Sula v. Thaler

Filing 22

MEMORANDUM AND ORDER granting 13 MOTION for Summary Judgment with Brief in Support. (Signed by Judge Keith P Ellison) Parties notified.(glyons, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOEYSULA,

Petitioner,
v.
WILLIAM STEPHENS,

Respondent.

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Civil Action No. H-13-1225

MEMORANDUM OPINION AND ORDER
Joey Sula, a state inmate proceeding pro se, seeks habeas corpus relief under 28
U.S.c. § 2254, challenging his convictions and ten-year sentences for theft and money
laundering. Respondent filed a motion for summary judgment (Docket Entries No. 13, 14),
to which petitioner filed a response (Docket Entry No. 15).
Based on consideration of the pleadings, the motion and response, the record, and the
applicable law, the Court GRANTS summary judgment and DISMISSES this action for the
reasons that follow.

I. BACKGROUND AND CLAIMS
Petitioner was convicted of theft and money laundering in Fort Bend County, Texas,
and sentenced to two consecutive ten-year terms of incarceration. The intermediate court of
appeals modified the judgment to reflect two "concurrent" sentences instead of two
"consecutive" sentences, and otherwise affirmed the judgment. Sula v. State, 2010 WL
2723153 (Tex. App. - Houston [1st Dist.] 2010, no pet.). No petition for discretionary

review was filed. The Texas Court of Criminal Appeals denied petitioner's application for
state habeas relief. Ex parte Sula, WR-75,523-0 1.
Petitioner raises the following claims for federal habeas relief in this proceeding:
1.

Actual innocence based on
(a)
(b)

2.

insufficiency of the evidence; and
perjured testimony.

Ineffective assistance of trial counsel based counsel's
(a)
(b)

failure to obj ect to the word "deception" in the jury charge;

(c)

failure to present exculpatory and impeachment evidence;

(d)

failure to contest the motion in limine; and

(e)
3.

failure to move to quash the indictment;

failure to object to improper jury arguments.

Ineffective assistance of appellate counsel based on counsel's
(a)

limiting the appeal to the improper stacking of sentences; and

(b)

failure to challenge the order for restitution as parole condition.

Respondent argues that one or more of these claims are procedurally barred, and that
all of the claims are without merit. The Court will address the merits of each ofpetitioner's
claims.

2

II. THE APPLICABLE LEGAL STANDARDS
A.

Habeas Review

This petition is governed by the applicable provisions of the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA). 28 U .S.c. § 2254. Under the AEDPA,
federal habeas relief cannot be granted on legal issues adjudicated on the merits in state court
unless the state adjudication was contrary to clearly established federal law as determined by
the Supreme Court, or involved an unreasonable application of clearly established federal law
as determined by the Supreme Court. Harrington v. Richter, _U.S. _,131 S. Ct. 770,
785 (2011); Williams v. Taylor, 529 U.S. 362,404-05 (2000); 28 U.S.C. §§ 2254(d)(l), (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 set of facts that are
materially indistinguishable from such a decision and arrives at a result different from the
Supreme Court's precedent. Early v. Packer, 537 U.S. 3, 7-8 (2002).
A state court unreasonably applies Supreme Court precedent ifit unreasonably applies
the correct legal rule to the facts of a particular case, or unreasonably extends a legal
principle from Supreme Court precedent to a new context where it should not apply, or
unreasonably refuses to extend that principle to a new context where it should apply.
Williams, 529 U.S. at 409. In deciding whether a state court's application was unreasonable,

this Court considers whether the application was objectively unreasonable. Id. at 411.

3

The AEDPA affords deference to a state court's resolution of factual issues. Under
28 U.S.C. § 2254(d)(2), a decision adjudicated on the merits in a state court and based on a
factual determination will not be overturned on factual grounds unless it is objectively
unreasonable in light of the evidence presented in the state court proceeding. Miller-EI v.

Cockrell, 537 U.S. 322, 343 (2003). A federal habeas court must presume the underlying
factual determination of the state court to be correct, unless the petitioner rebuts the
presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(l); see

also Miller-EI, 537 U.S. at 330-31.
B.

