Bogany v. Stephens
Filing
21
MEMORANDUM OPINION AND ORDER granting 17 MOTION for Summary Judgment, granting 18 MOTION for Extension of Time to Respond to Respondent's Response, denying 20 MOTION for Evidentiary Hearing. This action is dismissed with prejudice. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOE BOGANY,
TDCJ NO. 1627201,
Petitioner,
v.
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.
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CIVIL ACTION NO. H-13-2857
MEMORANDUM OPINION AND ORDER
Joe Bogany, proceeding pro se, filed a Petition for a Writ of
Habeas Corpus by a Person in State Custody
challenging eight
sentencing
Pending
him
before
state court
to
prison
the
for
court
is
(Docket Entry No.1)
judgments finding him guilty and
possession of
Respondent
child pornography.
Stephens's
Motion
Summary Judgment with Brief in Support (Docket Entry No. 17).
for
For
the reasons explained below, the court will grant Stephens's motion
for summary judgment and deny Bogany's petition for writ of habeas
corpus.
The court will also deny Bogany's motion for evidentiary
hearing (Docket Entry No. 20).
I.
Factual and Procedural Background
The records reflect that Bogany was arrested for possession of
child
pornography
in
2008.
Between
August
29,
2008,
and
February 27, 2009, eight indictments were filed against Joe Bogany,
each one charging him with a separate act of possession of child
pornography
enhanced
by
a
prior
conviction
for
theft.1
On
February 9, 2009, the State filed written notice of its intent to
consolidate and cumulate Cause Numbers 1168760 and 1168761,
and
charges from future indictments that would be filed before trial
(Docket Entry No. 10-4, p. 32).
Bogany pled not guilty to the charges, and was tried jointly
on the eight
Bogany guilty of
finding
15
On February 4,
indictments.
the
eight
child pornography
the enhancements true,
years
imprisonment
and
2010,
a
the
fine
a
jury found
charges. 2
After
jury assessed punishment at
of
$2500
for
each offense. 3
Bogany received credit for time served in Cause No. 1168760, and
the other sentences were ordered to be served consecutively.4
See Indictments, The State of Texas v. Joe Bogany, Cause
No. 1168760 (Docket Entry No. 10-4, p. 13); Cause No.
1168761 (Docket
Entry No. 11-4, p. 12); Cause No. 1205423 (Docket Entry No. 11-7, p. 6),
Cause No. 1205426 (Docket Entry No. II-I, p. 6) i Cause No. 1205427
(Docket Entry No. 10-17, p. 6); Cause No. 1205428 (Docket Entry No. 1014, p. 6); Cause No. 1205429 (Docket Entry No. 10-11, p. 6; Cause
No. 1205430 (Docket Entry No. 10-8, p. 6).
See Judgments The State of Texas v. Joe Bogany, Cause No. 1168760
(Docket Entry No. 12-10, p. 1); Cause No. 1205428 (Docket Entry No. 12-24,
p. 86) i Cause No. 1205423 (Docket Entry No. 13-2, p. 84); Cause
No. 1205426 (Docket Entry 13-7, p. 78); Cause No. 1205427 (Docket Entry
No. 13-17, p. 11);
Cause No. 1205428 (Docket Entry No. 14-3, p. 11) i
Cause No. 1205429 (Docket Entry No. 14-8, p. 27); Cause No. 1205430
(Docket Entry No. 14-12, p. 82).
4
2
Bogany appealed the judgments, and both sides filed briefs.
The State's brief summarized the facts of the case as follows:
In 2008, Appellant drove twelve-year-old [C.B.] and
[K. B.] , her friend from the sixth-grade, back to his
apartment. (3 RR 16, 21i 4 RR 13). Appellant, a friend of
[K. B.] 's aunt, had computer games he let kids play in his
apartment, despite having no children of his own.
(3 RR 22i 4 RR 13, 27, 39, 66). While there, [K.B.]
helped Appellant with his MySpace page, and Appellant
showed [C. B] . a video of a woman dancing in inappropriate
clothing that you could see her skin through on his
laptop. (3 RR 24, 53-54). However, neither [C.B.] nor
[K. B. ] saw child pornography on the laptop they were
allowed to use. (3 RR 30i 4 RR 21) .
Appellant
started
taking
pictures
of
[C. B. ]
(3 RR 25). Appellant posed her in different positions,
though she remained fully clothed. (3 RR 25, 43). He also
videotaped her dancing, though [C. B.] admitted later that
she came up with the idea of being videotaped. (3 RR 25,
47). Later, Appellant put his hands on [C.B.] 's inner
thigh and asked her to unbutton her pants. (3 RR 25-26) .
He also tried to lift up her shirt, but she did not let
him. (3 RR 26). Then, Appellant touched [C.B.] 's behind,
and she told him to stop. (3 RR 26) . When Appellant asked
the girls if they would like to spend the night, they
both told him no because they wanted to go back home.
(3 RR 27-28). Appellant drove the two girls home, but
stopped on the way to climb into the back seat with
[C.B.] and tell her not to tell anyone what happened.
(3 RR 28i 4 RR 22). The apartment was small, and both
[K. B.] and Appellant's wheelchair-bound wife were present
the entire time. (3 RR 33i 4 RR 14, 15). While [K.B.]
testified that she did not see Appellant do anything
inappropriate with [C.B.], she did say she saw a video of
a little girl that she thought was improper and that
[C. B.] was a truthful girl that she would believe.
(4 RR 17, 18, 23).
Based upon interviews with [C.B.] and [K.B.], the
police executed a
search warrant
at Appellant's
apartment.
(3 RR 79, 140-41). They recovered four
computers, three from the bedroom and one from the living
room. (3 RR 82, 93). One of the computers taken from the
bedroom had a password protected user folder for
Appellant. (3 RR 83, 100, 101 i 4 RR 42, 55, 56). A
3
forensic examination of that laptop revealed that
multiple images had been deliberately downloaded to the
picture folder in Appellant's user profile. (3 RR 10001). There were over 800 items believed to be child
pornography and an additional 2600 items of child erotica
found on the computer, the majority of which were found
in the picture folder under Appellant's password
protected profile. (3 RR 98-99, 100-01). These images had
been collected over a period of a little more than a
year.
(3 RR 99). Additionally, police found saved
"favorites" in the web browser that linked to a number of
sexually explicit websites the forensic examiner knew to
contain child pornography. (3 RR 102, 104, 105-06).
Appellant claimed that he gave numerous people access to
this computer, but he also created different profiles on
the computer for guests and his wife. (4 RR 42) .
The State introduced all of the images collected
from Appellant's computer. (3 RR 108, 122, 124; State's
Exhibits #1-10). Both the forensic examiner and the lead
investigating officer , Detective J. T. Roscoe, highlighted
eight specific images to explain based upon their
training and experience why the images constituted child
pornography. State's Exhibit # 1 was found in Appellant's
profile picture folder and depicts a prepubescent girl
reclining in a submissive position displaying her
geni tals in a lewd manner in the foreground of the
picture. (3 RR 109, 110-11, 151-52; State's Exhibit #1).
State's Exhibit #2 depicts several naked girls and two
naked boys under the age of 18 with the focus of the
picture being the breasts and genitals of the children.
(3 RR 112,153-54; State's Exhibit #2). State's Exhibit #3
depicts a girl younger than 18 years old performing oral
sex on an erect penis, though all that can be seen of the
child is the child's head. (3 RR 113, 154; State's
Exhibit #3). State's Exhibit #4 shows a completely nude
prepubescent girl in a black and white photograph with
her partially covered breasts at center frame and her
genitalia fully exposed. (3 RR 114, 155; State's Exhibit
#4) .
State's Exhibit #5 shows a prepubescent Asian girl
wearing only a tank top and performing oral sex on a
grown man. (3 RR 115, 155; State's Exhibit #5) . The image
also had a web address for "Street Meat Asia.com" across
the bottom of the frame, and apparently came from a
series of known child pornographic images called the
4
"cake series." (3 RR 155, 156-57; State's Exhibit #5).
Moreover, Detective Roscoe explained that he found
pictures on Appellant's computer from four different
series of image collections that had been identified by
the National Center for Missing and Exploi ted Children as
being child pornography. (3 RR 159-60) .
State's Exhibit #6 features a completely nude
prepubescent girl with her nude breasts and genitalia
dominating the center of the frame.
(3 RR 116, 161;
State's Exhibit #6). State's Exhibit #7 depicts a
prepubescent girl completely nude in a submissive and
crouched
position
with
her
breasts
and
genitals
displayed. (3 RR 118, 160; State's Exhibit #7). State's
Exhibit #8 shows a nude prepubescent girl holding her
hair up on her head displaying her breasts and genitals.
(3 RR 119, 161; State's Exhibit #8). State's Exhibit #9
contained eight-hundred-and-eighty-three images taken
from Appellant's pictures several of which also depicted
the lewd display of breasts and genitals as well as young
girls engaging in deviate sexual conduct with grown men.
(State's Exhibit #9, e.g. OOOl.jpg, 0002.jpg, 0003.jpg,
o0 1 7 . j pg , 004 5 . j pg , 0 071 . j pg , 0 074 . j pg , 0 0 8 0 . j pg ,
o0 8 6 . j pg , 0 12 0 . j pg , 0 122 . j pg , 0 15 0 . j pg , 0 16 5 . j pg ,
o1 7 8 . j pg ,
02 2 3 . j pg ,
03 72 . j pg ,
04 7 6 . j pg ,
04 8 0 . j pg ,
o5 5 8 . j pg , 0 5 61 . j pg , 0 5 6 8 . j pg , 0 5 6 9 . j pg , 0 5 71 . j pg ,
0574 . j pg ,
0604 . j pg ,
0609 . j pg ,
0633 . j pg ,
0644 . j pg ,
o674 . j pg , 0 684 . j pg , 0 6 8 7 . j pg ; 07 0 1. j pg , 0 7 02 . j pg ,
0715 . j pg ,
0 7 3 3 . j pg ,
073 8 . j pg ,
07 9 9 . j pg ,
0 8 0 1 . j pg ,
o811. j pg, 0813. j pg, 0 8 2 9 j pg, 0 8 3 1 j pg, 0 8 3 7 . j pg, 0 84 0 . j pg ,
o8 5 2 . j pg, 0854. j pg, 0 8 64 . j pg) .
