MacDonald v. Quarterman

Filing 14

MEMORANDUM OPINION AND ORDER Dismissing 1 Petition. Granting 12 MOTION for Summary Judgment with Brief in Support. Denying a certificate of appealability.(Signed by Judge Sim Lake) Parties notified.(hcarr, )

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IN THE UN ITE D STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HO USTON DIVISION E DWA RD HEWITT MACDONALD, TDCJ-C ID NO . 1360050, Pet itione r , C IV IL ACTION NO . H-09-2767 R ICK THA LER , Directo r , Texas Department of C rim ina l Justice , Correctional In stitut ion s Division , R esp on den t . MEM ORAND UM OPINION AND ORDER Edw ard Hewitt MacDonald, an inmate o f the Texas Department of Criminal Justice Correctional Institutions Division ( DCJ-CID), T filed a federal Petition for a Writ of Habeas Corpus by a Person Sta te Custody under U .S .C . 2254 challenging stat e court conv iction . The Respondent has filed a Motion for Summ ary Judgment ( ocket Entry No. 12) supported by State Appeal and Habeas Records. D The court will grant the motion and dismiss this Petition . 1. MacDonald v.Thaler Doc. 14 Procedural History A jury convicted MacDonald of sexual assault and sentenced him tw ent y-five years' imprisonment . State v. MacDonald , No . 1046437 ( 30th Dist. 2 Harris County, Texas, March 8, 2006). MacDo nald filed a notice of appeal challenging the conviction . MacDonald 's appellate counsel argued on appeal that uE qhe evidence t was factually insufficient to establish that E acDonald) committed M sexua l assault as alleged in th e indictment.' MacDonald v . State, ' No . 01-06-00235-CR ( ppellant's Brief at 12). The Court of Appeals A for the First District of Texas affirmed the trial court's judgment. MacDonald v. State, No. 01-06-0O235-CR, ( ex . App . -- Houston T was presented in WL 2130943 Dist.q July 26, 2007). The same ground discretionary review (PDR) before petition the Texas Court of Crim in al Appeals. The Court of Crim in al Appeals refu sed MacDonald's PDR on December 19, 2007 . M a cDon a ld v . State, N o . PD-1550-07. On December 5, 2008, MacDonald filed a state application for a writ of habeas corpus pursuant to Article 11 .07 of the Texas Code of Criminal Procedure. His State Habeas Record ( HR ) includes the S follow in g grounds for relief: Prosecutor misconduct ( HR at 07-09) S b olste ring a rgume nt ; the victim's testimony during final m issta ting the victim 's relationship to men during fin al argument ; false ly asserting during final argument that M acDon ald ndragged his son into the courtroom' ; and ' m aking false promises to MacDonald regarding d ism i ssa l of charges or a nno b ill ' from the grand ' jury in return for MacDonald's testimony. Insufficient evidence ( HR at 10-11) because S the re was evidence that the victim was unchaste and a drug user; - 2- the only evidence that the victim was a lesbian was he r testimony alone and there was no p roo f that she d id not like m en ; the DNA report was not sign ed nor was there any iden t ifying name tag to prove that it had been te sted ; Dr . Andel Gindy testified that there was no forced entry injury to the victim; the victim admitted that she had been drinking and u sing drugs; and in his closing statement, th e p rose cu t ing attorney imp ea ched the complaining w itne ss . M acDon ald 's trial counsel was ineffective because he failed to ( HR at 12-15) S object to m iscon duct ; preserve error the prosecutor's in terv iew any witnesses or investigate the eight phon e calls made or received during the alleged a ssaul t ; ca ll any witnesses that would have assisted in M ac Don ald 's defense; p re serve any of the prosecutor's errors; ob ta in the complaining w itne ss 's b lo od alcohol or drug level; inve st ig ate the victim 's record of prior arrests, d rug abuse, or false accusations; object to the admission of the unsigned DNA report; subp o ena MacDonald's initial arrest video ; seek admission o f the complainant's clothes to show th at they were not torn or blood stained; object to the introduction of maps introduced v iola tion of the hearsay rule; inv est igate MacDonald 's prior convictions; object to the prosecutor's interview M acDon a ld ; object to the complainant's trial testimony that she was ufighting for E erl life' when no such h ' stat em en t had been previously made prior tria l ; the ob ta in photographs of complainant after the incid ent or other evidence demonstrating that there w as no fight; p rep a re for or take notes during voir dire ; prevent or object the court's bias; in terv iew MacDonald for more than one hour; object to the judge's inflammatory comments during v oir dire ; inv est igat e evidence regarding the complainant's pa st sexual activity ; and inv est igat e the condoms found Ca r . th e complainant's M ac Don ald was denied effective counsel on appeal b ec aus e only one error was raised in the appellate b r ief and in the PDR . The trial judge engaged in misconduct by ( HR at S 16-17) exp res sing her personal opinion during voir dire rega rd in g MacDonald's guilt or innocence; not allowing MacDonald 's defense counsel to crossexam ine the complainant; and deny ing MacDonald the right to testify in his b eha lf by requiring him to answer questions only w ith a yes or no while allowing the complainant to answ er freely . M acD ona ld was denied due process and a fair and impartial trial because ( HR at 18-19) S the prosecutor injected an imp rop e r argument ; - 4- the evidence conv ict ion ; was insufficient support no one investigated the eight phone calls that occu rred during the incident; no one from Microsoft testified regarding the accu rac y or reliability of the map s used at trial; and M acD ona ld coun sel . was denied effective assistance of M acDon a ld was not provided a complete set of court reco rd s on appeal because the following were lost or missing ( HR at 20): S p age s 149, and 303 of the transcript; juror information cards; cou rt 's admonishment to MacDonald during trial ( ourt's record only indicates that the judge spoke c to him while the jury was out of the room); and the The Court reading of the jury charge during the p un ishm ent phase . Criminal Appeals denied the habeas app lication w ith out a written order on findings of the trial court without hearing . May Ex parte MacDonald, No. 71,881-01 ( ex . Crim . App. T 2009) Ma cDona ld filed the inst ant habeas petition 2009. this court on A ugu st II . Facts Established at Trial Du e to the nature of MacDonald 's claims, a review of the facts estab lished during state trial would be useful evaluating The opinion of th e Petition and the Motion for Summary Judgment . th e First Court Appeals included detailed account evidence presented at trial, which the re sp on den t cop ied verbatim th e Motion for Summary Judgment . See Docket Entry No . M ac Dona ld v . State , WL 2130943, at 3- To avoid repetition and the sake of providing more cohesive analysis of the trial evidence fact s , the court makes the fol low ing summary ( ee Trial Record E RI, Vo lum e s S T The complainant, Sheila Jares, met MacDonald at a bar called Lola 's sometime after m idn ight on October she and her girlfriend had been 2005 . Previously, Halloween block party where After leaving the party, she had four or five alcoholic drinks. Jare s returned home, had a glass wine, and then went to Lola's bu y cocaine . However, Jares did not see her coca ine dealer at Lola 