Summary Judgment

In deciding a motion for summary judgment, the district court must determine whether
the pleadings, discovery materials, and the summary judgment evidence show that there is
no genuine issue as to any material fact and that the moving party is entitled to judgment as
a matter of law. FED. R. ClY. P. 56(c). Once the movant presents a properly supported
motion for summary judgment, the burden shifts to the nonmovant to show with significant
probative evidence the existence of a genuine issue of material fact. Hamilton v. Segue

Software, Inc., 232 F.3d 473,477 (5th Cir. 2000).
While summary judgment rules apply with equal force in a section 2254 proceeding,
the rules apply only to the extent that they do not conflict with the federal rules governing
habeas proceedings. Therefore, section 2254(e)(l), which mandates that a state court's
findings are to be presumed correct, overrides the summary judgment rule that all disputed
4

facts must be construed in the light most favorable to the nonmovant. Accordingly, unless
a petitioner can rebut the presumption of correctness of a state court's factual findings by
clear and convincing evidence, the state court's findings must be accepted as correct by the
federal habeas court. Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002), overruled on

other grounds by Tennard v. Dretke, 542 U.S. 274 (2004).

In ACTUAL INNOCENCE
In his application for state habeas relief, petitioner raised a free-standing claim for
actual innocence, and alleged that the State knowingly used perjured testimony to obtain his
convictions. Ex parte Sula, pp. 6, 281.1
In rejecting petitioner's claims on collateral review, the state court made the following
relevant findings of fact:
1.

The undersigned [judge] presided at the jury trial in this case, sitting by
assignment.

2.

[A] grand jury indicted Applicant for theft of money in the aggregate
value of $200,000 or more in Count I and money laundering of the
proceeds of theft the value of $200,000 in Count II.

3.

A jury found Applicant guilty of each count as charged in the
indictment and assessed punishment at ten years imprisonment and a
$10,000 fine for each offense.

lIn his response to the pending motion for summary judgment, petitioner specifically
disavows raising any challenges to the sufficiency of the evidence. (Docket Entry No. 15, p. 11.)
Accordingly, the Court does not construe as a sufficiency challenge petitioner's argument that he is
actually innocent due to "no evidence" in the record.
5

* * * *
14.

The undersigned presidingjudge presided at the jury trial and finds [the
prosecutor] credible.

15.

Based on the credible affidavit of [the prosecutor] and the trial court's
personal recollection, the evidence showed that Applicant deceived the
complainant into parting with her money, telling her one thing and
doing another.

16.

Having engaged in deception, Applicant is not actually innocent of the
offense of theft or money laundering the proceeds of theft.

Ex parte Sula, pp. 280, 283. The Texas Court of Criminal Appeals relied on these findings
in denying habeas relief. Id., at cover.
In support of his claim for actual innocence, petitioner essentially contends that the
State presented no evidence of the criminal offenses because the State relied on perjured
testimony from the complainant. Petitioner's arguments raise no cognizable federal habeas
claim. See Herrera v. Collins, 506 U.S. 390, 404 (1993) (holding that a claim of "actual
innocence" is not itself a constitutional claim).
Even assuming petitioner's arguments were to constitute a recognized habeas claim,
the claim is without merit.

Petitioner's claim is nothing more than a challenge to

complainant's credibility and the jury's verdict based on its acceptance of her testimony.
This Court cannot review or set aside a state court's or jury's credibility determinations in
context of section 2254 proceedings. See Morales v. Thaler, 714 F.3d 295, 303 (5th Cir.
2013) ("AEDPA does not allow federal habeas courts to gainsay state courts' assessments