Police also recovered several other items from
Appellant's residence including a couple of teddy bears,
videogames, DVD's, pornographic movies, and videotapes
that contained movies shot from inside the residence
looking out onto the pool area in front of Appellant's
apartment.
(3 RR 165; 4 RR 4-5, 6). The videotapes
focused on two girls, [B.H.] and her twin sister as well
as other girls at the pool, all under the age of 18, many
of them prepubescent. (4 RR 6, 7, 10, 49). The videotape
showed prepubescent girls in bathing suits and bikinis
and zoomed in on the front genital region, buttocks and
breasts. (4 RR 7).
Appellant's voice is heard on the
video talking to his wife.
(4 RR 7). Though the
videotapes went on for a long period of time, the State
only offered samples of the videos into evidence.
5
(4 RR 8-9).
In addition to the videos of the little
girls playing at the pool, there was also a video that
showed Appellant posing ten-to-eleven year old [B. H.] and
even pushing her skirt up and placing a teddy bear in her
crotch. (4 RR 10) .
The police also recovered a printed out chat log
from Appellant's bedroom. (4 RR 82-83; State's Exhibit
#27). The log reflects a conversation between Appellant,
who identified himself as "Lou Bog 2004" and someone
named "Linda Melissa" who purported to be a fourteenyear-old girl. (4 RR 69, 83, 84; State's Exhibit #27).
Notably, Appellant admitted that his online screen name
was "Lou Bog 2004" before the copy of the chat log was
introduced into evidence. (4 RR 69). The chat contains
graphic sexual discussions including Appellant's apparent
delight in the thought that sexual intercourse might
cause "Linda Melissa" pain. (State's Exhibit #27) .
Appellant claimed that many other people had access
to his computers, though he also had prior felony
convictions for theft that called his credibility into
question. (4 RR 42-43, 54). While he let [C.B.] and
[K.B.] use a computer in his living room, more than one
laptop was seized and the two girls did not observe any
child pornography on that laptop they used. (3 RR 30, 82,
93; 4 RR 21). And while [K.B.] 's mother, Lacresha
Simmons, used one of Appellant's computers, she was
careful to note that she only used Appellant's wife's
computer and not his laptop. (4 RR 29-30) .
Most importantly, the sheer volume of the collected
images that had been intentionally downloaded into his
picture folder on his password protected profile, coupled
with the length of time it took to amass such a
collection further undercut Appellant's claims that he
did not know the child pornography was located on his
laptop. (3 RR 178, 182, 183). Detective Roscoe explained
that finding actual child pornography is very difficult.
(3 RR 182). Collecting such images over a period of
thirteen to fifteen months would require daily access to
a particular computer and a consistent effort to put
together a collection of the size found on Appellant's
computer. (3 RR 182-83). And the consistency of all the
items pointing to a sexual interest in children such as
bookmarked websites, erotic stories, and web searches
further demonstrated that the pictures were not placed on
the computer by accident. (3 RR 180-81)
6
See Bogany v. State, 2011 WL 704359, Appellate Brief, 1-6 (internal
footnotes omitted); see also Docket Entry No. 10-2, pp. 7-12.
The Court of Appeals for the Fourteenth District of Texas
affirmed the district court's judgment on March 1, 2011.
14-10-00141-CR,
14-10-0014 6-CR.;
14-10-00142-CR,
14-10-00143-CR,
2011 WL 704359
2011,
pet.
ref'd.);
Court
of
Criminal
(Tex.
App.
refused
14-10-00145-CR,
Hous.
see also Docket Entry No.
Appeals
14-10-00140-CR,
14-10-00139-CR,
14-10-00138-CR,
Nos.
State,
2011.
[14th Dist.],
10-3.
Bogany's
discretionary review on September 14,
Bogany v.
The Texas
petition
Bogany v.
for
State,
Nos. 0500-11, 0501-11, 0502-11, 0503-11, 0504-11, 0505-11, 0506-11,
0507-11, see http://www.search.txcourts.gov/; 2011 WL 704359.
Bogany filed
nine
state
applications
for
writs
corpus challenging all eight of his convictions. 5
of
habeas
On August 21,
2013, the Court of Criminal Appeals denied all of the applications
without
a
written order
based on
the
trial
court's
findings.
Ex parte Bogany, Nos. 78,434-03; -04; -05; -06; -07; -08; -09; 010,
-011.6
mandamus.
Bogany also
filed
two
Both were denied without
applications
for
wri t ten order.
writs
of
Ex parte
Two of the state habeas applications, Ex parte
Nos. 78,434-04 and 78,434-11, challenged the same conviction.
Bogany,
6
See Docket Entry No. 12-9, p. 2; Docket Entry No. 12-24, p. 2;
Docket Entry No. 13-2, p. 2; Docket Entry No. 13-7, p. 2; Docket Entry
No. 13-12, p. 2; Docket Entry No. 14-2, p. 2; Docket Entry No. 14-7,
p. 2; Docket Entry No. 14-12, p. 2; Docket Entry No. 14-17, p. 2.
7
Bogany, Nos.
78,434-01,
-02.7
Bogany filed the federal petition
before this court on September 18, 2013. 8
II.
A.
Standard of Review
Summary Judgment
Summary judgment is appropriate if the movant establishes that
there is no genuine dispute about any material fact and the movant
is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a).
Disputes about material facts are "genuine" if the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party.
(1986) .
Anderson v.
Liberty Lobby.
Inc.,
106 S.
Ct.
2505,
2511
The Supreme Court has interpreted the plain language of
Rule 56 (c) to mandate the entry of summary judgment "after adequate
time for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear
the
burden
of
proof
106 S. Ct. 2548, 2552
at
trial."
Celotex
Corp.
v.
Catrett,
(1986).
A party moving for summary judgment "must
\ demonstrate the
absence of a genuine issue of material fact,' but need not negate
the elements of the nonmovant' s case."
7
Little v. Liquid Air Corp. ,
See Docket Entry No. 12-1, p.2i Docket Entry No. 12-7, p. 2.
8 See Application for Writ of Habeas Corpus by a
Person in State
Custody, Docket Entry No.1, p. 14i Medley v. Thaler, 660 F.3d 833, 835
(5thCir.2011).
8
37 F.3d 1069, 1075 (5th Cir. 1994)
106
s. Ct. at 2553).
(per curiam)
(quoting Celotex,
If the moving party meets
this burden,
Rule 56(c) requires the nonmovant to show that specific facts exist
over which
there
is
a
genuine
issue
for
trial.
Id.
(citing
In reviewing the evidence "the
Celotex, 106 S. Ct. at 2553-54).
court must draw all reasonable inferences in favor of the nonmoving
party, and it may not make credibility determinations or weigh the
evidence.
Reeves v. Sanderson Plumbing Prods., Inc., 120 S. Ct.
II
2097, 2110 (2000).
B.
Presumptions Applied in Habeas Cases
28
U.S.C.
Effective
§
Death
2254,
as
amended
Penalty Act
of
by
1996
the
Antiterrorism
(AEDPA),
provides
and
"[t] he
statutory authority of federal courts to issue habeas corpus relief
for persons in state custody.1I
770, 783 (2011).
Harrington v. Richter, 131 S. Ct.
When considering a summary judgment motion, the
court usually resolves any doubts and draws any inferences in favor
of the nonmoving party.
Reeves, 120 S. Ct. at 2110.
amendments to 28 U.S.C.
§
However, the
2254 contained in the AEDPA change the
way in which courts consider summary judgment motions in habeas
cases.
In a habeas proceeding, 28 U.S.C.
findings
of
fact
correct.
II
rule.
Smith v.
made
by a
state
§
2254(e) (1) mandates that
court
are
"presumed
to
be
This statute overrides the ordinary summary judgment
Cockrell,
311
F.3d
9
661,
668
(5th Cir.
2002)
(overruled on other grounds by Tennard v. Dretke, 124 S. Ct. 2562,
2565 (2004)).
Therefore, a court will accept any findings made by
the state court as correct unless the habeas petitioner can rebut
the presumption of correctness by clear and convincing evidence.
28 U.S.C.
2254 (e) (1)
§
("The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing
evidence.") .
The provisions of
§
2254(d)
set forth a "highly deferential
Lindh v. Murphy,
standard for evaluating state-court rulings."
117 S. Ct. 2059, 2066 n.7 (1997).
writ
of
habeas
corpus
with
A federal court cannot grant a
respect
to
any
claim
that
was
adjudicated on the merits in state court unless the state court
proceeding:
(1) resulted in a decision that was contrary to, or
invol ved
an
unreasonable
application
of,
clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C.
§
2254(d).
A decision is contrary to clearly established
federal law if the state court arrives at a conclusion opposite to
that reached by the Supreme Court on a question of law or if the
state court decides a case differently than the Supreme Court has
on
a
set
Taylor,
of
120
materially
S.
Ct.
indistinguishable
1495,
1519-20
facts.
(2000).
Williams
A decision
is
v.
an
unreasonable application of clearly established federal law "if the
10
~~~~~-
~-------------
state court identifies the correct governing legal principle .
but
unreasonably
prisoner's case."
applies
that
principle
to
the
facts
of
the
Id. at 1523.