's she ordered drink at the bar where en coun tered M acDon ald . conve rsed The two were acqu aint ed with each other but friendly m ann er , and MacDonald gave Jares a business card with his name and phone number on Jare s admitted at trial that she had consumed six seven drin ks during the course of the evening that the assault occurred, b ut she testified that it was unusual for her drink that m uch and that she felt c lear -h ead ed and that her memory was not imp a ired that night . that her dealer was Vol. g oing 195-96) show Jares, realizing and thinking that M acDon ald was trustworthy, asked him if he knew where she could get som e cocaine . MacDonald answered that he might be ab le to help her - 6- if he could make a teleph one call and if sh e would give him a ride . M acDon ald made the ca ll confirming the deal, and Jares agreed take him to the location the transaction . Each of them paid $25 .00 for about a gram of cocaine. ( R Vol. T They imm ed iate ly left after making the purchase . The complainant called h er friend, Mark Ziefchek, who invited her to com e a party at warehouse . ( iefchek would Z back more than a half-dozen tim e s during that night, and on several occasions, Jares would answer her phone and speak with him. Id. at 242.) Jares mentioned the party to MacDonald who expressed his interest but asked if they could first stop at m oney . Id . at 200 . storage unit so he could get some more Jare s then drove MacDonald to a gated but poorly storage fac ility where she parked her car, which she described as a twod oor , full-sized car with con sole between the driver p asseng er seats . While Jares remained d r iv er 's seat and comm ent with sexual m ade another phone call, MacDonald made overton es . Although the two had been previously drinking and, this time, had used cocaine together, Jares was nkind of shocked' ' and told MacDonald that such comment was inappropriate. (R T Vol. III at 207) However, Jares did not feel threatened, and joked that she would ukick E isq ass' when he made h ' comm en t . second suggestive Id . at 208 . MacDonald responded by immediately lunging This caused b0th over the console at Jares and opening her door . them g ra ssy area ; Jares landed on her back with MacDonald on top of her . Id . at 208-210, 220 . Jare s tried to free herself by using her legs to move backwards, b ut MacDonald pinned her with str ike her . forearm although he could get away, Jares, angry but hoping that cur se d at MacDonald and told him that she and the patrons at Lola's knew who he was . M acDon ald told her to stop struggling or that she wou ld m ake things worse her . Jares became more enraged and fough t harder; however, when she realized that she was isolated and at a serious disadvantage she then began to fear that she could be mu rd ered . MacDonald told her that he did not want an ything othe r than have sex with her . M ac Dona ld then pulled off Jares's pants and performed oral sex on her vagina . Id . at 220-21. Jares, still feeling angry, began cry but was unable get away because MacDonald 's arms were ho ld ing her legs . Further, she did not try to escape because she wa s naked from the waist down and did not think tha t she could get away , and any attempt at 221-22, 225 . run would make matters worse for her . Id . sexually MacDonald continued using his mouth as sau lt Jares for approximately brea ks from the ravishment fo r his behavior . Id . at 223 . order m inu te s taking intermittent talk to her and apologize Jares, being partially unclothed, When re sp onded that she was freezing and asked for her pants. M ac Dona ld refused, Jares then suggested the y could at least - 8- climb back into her carr and he agreed after sev e ra l requests . Id . a t 225 . Although Jares had become submissive , she was still trying t o think One plan was way in which she could manage to escape . Id . at 226. coax MacDonald to go around the passenger side Id . However, th e car, giving her an opportunity get away . Mac Donald did not fall h er ruse but roughly told her to nstop f-- -ing around' and pushed her through the driver's door into the ' b ac kseat of M ac Donald ca r . got Id . into the backseat with Jares and began apo lo gi zin g again for his behavior although refusing her request for the return of her pants . Id . at 228-29. Jares inquired about going he r friend Mark's party which MacDonald gave an a ffirm at iv e response; however, he then resumed his sexual assault on her using his mouth . Id . at 229-30 . At some point during the ep i sod e , MacDonald undid his pants an d began to masturbate but was unab le to achieve an erection , probably due to h is cocaine use . Id . at 231-32 . Apparently frustrated with his inability him se lf , MacDonald invoked Jares's help , which give . Id . arouse declined MacDonald then grabbed her by the neck forcing her m outh to come into contact with his penis, much Id . at 233 . A lth ou gh her disgust . M a cDon ald was ever able get an erection, he did manage use his penis penetrate her vag in a , without her consent , and assaulted her in that manner . - 9- at 236-237. MacDonald fina lly ceased molesting Jares be fore d aw n . Id . at 238 . When he was finished , MacDonald put his head in h and s and made intend th is to happen, primarily to him self . Id . He then asked Jares sh e would drive b ack to truck . Id . at 238-39 . A lth ough was apparent that MacDonald was done with his Jares's keys . Jares, unsure the m olesta tion , he still a ssault was over, agreed reached for her pants. take MacDonald back and tentatively The two individuals climbed Id . at 239. b ack into the front of the car, got dressed r and Jares drove M acDona ld back to Lola's . Jar es testified that the two engaged small talk on the retu rn drive and that MacDonald even gave her another card to make su re she had his number . Id . at 242 . He then gave her his cell phone so that she could put her phone number on Jd at -= Ja re s , not wanting to provoke MacDonald, feigned d ia ling her number on the phone and gave d iscover her deception . ba ck Id . h im hoping that w ou ld not Ja res further testified that she received phone calls from and spo ke to her friend, Mark Ziefcheck, throughout the evening in cludin g the period in which she was being raped . Id . When asked conve rsa tion , Jares answered that it was on ly small talk and concern the assau lt . Id . She exp lained that she did not tell Ziefcheck that she was trouble because she was afraid that M acDon ald would react violently . Id . Jare s did convey an oblique plea for help by rem in d in g Ziefcheck of an instance when he saved her from drowning; however, Ziefcheck failed to comprehend the purpose of her story, and Jares gave up trying . Id . at Wh en MacDonald finally left Jares at Lola's, she wrote down h is license plate number . thi s time revealing what b rea king down . Id . the assault . She then called Ziefcheck once again, h ap p ened h er and emotionally 253 . A fte rw a rd s , she phoned 911 to report The police interviewed Jares while she was at a car wa sh near Lola 's r and she briefly described what happened to her . Id . at Jares later went hospital for a rape exam in ation , wh ich took three hours and required her to give samples such as ha ir and saliva . Id . at 266-67 . A forensic DNA analyst testified du ring the trial that a sperm sample taken from Jares's vagina was te sted and had a DNA profile that