6

of credibility on a cold paper record. "). Consequently, petitioner's on-going dispute with the
veracity of complainant's testimony and the jury's verdict based on her testimony affords him
no benefit before this Court.
To the extent petitioner claims that complainant's testimony constituted perjury, he
presents as support only conjecture and conclusory allegations to support his premise, neither
of which provides a basis for federal habeas relief or constitutes probative summary
judgment evidence. See Koch v. Puckett, 907 F.2d 524,530 (5th Cir. 1990) (holding that,
although pro se habeas petitions must be construed liberally, "mere conclusory allegations
on a critical issue are insufficient to raise a constitutional issue"). Moreover, petitioner's
complaint that the state court on collateral review "chose to accept" as credible the
prosecutor's affidavit without holding an evidentiary hearing raises no federal habeas claim
for which relief may be granted. See Millard v. Lynaugh, 810 F.2d 1403, 1410 (5th Cir.
1987) (holding that, because there is no constitutional right to state post-conviction review,
irregularities occurring during such review do not state a claim for federal habeas relief); see

also Nichols v. Scott, 69 F .3d 1255, 1275 (5th Cir. 1995) (noting that an attack on a state
habeas proceeding does not entitle a petitioner to federal habeas relief, as it is an attack on
a proceeding collateral to the conviction and not the conviction itself). Last, the presumption
of correctness afforded these findings in this case is even stronger because the trial judge and
the state habeas judge are one in the same. See Armstead v. Collins, 37 F.3d 202, 207-08

7

(5th Cir. 1994) (holding that, where application was considered by same judge who presided
over trial, a "paper" hearing is adequate).
The state court denied relief on these claims. Petitioner fails to show that the state
court's determination was contrary to, or involved an unreasonable application of, federal
law, or was an unreasonable determination of the facts based on the evidence in the record.
Respondent is entitled to summary judgment dismissal of these claims.

IV. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
The Sixth Amendment to the United States Constitution guarantees a criminal
defendant the right to the effective assistance of counsel. U.S. CONST. amend. VI. A federal
habeas corpus petitioner's claim that he was denied effective assistance of counsel is
measured by the standards set out in Strickland v. Washington, 466 U.S. 668 (1984). To
assert a successful ineffectiveness claim, a petitioner must establish both constitutionally
deficient performance by counsel and actual prejudice as a result of counsel's deficient
performance. Jd. at 687. The failure to demonstrate either deficient performance or actual
prejudice 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
reasonableness. Strickland, 466 U.S. at 688. In determining whether counsel's performance
was deficient,judicial scrutiny must be highly deferential, with a strong presumption in favor
of finding that trial counsel rendered adequate assistance and that the challenged conduct was
8

the product ofa reasoned trial strategy. Westv. Johnson, 92 F.3d l385, 1400 (5th Cir. 1996).
To overcome this presumption, a petitioner must identifY the acts or omissions of counsel
that 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
professionally unreasonable, does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment. Strickland, 466 U. S. at 691.
Actual prejudice from a deficiency is shown if there is a reasonable probability that,
but for counsel's unprofessional error, the result ofthe proceeding would have been different.
Id. at 694. To determine prejudice, the question focuses on whether counsel's deficient

performance renders the result of the trial unreliable or the proceeding fundamentally unfair.

Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). In that regard, unreliability or unfairness
does not result if the ineffectiveness does not deprive the petitioner of any substantive or
procedural right to which he is entitled. Id.
Petitioner argues that trial counsel was ineffective in the following particulars.
A.

Failure to move to quash the indictment

Petitioner argues that trial counsel should have moved to quash the indictment on
grounds that it failed to give notice of "how the theft occurred, namely, deception."
In response to petitioner's claim on collateral review, trial counsel submitted an
affidavit to the trial court, testifYing as follows:

9

I have been asked to answer whether I considered filing a motion to quash the
indictment, and if so my reasons for not filing the motion. As always, I
reviewed the indictment. I found that it was legally sufficient and, based on
what the Defendant had given me as facts, my own investigation and interview
of witnesses and the pretrial discovery provided by the State's attorney, the
Defendant and I knew exactly what the state alleged and intended to prove.
Therefore, I was, and still am, of the opinion that a motion to quash was not
necessary nor required.
Ex parte Sula, p. 202.

In rejecting petitioner's claim on collateral review, the state trial court found as
follows:
19.

Based on the credible affidavit of [trial counsel], and the Court's own
review of the indictment, a motion to quash was not necessary or
required.