In reviewing a state court's determination regarding the merit
of a petitioner's habeas claim, a federal court cannot grant relief
if "fair-minded jurists could disagree on the correctness of the
state court's decision."
Richter,
131 S.
Ct.
at 786
(internal
quotation marks omitted) .
III.
Analysis
Bogany presents the following claims:
1.
The convictions and his confinement are illegal;
2.
The evidence was legally insufficient;
3.
The evidence was factually insufficient;
4.
Bogany received ineffective assistance of counsel because
his attorney failed to object to the stacking order and
failed to raise the issue of double jeopardy;
5.
Bogany's sentences are excessive;
6.
There was an illegal search and seizure;
7.
Bogany's sentences violate the Double Jeopardy Clause;
8.
Bogany is actually innocent;
9.
Bogany has newly discovered evidence; and
11
10.
Bogany's right to due process was violated because he was
denied a free copy of the trial records. 9
A.
Claim of Illegal Conviction and Confinement
Bogany argues that his convictions are illegal because they
violate
the
First
Amendment
and
are
based
on
void
statutes.
Stephens argues that this claim is not cognizable on habeas review.
Stephens also argues that the claim is procedurally barred with
regard to all but two of the convictions.
Finally, Stephens argues
that the claim has no merit.
1.
Void Statutes - No Constitutional Violation Alleged
Bogany makes a general and terse argument that the statutes
used to convict him are void.
the
extent
that
Bogany
See Docket Entry No.1, p. 3.
contends
that
the
state
habeas
To
court
erroneously interpreted the law used to convict him, his argument
is
baseless
because
a
federal
court's
function
in
a
habeas
proceeding to review a state court's interpretation of its own law.
Charles v. Thaler, 629 F.3d 494, 500 (5th Cir. 2011), citing Weeks
v. Scott, 55 F.3d 1059, 1063 (5th Cir. 1995)
of
a
state
statutory error,
constitutional violation.
Bogany fails
By complaining only
to
allege
a
federal
See Hughes v. Dretke, 412 F.3d 582, 590
(5th Cir. 2005), citing Lawrence v. Lensing, 42 F.3d 255, 258 (5th
Cir.1994)
("A state prisoner seeking federal court review of his
See Petition for Writ of Habeas Corpus by a Person in State
Custody, Docket Entry No.1; see also Memorandum of Law in Support of
Petition for Writ of Habeas Corpus "Memorandum of Law", Docket Entry No.
3.
12
conviction pursuant to 28 U.S.C.
a
federal
constitutional
§
2254 must assert a violation of
right.")
Therefore,
his
argument
regarding state law interpretation is not cognizable on federal
habeas review.
2.
Id.
Procedural Bar
To the extent that Bogany alleges a First Amendment violation,
Stephens argues that the ground is unexhausted and procedurally
barred with regard to all but two of Bogany's convictions.
Under 28 U.S.C.
available
2254(b), a habeas petitioner must exhaust
remedies
before
See Nobles v. Johnson,
seeking relief
federal
(5th Cir.
See also Wion v. Quarterman, 567 F.3d 146, 148
1997)
127 F.3d 409,
in the
419-420
(5th Cir.
courts.
2009)
state
§
("Before pursuing federal
habeas relief,
a petitioner is
required to exhaust all state procedures for relief.) citing Orman
v. Cain, 228 F.3d 616, 619-20 (5th Cir.2000).
To exhaust his state
remedies, the petitioner must fairly present the substance of his
claims to the state courts, and the claims must have been fairly
presented to the highest court of the state.
Nobles,
citing Picard v.
(1971)
Collins,
919 F. 2d 1074,
requirement
Thompson,
Connor,
92 S. Ct.
509,
512-13
1076
(5th Cir.
1990).
is based on the
principle
of
111 S. Ct.
2546, 2555
(1991).
i
at 420,
Myers v.
This exhaustion
comity.
Coleman v.
Federal courts follow
this principle to afford the state courts the first opportunity "to
address and correct alleged violations of state prisoner's federal
13
rights.
II
Id.
Therefore, a habeas petitioner must pursue his state
court remedies before presenting his constitutional claims in a
federal petition.
See Rhines v.
Weber,
128 S.
Ct.
1528,
1533
(2005) .
The court has reviewed the grounds raised in each of Bogany's
state habeas applications. 10
In seven of the applications, Bogany
only presents the conclusory allegation that the convictions were
illegal because the statutes were declared void.
No.
12-9,
p.
13;
Docket Entry No.
No.
13-2,
p.
13;
Docket
No.
14-2,
p.
13;
Docket Entry No.
No. 14-17, p. 12.
Entry No.
See Docket Entry
12-24,
p.
13;
Docket Entry
13-7,
p.
13;
Docket
Entry
14-12,
p.
13;
Docket
Entry
Bogany supplemented his other two applications
with memoranda of law in which he cited the First Amendment.
See
Docket Entry No. 13-12, p. 33; Docket Entry No. 14-7, p. 28.
A petitioner seeking habeas relief in the federal courts must
exhaust all of his claims in the state courts.
179 F.3d 271, 275
(5th Cir. 1999).
Mercadel v. Cain,
It is not enough that he has
"been through" the state court system; the substance of the federal
10
Ex parte Bogany, 78,4343 - 03 [trial cause no. 1168760] (Docket
Entry No. 12-9, pp. 13-22); Ex parte Bogany, 78,4343-04 [trial cause no.
1168761] (Docket Entry No. 12-24, pp. 13-22); Ex parte Bogany, 78,4343-05
[trial cause no. 1205423] (Docket Entry No. 13-2, pp. 13-22); Ex parte
Bogany, 78,4343 - 06 [trial cause no. 1205426] (Docket Entry No. 13 -7 ,
pp. 13-22) i Ex parte Bogany, 78,4343-07 [trial cause no. 1205427] (Docket
Entry No. 13-12, pp. 13-22, 33-56); Ex parte Bogany, 78,4343-08 [trial
cause no. 1205428] (Docket Entry No. 14-2, pp. 13-22) i Ex parte Bogany,
78,4343-09 [trial cause no. 1205429] (Docket Entry No. 14-7, pp. 13-22,
28-53) i Ex parte Bogany, 78,4343-10 [trial cause no. 1205430]
(Docket
Entry No. 14-12, pp. 13-22) i Ex parte Bogany, 78,4343-11 [trial cause no.
1168761] (Docket Entry No. 14-17, pp. 12-21).
14
habeas corpus claim must first be fairly presented to the state
courts for review.
Bogany has
Picard v. Connor, 92 S. Ct. 509, 512 (1971).
only exhausted his
First
Amendment
claim with
respect to two of his convictions, writ no. 78,4343-07 [trial cause
no.
1205427]
and writ no.
78,4343-09
[trial cause no.
1205429].
The claim has not been presented in the other cases.
Bogany's
failure to present this claim for each conviction has prevented the
state
courts
from
constitutional errors.
reviewing
it
and
possibly
correcting
Coleman v. Thompson, 111 S. Ct. at 2555;
Ries v. Quarterman, 522 F.3d at 523.
Consequently, the petition
may be subject to dismissal for failure to exhaust state court
remedies.
See Alexander v. Johnson, 163 F.3d 906,
908
1998), citing Rose v. Lundy, 102 S. Ct. 1198 (1982).
(5th Cir.
However, the
exhaustion requirement is not dispositive if returning the claim to
the state courts would be an exercise in futility.
Dretke,
required
413
if
F.3d 484,
it
492
(5th Cir.
would plainly be
2005)
futile."),
Morris v.
("exhaustion is not
quoting
Graham v.
Johnson, 94 F.3d 958, 969 (5th Cir. 1996)
Bogany has already filed state habeas applications challenging
his convictions, which the Court of Criminal Appeals denied.
He
may not file additional state habeas applications challenging the
same convictions to raise claims that could have been previously
raised.
TEX. CODE CRIM. P. art. 11.07
§
4.
The United States Court
of Appeals for the Fifth Circuit has consistently held that Texas's
15
abuse-of-writ
rule
is ordinarily an
"adequate and independent"
procedural ground on which to base a procedural default ruling.
Matchett v. Dretke, 380 F.3d 844, 848 (5th Cir. 2004); Henderson v.
Crockwell, 333 F.3d 592, 605 (5th Cir. 2003); Horsley v. Johnson,
197 F.3d 134, 137 (5th Cir. 1999).
Therefore, the claims that the
convictions violate the First Amendment are subject to dismissal
pursuant to a procedural bar when no remedies are available in the
state courts.
Fuller v.
Johnson,
158 F.3d 903,
906
(5th Cir.
1998) .
Bogany
may
only
overcome
his
procedural
default
by
demonstrating cause and prejudice or that failure to consider the
claim
would
result
in
a
Morris, 413 F.3d at 491-92.
fundamental
miscarriage
of
justice.
Cause is demonstrated by establishing
that some objective external factor impeded his efforts to present
his claim to the state courts.
1011 (5th Cir. 1999).
Meanes v. Johnson, 138 F.3d 1007,
Prejudice is established when a petitioner
demonstrates "not merely that the errors at his trial created a
possibility of prejudice, but that they worked to his actual and
substantial disadvantage, infecting his entire trial with error of
constitutional dimensions."
Moore v. Quarterman, 534 F.3d 454, 463
(5th Cir. 2008), quoting United States v. Frady, 102 S. Ct. 1584,
1596 (1982).
A petitioner makes a showing that failure to consider a claim
would
result
in
a
fundamental
16
miscarriage
of
justice
by
demonstrating that he is "actually innocent" of the offense for
which he was convicted.
