Weinstein v. Stephens

Filing 20

MEMORANDUM OPINION AND ORDER GRANTING 18 MOTION for Summary Judgment with Brief in Support. This lawsuit is DISMISSED WITH PREJUDICE. A certificate of appealability is DENIED. Any and all pending motions are DENIED AS MOOT. (Signed by Judge Gray H. Miller) Parties notified.(rkonieczny, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
STEVEN MARK WEINSTEIN,
Petitioner,
v.
WILLIAM STEPHENS,
Respondent.

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CIVIL ACTION H-14-1079

MEMORANDUM OPINION AND ORDER
State inmate Steven Mark Weinstein, represented by counsel, filed a section 2254
habeas petition challenging his conviction and thirty-year sentence for murder. Respondent
filed a motion for summary judgment (Docket Entry No. 18), to which petitioner filed a
response (Docket Entry No. 19).
Based on consideration of the pleadings, the motion and response, the record, and the
applicable law, the Court GRANTS the motion for summary judgment and DISMISSES this
case for the reasons that follow.
Procedural Background and Claims
Petitioner was convicted of murder in Harris County, Texas, and sentenced to thirty
years’ incarceration on December 16, 2008. The conviction was affirmed on direct appeal,
and the Texas Court of Criminal Appeals refused discretionary review. Weinstein v. State,
No. 14-08-01149-CR, 2010 WL 2967675 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d)
(mem. op., not designated for publication).

Petitioner’s application for state habeas relief, filed with the state trial court on
February 22, 2012, was denied by the Texas Court of Criminal Appeals in a published
opinion on January 29, 2014. Ex parte Weinstein, 421 S.W.3d 656 (Tex. Crim. App. 2014).
Petitioner raises the following claims for relief in the instant petition:
1.

The State’s witness falsely testified that he never experienced delusions or
hallucinations.

2.

Trial counsel was ineffective in failing to:
a.

obtain and present evidence of the witness’s mental health issues; and

b.

request a jury instruction on manslaughter.

Respondent argues that these claims are without merit and should be dismissed.
Factual Background
The Texas Court of Criminal Appeals set forth the following statement of facts in its
published opinion denying habeas relief:
Applicant was convicted of murdering Jerry Glaspie. He filed a post
conviction application for a writ of habeas corpus, alleging that he was denied
due process because (1) the State failed to disclose that its key witness, Nathan
Adams, had hallucinations and delusions, and (2) the State presented false
testimony when Mr. Adams lied about not having hallucinations and delusions.
The habeas judge initially filed findings of fact and conclusions of law
recommending that we deny relief, but we remanded the case and asked her to
determine (1) whether Nathan Adam’s testimony was false, and, if so, (2)
whether applicant had shown a reasonable likelihood that the false testimony
affected the judgment of the jury. In revised findings, the judge found that the
State unknowingly presented false testimony when Nathan Adams testified
that he did not suffer from auditory or visual hallucinations. The judge also
found that Mr. Adams was a key witness in establishing applicant’s intent to

2

murder. She concluded that there was a reasonable likelihood that the outcome
of the trial would have been different had Mr. Adams admitted to having
hallucinations.
We adopt the habeas judge’s factual findings that Adams’s testimony about his
lack of delusions was false, but we conclude that applicant has failed to prove
that Adams’s false testimony was ‘material,’ i.e., reasonably likely to have
affected the jury’s verdict.
The evidence at trial showed that, in mid–2006, applicant and Jerry Glaspie
drove from Houston to Dallas planning to use applicant’s $14,000 to buy
methamphetamine. The drug deal did not go as planned. Although Jerry
instructed applicant to bring cash, applicant tried to buy the meth with a
$14,000 cashier’s check. ‘[T]he banks were closed because it was the
weekend and so there was no place to cash the check.’ Unwilling to wait for
the banks to open, applicant left Jerry in Dallas with his check, expecting him
to return to Houston with either meth or money.
Jerry remained in Dallas, so applicant called him ‘four or five times a day,’ but
Jerry ‘stopped answering the phone.’ Then applicant started calling Jerry’s
friends in Houston. Around November, applicant contacted Jerry’s friends on
Manhunt [a dating website with ‘a lot of’ known recreational drug users],
explaining how Jerry ripped him off and looking for ways to find him.
Applicant ‘was very upset and angry.’ He tried to get a mutual friend to call
Jerry and tell him that someone in Houston wanted to make a major
methamphetamine buy. Applicant planned to ‘surprise’ Jerry when he
appeared and demand his money back. When asked what he would do if Jerry
didn’t have his money, applicant said, ‘Oh, well, we’ll just scare him.’
Applicant’s plans grew more violent. At one point, he suggested driving to
Dallas and ‘tak[ing] him for a ride somewhere.’ If Jerry didn’t have his
money, applicant said that ‘maybe we can hurt him. We can do something,
just do stuff just to scare him, just to get him to, you know, cough up the
money.’ In another plot, applicant asked his interior decorator to help bring
Jerry back ‘with or without [his] consent’ by ‘giving him some drug or maybe
using a taser gun.’ Applicant also talked about using restraints: ‘[H]e was
[going] to have to tie him up . . . and then put him in the car and bring him to
Houston.’