* * * *
29.

Applicant fails to prove by a preponderance of the evidence his
allegations of deficient performance by trial counsel.

The trial court also made the following relevant conclusion:
4.

The indictment was legally sufficient and not subject to a motion to
quash for further definition of "effective consent."

Id., pp. 283-285. The Texas Court of Criminal Appeals relied on these findings and

conclusion in denying habeas relief. Id., at cover.
The Fifth Circuit has stated that a defect in a state indictment is not grounds for habeas
corpus relief unless the indictment is so defective that the convicting court has no
jurisdiction. Neal v. Texas, 870 F.2d 312,316 (5th Cir. 1989). If the highest criminal

10

appeals court of the state has held, either expressly or implicitly, that the indictment was
sufficient under state law, the federal habeas inquiry is at an end as to that issue. Alexander
v. McCotter, 775 F.2d 595, 598-99 (5th Cir. 1985). The trial court in the instant case
expressly found that the indictment was legally sufficient under state law and that it was not
subject to the motion to quash urged by petitioner. Accordingly, in reviewing petitioner's
ineffective assistance claim, this Court cannot revisit the state court's determination that the
indictment was proper. Because the indictment was proper, trial counsel was not ineffective
in failing to pursue a motion to quash. See Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994)
(holding that "[ t]ailure to raise meritless objections is not ineffective lawyering; it is the very
opposite"); see also Koch v. Puckett, 907 F .2d 524, 527 (5th Cir. 1990) ("This Court has
made clear that counsel is not required to make futile motions or objections."). Petitioner
establishes neither deficient performance nor prejudice.
The state court denied relief on this claim. Petitioner fails to show that the state
court's determination was contrary to, or involved an unreasonable application of, Strickland
or was an unreasonable determination of the facts based on the evidence in the record.
Respondent is entitled to summary judgment dismissal of this claim.
B.

Failure to object to the word "deception" in the jury charge

Petitioner complains that trial counsel failed to object to the trial court's inclusion of
the legal definition of "deception" in the jury charge, as it was an element not alleged in the
indictment.
11

In rejecting this claim on collateral review, the trial court made the following relevant
findings:
18.

Applicant fails to prove his claim of ineffective assistance of counsel
by a preponderance of the evidence.

* * * *
20.

Based on the Court's own review of the jury charge on guilt-innocence,
the jury charge correctly included the statutory definition for deception.
Trial counsel did not need to object to a correct jury charge.

The trial court also made the following relevant conclusion:
5.

The jury charge correctly included the legal definition of "deception."

Ex parte Sula, pp. 283, 285 (citations omitted). The Texas Court of Criminal Appeals relied

on these findings and conclusion in denying habeas relief. Id., at cover.
The state court found that the jury charge was proper under state law, and that trial
counsel was not ineffective in failing to object to a proper jury charge. This Court is again
bound by the state court's interpretation and application of its own state law. "[I]t is not the
province of a federal habeas court to reexamine state-court determinations on state-law
questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Charles v. Thaler, 629 F .3d 494,
500-01 (5th Cir. 2011) ("Under § 2254, federal habeas courts sit to review state court
misapplications of federal law. A federal court lacks authority to rule that a state court
incorrectly interpreted its own law. When, as here, a state court's legal conclusions are
affirmed by the highest court in that state, those conclusions are state law."). Simply put, a

12

federal habeas court does "not sit as a 'super' state supreme court" to review alleged errors
of state law. Smith v. McCotter, 786 F.2d 697,700 (5th Cir. 1986); see also Dickerson v.
Guste, 932 F.2d 1142, 1145 (5th Cir. 1991).
F or this reason, petitioner fails to demonstrate that trial counsel was ineffective in not
objecting to the jury charge, in that the state court found the jury charge proper under state
law. Trial counsel is not deficient in failing to raise groundless objections. See Clark, 19
F.3d at 966; Koch, 907 F.2d at 527.
The state court denied relief on this claim. Petitioner fails to show that the state
court's determination was contrary to, or involved an unreasonable application of, Strickland
or was an unreasonable determination of the facts based on the evidence in the record.
Respondent is entitled to summary judgment dismissal of this claim.
C.