closely matched that Mac Dona ld rs , indicating that there was less than one chance in one hund red thousand that another person could have contributed to the sam p le . Id . at W ith regard to the violence of the assault , Jares admitted tha t MacDonald never slapped wou ld strike her hit her; nor did he say that he weapon . Id . threaten her with How ever , Jares asserted that she never gave any indication she consent ed to having sex with MacDonald and that she resisted him forcefully by scream ing and kicking at him . M oreove r , she begged him Id . at 271, 289. Id . at 271 . stop and cried often . Jares asserted that any sexual inv olun tary and that she only submitted seriou s harm or possible death . Id . w ith MacDonald was h im ord er to avoid And el Gindy, exam in ing physician , assisted by Nurse Angela Adolph, reported that there were no injuries to Jares's genita lia . Id . at 63 . He did confirm that there was sperm found Id . in the specimen indicating that intercourse had taken place . at 66. G indy went on e xp la in that sexual intercourse can occur without injury regardless of whether the act was consensual not . Id . at 64 . He also testified that he saw bruises and Id . at Th e hospital also ab ras ion s , mainly on Jares's back . p hotog rap hed Jares and documented bruises and scratches to her back and buttocks, which Jares attributed her struggle with M acDona ld . Id . at 267-68 . ob serv ed fresh scrapes on Jare s's back and buttocks as well as fresh b ru ise s on her right forea rm , wrist, and thigh . Id . at 49-54 . Adolph further testified that Jares smelled alcoh ol when she was examined , but did not at 48 . She also testified that otherw ise appear intoxicated . Jare s was shaky, withdrawn, but cooperative . Id . Moreover, Jares w as frank and forthright when providing information during the exam in ation , including her use of cocaine that night . Id . - 12- On November 2005, Houston Police Sergeant Bobby Roberts, to investigate sex crimes at that time, w ho was assigned interv iewed Jares about the assault . Id . at 77-79. Jares gave a length y , forthright statement about the incident leaving no detail in clud ing her use of cocaine . testi fied that he Id . at 81 . Sergeant Roberts a lre ady developed a suspect based on the initia l police report that included license plate information, w hich 1ed to the registered owner of the vehicle driven by the susp ec t . d ev elop Id . at 82-83 . Sergeant Roberts used the information to similar men p h oto array that included six pictures includ in g one of MacDonald . Id . at 83-84. He showed the array to Jares who positively identified MacDonald as her attacker . Id . at Serge ant Roberts described Jares as being tearfulr trembling, and pausing at times during the interview, but also being very can did . Id . at 86-87 . Jares accompanied Roberts to the storage facility and showed him wh ere the assault occurred . Id . at 87-102 . Se rgeant Roberts entered the storage shed at the site and found one o f MacDonald's business cards . Id . at 104 . Roberts also iden ti fied photographs taken of Jares when she came to his office Nov em be r =d I He testified that the photos accurately depicted the scrapes and injuries on her body, con sisten t with her version of the events . Id . at M ac Dona ld gave his version of the events that occurred during the night of October 3l-November 1, 2005, confirm ing that the two - 13- had sex but that the act w as consensual . Lola 's having m eet in g Jares . He testified he was few drinks and playing pool that evening before Volume After shooting pool, was sitt in g at the bar when Jares approached him looking depressed sad . Id . When he asked Jares, who appeared hur ry , what was wrong she answered that she was looking for some coca in e and wondered if he knew anybody who could her some . Id . at 49-50. MacDonald answered that he might know someb ody , and Id . at A fte r con firm ing that the he called an acquaintance . acqu aintan ce had some cocaine for sale, the two le ft in Jares's car to make the purchase . Id . at 51-52 . To gethe r MacDonald and Jares bought a gram of cocaine at the acquaintance's house, each paying $25.00, and about five minutes late r , 50th snorted some of hou se , MacDonald asked Jares Id . at 52-53 . After leaving the take him to storage unit to get some more money so they could uparty .' ' Id . at 53-54 . However, when they arrived there he realized that he could not go inside unit because he had left Inste ad , they parked near toge th er . key s inside tru c k . Id . s to rage unit and ndid some coke' ' The tw o discussed the complainant 's lesbian sex life, had been and the fact that m an .' ' Id . at 56. long time since she 's been with a They 50th g ot out of the car uto get some fresh l acDona ld exp lained that they would p lace a small amount of cocaine M on one of his keys and then inhale it through their nostrils . This is referred to as doing nbumps of coke .' Id . at 53 . ' and MacDonald smoked a cigarette wh ile two continued to t alk . Id . He stated that they then began to embrace and kiss each o th er with Jares taking an aggressive role 'li ke a nympho but real ' w ild . J d at -= tw o then sank the ground where Ja re s , with MacDonald's help , removed her pants, and he performed o ra l sex on her . h im Id . at 59 . MacDonald testified that Jares never Id . stop or quit; nor did she ever cry or scream . 5 8, 63 . MacDonald also denied making any threats or telling Jares not to umake it worse than it already Id . at He also stated that Jares appeared to be enjoying the experience and that h e did grab her by w rist or force her into the car when Id . at 59. Ja re s behaved during intercourse , they got back inside . Wh en asked about M acDona ld answered that she was nreal aggressive, kind of like, you know , moving around a lot .' ' Id . at When asked whether she appeared to enjoy the intercourse, MacDonald responded, nMost d efinite ly .' Id . at 64. When they were through , MacDonald got out ' o f the car to put his clothes on . Id . He then sm oked a cigarette an d used the restroom beside the storage building about feet from the Id . Meanwhile, Jares was still in the Id . 65 . b acksea t , and her car keys were still in the ignition . M acDona ld testified that he saw that Jares had a bruise inside of h er thigh, and one on her arm near her wrist . te sti fied that he never apologized Id . He also Jares and that Jares drove Id . at 66. h im back to his truck, which was parked near Lola's . - 15- During cross-examination, MacDonald stated that he felt that Jares was using him as a scapegoat and that Jares was framing him t o avoid trouble with her girlfriend . M acDona ld also acknowledged that Id . However, reporting the rape subjected Jares wou ld have been easier to have unw an ted attention and that n ot reported the crime . Id . at 104-105 . On redirect, he explained tha t he felt that Jares made her accusation because ' sh e 's probably ' go in g to get kicked out her relationship with her girlfriend bec au se she had an affair with a heterosexual man .' Td . at 108. ' 111 . MacDonald 's Grounds for Relief M ac Dona ld asserts the following grounds for relief in his petition ( ocket Entry No. D A. B. 7-15 unless otherwise noted): support and the There was insufficient evidence to conv ic tion . The prosecutor committed M ac Don ald due process by misconduct denied b olste ring the complainant's