3

Jerry eventually returned to Houston without the drugs or applicant’s $14,000.
Although he was warned to stay away from applicant, Jerry told his friends
that he had ‘made arrangements to pay him off in installments,’ so ‘[d]on’t
worry about it.’
On the morning of January 29, 2007, Jerry borrowed his roommate’s 4–Runner
to visit some people, including applicant. Jerry never returned. Worried about
Jerry’s disappearance, his roommate filed a missing persons report. A few
weeks later, police found the 4–Runner in a church parking lot. Although
Jerry’s friends feared that he was at applicant’s house, no one called the police
because they didn’t want cops ‘poking around’ in their drug business.
Near the end of February, residents in applicant’s townhouse complex noticed
an odor coming from applicant’s garage. It was so strong that the mailman
refused to deliver the mail. When his neighbors repeatedly asked about the
smell, applicant said that his ex-roommate had hidden food all over the house,
but he was trying to clean up all the rotting food.
On March 8th, HPD Officer Ladewig was dispatched to applicant’s house to
check out the foul odor coming from the garage. She noticed ‘this awful,
horrible smell’ and ‘a big swarm of flies’ coming in and out of applicant’s
garage. Although she recognized the smell of a dead body, she was not ‘100
percent sure’ that it was anything more than a dead animal, so she did not try
to contact applicant. Two days later, she was again dispatched to applicant’s
home. Convinced that she was smelling a dead body, she asked her supervisor
to join her, and together they knocked on applicant’s door and used their
loudspeaker, but applicant did not respond. Although they wanted to make a
forced entry, the D.A.’s Office told them that they could not enter without a
search warrant.
At 5:00 a.m. on March 22nd, Officer Ladewig was on patrol near applicant’s
house. Still convinced that the odor coming from applicant’s garage was from
a dead body, she drove her partner to the house to get his opinion. When they
arrived, applicant was standing in his front yard. He told the officers that his
ex-roommate ‘had left rotting meat and trash all over’ the house and garage.
While telling his story, applicant ‘was stuttering’ and ‘appeared very upset,’
and ‘nervous.’ When Officer Ladewig asked to see inside the garage,
applicant refused because ‘he was too tired.’

4

The next afternoon, a different officer was called to follow up on another odor
complaint at applicant’s house. He ‘immediately identified that smell as that
of a dead body.’ He also smelled ‘the strong odor of a cleaning agent, like
bleach,’ indicating that somebody ‘was trying to clean up after what they did.’
That officer opened applicant’s garbage can and saw several empty bottles of
bleach and other cleaning fluids. He couldn’t contact applicant, but finally
officers called for a cadaver dog who ‘alert[ed]’ at applicant’s garage,
indicating that there were human remains in the garage. After obtaining a
search warrant, the officers cut through applicant’s gate and entered his
unlocked house.
They discovered applicant lying on a bed upstairs. He ‘appeared to be
shaking, like he was having a seizure.’ A police scanner was on the bed next
to him. He was taken away while officers entered the garage and found
applicant’s car. As an officer went to the trunk of the car, he saw a bent coat
hanger securing the trunk lid shut. He opened the trunk and found a naked,
‘badly decomposed,’ body. An engine hoist was nearby. When they searched
the rest of the house, the officers found an empty oil drum in the kitchen; two
semiautomatic guns near the headboard of applicant’s bed; a respirator on the
bedroom floor; and baking soda, cleaning supplies, bug killers, and
deodorizers near the entrance to the garage.
Dental and fingerprint evidence confirmed that the body was that of Jerry
Glaspie. Jerry had no clothes on. His wrists and legs were bound together
with metal shackles, rope, chains, and wire. There were ‘loops of duct tape’
around his lower neck that had ‘probably slipped off from his lower face.’ The
Medical Examiner (M.E.) determined that Jerry’s death was a homicide,
although he could not say with 100% certainty that Jerry did not die of natural
causes. The bones in Jerry’s neck had begun to disarticulate, but the M.E.
could not determine if this was caused by strangulation or natural
decomposition. While the exact cause of death could not be determined, the
M.E. said that Jerry’s death could have been caused either by strangulation or
by asphyxiation from the duct tape.
Nathan Adams testified that he met applicant in a tank for jail detainees with
a medical illness. Applicant began talking about his case and that jogged
Adams’s memory about a television story he had seen reporting that a dead
body had been found in a car trunk after the neighbors had complained about
the smell. Adams testified that he did not read any additional news coverage,
nor had he obtained any information about the crime from another source.
5