Failure to present exculpatory and impeachment evidence

Petitioner next complains that trial counsel failed to produce factual evidence from
the State's pretrial investigation supporting his claim that the money he received from
complainant was a loan, not investment funds. Petitioner further complains that trial counsel
should have introduced evidence showing that complainant refused his offer to repay the
"loan," and that he had offered as collateral shares of stock in a corporation.
In responding to this claim on collateral review, trial counsel submitted an affidavit
in which he testified to the following:

l3

---r

I have been asked to answer whether I considered introducing evidence from
the State's pre-trial investigation supporting Defendant's contention that the
money received from the complainant was a loan and not for investment
purposes, and if so, reasons for not introducing such evidence. To the extent
that we were able to bring in evidence on cross-examination, this we did.
Most of what Defendant now suggests should have been introduced by direct
testimony required the Defendant's testimony as a proper predicate for a
proffer. The Defendant chose not to testifY on his own behalf after [having]
been fully apprised that each alleged fact or element of the defense would be
weakened or inadmissible without such being tendered on direct testimony
from the Defendant.
I have been asked whether I considered introducing evidence that Defendant
ha[ d] attempted to repay the money loaned to him by the complainant, but the
offer was rejected. The same reasons as set forth in [the above paragraph]
answer this question.

I have been asked whether I considered introducing evidence that Defendant
had offered 525,898 shares of Amstar International common stock valued at
$552,190.90 as collateral for the loan. The same reasons as set forth in [the
first paragraph above] answer this question.

Ex parte Su/a, pp. 202-03.
In rejecting petitioner's claim on collateral review, the trial court made the following
relevant findings:
11.

The undersigned presidingjudge presided at the jury trial and finds trial
counsel [] credible.

* * * *
21.

Based on the credible affidavit of [trial counsel], [trial counsel] fully
counseled Applicant that 'each alleged fact or element of the defense
would be weakened or inadmissible without such being tendered on
direct testimony from the Defendant.'

14

22.

Based on the credible affidavit of [trial counsel], after being fully
counseled, Applicant chose not to testify.

The trial court also made the following relevant conclusion of law:
6.

Having decided not to testify after being fully counseled that his
testimony was required to prove the evidence he now asserts should
have been introduced at trial, Applicant may not now be heard to
complain of ineffective assistance of counsel.

Id., pp. 282-283, 285. The Texas Court of Criminal Appeals relied on these findings and
conclusion in denying habeas relief. Id., at cover.
The record shows that trial counsel informed petitioner that, without his testimony at
trial, the admissibility and favorable impact of the subject evidence would be greatly
jeopardized.

Petitioner nevertheless elected not to testify, thus compromising, if not

negating, trial counsel's ability to use the evidence. Petitioner does not demonstrate that the
evidence was admissible without his testimony, and deficient performance is not shown.
The state court denied relief on this claim. Petitioner fails to show that the state
court's determination was contrary to, or involved an unreasonable application of, Strickland
or was an unreasonable determination of the facts based on the evidence in the record.
Respondent is entitled to summary judgment dismissal of this claim.

It is unclear whether petitioner is separately claiming that trial counsel was ineffective
in failing to object to the following provision in the State's motion in limine:
The State of Texas requests that the defendant be prohibited from introducing
evidence as to expert opinions, offers in compromise and settlement, plea

15

discussions and related statements, bond testimony, testimony as to Sula's
reputation for truth and veracity until such time as he testifies.
C.R. at 201.

It does not appear that petitioner raised this as an independent Sixth

Amendment claim in his application for state habeas relief, and the issue is procedurally
barred at this time. Regardless, petitioner fails to show that an objection would have been
granted had counsel raised an objection, or that it would have constituted reversible error for
the trial court to overrule counsel's objection. Moreover, petitioner fails to show that, but
for counsel's failure to contest the motion in limine, there is a reasonable probability that the
result of the trial would have been different.