Reed v. Stephens, 739 F.3d 753, 767 (5th
Cir. 2014), citing Williams v. Thaler, 602 F.3d 291, 307 (5th Cir.
2010)
(citing Schlup
Dretke
v.
Haley,
v. Delo, 115 S. Ct. 851, 867 (1995)
124
miscarriage-of-justice
U.S.
1847,
exception
1852
requires
(2004)
a
i
see also
(fundamental-
showing
"that
a
constitutional violation has 'probably resulted' in the conviction
of one who is 'actually innocent' of the substantive offense.").
under Schlup, the petitioner must prove that, "'in light of all the
evidence,' 'it is more likely than not that no reasonable juror
would have convicted him.'"
Bosley v.
Cain,
409 F.3d 657,
662
(5th Cir. 2005), quoting Schlup, 115 S. Ct. at 867.
Bogany
makes
no
claim
and
points
to
no
evidence
that
establishes cause and prejudice, and he fails to show that he is
actually innocent of the crime.
Therefore, the claim that Bogany's
criminal convictions are based on voided statutes is subject to
dismissal as procedurally barred with regard to six of his eight
convictions,
cause numbers
1205428, 1205430.
3.
1168760,
1168761,
1205423,
1205426,
Morris, 413 F.3d at 491-92.
Void Statute Claim is Meritless
Bogany fails to articulate any facts or laws in support of his
claim that
1205423,
the
convictions
1205426,
allegations
are
1205428,
subj ect
to
in cause numbers
1205430
are void.
dismissal
17
without
1168760,
His
need
1168761,
unsupported
of
further
review.
Murphy v. Dretke, 416 F.3d 427, 436-437 (5th Cir. 2005),
citing Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir.1983)
("mere
conclusory allegations do not raise a constitutional issue in a
habeas proceedingll)
(5th Cir. 1988)
i
see also Byrne v. Butler, 845 F.2d 501, 513
("It is clear, however, that bold assertions on a
critical issue in a habeas petition, unsupported and unsupportable
by anything else contained in the record,
warrant an evidentiary hearing.
With regard to
insufficient
to
II) •
cause numbers
presents a more explicit argument,
Amendment rights were violated,
state courts.
are
1205427
and 1205429,
Bogany
his assertion that his First
which has been exhausted in the
In support of his argument that the convictions are
unconstitutional, Bogany cites Ashcroft v. Free Speech Coalition,
122 S. Ct. 1389 (2002).
Court
in
Free
Speech
(Docket Entry No.3-I, p. 4).
Coalition
reviewed
Child
The Supreme
Pornography
Prevention Act of 1996 (CPPA), a federal statute that outlawed both
computer generated or
images
abused.
that
Id.
were
"virtual
depictions
at 1401.
ll
of
images of
actual
children as well
children being
as
sexually
The Court distinguished between the two
classes of images noting that the former class of images recorded
no crime and created no victims while the latter required that
children participate in the production of the images.
The
Court noted that depictions involving live performances of children
were "intrinsically related
ll
to sexual exploitation and abuse of
18
the subject children.
3248 (2002)
Id., citing New York v. Ferber, 102 S. Ct.
(upholding the prohibition of the sale or distribution
of child pornography based in part on the continuing harm done to
the
children whose
images).
images
were
contained
reviewing
and
convictions are void,
relevant
the
pornographic
In Ferber, the Supreme Court held that child pornography
is not protected by the First Amendment.
In
in
findings
analyzing
Ferber, at 3358.
Bogany's
argument
that
his
the state habeas court made the following
and
conclusions
of
law
in
each
habeas
application:
Statutory Validity
6.
The applicant fails to
statute(s) he is challenging.
cite
specifically
which
7.
The applicant fails to provide any legal authority
to support his allegations.
8.
The applicant offers only conclusory statements that
the statute that he was convicted under was "declared
void." Writ Application at 6.
9.
The applicant has failed to show that any of the
statutes he may be challenging are unconstitutional.
Statutory Validity
1.
In the absence of contrary evidence, a court will
presume that the legislature acted in a constitutionally
sound fashion. Ex Parte Granviel, 561 S.W.2d 503, 511
(Tex. Crim. App. 1978).
2.
The burden rests upon an individual who challenges
the constitutionality of a statute to establish its
unconstitutionality. Ex Parte Granviel, 561 S.W.2d 503,
511 (Tex. Crim. App. 1978)
19
3.
If no constitutional, statutory, or case authority
is included with a point of error, the Court need not
address it.
Vuonq v. State, 830 S.W.2d 929, 940 (Tex.
Crim. App. 1992).
4.
The applicant's allegations contained in the instant
writ application, even if sworn, are insufficient to
overcome the State's denials when standing alone.
Ex
Parte Empey, 757 S.W.2d 771, 775 (Tex. Crim. App. 1988).
See
~
State Habeas Record for Ex parte Bogany, No.
78,434-07
(Docket Entry No. 13-16, pp. 63, 67).
The Court of Criminal Appeals denied relief on the basis of
the trial court's findings.
(Docket Entry No. 13-12, p. 2).
The
state court's determination was not contrary to, or an unreasonable
application
of
clearly
established
federal
Therefore,
law.
Bogany's claim has no merit and shall be dismissed.
B.
Legal Sufficiency of the Evidence
In his
second ground for relief,
Bogany alleges
that
the
evidence was legally insufficient and that the Court of Appeals
misapplied the correct standard in holding that the evidence was
legally sufficient
to
support
the
jury's
findings
that
possessed child pornography (Docket Entry No.1, p. 10).
Bogany
Stephens
argues that there is no merit to Bogany's allegations as evidenced
by the determinations made by the state appellate court.
The standard of review for an insufficient evidence claim in
a federal habeas corpus proceeding is "whether, after reviewing the
evidence
ln
the
light
most
favorable
to
the prosecution,
any
rational trier of fact could have found the essential elements of
20
the crime beyond a reasonable doubt.
607,
619
1I
Hughes v. Johnson, 191 F.3d
(5th Cir. 1999), citing Jackson v. Virginia,
2781, 2789 (1979).
Cir. 2008).
See also Perez v. Cain, 529 F.3d 588, 593 (5th
"All credibility choices and conflicting inferences
are to be resolved in favor of the verdict.
398
F.3d
99 S. Ct.
691,
695
(5th
Cir.
2005),
1I
quoting
Cyprian, 197 F.3d 736, 740 (5th Cir. 1999).
Ramirez v. Dretke,
United
States
v.
The reviewing court is
not authorized to substitute its interpretation of the evidence for
that of the fact finder.
Alexander v. McCotter, 775 F.2d 595, 598
(5th Cir. 1985).
The Fourteenth Court of Appeals made the following findings:
In his second and third issues, appellant claims the
evidence is legally and factually insufficient to support
the jury's verdicts. The Texas Court of Criminal Appeals
recently determined that the Jackson v. Virginia FID
standard is the only standard a reviewing court should
apply to determine whether the evidence is sufficient to
support each element of a criminal offense the State is
required to prove beyond a reasonable doubt. See Brooks
v. State, 323 S.W.3d 893, 894 (Tex. Crim. App. 2010)
(plurality op.). Accordingly, under current Texas law,
in reviewing appellant's issues we apply the Jackson v.
Virginia standard and do not separately refer to legal or
factual sufficiency.
FNl. 443 U.S. 307, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1979).
We view all of the evidence in the light most favorable
to the verdict to determine whether the jury was
rationally justified in finding guilt beyond a reasonable
doubt.
Brooks, 323 S.W.3d at 902. We do not sit as a
thirteenth juror and may not substitute our judgment for
that of the fact finder by re-evaluating the weight and
credibility of the evidence. Id. at 901i Dewberry v.
State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999) i see also
Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App.
1986). We defer to the fact finder's resolution of
21
conflicting evidence unless the resolution is not
rational. Brooks, 323 S. W. 3d at 907. We defer to the
jury's determinations of the witnesses' credibility and
the weight to be given their testimony because the jury
is the sole judge of those matters. Id. at 899. Our duty
as a reviewing court is to ensure the evidence presented
actually supports a conclusion that the defendant
committed the crime. Williams v. State, 235 S.W.3d 742,
750 (Tex. Crim. App. 2007)
Appellant first claims the evidence failed to establish
the images in question actually constitute child
pornography as defined by statute. See Tex.
Pen.
Code §§ 43.25(a) (2), (g), and 43.26(a) (West 2003 &
Supp. 2009). Appellant was charged with possessing three
categories of child pornography: (1) lewd exhibition of
the female breast of a child younger than 18 years; FN2
(2) lewd exhibition of the genitals of a child younger
than 18 years; Fm and (3) visual depiction of a child
under the age of 18 years engaging in deviate sexual
intercourse, specifically oral sex.FN4 We consider each
category in turn ..
FN2. Appeal No.
14-10-00138-CR (trial court cause
no.
1168760)
(State's
Exhibit
8);
Appeal
No. 14-10-00140-CR (trial court cause no. 1205429)
(State's Exhibit 7); Appeal No. 14-10-00143-CR (trial
court cause no. 1205426) (State's Exhibit 6) i and Appeal
No. 14-10-00146-CR (trial court cause no. 1205423)
(State's Exhibit 2).
FN3. Appeal No.
14-10-00139-CR (trial court cause
no.
1205430)
(State's
Exhibit
4) ;
and
Appeal
( trial court cause no. 1205427)
No. 14-10-00142-CR
(State's Exhibit 1) .
FN4. Appeal No.
14-10-00141-CR (trial court cause
1205428)
no.
(State's
Exhibit
and
Appeal
3) i
No. 14-10-00145-CR ( trial court cause no. 11687761)
(State's Exhibit 5) .