Adams testified that applicant told him that Jerry stole $14,000 from him when
he went to Dallas to buy a ‘car.’ [Another witness testified that ‘automobile’
was a code word for crystal meth.] Applicant told Adams conflicting stories
about how Jerry died, but his second story was ‘that he had strangled the
gentleman and had placed him in the trunk.’ Adams testified that applicant
demonstrated ‘on [him] . . . the way he did it:’
[H]e rapped a towel a certain way and he asked me to stand up,
which I did, and he came behind me and put the towel in a
certain way around my neck and immediately when he pulled it,
it was extremely painful. And I knew that if that was applied to
anybody that they would be in serious trouble immediately.
Adams explained that applicant was a massage therapist and claimed to have
‘specialized knowledge of pressure points, pressure points in the body whether
it was . . . to help somebody or to hurt somebody.’ Applicant told Adams that
he put Jerry’s body in the trunk of his car but the smell became horrible, so he
bought dry ice and sprayed insecticides to keep the smell down. He was scared
because the smell was so bad that he ‘stayed in his house and never left his
house again until the police came.’
Adams testified that applicant explained why he didn't move the body. ‘He
had a problem because he couldn’t get the trunk open . . . I guess the body had
swelled so much that he could no longer open the trunk . . . . [S]o he went to
a . . . store, to buy an engine hoist to try and pry it open.’ Applicant went into
detail about the engine hoist, explaining how he had to go to the store multiple
times because it was missing instructions and necessary parts.
On cross-examination, the defense extensively impeached Adams’s credibility.
He had been in-and-out of jail since the mid 1990s. In addition, Adams
admitted that he was testifying in exchange for a reduced charge from assault
on peace officer, a third-degree felony, to simple assault with credit for time
served. In fact, it was Adams who initially contacted the District Attorney,
writing several letters offering to testify against applicant in exchange for a
deal. He also admitted to having seen the indictment – one that charged
applicant with ‘suffocating’ Jerry Glaspie – while in jail. Adams admitted that
he was again in custody because he failed to appear to testify and was brought
to the courtroom in handcuffs.

6

Furthermore, Adams admitted that he suffered from bipolar disorder, for which
he takes Depakote and Seroquel. But when he was asked whether his mental
illness ‘has ever caused you to have any type of audi[tory] or visual
hallucinations,’ Adams responded: ‘Not at all. No, sir, not at all.’ And when
asked if he ever experiences false memories, Mr. Adams responded in the
negative. Finally, when asked if his bipolar disorder only affected his mood,
Mr. Adams responded: ‘Yes, sir, it’s just—it’s just mood swings is what it is.’
In closing arguments, the defense argued that applicant did not intend to kill
Jerry. Counsel claimed that the State failed to prove what happened on the day
Jerry died because the Medical Examiner could not completely rule out a
natural cause of death. Thus, it was possible that applicant put Jerry in the
trunk just to scare him, without any intent to kill him. The defense also
attacked Adams’s testimony, arguing that Adams was the only witness
supporting the indictment’s theory that Jerry was strangled, but that Adams
was not a credible witness because he had an extensive criminal record and
had every reason to lie.
The State’s closing focused on applicant’s motive for killing Jerry and the
comments he made to his friends while Jerry was still in Dallas. The
prosecutor tallied up the evidence showing that Jerry was tied up, alive and
struggling. And, the prosecutor argued, it did not matter exactly how Jerry
died: ‘Was he standing? Was he sitting? I don’t know and I don’t have to
prove that to you. Because the bottom line is the evidence is consistent with
everything Nathan Adams told you.’ The prosecutor then turned to Adams’s
testimony, admitting that Adams was not ‘altruistic’ and that he had ‘an
agenda’ in testifying. But ‘he knew things that there’s only one way he could
know about.’ The prosecutor pointed out that
[t]here wasn’t anything in the news about 14 grand and a death.
It was a body found in the trunk. You didn't hear any testimony
that there was ever anything released about how the body was
killed. There was nothing. But here comes Mr. Adams and
suddenly he knows things that there’s no way else he could
know unless he got it from the horse’s mouth.
He pointed to additional information that Adams could have known only from
applicant: He knew about the use of dry ice and insecticide to cover the smell
of the body and he knew about the engine hoist in applicant’s garage. The
prosecutor argued that Adams demonstrated his credibility: ‘He told you
7