testimony during h is closing argument; m aking false promises to MacDonald that the grand jury would uno bill' him; ' making misleading statements to the jury d uring his closing argument; and fai lin g to indi ctm en t . prove a11 elements the M acDon ald 's trial counsel was ineffective because he failed to 1. object to prosecutor's misconduct; - 1 6- interview witnesses; 3. call witnesses that could have assisted the de fen se ; 4 . p re se rve errors made by the prosecution; inv e stiga te evidence including Jares's blood a lcoho l level, the eight phone calls made du ring the incident, and the condom s found in Ja res 's ca r; p rev ent the M a cDona ld ; prosecution from interviewing inv est ig ate MacDonald's p rior s ; 8. object to the unsigned DNA report; subp oena the video of MacDonald made after ar rest ; 10 . seek admission of Jares's clothes at trial show that there was no struggle; object to the admission of maps at trial; e ffective ly cross-examine inc onsi stent statements; Jares on prior ta ke notes during or prepare for voir dire; p rev ent the court from being none-sided' ; ' con fer with MacDonald for more than one hour on two occasions prior to trial; and object to the judge's inflammatory comments p rio r to voir dire . The trial judge denied MacDonald due process as se rting d ire ; her personal opinion during d eny in g MacDonald 's attorney the right to question potential jurors concerning their b el ie fs about reasonable doubt; denying MacDonald th e right to answer fu lly and unabated his t rial counsel's questions; and aban don in g her nneutral status in favor of the Sta te .' ' M ac Dona ld was denied a fair and impartial trial as p rev iou sly stated in the above grounds. M ac Dona ld 's appellate record was incomplete . The Texas Court of Crim in al Appeals failed to issue a written opinion when it denied MacDonald 's state habe as application . IV . Standard of Review @nd Applicable Lawa MacDonald's petition for a writ of habeas corpus is subject to rev iew under the federal habeas statutes as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (' EDPA '). 'A ' 28 U . . . 5 SC 2254; Woods v. Cockrell, 3O7 F.3d 353, 356 ( th Cir. 5 3 5 2002); Nobles v. Johnson, 127 F. d 409, 413 ( th Cir. 1997), citinq L in dh v . Murphv, 2059, 2068 ( 997) . 1 A federal habeas pet ition er challenging state court decision is not entitled relief unless the state court judgment (1) resulted in a decision that was contrary to, or inv olved an unreasonable application of, clearly est ab li sh ed Federal 1aw as determ ined by the Supreme Cou rt of the United States; or ( ) resulted 2 in a decision that was based on an un rea son ab le determ in ation of the facts in light of the ev idence p re sen ted in the State court proceeding . 5 2254( ). d The 1996 AEDPA nmodified federal habeas court 's role p rev ent federal rev iewin g state p ri son er app licat ions in order - 18- habeas 'retrials' and given effect en su re state-court convictions are the extent possible under law .' Bell v . Cone, 122 ' S . t . 1843, 1849 ( 002), citin? Williams v. Tavlor, 120 C 2 1495, 1518 ( 000). Habeas relief should only be granted where the state 2 court decision both incorrect and objectively unreasonable. Martin v . Cain, 246 F.3d 471, 476 ( th Cir. 2001), citin? Williams, 5 at 1521 . A n aly sis A. Sufficiency of the Evidence Leqa l Sufficiencv Th e respondent argues that this act ion should be dismissed for fai lu re to exhaust state court remedies . Applicants seeking habeas rel ie f under 5 2254 are required to exhaust a11 claims in state court prior to requesting federal collateral relief . Whitehead v . John son , F.3d 1998) Th i s means that the sub stan ce of each federal habeas claim mu st be fairly presented to the highest state court, this instance the Court of Criminal App ea ls , and the requirement is not satisfied if new legal theories or new factual claims are included in the federal application . Id . To the extent that MacDonald argues that the evidence subm it ted his trial was legally insufficient support conv ic tion , the claim was not included in his direct appeal, which explicitly stated that uE qhe evidence was factually insufficient t establish that ( acDonald q committed sexual assault as alleged M - 1 9- the indictment .' ' M acDon ald v . State, 0 1-0 6-002 35-CR ( ppellant's Brief at A Factu al sufficiency of th e evidence d istingu ishab le from legal sufficiency of the evidence under Texas law . See Youn? v . State, rev iewin g S. . d W3 ( ex . Crim . App . 2009). T legally insufficient claim that evidence support judgment, uthe relevant question on appeal is whether, the light most favorable fac t could have found the afte r viewing the evidence p rosecu tion , any rational trier essen tial elements of the crime beyond a reasonable doubt .' Young, ' 28 3 S .W .3d at 861, a uot in a Jackson v . Virainia, S .C t . 2781, 2789 ( 979). 1 Factual sufficiency invokes two-part first p art requires the court to determine whether the evidence, although legally sufficient, uis so weak that the jury's verdict seems clearly wrong and manifestly unlust.' Battise v. State, 264 S. .3d ' W 22 2 , ( ex . App . T Houston (14th Dist.l 2008) The second part requires the court lega lly sufficient, ask whether 'the jury's verdict, although ' nevertheless against the great weight and Id . In conducting factual p rep onde rance of the evidence .' ' su fficien cy review, an appellate court views n eutr al light . Id . of the evidence in A legal su fficien cy claim was PDR , and has been long presented MacDonald 's established that challenges su ffici ency of the evidence cannot be presented in state habeas application . Ex parte Griqsbv, S. .3d 673, 674 ( ex . Crim . W T App. 2004); Ex parte Christian, S. . d W2 ( ex . Crim. T App . 1988)7 Ex parte Easter, 615 S. .2d 719, 721 ( ex . Crim. App. W T 1981) Therefore, MacDonald's challenge the legal sufficiency Renz v . Scott , 28 F .3d o f the evidence is procedurally barred . Cir . 1994). MacDonald has failed demonstrate cause and prejudice that failure consider the claim would result fundamental miscarriage justice, which would F .3d 484, 491-92 ove rcom e the default . Mo rri s v . Dretke, 2005). Factu a l Sufficiencv A s stated above, a factual sufficiency challenge differs from a legal sufficiency challenge by going beyond questioning whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt . See Battise , 264 S .W .3d at The authority for such a review derives from state 1aw and not federal constitutional law . Se e Clewis v . State , 922 S.W .2d 126, 129-130 ( ex . Crim. App. 1996). See also Woods v. Cockrell, T F .3d 353, 2002) ( The Texas Court of Criminal n Ap pea ls has ruled that the Texas constitution imposes a requirement an appellate court review the factual sufficiency the elemen ts of an offense that more stringent than that imposed under the United States Constitution's due process clause.' r /l cit in? Clewis 129-130 . When reviewing challenge the su fficien cy of the evidence a criminal conviction a federal habeas court applies only Jack son v . Vircinia standard p ro of , even th e state courts require higher standard . Pemberton v . Collins, F. d 2 1218, 1224 1993). Mac Donald 's factual sufficiency claim will be denied because doe s not involve right estab lished by federal constitutional statutory law . tiona l standard See also Woods, 3O7 F. d at 358 ( exas constitu3 T the factual review of the elements fede ra l habeas p roceed ing , only a crime federal canno t be utilized standard). B. Pro secu tor Misconduct M a cDon ald alleges that the prosecutor m isle d and made false promises regarding a uno bill' from the grand jury. He also ' a llege s that the p rosecu tor committed misconduct when he misled the jury and bolstered the complainant's testimony during final a rgum ent . In addition , MacDonald argues that the prosecutor's fa ilu re to p rove a11 of the elem ents of the offense constitutes m iscondu ct . W hen considering a claim of p ro secu tor ial misconduct the court mu st determ ine whether the alleg ed misconduct was ' Ao f sufficient ' sign ifican ce to result in the denial of the defendant 's right to fair trial.' ' Greer v . Miller, 1O7 S. t . 