Lewd exhibition of the female breast of a child younger
than 18 years
Appellant argues the photographs do not show a lewd
exhibition of the child's breast.F~ In determining
whether a visual depiction of
a
child's breast
constitutes a lewd exhibition, we consider whether
22
(1) the focal point of the visual depiction is the
breast, (2) the place or pose of the child In the
photograph is sexually suggestive, (3) the child is
depicted in an unnatural pose or inappropriate attire,
(4) the child is fully or partially clothed or nude,
(5) the visual depiction suggests sexual coyness or a
willingness to engage in sexual activity, or (6) the
visual depiction is intended or designed to elicit a
sexual response in the viewer.
See Tovar v. State,
165 S.W.3d 785, 791 (Tex. App.-San Antonio 2005, no
pet.); and Alexander v. State, 906 S.W.2d 107, 110 (Tex.
App.-Dallas 1995, no pet.).
FN5. Appellant does not assert the children depicted are
18 years of age or older.
State's Exhibit 2 depicts four girls, completely nude.
Another girl's face, a girl's arm, and the lower half of
two nude boys are also shown. State's Exhibit 6 shows a
girl, completely nude, with her hands on the back of her
hips, hair pulled back, with a pouting look on her face.
State's Exhibit 7 shows a completely nude girl kneeling
on the floor. State's Exhibit 8 depicts a girl standing
completely nude, with her hands on top of her head, chest
thrust forward.
In considering the factors noted above, the focal point
of the visual depictions is the girls' breasts. The
girls' poses are sexually suggestive. The girls are
completely nude and are depicted in unnatural poses.
Most of the visual depictions suggest sexual coyness or
a willingness to engage in sexual activity. The images
appear to be intended or designed to elicit a sexual
response in the viewer. We therefore hold the evidence
is legally sufficient for a rational trier of fact to
find the photographs show lewd exhibitions of the female
breast of a child.
Lewd exhibition of the genitals of a child younger than
18 years
Appellant argues the photographs do not show a lewd
exhibition of the child's genitals. FN6 In determining
whether a visual depiction of a child's genitals
constitutes a lewd exhibition, we consider whether
(1) the focal point of the visual depiction is the
geni tals, (2) the place or pose of the child in the
photograph is sexually suggestive, (3) the child is
23
depicted in an unnatural pose or inappropriate attire,
(4) the child is fully or partially clothed or nude,
(5) the visual depiction suggests sexual coyness or a
willingness to engage in sexual acti vi ty, or (6) the
visual depiction is intended or designed to elicit a
sexual response in the viewer. See Tovar, 165 S.W.3d at
791; and Alexander v. State, 906 S.W.2d at 110.
FN6. Appellant does not assert the children depicted are
18 years of age or older.
State's Exhibit 1 shows a young girl in a bathing suit.
The lower part of the suit is a short skirt, with no
bottom. The girl is leaning back on her hands, with her
feet under her buttocks, so that her genitals are
prominently displayed. In the top left -hand corner of the
picture is a logo wi th the words "SEXY ANGELS." Appellant
claims "[w]hile her legs are spread the genitals do not
appear visible and are partly obscured by the water." The
water is crystal clear and in no way obscures the child's
genitals. In State's Exhibit 4, a young girl is standing
completely nude. Her arms are crossed over her chest and
her genitals are exposed.
In considering the factors noted above, the focal points
in the photographs are the genitals of the girls. The
poses are sexually suggestive. One of the girls is
completely nude and the other is only partially clothed.
Both girls are depicted in unnatural poses and one is in
inappropriate attire. The visual depictions suggest
sexual coyness or a willingness to engage in sexual
activity and appear to be intended or designed to elicit
a sexual response in the viewer. We therefore hold the
evidence is legally sufficient for a rational trier of
fact to find the photographs show lewd exhibitions of the
genitals of a child.
Visual depiction of a child under the age of 18 years
engaging in deviate sexual intercourse
Appellant does not dispute that both photographs depict
a
girl
engaging
in
deviate
sexual
intercourse,
specifically oral sex.Fm Rather, appellant claims that
no rational trier of fact could have found beyond a
reasonable doubt the girls were under the age of
eighteen. We disagree.
24
FN7. State's Exhibit 3 is a photograph of a girl licking
a man's erect penis. State's Exhibit 5 shows a girl with
a man's erect penis in her mouth.
Section 43.25(g) of the Penal Code provides, in pertinent
part:
When it becomes necessary for the purposes of this
section or Section 43.26 to determine whether a child who
participated in sexual conduct was younger than 18 years
of age, the court or jury may make this determination by
any of the following methods:
(2) inspection of the photograph or motion picture that
shows the child engaging in the sexual performance;
(3) oral testimony by a witness to the sexual performance
as to the age of the child based on the child's
appearance at the time;
Tex. Pen.Code
§
43.25(g).
The jury inspected the photographs.
Our inspection of
the photographs does not support appellant's claim that
no rational trier of fact could have found the girls to
be under 18 years of age. Moreover, Officer J.T. Roscoe
testified State's Exhibit 5 is a depiction of a child
performing oral sex on a male sexual organ and upon
reviewing State's Exhibit 3, Sergeant Lynn Thomas White
testified she saw fta girl that looks like she's under 18
performing oral sex.
We therefore conclude the evidence
is legally sufficient for a rational trier of fact to
find the photographs are a visual depiction of a child
under the age of 18 years engaging in deviate sexual intercourse.
II
For these reasons, we reject appellant's claim the
evidence failed to establish the images in question
constitute child pornography.
Appellant's second challenge regarding the sufficiency of
the evidence is that the State failed to prove he
knowingly possessed those items. Specifically, appellant
asserts the State did not prove his connection with the
images was more than fortuitous. Appellant points to the
25
fact that he was not the exclusive occupant of
premises and other persons were allowed to use
computers.
the
his
The record reflects four computers were taken from
appellant's home. One of the computers had a passwordprotected user folder for appellant.
Multiple images
were deliberately downloaded to the picture folder in
appellant's user profile.
Over 800 images of child
pornography and over 2600 images of child erotica were
found on the computer and the majority of those images
were in the picture folder under appellant's passwordprotected profile.
There were many "favorites
saved
under appellant's user profile that linked to sexually
explicit websites containing child pornography.
There
were images on appellant's computer from four different
series that had been identified by the National Center
for Missing and Exploited Children as being child
pornography.
The images found on appellant's computer
were collected for over a year. There was testimony that
finding actual child pornography is very difficult and to
amass a collection the size found on appellant's computer
would require daily access and a consistent effort.
ll
Appellant had created different profiles on the computer
for guests and his wife but testified that if he was
already logged on in his user name, he would let others
use his computer without logging on again.
Appellant
denied that all of the "favorites linking to pornography
sites were saved by him on his user profile. Appellant
testified all of his computers had been infected with
viruses. He also testified he had never seen the images
that were shown in court. Appellant said he did not have
an explanation for the images downloaded on his computer,
"but it could have been a virus.
ll
1I
Lieutenant Mat thew Gray, commander of the Internet Crimes
Against Children Task Force for the Houston Region,
testified he had never found a virus that actually
downloaded child pornography to someone else's computer.
In the last year alone, Gray had conducted approximately
320 investigations and had never investigated a case
where a virus was to blame. Gray testified a collection
the size of the one on appellant's computer was large
enough to be obvious to the owner of the computer.
Police also recovered videotapes of girls at the pool in
front of appellant's apartment.
Appellant's voice is
26
heard on the tape but he denied being the one operating
the camera. Appellant did not know who was operating the
camera. The girls being videotaped were under the age of
eighteen, many of them pre-pubescent. The video zoomed
in on the front genital area, buttocks, and breasts.
Additionally, there was a videotape of appellant posing
a girl, aged ten to eleven. He pushed up her skirt and
placed a teddy bear in her crotch.
Police also recovered a print-out of a chat log
containing a sexually explicit conversation between "Lou
Bog 2004," supposedly a sixteen-year old boy, and "Linda
Melissa,"
purportedly
a
fourteen-year
old
girl.
Appellant admitted his screen name was "Lou Bog 2004" but
denied chatting with people under the age of eighteen and
lying about his age.
Appellant also testified he had
never seen the print-out.
[C.B.] testified that in March 2008, when she was eleven,
she went to appellant's apartment with a friend and
appellant took pictures of her. He put his hands on the
inside of her thighs and asked her to unbutton her pants.
Appellant also tried to lift her shirt and touched her
behind, under her clothing. Chayene testified appellant
told her not to tell anyone what happened at the
apartment because he would get in trouble.
Appellant
testified he did not do anything inappropriate to Chayene
and denied telling her not to say anything.
Proof of a culpable mental state almost invariably
depends upon circumstantial evidence.
Lee v. State,
21 S.W.3d 532, 539 (Tex. App.-Tyler 2000, pet. ref'd).
A jury can infer knowledge from all the circumstances,
including the acts, conduct, and remarks of the accused
and the surrounding circumstances.
Ortiz v. State,
930 S.W.2d 849, 852 (Tex. App.-Tyler 1996, no pet.) i see
also Dillon v. State, 574 S.W.2d 92, 94 (Tex. Crim. App.
1978). Although appellant denied having downloaded the
images, it was for the jury to determine his credibility
and the weight to be given his testimony.
See Brooks,
323 S.W.3d at 899.
From the circumstances, a rational
trier of fact could find appellant knowingly possessed
child pornography.
Accordingly, we find the evidence sufficient to support
appellant's conviction and overrule issues two and three.
The judgment of the trial court is affirmed.
27
-,
-"'----'---
Bogany v. State, 2011 WL 704359 at **2-6.
