there are no relevant factual disputes that would require d e v e lo p m e n t in order to assess the claims. This Court has been able to resolve all issues raised in this case by referring to the pleadings and the state court record, and petitioner's re q u e s t for an evidentiary hearing is DENIED. C o n c lu s io n F o r the reasons stated above, the Court GRANTS the motion for summary judgment (D o c k e t Entry No. 6) and DISMISSES this case with prejudice. Any and all pending motions a re DENIED AS MOOT. A certificate of appealability is DENIED. 39

T h e Clerk will provide copies of this order to the parties. S ig n e d at Houston, Texas on February 12, 2009.

Gray H. Miller U n ite d States District Judge

40