3102, 3109 ( 987)7 see C 1 a lso Kutzner v . Johnson , F .3d ( th Cir. 2001) ( he 5 T court must decide whether the prosecutor's actions uso infected the tr ia l with unfairness as make the conviction a denial of due process.' . A trial is not considered fundamentally unfair unless ') is shown that nthere a reasonab le p rob ab il ity that the verd ict might have been different' had the misconduct not occurred . ' Barrientes v. Johnson, 221 F. d 741, 756 ( th Cir. 2000). 3 5 The state habeas court considered and rejected the allegation that the p ro secu tor promised that MacDonald 's case would be no b il led . SHR at 103 . This finding was based on an affidavit subm itted by MacDonald's trial attorney in which he unequivocally stated that the State never promised MacDonald that his case would b e dismissed if he testified . SHR at 76. A federal habeas court m u st presume the underlying factual determinations of the state court to be correct unless the petitioner urebutEsq the presumption co rrectn ess by clear and convincing evidence .' ' 28 U .S .C . 5 2254( ) ( ); see also Miller-El v. Cockrell, 123 S. t. 1029, 1042 e1 C ( 003). MacDonald has 2 presented any such evidence. The state habeas court held that MacDonald's other claims of pro secuto ria l misconduct were procedurally defaulted because they were not raised on direct appeal. SHR at 99-100. ' plrocedural U dismissal of de fau lt occurs where a state court expressly bases c la im on an independent and adequate state procedural ground .' ' Moo re v . Ouarterman, Co lem an v . Thompson , 454, S . t . 2546, 2557 C Cir . 2008), citin? ( 991) 1 Federal cou rts are precluded from granting claims for habeas relief when such claims have been rejected sta te-law procedural grounds . - the state courts based on Cotton v . Cockrell, 343 F .3d 2 3- 754 ( 003). 'This doctrine ensures that federal courts give proper 2 ' resp ec t to state procedural rules .' Glover v . Cain , 128 F .3d 900, ' ( th Cir. 1997), citin? Coleman, 5 Edwards v . Caroenter, 120 p rocedu ral default doctrine S. Y . C 2565: see also 1587, 1590 ( 000) ( inding the 2 f be ugrounded co nce rn s of comity and federalism/). ' M acDon ald may only overcome p ro cedu ra l default by demonstrating cause and prejudice or that failure to consider cla im would result fund am en tal m iscar riag e Ju stice . ' M orr is, F .3d at 491-92 . Cause is dem on strat ed by establishing that some objective external factor imped ed MacDonald 's efforts to p resen t his claim the state courts. Meanes v . Johnson , 138 F .3d 1007, 1011 ( th 5 1999). Prejudice established when trial p et itione r demonstrates nnot merely that the errors at created rossibilitv of prejudice, that they worked his actu al and substantial disadvantage , infecting h is entire trial with error of constitutional dimensions .' Moore v . Ouarterman, ' F .3d 454, 463 ( th Cir. 2008), guotinq United States v. Fradvz 5 S. t. 1584, 1596 ( 982). The fundamental miscarriage of justice C 1 excep tion is confined to cases where the petitioner can show that he actually did es sen tia lly , commit the acts m ust prove that he which he was charged; innocent the crime . Fairman v. Anderson, 188 F.3d 635, 644 ( th Cir. 1999). MacDonald 5 ha s failed to prove that he entitled to these exceptions . - 2 4- Prosecutorial statements are rev iew ed under a strict standard w hen a habeas petitioner alleges that they are improper . Dowthitt v . Johnson, 230 F.3d 733, 755 ( th Cir. 2000). ' E qt is not enough 5 'l that the prosecutors' remarks were undesirable or even universally condemn ed . The relevant question whether the p ro se cu tors ' make the Darden v. comm en ts so infected the trial with un fa irne ss as resu lt in g conviction den ial due process .' ' Wainwricht , 106 2464, 2471 ( 986) ( nternal quotations and 1 i the citations omitted) ( inding that a prosecutor's reference f defendant as an nanimal' was not a due process violation). Apart ' from un supp or ted statements, MacDonald has pointed eviden ce that proves that the prosecutor engaged in conduct that viola ted due process rights . Therefore, claim p rose cu tor ial misconduct will be denied . C. Ineffective A ssistan ce of Trial Counsel M acDon ald argues that trial counsel failed to provide effec tiv e representation . The Sixth Amendment to the United States Const itu t ion guarantees criminal defendant the right the effect iv e assistance of counsel . U .S . CONST. amend . VI . A federal h ab ea s corpus petitioner's claim that he was denied effective assi st an ce of counsel is measured Stric kland v . Washincton, S .C t . the standards set out ( 984). 1 establish a succe ss fu l ineffectiveness claim , a p et it ion e r mu st show b0th const itu t io nal ly de fic ient performance - by counsel and actual 2 5- prejudice as 20 64 . result of counsel's deficient performance. Id. at The failure to demonstrate either deficient performance actual prejudice fatal ineffective assistance claim. Green v. Johnson, 16O F. d 1029, 1035 ( th Cir. 1998). 3 5 coun se l 's performance deficient falls below an objective standard of reasonableness. 20 64 . Strickland, 104 at In determining whether counsel's performance was deficient judicial scrutiny must p resump tion favor highly deferential, with a strong finding that the trial counsel rendered adequa te assistance and that the challenged conduct was the p rodu ct rea soned trial strategy. West v . Johnson, F .3d 1385, 1400 ( th 5 1996). To overcome this presumption a petitioner must coun sel that were not the result iden ti fy the acts or omissions reasonable professional judgment. Wilkerson v . Collins, 95O F .2d 1054, 1065 ( th Cir. 1992). However, a mere error by counsel, 5 even if p ro fes siona lly unreasonable, does not warrant setting aside the judgment the judgment. from the error had no effect on Strickland, 104 S. t. at 2066. C shown there Actual prejudice deficiency a reasonab le prob ab ility that , but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 2068. The prejudice inqu iry focuses on whether counsel's deficient performance renders th e result of the trial unreliable or the proceeding fundamentally unfair . Lockhart v. Fretwell, 838, ( 993). 1 Unrel iab i lity or un fai rne s s does not result if the ineffectiveness does not deprive the defendant righ t to which he is entitled . pet ition er has the burden any sub st an tive Id . procedural In a habeas proceeding the that counsel was proving ineffective . United States v . Chavez, l93 F.3d 375, 378-79 ( th 5 F .3d ( th 5 1999), citin? Clark v. Collins, 1994). h is state habeas application M acD on ald alleged twenty-two acts wh ich his trial counsel was ineffective . Ex parte M acDona ld , No . 