The Fourteenth Court
Appeal's conclusion is based on the jury's findings.
fact,
the
jury has
the
sole
authority and
of
As finder of
responsibility
for
weighing the conflicting evidence and determining the credibility
of the witness testimony.
220
(5th Cir. 1999)
(5th Cir. 1998).
i
United States v. Green, 180 F.3d 216,
United States v. Millsaps, 157 F.3d 989, 994
It is not the courts' role to second-guess
juries' determinations.
the
United States v. Guidry, 406 F. 3d 314, 318
(5th Cir. 2005).
The state court's determination is supported by the record and
must be presumed correct by this court.
991 F.2d 1218, 1225 (5th Cir. 1993).
Pemberton v.
Collins,
This court agrees that there
was ample evidence to support the jury's finding that Bogany was
guilty beyond a reasonable doubt.
F.3d 1023, 1030-31 (5th Cir. 1997).
See United States v. Asibor, 109
The state court's rejection of
Bell's sufficiency of the evidence claim is not an unreasonable
application of Jackson v.
relief under AEDPA.
C.
Virginia,
and he
is not entitled to
Therefore, the claim will be dismissed.
Factual Sufficiency of the Evidence
Bogany contends that the evidence was factually insufficient
to show that he knowingly possessed child pornography.
The factual
sufficiency test is rooted in the Texas Constitution, and at one
time, was followed by the Texas courts in reviewing the elements of
an offense on appeal.
Woods v. Cockrell, 307 F.3d 353, 358
28
(5th
Cir.2002),
App.
citing Clewis v.
1996)
The test
State,
922
S.W.2d 126
(Tex.
requires more scrutiny than the federal
constitutional standard set forth in Jackson v. Virginia.
357-58.
Crim.
Id. at
Federal courts do not apply the Clewis standard, which is
based on Texas state law, in federal habeas review.
Moreover,
Woods, at 358.
the Texas Court of Criminal Appeals has overruled the
factual sufficiency standard of Clewis and has held that the legal
sufficiency
standard,
enumerated
in
Jackson
v.
Virginia,
is
applicable in determining whether the evidence is the sufficient to
uphold each element of the offense. Brooks v.
893, 895 (Tex. Crim. App., 2010).
State,
323 S.W.3d
The claim regarding the factual
sufficiency of the evidence will therefore be dismissed because it
is not cognizable in this
D.
§
2254 proceeding.
Effective Assistance of Counsel
In his fourth claim for relief, Bogany argues that he received
ineffective assistance of counsel because his attorney failed to
object to the trial judge's order cumulating (or "stacking")
eight sentences.
Docket Entry No. I, p. 11.
the
He also contends that
his attorney was ineffective for failing to raise a double jeopardy
issue.
To
Id.
Stephens argues that the claim is meritless.
establish
that
he
was
denied
counsel at trial, Bogany must prove:
effective
assistance
of
(1) deficient performance by
counsel and (2) actual prejudice to the defense as a result of the
deficient performance.
Strickland v. Washington, 104 S. Ct. 2052,
29
--------.--------~ .. ~
2064 (1984).
To meet the first prong, Bogany must prove that the
errors were so serious that counsel was not functioning as the
" [T] here is a
"counsel" guaranteed by the Constitution.
strong presumption that the performance [of counsel] falls within
the wide range of reasonable professional assistance."
Johnson, 131 F. 3d 452, 463
Carter v.
(1997).
To meet the second prong, Bogany must prove that "counsel's
errors were so serious as to deprive [Bogany] of a fair trial, a
trial whose result is reliable."
Strickland, 104 S. Ct. at 2064.
A "mere possibility" that a different result might have occurred is
not enough to demonstrate prejudice.
452,
463
(5th Cir.
1997).
second prong under
there
any
is
Further,
2254 (d)
§
reasonable
Lamb v.
Johnson,
179 F.3d
application of Strickland's
compels the court to ask "whether
argument
Strickland's deferential standard."
that
counsel
satisfied
Richter, 131 S. Ct. at 788.
If the Court can surmise a reasonable explanation, Bogany/s burden
has not been met.
Id.
The Court will now apply this heightened
Strickland standard to each of Boganyl s
assistance of counsel.
Bogany/s
claim
of
claims for ineffective
See Strickland, 104 S. Ct. at 2064.
ineffective
assistance
of
counsel
for
failing to obj ect to the cumulated sentences and not raising a
double jeopardy claim was reviewed by the state courts when Bogany
filed his § 11.07 post conviction challenges.
allegations
l
In response to his
the trial court ordered Bogany's trial attorneYI Laine
30
Douglas Lindsey, to file an affidavit addressing the ineffective
assistance of
counsel
No. 12 - 9, pp. 48 - 49) .
issues
raised by Bogany.
(Docket Entry
Lindsey, a 20-year trial lawyer and board
certified criminal law practitioner, gave specific answers to each
allegation.
Id. at 53-55.
Lindsey made the following response to Bogany's claim that a
special plea of double jeopardy should have been entered and that
Lindsey should have filed an objection to the multiple convictions:
I did not believe that it was beneficial or necessary to
enter a special plea of double jeopardy on the
applicant's behalf because I believed (and still do) that
the law in Texas is well settled on that issue. In 1998
the Texas Court of Criminal Appeals held, in response to
clearly stated legislative intent, that each image of
child pornography was an "allowable unit of prosecution"
and that multiple convictions arising from a single
episode didn't violate double jeopardy.
Vineyard v.
State, 958 S.W.2d 834, 838 (Tex. Crim. App. 1998).
Id. at 54.
Lindsey made the following response to Bogany's claim that an
objection should have been made to the stacking order:
As I explained to Mr. Bogany many times, Texas Penal Code
Sec. 3.03 (b) (3) (A) sets out that sentences for multiple
convictions arising from the same episode may be ordered
to be served consecutively when they are for an offense
"under Section 21.15 or 43.26, regardless of whether the
accused is convicted of violations of the same section
more than once or is convicted of violations of both
sections."
As Mr. Bogany was convicted for eight
offenses under 43.26, the court had the authority to
cumulate his sentences.
rd. at 55.
31
After Lindsey submitted his response, the trial court made the
following findings:
11. The Court has read the affidavit of trial counsel
Laine Lindsey, and finds it to be reliable and credible.
12. Lindsey chose not to enter a special plea of double
jeopardy
on
the
applicant's
behalf
because
his
understanding of the law is that the Court of Criminal
Appeals has held that each image of child pornography is
an allowable unit of prosecution.
13. Lindsey chose not to enter a special plea of double
jeopardy
on
the
applicant's
behalf
because
his
understanding of the law is that mUltiple convictions
arising from a single episode did not violate double
jeopardy protections.
Lindsey advised the applicant many times that the
eight cases the applicant was charged with did not
violate the applicant's double jeopardy protections.
14.
15. Lindsey explained to the applicant many times that
sentences for multiple convictions arising from the same
episode may be ordered to be served consecutively when
they are for the felony offense of possession of child
pornography under Texas Penal Code section 43.26,
regardless of whether the applicant was convicted of
violations of the same sections more than once.
16. Lindsey did not object to the trial court's order to
cumulate
the
applicant's
sentences
because
his
understanding of the law is that, because the applicant
was convicted of eight counts of the felony offense of
possession of child pornography, the court had the
authority to cumulate his sentences.
rd. at 59-60.
Based on these
findings,
the
trial
court
determined that
Bogany had failed to demonstrate that Lindsey's performance fell
below an objective standard of reasonableness and that but for
Lindsey's unprofessional errors the outcome of Bogany's criminal
32
proceeding would have been different.
concluded that the:
~totality
Id. at 64.
The court then
of the circumstances demonstrates
that the applicant was afforded counsel sufficient to protect his
right to reasonably effective assistance of counsel." Id.
conscious
~A
strategy
cannot
be
and
the
informed
basis
decision
for
on
trial
tactics
constitutionally
and
ineffective
assistance of counsel unless it is so ill chosen that it permeates
the entire trial with obvious unfairness."
528
F.3d
336,
341
(5th Cir.
2008)
The
Skinner v. Quarterman,
state
habeas
record
reflects that Lindsey did not raise an objection to the multiple
convictions and stacked sentences because he realized that such a
challenge would not succeed.
An attorney is not deficient if he
chooses not to make an objection because he knows it has no legal
basis.
Wood v. Quarterman, 503 F.3d 408, 413 (5th Cir. 2007).
On
the contrary, such a move is an effective tactic in the courtroom
and an important aspect of thoughtful trial advocacy.
Id.; see
also Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994)
(~Failure
to raise meritless objections is not ineffective lawyering;
it is
the very opposite."); Williams v. Beto, 354 F.2d 698, 703 (5th Cir.
1965)
(~Defense
counsel is to be complimented for remembering that
he who often objects, only to have his objections over-ruled, risks
alienating the jury even if he does not test the patience of the
presiding judge.") .
33
The state court's adjudication of Bogany's claims regarding
his
trial
attorney's
performance was
not
a
decision
that
was
contrary to, or involved an unreasonable application of, clearly
established federal law, as established by the Supreme Court of the
United States. 28 U.S.C.
§
2254(d) (1). Nor has Bogany shown that
the state court made an unreasonable determination of the facts in
light of the evidence presented in the state court proceeding.
28 U.S.C.
E.
§
2254 (d) (2) .
Sentence Length
Bogany argues that his sentences exceed the statutory limit
and are excessive.
The state district court made the following
findings with regard to this claim:
18. The applicant was sentenced to fifteen years in the
Texas Department of Criminal Justice-Institutional
Division in each of the eight cases, in a single
proceeding to the jury.
19. Cause number 1168760 (the instant case) was ordered
to run concurrently, with the time the applicant had
already served while awaiting trial.