Petitioner establishes neither deficient

performance nor prejudice under Strickland, and the claim is without merit.
D.

Failure to object to improper jury arguments

Petitioner argued in his application for state habeas relief that trial counsel failed to
object to "any of the multiple instances of improper jury argument." No particular instances
of improper jury argument are cited by petitioner.
In rejecting petitioner's claim on collateral review, the trial court made the following
relevant findings of fact:
23.

Based on the credible affidavit of [the Deputy Clerk], Applicant did not
have a copy of the reporter's record filed with the District Clerk.

24.

Based on the credible affidavit of the Court's Official Court Reporter
[], Applicant requested and paid for only a partial record of his trial[,]
being the testimony of the complainant and the arguments of the
prosecutor on guilt-innocence.

16

25.

Based on the credible affidavit of [the court reporter], Applicant did not
ask or pay [her] for a duplicate copy of the partial record to be filed
with the District Clerk's Office.

26.

Applicant does not plead or prove that the complained-of arguments
were so prejudicial that an instruction to the jury could not have cured
the errors.

27.

Applicant does not plead or prove that if trial counsel objected to the
complained-of arguments, and the objection were overruled, the ruling
would be reversible and he would have contracted with his appellate
counsel for a full appeal of the trial.

28.

Based on the credible affidavit of [the prosecutor] and the Court's
personal recollection, trial counsel provided reasonably effective
assistance.

29.

Applicant fails to prove by a preponderance of the evidence his
allegations of deficient performance by trial counsel.

Ex parte Sula, pp. 283-84. The trial court made the following relevant conclusions of law:

7.

In failing to provide the record of his entire trial, Applicant fails to
prove by a preponderance of the evidence his allegations of deficient
performance in failing to object to certain jury argument.

8.

In failing to plead or prove that [aJ mistrial should have been declared
on the basis ofthe alleged objectionable argument, Applicant failed to
prove prejudice by a preponderance of the evidence in the alleged
failures to object to the prosecutor's argument.

9.

In failing to plead or prove that if trial counsel had objected to the
complained-of arguments, and the trial court had overruled the
objection, the objection would have been reversible error and Applicant
would have contracted with appellate counsel for a full appeal,
Applicant failed to prove prejudice by a preponderance of the evidence
in the alleged failures to object to the prosecutor's argument.

17

Id., p. 286. The Texas Court of Criminal Appeals relied on these findings and conclusions
in denying habeas relief. Id., at cover.
The controlling issue for federal habeas review is whether the prosecutor's comments
"so infected the trial with unfairness as to make the resulting conviction a denial of due
process." Darden v. Wainwright, 477 U.S. 168, 181 (1986). The complained-of statement
must be viewed in the context of the entire trial and must have been "a crucial, critical, highly
significant factor in the jury's determination of guilt." Ortega v. McCotter, 808 F.2d 406,
410-11 (5th Cir. 1987). To establish that a prosecutor's remark was so inflammatory as to
prejudice his substantial rights, a petitioner "must demonstrate either persistent and
pronounced misconduct or that the evidence was so insubstantial that (in probability) but for
the remarks no conviction would have occurred." Felder v. Blackburn, 795 F.2d 400, 403
(5th Cir. 1986).
Petitioner here cannot meet his burden of proof because he requested, and the state
court record contains, only a partial trial court transcript. Consequently, this Court cannot
view the prosecutor's purported statements "in the context of the entire trial" to determine
if the statements had "a crucial, critical, highly significant factor in the jury's determination
of guilt." Ortega, 808 F .2d at 410-11. Nor does petitioner establish that the evidence
presented at trial was "so insubstantial that (in probability) but for the remarks no conviction
would have occurred." Felder, 795 F.2d at 403. In absence of such proof, petitioner
establishes neither deficient performance nor prejudice under Strickland.
18

The state court denied relief on this claim. Petitioner fails to show that the state
court's determination was contrary to, or involved an unreasonable application of, Strickland
or was an unreasonable determination of the facts based on the evidence in the record.
Respondent is entitled to summary judgment dismissal of this claim.

V. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
Persons convicted of a crime are entitled to effective assistance of counsel on direct
appeal. Evitts v. Lucey, 469 U.S. 387 (1985). This Court reviews counsel's appellate
performance under the Strickland standards. See Goodwin v. Johnson, 132 F.3d 162, 170
(5th Cir. 1998). Petitioner must allege and present facts showing that his appellate counsel's
representation was deficient and that the deficient performance caused him prejudice. That
is, petitioner must show that, but for appellate counsel's deficient performance, the outcome
of the appeal would have been different. See Strickland, 466 U.S. at 687-88,692; Jones v.

Jones, 163 F .3d 285,300 (5th Cir. 1998). Effective assistance of appellate counsel does not
mean that counsel will raise every available non-frivolous ground for appeal. Evitts, 469
U.S. at 394. Nor will counsel be deficient for failing to press a frivolous point. Rather, it
means, as it does at trial, that counsel performs in a reasonably effective manner. Evitts, 469
U.S. at 394. A reasonable attorney has an obligation to research relevant facts and law and
make informed decisions as to whether avenues will, or will not, prove fruitful. Strickland,
466 U.S. at 690-91.

19

Petitioner claims that appellate counsel was ineffective in limiting the appeal to the
improper "stacking" of his sentences, and in not challenging the imposition of restitution as
a condition of parole. In responding to these claims, appellate counsel submitted an affidavit
on collateral review, in which he testified as follows:
On December 19,2008, I met with [petitioner] and his trial lawyer in Fort
Bend County Jail after he had been convicted of two felonies and had received
a ten year prison sentence in each case with the sentences to run consecutively.
I explained the appellate process. I explained that any reversal because of trial
error would get him either a new trial or a new punishment hearing, depending
on whether the error occurred at the gUilt stage or innocence [sic] stage. I
explained clearly that the only appellate issue that would not require a new
trial or a new hearing would be if the evidence were legally insufficient to
support the conviction; that even if the evidence were factually insufficient, he
would have to stand trial again.
I explained that it was possible for him to receive more punishment, if the
cases were reversed for any issue other than legal insufficiency and the cases
were heard by a different judge or by a different jury. I knew that a visiting
judge had heard the original trial and had stacked the sentences. I told
[petitioner] that a new judge is not bound by what the visiting judge did, just
as a new jury is not bound by what the former jury did.
I explained that I could not speak about what issues could be raised because
I would have to read the appellate record first. I told [petitioner] that I
believed the 'stacking order' was improper, and that I would raise that on
appeal, at least. If the 'stacking order' was improper, he would do the two 10
year sentences concurrently.
At the first meeting, [petitioner] and I discussed a fee for appealing the entire
case. I stated the fee and the costs that would be incurred. He said that such
monies were no problem because he had access to funds. I drafted a contract
outlining the legal fee for a full appeal of all issues.

20

[Petitioner] did not execute that contract, and he requested a contract in which
I would appeal only the order stacking the sentences. I drafted the contract for
this service.
I completed my obligation under the contract by filing a brief attacking the
order stacking the two sentences. On July 8, 2010, the First Court of Appeals
agreed with my argument and reversed the order stacking the sentences.
I informed [petitioner] about all the possibilities of an appeal. I told [him] that
the only way he could receive an acquittal on appeal is if the evidence is
legally insufficient in each of the two cases. I told [him] that a new judge or
a new jury could sentence him to a greater sentence that he received originally,
if either or both cases were reversed for any issue other than legal
insufficiency.
Ex parte Suia, pp. 180-81 (exhibit references omitted). Appellate counsel attached a copy
of the contract signed by petitioner, which contract retained appellate counsel for the limited
purpose of challenging only the order stacking the sentences, and acknowledged that the
appeal would be based solely on the documents on file with the district clerk. Id., p. 185.
In rejecting petitioner's claims of ineffective appellate counsel, the trial court on
collateral review made the following relevant findings:
12.

The undersigned presiding judge knows [appellate counsel] by
reputation as a highly regarded appellate specialist.