71,881-01 at 29-31. ordered the trial attorney, Sam In response the trial court Maida, file affidavit summ ari zing his actions as counsel . Id . at 56-57. A ft er reviewing Maida's affidavit ( d . at 74-78.) and referencing applicable case I law , the state court included the following F ind ing s of Fact and Conclusions Law : very thorough The applicant fails to demonstrate, nor does he even allege, that any of the alleged failures to object would have resulted in trial court error, had the judge overruled the objections. 14 . The applicant fails to demonstrate that counsel 's failures to object were unreasonable, and that but fo r the alleged deficiencies, a reasonab le p rob ab ility exists that the result of the p roc eed in g would have been different . 16 . The applicant fails to allege the names of any w itne sse s that could have been favo rab le to the d e fen se , and what their testimony w ou ld have been . Th e applicant fails to sh ow that counsel's inve st iga tion of witnesses w as deficient . - 2 7- l8. The applicant fails show w ha t further inv est igat ion would have revealed w ith respect to the phone calls. The records reflect that the phone records were int rodu ced at trial, and the name of the caller was identified . ( R . . 255). 3 R 20 . The applicant fails to show that counsel's inve st igat ion into the phone calls was deficient. 21 . The applicant fails to demonstrate that any tox ico logy was run on the complainant's blood imm ed ia tely following the sexual assault . The records reflect that the complainant's medical reco rd s were admitted as evidence at trial. ( R . . 45-46), See 3 R E xh ib it 5 . also from trial, State's 23 . 80th the complainant and the applicant testified cons isten tly with regard to the complainant's use of drugs immediately preceding and during the sexual assault . ( R . . 195-196, 206-207, 276-278, 3R 282-284, 4 R. . 53, 55-56, 77, 87, 97). R Th e applicant fails to show that counsel's inv e stiga tion of the complainant's alcohol and drug lev e ls at the time of the offense was deficient . 2 5 . The applicant fails to allege what further inv est iga tion of the complainant's background would h av e revealed . 26. The applicant fails to show tha t counsel's inv est iga tion of the complainant w a s deficient . The applicant fails to demonstrate, nor does he a llege , any specific errors in the enhancement pa rag rap h s or that any misrepresentations were made con cer ning any part of the applicant's criminal history that was presented to the jury. 28. The applicant fails to show that counsel's inv est igat ion of the applicant's prior convictions wa s deficient . 29. The applicant fails to allege with any specificity w hat further investigation could or should have - 2 8- been done with respect to the packaged condoms fou nd in the complainant's car , as well as what any su ch investigation might have revealed . The applicant fa ils to show that counsel's inv est igat ion of the condoms was deficient . A cco rd in g to the credible affidavit of Sam A . M aida , counsel did receive and view a copy of the app l ican t 's initial arrest video . 32 . According to the credible affidavit Sam A. Maida , counsel did made ( ic) an audio copy of the s app l ican t 's initial arrest video and listened to it w ith the applicant . A ccord ing to the credible affidavit of Sam A . M a id a , counsel did not believe it was necessary or ben e ficia l to try to use the initial arrest video a t trial . A ccord ing to the credible affidavit of Sam A . M a ida , the applicant made statements on the initial a rrest video that could have been detrimental to the defense . 35 . According to the credible affidavit of Sam A . M a id a , the app licant stated on the initial arrest vide o that he took the comp la inan t to buy drugs b ecau se he wanted to get 'laid .' ' ' 36 . The applicant fails to show that counsel's in ve stiga tion and failure to use the initial arrest v ideo at trial was deficient . A cco rd ing to the credib le affidavit of Sam A . M aida , counsel did not take any photos of the app l icant at or near the time of his arrest to show the absence of injuries. A ccord ing to the credible affidavit of Sam A . Maida an d supported by the probable cause affidavit, the comp la inan t alleged that the applicant held her down and placed his forearm across her neck during the sexual assault, told her to calm down , and she stopp e d fighting . 3 9 . According to the credib le affidavit of Sam A . M a id a , the absence of wounds on the app lican t was n ot inconsistent with the assault as alleged . - 2 9- 40 . According to the credib le affidavit of Sam A . Maida and supported by court records, counsel was not app oint ed to the instant case until ten days after the alleged offense . A cc ord ing to the credible affidavit of Sam A. Maida, even if the applicant had been injured by the comp la inant fighting him off during the assault, in ten days, any injuries could have hea led . 42 . The app licant fails to sh ow that counsel's inve stig at ion of and failure to take photos of the lack of any injuries on th e applicant was de ficien t . 43 . The applicant fails to demonstrate that counsel's inve stig ation into the instant offense was u nre ason ab le , and that but for the alleged d ef icien cies , a reasonable probability exists that the result of the p rocee din g would have been d if fe ren t . 44 . According to the credible affidavit of Sam A . M aida , the applicant did speak with the State in coun sel 's presence because the applicant insisted th at counsel was not doing enough for him , and d em and ed to speak to the prosecutor. A cco rd ing to the credible affidavit of Sam A . M aida , counsel was present for all of the conve rsat ion that took place between the app lican t a nd the prosecutor, which took place in the h oldov er cell of the courtroom and did not last for m ore than several minutes . Th e applicant fails to show that counsel's ag reem ent to allow the State to speak with the app l icant at the applicant's request was deficient . 52 . According to the credible affidavit of Sam A . M aida , counsel wrote 6 pages of notes during voir d ire . 5 3 . A ccord ing to the c re d ib le affidavit of Sam A . M a id a , counsel was n ot ngenerally confused' during ' vo ir dire . - 30- According to the credible affidavit of Sam A. Maida, counsel's failure to take a note on juror 61 wa s the result of counsel paying more attention to m emb er s of the venire that had a greater chance of actually being seated on the jury. 55 . According to the credib le affidavit of Sam A . Maida and supported by court records, the last member of the venire actually seated on the jury was number 55 . 56 . The app licant fails to show that counsel's p er forman ce during voir d ire was deficient . A cco rding to the credible affidavit of Sam A . M aid a , counsel visited with the applicant six or seven times in the holdover cell of the courtroom, and twice at the Harris County Jail. A cco rding to the credible affidavit of Sam M aida , each of the two visits with the applicant the Harris County Jail lasted four hours . A cco rd ing to the credible affidavit of Sam A . M aida , before trial counsel discussed with the app l icant what to expect from his direct exam ination and had him listed E ic) to the audio s o f his initial arrest tape to refresh his memory as t o answers the applicant gave during his initial in terv iew . A cco rd ing to the credible affidavit of Sam A . Ma ida , before trial, counsel played udevil's adv oca te ' and prepared the applicant for cross' exam in ation . 