20. The sentences in cause numbers 1168761, 1205423,
1205426,
1205427,
1205428,
1205429,
and
1205430
(companion cases)
were all ordered to be served
consecutively.
Docket Entry No. 12-9, p. 60.
Based on these factual findings, the trial court entered the
following conclusions of law:
13. The decision to cumulate sentences lies within the
discretion of the trial court.
Tex. Code Crim. Proc.
Ann. Art. 42.08(a) (Vernon 2012).
34
14. The Texas Legislature specifically delineated the
offense of possession of child pornography of the Texas
Penal Code as a "stackable" offense.
Tex. Penal Code
Ann. § 3.03 (b) (3) (A) (Vernon 2011).
15. Article 42.08 of the Code of Criminal Procedure
allows a trial court, in its discretion, to order that a
sentence imposed from a second and subsequent convictions
to begin when the sentence imposed in a preceding
conviction has ceased to operate. Tex. Code Crim. Proc.
Ann. Art. 42.08 (Vernon 2012)
Docket Entry No. 12-9, pp. 64-65
The state habeas court determined that the state laws had been
correctly applied in sentencing Bogany.
a
2254
§
habeas
application
interpretation of its own law.
Scott,
that
not
review
a
state's
Hughes, 412 F.3d at 590; Weeks v.
Moreover in light of the record, which
55 F.3d at 1063.
demonstrates
does
A federal court reviewing
Bogany
has
an
extensive
history
of
child
pornography as well as sexual abuse of children, the extent of his
punishment is not disproportionate to the severity of the offenses
he committed.
Cir.
1996).
Smallwood v. Johnson, 73 F.3d 1343, 1346 -1347 (5th
The state court's adjudication of Bogany's claims
regarding the length of his sentence was not a decision that was
contrary to,
or involved an unreasonable application of clearly
established federal law, as established by the Supreme Court of the
United States. 28 U.S.C.
§
2254(d) (1). Nor has Bogany shown that
the state court made an unreasonable determination of the facts in
light of the evidence presented in the state court proceeding.
28 U.S.C.
§
2254 (d) (2) .
35
F.
Search and Seizure
Bogany argues that the police conducted a warrantless search
of his apartment and illegally seized materials that were used
against him at trial.
(Docket Entry No. 3-2, pp. 3-4).
It is well
settled law that a claim challenging the admission of evidence at
trial pursuant to an unconstitutional search and seizure is not
cognizable in a federal habeas proceeding if the state has provided
the opportunity for a full and fair litigation of the claim.
v. Powell, 96 S. Ct. 3037, 3046 (1976).
Bogany from raising a
Stone
Consequently, Stone bars
search and seizure claim in this habeas
proceeding because Texas law allowed him to present it at trial and
on direct appeal.
2012) .
This
Register v. Thaler, 681 F.3d 623, 628 (5th Cir.
rule
applies
regardless
of
whether
Bogany
took
advantage of this opportunity at trial and on appeal.
Id.
makes no
and fairly
showing that
he was prevented
litigating this claim.
because
there
has
Therefore,
it
been no unreasonable
established federal law.
from
is
fully
subject
Bogany
to dismissal
application of
clearly
Moreno v. Dretke, 450 F.3d 158, 167 (5th
Cir. 2006).
G.
Double Jeopardy
Bogany contends that his multiple convictions violate the
Double Jeopardy Clause.
(Docket Entry No. 3-2, pp. 5-6).
contends that the claim has no merit.
Stephens
The court has previously
touched on the substance of this claim while reviewing the merit's
36
of
Bogany's
claim that
counsel at trial.
he
was
denied effective
Supra at 31-33.
assistance
The state habeas court made the
following findings regarding his claim of double jeopardy:
22. As reflected in the judgments and sentences, the jury
found the applicant guilty of eight felony offenses of
possession of child pornography in cause numbers 1168760
(the primary case), 1168761, 1205423, 1205426, 1205427,
1205428, 1205429, and 1205430 (the companion cases), in
a single proceeding to the jury.
23. The State alleged, and the applicant was convicted of
eight counts of possession of child pornography involving
eight separate images.
24. The Fourteenth Court of Appeals reviewed State's
Trial Exhibits 1 through 8. Bogany v. State, No. 14-1000138-CR, slip op. at 2-5, 2011 WL 704359, at *2-*4.
25. Exhibits 1 through 8 are the images upon which the
eight indictments in these cases are based. (3 R.R. 108118) .
26. State's Trial Exhibit 8 is the image upon which the
instant case is indicted. (3 R.R. 118).
27. The Fourteenth Court of Appeals discussed each
individual image at length, indicating there were eight
distinct images of child pornography and actually
deciding each image was, in fact, pornography. Bogany v.
State, No. 14-10-00138-CR, slip op. at 2-3, 2011 WL
704359, at *2-*4.
28. The applicant was lawfully convicted of eight
separate offenses, or "allowable unit [s] of prosecution.
Vineyard v. State, 958 S.W.2d 834, 838 (Tex. Crim. App.
1998) .
II
Docket Entry No. 12-9, pp. 60-61.
The trial court then made the following conclusions:
17. The double jeopardy clause of the Fifth Amendment
protects against: (1) a second prosecution for the same
offense after conviction; (2) a second prosecution for
the same offense after acquittal; and (3) multiple
37
of
punishments for the same offense.
Pearce, 395 U.S. 711 (1969).
North Carolina v.
18. Cumulative punishment may be imposed where separate
offenses occur in the same transaction, as long as each
conviction requires proof of an additional element which
the other does not.
Phillips v. State, 787 S.W.2d 391
394 (Tex. Crim. App. 1990) (citing Blockburger 284 U.S.
at 304).
1
l
19. The Court of Criminal Appeals held that Blockburger
does not preclude multiple punishments for violation of
the same statute where there are multiple offenses
involved. VineYard v. State
958 S.W.2d 834
836 n.5
(Tex. Crim. App. 1998).
1
l
20. The Court of Criminal Appeals has previously held
"the Legislature intended in cases like this to make
possession of each item of child pornography an
'allowable unit of prosecution.
Vineyard v. State
958 S. W. 2d 834
838 (Tex. Crim. App. 1998) (emphasis
added) .
III
l
I
Docket Entry No. 12-9
1
p. 65.
The general purpose of Double Jeopardy Clause is to prevent
the State from trying and punishing an individual more than once
for the same act which violates the State slaws.
I
United States
l
95 S. Ct. 1055
1
1062
(1975).
Serfass v.
It does not prevent
the State from convicting and imposing multiple punishments for
separate acts or transactions in violation of the law.
State v. Woerner
l
709 F.3d 527
1
540-541 (5th Cir. 2013)
United
(upholding
convictions of multiple counts of possession of child pornography) .
Bogany/s Double Jeopardy claim shall be dismissed because he has
failed to show that the state courtls decision is an unreasonable
application of clearly established federal law as established by
the Supreme Court of the United States. 28 U.S.C.
38
§
2254(d) (1). Nor
has
Bogany
shown
that
the
state
court
made
an
unreasonable
determination of the facts in light of the evidence presented in
the state court proceeding.
H.
28 U.S.C.
2254 (d) (2)
§
Actual Innocence - New Evidence
Bogany contends that he is actually innocent of the crimes
based on newly found evidence.
habeas
corpus
violation.
2006),
relief
Foster v.
Actual innocence is not a basis for
absent
independent
an
Quarterman,
citing Herrera v.
constitutional
466 F. 3d 359,
113
Collins,
S.
Ct.
367
853,
(5th Cir.
860
(1993)
("Claims of actual innocence based on newly discovered evidence
have never been held to state a ground for federal habeas relief
absent an independent constitutional violation occurring in the
underlying state criminal proceeding.").
the
principle
that
federal
habeas
"This rule is grounded in
courts
sit
to
ensure
that
individuals are not imprisoned in violation of the Constitution-not
to correct errors of fact."
Herrera,
113 S. Ct. at 860, citing
Moore v. Dempsey, 43 S. Ct. 265, 265 (1923)
we have to deal with
[on habeas review]
innocence
but
or
guilt
solely
the
(Holmes,
J.)
("[W]hat
is not the petitioners'
question
constitutional rights have been preserved") .
whether
Moreover,
their
"'actual
innocence' means factual innocence, not mere legal insufficiency."
In re Warren,
Bousley v.
537
United
F.
App'x 457,
States,
118
S.
462
1604,
2013),
1611
quoting
(1998).
"To
establish actual innocence, petitioner must demonstrate that,
'in
39
Ct.
(5th Cir.
light of all the evidence,'
'it is more likely than not that no
Bousley,
reasonable juror would have convicted him.'"
at 1611,
quoting Schlup v. Delo, 115 S. Ct. 851, 867-868 (1995).
"[E]ven if a truly persuasive claim of actual innocence could
be a basis for relief, the Supreme Court made clear that federal
habeas
relief
would
only be
available
if
there
was
no
procedure for making such a claim. Graves v. Cockrell,
143,
151
(5th Cir.
2003),
citing Herrera,
113
S.
Ct.
state
351 F.3d
at
"Texas habeas law recognizes claims of actual innocence."
citing Ex parte Elizondo,
1996) .
findings
947 S.W.2d 202,
205
(Tex.
869.
Id. ,
Crim. App.
The federal habeas court should examine and review the
and
conclusions
of
the
Texas
courts
regarding
the
petitioner's claim of actual innocence based on new evidence.
See
Reed v. Stephens, 739 F.3d 753, 772-773 (5th Cir. 2014).
The state habeas court made the following findings of fact:
Actual Innocence
29. Because the applicant has not presented an otherwise
barred constitutional claim for consideration, Schlup
does not apply to the applicant's actual innocence claim.