13.

The Court finds [appellate counsel] credible.

* * * *
30.

Based on the credible affidavit of [appellate counsel], [appellate
counsel] fully advised Applicant that' any reversal would get him either
a new trial or new punishment hearing,' and 'that the only appellate
issue that would not require a new trial or new punishment hearing is
if the evidence were found to be legally insufficient in each case.'
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31.

Based on the credible affidavit of [appellate counsel], Applicant was
advised that it was possible for him to receive more punishment if a
different judge or a jury heard the case.

32.

Based on the credible affidavit of [appellate counsel], [appellate
counsel] told Applicant that he would need to read the appellate record
before identifYing issues other than trial court error in stacking
Applicant's sentences.

33.

Based on the credible affidavit of [appellate counsel], Applicant asked
[appellant counsel] to draft a contract to appeal only the stacking order.

34.

[Appellate counsel] convinced the court of appeals to eliminate the
stacking order.

35.

Applicant fails to prove by a preponderance of the evidence his claims
of ineffective appellate counsel.

36.

Applicant's claim that the trial court erred in ordering Applicant to pay
restitution as a condition of parole is based on the judgment.

37.

Based on the credible affidavit of [appellate counsel], Applicant chose
to appeal only the stacking order.

38.

Based on the credible affidavit of [appellate counsel], nothing
prevented Applicant from appealing the restitution order.

Id., pp. 282, 284-85 (citations omitted). The trial court further made the following relevant
conclusions of law:
10.

Applicant fails to prove by a preponderance of the evidence his
allegations of ineffective appellate counsel.

11.

Applicant's fourth ground for relief [alleging trial court error in
ordering restitution as a condition of parole] is a record claim that is not
cognizable on application for writ of habeas corpus.

12.

The court correctly included a restitution order in the judgment.

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13.

No harm can be shown by the inclusion in the restitution order that
payment be made a condition of parole.

Id., p. 286 (citations omitted). The Texas Court of Criminal Appeals relied on these findings
and conclusions in denying habeas relief. Id., at cover.
The record shows that appellate counsel informed petitioner of his choices for
handling the appeal, and that petitioner elected in writing to limit his appeal to challenging
the "stacking" order.

Appellate counsel successfully pursued that issue on appeal.

Petitioner's contention that he was "forced" to abandon his challenge to the restitution order
is unsupported in the record, and he fails to demonstrate deficient performance. Petitioner
further fails to demonstrate with probative evidence, and the record fails to show, that, but
for counsel's failure to pursue the restitution issue, there is a reasonable probability that the
restitution order or his convictions would have been reversed on appeal. Moreover, the
record shows that petitioner did not sign the contract retaining appellate counsel to obtain and
review the reporter's record; rather, he signed the second contract retaining counsel for the
limited purpose of challenging the "stacking" order relying on documents already on file with
the trial court. No deficient performance is shown. Petitioner further fails to show that, but
for counsel's failure to challenge the sufficiency of the evidence, there is a reasonable
probability that the convictions would have been reversed on appeal. This is particularly true

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in light of petitioner's decision not to pay for obtaining the entire record on appeal, and
absence of the entire record for review. 2
The state court denied relief on these claims. Petitioner fails to show that the state
court's determination was contrary to, or involved an unreasonable application of, Strickland
or was an unreasonable determination of the facts based on the evidence in the record.
Respondent is entitled to summary judgment dismissal of these claims.

VI. CONCLUSION
Respondent's motion for summary judgment (Docket Entries No. 13, 14) is

GRANTED and this lawsuit is DISMISSED WITH PREJUDICE. A certificate of
appealability is DENIED. Any and all pending motions are DENIED AS MOOT.
Signed at Houston, Texas, on this

th~ ~ of January, 2014.

KEIT~ ELLISON
UNITED STATES DISTRICT JUDGE

2This Court cannot consider petitioner's affidavits and exhibits that were not submitted to
the state court on collateral review. See Cullen v. Pinholster,
U.S. _, 131 S. Ct. 1388, 1398
(2011).
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