61 . A ccord ing to the credible affidavit of Sam A . M a id a , counsel believes the app lican t was ade qua tely prepared for trial. 62 . The applicant fails to demonstrate that counsel's p rep ar ation and preparation of the app lican t for tr ial were deficient . A cco rd in g to the credib le affidavit of Sam A . Maida and supported by the record, counsel did crossexam ine the complainant regarding her statement in w hich she says she was utrying to stay alive .' ' - 3 1- 64. According the credible affidavit of Sam A . Ma ida , the comp la in an t's response to counsel's c ro ss -exam inat ion regarding her statement that she wa s utrying to stay alive' did not seem very ' c red ib le to counsel . 65 . According to the credible affidavit of Sam A . M a id a , counsel did not want to give the comp lainan t an opp ortun ity to better explain or nclear up' the ' an sw er that counsel did not believe was very cred ib le . 66. 67 . The applicant fails to demonstrate that counsel's cro ss examination of the comp lainan t was deficient. The applicant fails to demonstrate that counsel's p rep a rat ion and trial performance was unreasonable , and that but for the alleged deficiencies, a reason ab le probability exists that the result of th e proceeding would have been different . Th e representation of cou n se l received by the app lic ant at trial was su fficien t to protect his co nst itut ional right to reasonably effective a ssist ance of counsel. Ex parte MacDonald, 71 ,8 81-0 1 at 100-104 . Th is court affords th e presumption of correctness to the state cou rt 's findings o f fact and will not hold that they are erroneous un le ss MacDonald rebuts them with clear and conv in cin g evidence . Galvan v. Cockrell, F.3d 760, 763-64 Cir . 2002) Ma cDonald has failed to do so . Moreover, this court has previously found the re no showing that p ro secu to r engaged m isconduct; therefore, any objection would have been pointless. See Johnson v . Cockrell, 306 F.3d 249, 2002) ( ounsel c is not obligated to raise futile objections). There is no showing that Maida should have objected the DNA report, Jares's 'trying ' to stay alive' statement, the maps, the court's bias, ' the judge's comments during voir dire. Such objections do not appear t o be sound trial strategy and would have been of no avail for the defense . Consequently, Maida's failure to object was not deficient or prejudicial to MacDonald under the Strickland test. Green v. Johnson, 160 F. d 1029, 1037-1038 ( th Cir. 1998) 3 5 cour t views warily claims regarding uncalled witnesses. Dav v. Ouarterman, 566 F.3d 527, 538 ( th Cir. 2009) ( omp laints 5 c ine ffect iv e assistance of counsel based on uncalled witnesses are not favored in federal habeas corpus review because presentation of test im on ial evidence alleg ation s of what matter witnesses would trial strategy and because have stated are largely speculative). who se MacDonald fails would have show that there were witnesses bolstered his defense, and testimony conc lu sor y assertions do not support a finding that his attorney was ineffective. See Smallwood v. Johnson, 73 F.3d 1343, 1351 ( th 5 1996), citin? Ross v. Estelle, 694 F.2d 1008, 1011-1012 1983) . M acDon ald complains that attorney was ineffective failing to investigate: ( ) the eight phone calls made or received 1 dur ing the crime, th e complainant, the comp la inan t 's blood and alcohol levels, and the condoms that were the comp lainan t 's car. He also complains that his attorney failed arrest and did not subp oena the video made of M acDon ald after take p icture s o f MacDonald when he was arrested to show that there was no fight . A11 of MacDonald's allegations are refuted by the state court's findings based on Maida 's affidavit . The state court found that Maida reviewed the arrest video and found that was help fu l because, among other things, M acDon ald admitted during the interview that he agreed comp la in ant because he wanted M acDona ld , 71,881-01 at 102 . have sex with help the Ex parte MacDonald's insistence that he should have been photographed show he had no injuries does not supp ort an ineffective assistance of counsel claim because the absence of injuries would have been inconsistent with the Id . The eight phone calls comp lainan t 's account of the assault. were discussed at 2 55 . Furthermore, MacDonald fails See 3 RR at sh ow how h is attorney was defic ient failing in ve stiga te utilize the calls . trial, there The comp la inan t 's records were admitted indica tion that toxicology tests were run on her during her rape exam in ation . 3 RR 45-46 . Moreover, the complainant admitted that she was using alcohol and drugs that evening . The record d em on strate s that MacDonald's attorney investigated the case, and M acDona ld has failed to show that his attorney failed to uncover ev id ence pertinent the case and how it would have helped him . See Evans v. Cockrell, F.3d ( th 5 2002)7 United States v. Green, 882 F.2d 999, 1003 ( th Cir. 1989). 5 M ac Dona ld alleges that attorney failed take notes du ring voir dire, that he did not confer w ith him for more than two hours, and that he was not prepared for trial . are refuted by These assertions state habeas court's findings and the trial record , which reflect that Maida understood the facts and the app licab le 1aw during the trial. MacDonald 's conclusory assertions to the contrary do not support his claims . Koch v . Puckett, F.2d 524, 530 ( th Cir. 1990). MacDonald also complains that his 5 a ttorney failed cross-examine the comp lainan t regarding her In response to the te stim ony that she was fighting for her life . c la im made in the state habeas application , Maida exp laine d in his a ffid av it that he cross-examined the complainant on her statement that she was fighting for her life when she shared cocaine with M acDon ald . Ex parte MacDonald, 71,881-01 at 77 . Her answer w as that she did so nunder duress .' Id . Maida thought her answer ' w as unconvincing and did not want to give her a chance to elaborate on The court will not second guess a trial attorney's informed tactical decisions. Crane v. Johnson, F.3d 309, 313-14 ( th 5 1999), citin? Garland v. Maqqio, 717 F.2d 199, 206 ( th 5 1983). M ac Dona ld argues that attorney was ineffective a llow ing the prosecution to interview him . a ffidav it that MacDonald insisted on Maida stated in his District talking to the A ttorney so that he could convince him that he was not gu ilty th e offense . Ex parte MacDonald, 71,881-01 at 75 . Maida fu rthe r stated that the interview only lasted few minutes in M acDon ald 's holding cell and that he was p re sen t throughout conversation . Id . The state court found that MacDonald failed to show that his attorney was deficient in complying with to speak with the prosecution . This court agrees . request MacDonald canno t claim that Maida was ineffective for allowing him to talk to the prosecution after he demanded an opportunity to share his side o f the story with the State. See Roberts v . Dretke , 356 F .3d 638 2004) habeas petitioner cannot claim ineffective as sistanc e of counsel when he blocks his attorney's efforts defend him) The state habeas court found that MacDonald failed dem on stra te any errors in the enhancement paragraphs or that any m i srep re senta tion s were made concerning his prior criminal history . Ex parte MacDonald r No . 