30. The applicant has failed to include sufficient
specific facts establishing that the current claims could
not have been presented previously because the factual or
legal basis for the claims was unavailablei or that, by
a preponderance of the evidence, no rational juror could
have found the applicant guilty beyond a reasonable
doubt. Tex. Crim. Proc. Code art 11.07 § 4(a) (Vernon
Supp. 2012).
31. The instant application is completely lacking in any
newly discovered evidence necessary to establish the
40
applicant's innocence under either the Herrera or Schlup
standards. Elizondo, 947 S.W.2d at 209.
32. Since the applicant fails to present any allegation
of newly discovered evidence, the applicant fails to
carry his initial habeas burden for an actual innocence
claim.
Newly Discovered Evidence
33. At trial, both defense counsel and the applicant
raised the possible defense of a computer virus as the
source of the child pornography on the applicant's
computer. (3 R.R. 185; 4 R.R. 52-53, 59, 67, 77, 79).
34. Appellate counsel also raised the possible defense of
a computer virus as the source of the child pornography
on the applicant's computer on appeal. Bogany v. State,
No. 14-10-00138-CR, slip op. at 4, 2011 WL 704359, at *5.
35. The applicant fails to show that he is innocent in
the primary case, because he merely restates his defenses
already available at trial and provided no new evidence
in the instant application.
Ex parte Brown, 205 S.W.3d
at 546-547.
36. The applicant fails to prove that he is innocent by
clear and convincing evidence, and also fails to prove
that any constitutional error "probably" resulted in the
conviction of one who is innocent.
37. The applicant has failed to prove by clear and
convincing evidence that a jury would acqui t him based on
newly-discovered evidence. Ex parte Elizondo, 947 S.W.2d
202 (Tex. Crim. App. 1996); State ex reI. Holmes v. Third
Court of Appeals, 885 S.W.2d 389 (Tex. Crim. App. 1994).
Docket Entry No. 12-9, pp. 61-62.
The Texas Court of Criminal Appeals denied Bogany relief based
on the trial court's findings.
rd. at 2.
Bogany has the burden of
overcoming the presumption that the factual findings of the state
courts are correct by providing clear and convincing evidence that
proves that the findings are objectively unreasonable.
41
28
U.S.C.
§
2254(e)
Morales v. Thaler, 714 F.3d 295, 302 (5th Cir. 2013).
i
This is a "substantially higher threshold" than proving that the
findings are incorrect.
665 F.3d 647,
654-55
Morales, at 302, citing Blue v. Thaler,
(5th Cir. 2011).
It is not enough to show
that "a federal court would have reached a different conclusion."
Id., quoting
Wood v. Allen, 130
s.
Ct. 841, 849
(2010).
Bogany
has failed to provide any evidence showing that the findings of the
Court of Criminal Appeals are unreasonable.
Therefore, his claim
that he is actually innocent based on newly found evidence shall be
dismissed.
I.
Due Process - Access to Records
In his
final
claim for
relief,
Bogany argues
that he was
denied due process because he was not provided with a free copy of
his trial records despite his inability to pay for them.
Entry No.
rej ected
3-2,
this
pp.
11-13).
claim on
the
(Docket
The state habeas court reviewed and
merits
after making
the
following
findings:
38. The applicant's implied request for a free transcript
is not the proper basis for habeas relief.
39. The applicant's claims are not of a jurisdictional
defect nature, nor are his claims regarding a fundamental
or constitutional right.
40. The applicant has failed to allege and prove
sufficient facts, which if true, would entitle him to
relief.
Ex parte Maldonado, 688 S.W.2d 114, 116 (Tex.
Crim. App. 1985).
Docket Entry No. 12-9, p. 40.
42
The state habeas court also made the following conclusions:
27. Indigent and pro-se litigants must adhere to the
requirements imposed by Tex.
R.
App.
Proc.
20.2
concerning the timely filing of an affidavit showing
entitlement to a free transcript.
28. The decision whether to grant or deny a request for
a free transcript is totally within the discretion of the
trial court, and a defendant does not have an absolute
right to a free transcript. Rosales v. State, 748 S.W.2d
451, 455 (Tex. Crim. App. 1987).
rd. at 66.
"An indigent habeas petitioner 'is not entitled to a free copy
of his [trial] transcript and record to search for possible trial
defects merely because he is an indigent.'"
Johnson v. Johnson,
194 F.3d 1309, 1999 WL 767047, *1 (5th Cir. 1999), quoting Bonner
v. Henderson, 517 F.2d 135, 136 (5th
Devasto,
140 F. App'x 574,
575
Cir. 1975).
(5th Cir.
2005)
See also Deem v.
("[T]here is no
constitutional mandate that a habeas petitioner must be provided a
free copy of his state habeas trial record."). United States v.
Herrera,
474
F.2d
1049
(5th
Cir.
1973)
("This
Court
has
consistently held that a federal prisoner is not entitled to obtain
copies of court records at the government's expense to search for
possible defects merely because he is an indigent.").
An indigent
petitioner is only entitled to a free copy if he set forth facts
showing that it is necessary for a fair adjudication of at least
one of his claims.
1972)
See Smith v. Beto, 472 F.2d 164, 165 (5th Cir.
(" [T] he petitioner has not shown that the district court
erred in holding that he had not demonstrated a need for the trial
43
transcript in proving a denial of effective counsel.").
Bogany
fails to articulate any facts in his petition, or in his response
to Stephens's motion for summary judgment, which show that denial
of a copy of the record prevented him from presenting an actionable
claim.
See Docket Entry No. 3-2, pp. 11-13; Docket Entry No. 19,
pp. 59-62.
Moreover,
there
is no
factual
support
for Bogany's
claim
because the habeas record shows that his appellate attorney had a
copy of the trial record during the direct appeal.
Brief with References
to Trial
Docket Entry No. 10-1, pp.
have a
right
Transcript
9-13.
to actual possession of
140 F.
App'x at
575
and Clerk's Record,
A criminal appellant does not
appellate counsel has access to it.
also Deem,
See Appellant's
the
trial
record if his
Smith, 472 F.2d at 165; see
("[T]here is no constitutional
mandate that a habeas petitioner must be provided a free copy of
his state-court criminal trial record."), citing Smith, 472 F.2d at
165; Sloan v.
Collins,
21 F.3d 1109,
1109
(5th Cir.
1994)
("An
appellant whose counsel has the trial record has no constitutional
right to a copy for himself."), citing Smith, 472 F.2d at 165 (not
selected for publication).
The
state court I s
adjudication of
Bogany's due process claim was not a decision that was contrary to,
or involved an unreasonable application of clearly established
federal
law,
as established by the Supreme Court of the United
States.
28 U.S.C.
§
2254 (d) (1) .
44
__-_.•._----------._---_._-..
Nor has Bogany shown that the
state court made an unreasonable determination of the facts
in
light of the evidence presented in the state court proceeding.
28 U.S.C.
§
2254 (d) (2) .
Stephens has shown that there is no merit to any of Bogany's
claims.
Therefore,
the court will grant Stephens's motion for
summary judgment and dismiss Bogany's petition for a writ of habeas
corpus.
IV.
Motion for Evidentiary Hearing
Bogany has filed a motion for evidentiary hearing in order to
allow him an opportunity to fully examine the record.
Habeas
petitioners may be permitted to conduct discovery if good cause is
shown.
Rector v.
Johnson,
120 F.3d 551,
562
(5th Cir.
1997).
However,
the rules regarding habeas proceedings do not sanction
"fishing
expeditions"
based
on
unsupported
allegations.
See
Perillo v. Johnson, 79 F.3d 441, 444 (5th Cir. 1996), citing Rule 6
of the Rules Governing Section 2254 Cases.
Bogany's motion for
evidentiary hearing (Docket Entry No. 20) will be denied because it
is baseless.
Lave v.
Dretke,
416 F.3d 372,
380-381
(5th Cir.
2005), citing United States v. Webster, 392 F.3d 787, 802 (5th Cir.
2004) .
45
----_
..
~--~--.-------
V.
Certificate of Appealability
Under 28 U.S.C.
§
2253, Bogany needs to obtain a certificate
of appealability before he can appeal this Memorandum Opinion and
Order
dismissing
his
Petition.
To
obtain
a
certificate
of
appealability Bogany must make a substantial showing of the denial
of a constitutional right.
Williams v. Puckett, 283 F.3d 272, 276
To make such a showing Bogany must demonstrate
(5th Cir. 2002)
that the issues are debatable among jurists of reason; that a court
could
resolve
the
issues
in
a
different
manner;
or
that
the
questions are adequate to deserve encouragement to proceed further.
Lucas v.
Johnson
l
132 F.3d 1069 1
1073
(5th Cir. 1998).
For the
reasons stated in this Memorandum Opinion and Order, Bogany has not
made a substantial showing of the denial of a constitutional right.
Newby v. Johnson
l
81 F.3d 567, 569 (5th Cir. 1996)
The court will
therefore deny a Certificate of Appealability in this action.
VI.
For
the
reasons
Conclusion and Order
explained
above
1
the
court
ORDERS
following:
1.
The Motion for Extension of Time to File a Response
(Docket Entry No. 18) is GRANTED
2.
Respondent Stephen's Motion for Summary Judgment
(Docket Entry No. 17) is GRANTED.
3.
The Motion for Evidentiary Hearing
No. 20) is DENIED.
46
(Docket Entry
the
4
The Petition for a Writ of Habeas Corpus By a Person in
State Custody (Docket Entry No.1) is DISMISSED WITH
PREJUDICE.
5.
A Certificate of Appealability is DENIED.
SIGNED at Houston,
Texas, on this the
11th
day of September,
2014.
r
SIM LAKE
UNITED STATES DISTRICT JUDGE
47
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