71,881-01 at 101. atto rney was Therefore, MacDonald's investigate his prior de ficie nt Id . failing conv iction s . The court also found that MacDonald failed alleg e what further investigation of the complainant's background w ould have revealed and that attorney was deficient fail ing make such an investigation . Id . The court similarly found that MacDonald failed to specify what investigation could or shou ld have been made =d I regarding con dom s found com p lainan t 's car . Th is court agrees that MacDonald's neb u lous assertions that his attorney was deficient for failing to inve stiga te his background, complainant's background , or what was found the complainant's car do support claim ine ffe ctiv e assistance of counsel since MacDonald has failed - 3 6- even allege how defense would have benefitted from such an inve stigat ion . conce rnin g Moreover, MacDonald fails to exp la in his claims DNA reports the maps used trial and what b ene fit an exam in ation would have served . sp ecu late as what purpose This court w ill not the various investigations m atte rs would have served . Evans, 285 F .3d at 377 . M acDon ald has failed to dem onst rate that the state court's finding s of fact and conclusions of 1aw were contrary to , u nrea sonab le application Supreme Court regarding an claim s . His ineffective assistance of trial counsel claim will be d en ied . D. Due Process - Fair and Impartial Trial Ma cDon ald complains that the trial court denied him due p roces s as well as He asserts that the judge voiced her personal opinion during voir dire while not a llow ing at torne y question venire members . He generally complains that the trial judge abandoned her neutral status and den ied him the right fully answer his attorney's questions. MacDonald refers to an instance when the trial judge told the jury panel that defendant is presumed to be innocent but adds, nIt doesn't mean that he isr' ( RR 33) contending that the judge '2 the jury that MacDonald was guilty before the trial began. MacDonald fails to mention that the trial judge went on to instruct the jury that must find him guilty state not carry its burden of proof. in struct ion is as follows: R R 33. In its entirety , the court's N ow , because the burden of proof rests with the State and nev er shifts to the accused, a principle that goes hand in hand with that is the presumption of innocence . Which m ean s as Mr . MacDonald sits here right now , he is p re sum ed to be innocent . It doesn't mean that he is, but it means that you mu st afford him that presumption unless and until the State p rodu ces evidence that , one , you find to be credible and two , you find to be sufficiently cred ib le that it convinces you of his guilt beyond a rea sonab le doubt . So, because State has the burden of p roo f , it never shifts to the accused . The accused is p re sum ed to be innocent . =d I at 32-33 . MacDonald also complains that the judge did not allow his atto rn ey to fully question a venire member about reasonable doubt . The record reflects that the judge admonished MacDonald's attorney that he could not inquire Id . at venireman's definition of rea son ab le doubt . Under Texas jurors may form thei r own definitions of re asonab le doubt and cannot be struck for cause due to the amount or type of evidence they b eliev e necessary rea ch that threshold . Murphy v . State, S .W .3d 592, 598 ( ex . Crim. App . 2003) T MacDonald makes showing how he was prejudiced by the court's instructions failu re answer the question regarding the venire member's reasonable doubt . There fore , this court finds no basis to grant relief regarding the v oir dire proceedings. United States v . Garcia-Flores, 246 F .3d 458 ( th Cir. 2001); United States v . Blackz 685 F.2d 132, 134 5 ( th 5 1982) Moreover, - does 38- app ea r that MacDonald adequately exhausted his state court remedies regarding his claim that the court w ron gly prohibited his attorney from questioning juror about reasonable doubt. Therefore, the claim would be barred from consideration on federal habeas review . See Renz, 28 F .3d at Th e state court held MacDonald's claim s regarding trial error w ere wholly conclusory and did not warrant habeas relief . Ex parte M acDona ld , No . 71,881-01 at 105 . This court finds that his claims that the trial judge abandoned her neutral status and denied him th e right answer his attorney's questions are not supported by any facts and are subject to denial. See Smallwood v. Johnson, F .3d 1343, 1351 ( th Cir. 1996) 5 den ie d a MacDonald's arguments that he was b e denied and imp a rtial trial have no merit and fo r the reasons stated above . E. In com p lete Appellate Record M acDon a ld claim s re cord on appeal was incomplete and that his due process rights were violated as a result . He alleges th ere was no transcription adm on ishme nt by trial judge and the reading of the jury instructions. However, MacDonald does not show how the absent portions of the transcript prejudiced appe al , which only concerned the factual sufficiency of the eviden ce . Therefore, MacDonald's claim regarding an incomplete transc ript will be dismissed as meritless . Mullen v . Blackburn, 808 F.2d 1143, 1146 ( th 5 1987) - 3 9- F. State Habeas Error M ac Don ald argues that he ent itled relief because the Texa s Court of Criminal Appeals failed to issue a written opinion when it denied his state habeas application . The state is under no con stitut iona l ob lig at io n to prov ide post-conviction remedies, and any infirmities state habeas proceedings support basis relief. Trevino v. Johnson, 168 F.3d 173, 18O ( th Cir. 5 1999): Millard u . Lvnauah, Th ere fo re , F .2d 1403, 1410 ( th 5 1987). B ased on the above find ing s and conclusions, the court con clude s that the petition for writ of habeas corpus filed th is action should be dismissed b e cause MacDonald has failed demon strat e that he is entitled to federal habeas relief . Cer tif ic ate of Appealabilitv Un de r U .S .C . 2253 , MacDonald needs obtain cert ificate of appealability before he can appeal the dismissal of h is petition . m ust make To obtain a certificate of appealability MacDonald constitutional substantial showing of the denial right . Williams v . Puckett, 283 F.3d 272, 276 ( th 5 m ake such showing must demonstrate that 2002) the issues debatable among jurists of reason; that a court could resolve the issues in a different manner; or that the questions are adequate to de serve encouragement to proceed further . Lucas v . Johnson, 1069, 1073 Cir. 1998). For the reasons stated in this Memorandum Opinion and Order, MacDonald has not made a sub stan tial show ing of the denial of a constitutional right . Newby v . Johnson, 1996). The court will deny of a certificate of appealability . V II . Conclusion issuance Th e court ORDERS the following : Respondent's Motion for Summary Judgment ( ocket D Entry No . 12) is GRANTED . Th e Petition for a W rit of Habeas Corpus by a Per son in State Custody filed by Edward Hewitt MacDonald ( ocket Entry No. 1) is DISMISSED with D prejudice. A Certificate Appealability is DENIED . S IGN ED at Houston, Texas, on this 30th day of June, 2010 . e e S IM LAKE UN ITE D STATES DISTRICT JUDGE - 41-

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