everything [applicant] had told him. He didn’t embellish. He didn’t say this
was over drugs . . . . If he was making up his testimony, don’t you think he
would have fitted it a little bit better?’
The jury convicted applicant of murder and sentenced him to thirty years’
imprisonment and a $10,000 fine. Applicant challenged the sufficiency of the
evidence on appeal, but the Fourteenth Court of Appeals affirmed his
conviction.
After we remanded applicant’s habeas application to the convicting court, the
habeas judge made ‘revised’ findings of fact and conclusions of law. She
found that Adams testified falsely in ‘denying that he had any audi[tory] or
visual hallucinations and did not remember things that didn’t really happen.’
She listed numerous reports that said Adams suffered from delusions and
hallucinations. Although the judge found that neither the State nor the
defense were aware that Adams’s testimony was false, she found that ‘[t]he
State created the false impression that Adams was bipolar but never had any
type of hallucinations.’
On the question of materiality, the trial judge concluded that ‘Adams was the
key prosecution witness, as he was the only person who testified that applicant
admitted causing Glaspie’s death. The State used Adams’s testimony to
establish that applicant intentionally killed Glaspie.’ While noting that defense
counsel ‘elicited on cross-examination that Adams received psychiatric care
and medication in jail,’ the judge concluded that ‘[t]he impeachment
information contained in Adams’s medical records was more important than
other ‘impeachment’ evidence presented at trial.’ She recommended granting
relief because ‘[t]here is a reasonable probability that the outcome of the trial
would have been different had applicant impeached Adams’s false testimony
that he did not have hallucinations.’
Ex parte Weinstein, 421 S.W.3d at 659–664 (footnotes omitted). As stated earlier, the Texas
Court of Criminal Appeals declined to adopt the trial court’s finding that the testimony was
“material,” and held instead that the testimony was not material.

8

The Applicable Legal Standards
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, 562 U.S. 86, 98–99 (2011);
Williams v. Taylor, 529 U.S. 362, 404–05 (2000); 28 U.S.C. §§ 2254(d)(1), (2). A state court
decision is contrary to federal precedent if it applies a rule that contradicts the governing law
set forth by the Supreme Court, or if it confronts a 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 if it 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. “It
bears repeating that even a strong case for relief does not mean the state court’s contrary

9

conclusion was unreasonable.” Richter, 562 U.S. at 102. As stated by the Supreme Court
in Richter,
If this standard is difficult to meet, that is because it was meant to be. As
amended by AEDPA, § 2254(d) stops short of imposing a complete bar on
federal court relitigation of claims already rejected in state proceedings. It
preserves authority to issue the writ in cases where there is no possibility
fairminded jurists could disagree that the state court’s decision conflicts with
this Court’s precedents. It goes no farther. Section 2254(d) reflects the view
that habeas corpus is a ‘guard against extreme malfunctions in the state
criminal justice systems,’ not a substitute for ordinary error correction through
appeal.
Id., at 102–03 (emphasis added; internal citations omitted).
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–El 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)(1); see
also Miller–El, 537 U.S. at 330–31.
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

10

a matter of law. FED. R. CIV. 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 only apply to the extent that they do not conflict with the federal rules governing
habeas proceedings. Therefore, section 2254(e)(1), which mandates that a state court’s
findings are to be presumed correct, overrides the summary judgment rule that all disputed
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).
False Testimony
Petitioner claims that the State’s witness, Nathan Adams, falsely testified that he did
not suffer from delusions and hallucinations. He further claims that the State was aware of
the falsity of the testimony, and that the false testimony was material. In short, petitioner
asserts a claim for relief under Giglio v. United States, 405 U.S. 150 (1972).
In rejecting petitioner’s arguments on state collateral review, the Texas Court of
Criminal Appeals held as follows:

11

After we remanded applicant’s habeas application to the convicting court, the
habeas judge made ‘revised’ findings of fact and conclusions of law. She
found that Adams testified falsely in ‘denying that he had any audi[tory] or
visual hallucinations and did not remember things that didn’t really happen.’
She listed numerous reports that said Adams suffered from delusions and
hallucinations. Although the judge found that neither the State nor the defense
were aware that Adams’s testimony was false, she found that ‘[t]he State
created the false impression that Adams was bipolar but never had any type of
hallucinations.’
On the question of materiality, the trial judge concluded that ‘Adams was the
key prosecution witness, as he was the only person who testified that applicant
admitted causing Glaspie’s death. The State used Adams’s testimony to
establish that applicant intentionally killed Glaspie.’ While noting that defense
counsel ‘elicited on cross-examination that Adams received psychiatric care
and medication in jail,’ the judge concluded that ‘[t]he impeachment
information contained in Adams’s medical records was more important than
other ‘impeachment’ evidence presented at trial.’ She recommended granting
relief because ‘[t]here is a reasonable probability that the outcome of the trial
would have been different had applicant impeached Adams’s false testimony
that he did not have hallucinations.’
Ex parte Weinstein, 421 S.W.3d at 659–664 (footnotes omitted). The state court further held
that:
In revised findings, the judge found that the State unknowingly presented false
testimony when Nathan Adams testified that he did not suffer from auditory
or visual hallucinations. The judge also found that Mr. Adams was a key
witness in establishing applicant’s intent to murder. She concluded that there
was a reasonable likelihood that the outcome of the trial would have been
different had Mr. Adams admitted to having hallucinations.
We adopt the habeas judge’s factual findings that Adams’s testimony about his
lack of delusions was false, but we conclude that applicant has failed to prove
that Adams’s false testimony was ‘material,’ i.e., reasonably likely to have
affected the jury’s verdict.
Id., at 659.

12

A state denies a criminal defendant federal due process when it knowingly uses
perjured testimony at trial or allows untrue testimony to go uncorrected. Giglio, 405 U.S. at
154; Faulder v. Johnson, 81 F.3d 515, 519 (5th Cir. 1996). To obtain relief, the defendant
must show that (1) the testimony was actually false, (2) the state knew it was false, and (3)
the testimony was material. Kirkpatrick v. Whitley, 992 F.2d 491, 497 (5th Cir. 1993).
Neither party in the instant proceeding contests the correctness of the state court’s finding
that Adams’s testimony was false. Petitioner, however, disputes the state court’s findings
that the false testimony was not material and that the State did not know that the testimony
was false at the time.
Both parties acknowledge that the State’s unknowing use of false testimony is
actionable under state law, but that it does not, under current Supreme Court law, give rise
to a federal constitutional violation. See Kinsel v. Cain, 647 F.3d 265, 271–72 (5th Cir.
2011) (affirming the denial of federal habeas relief because the Supreme Court has not
recognized a constitutional violation for the unknowing use of false testimony). Petitioner
asserts that, although the State did not knowingly use the false testimony, the State
nevertheless had constructive knowledge of the falsity of Adams’s testimony because the
falsity appeared in Adams’s medical records, had the State obtained and reviewed the
records.

According to petitioner, constructive knowledge is sufficient to support a

constitutional violation.1
1

Petitioner did not argue in his state collateral proceedings that the State had constructive
knowledge of the falsity of the evidence, and the claim is procedurally defaulted at this point.
13

The Court is not persuaded by these arguments, factually and legally. Factually, it is
entirely a construct of hindsight at this point for petitioner to argue that, had the State taken
certain steps, it could have uncovered Adams’s prior medical history. Legally, petitioner
cites no case law in support of his novel legal arguments, and the Court finds none. The
Supreme Court has not ruled that “constructive knowledge” of the falsity of testimony
suffices for purposes of a constitutional violation, nor has it defined any parameters for what
would constitute “constructive knowledge.” In this regard, petitioner fails to show that the
state court’s 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. See Harrington, 562 U.S. at 98–99. Petitioner does
not meet his burden of proof under 28 U.S.C. §§ 2254(d)(1) and (2), and federal habeas relief
is unwarranted.2
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

However, the Court addresses the merits of the claim because it entitles petitioner to no relief.
2

Because petitioner fails to meet his burden of proof under AEDPA regarding the State’s
knowing use of false testimony, it is unnecessary for the Court to address petitioner’s second
argument that the false testimony was material.
14

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. Id. 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
the product of a reasoned trial strategy. West v. Johnson, 92 F.3d 1385, 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 of the 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

15

does not result if the ineffectiveness does not deprive the petitioner of any substantive or
procedural right to which he is entitled. Id.
The Supreme Court recently emphasized in Harrington v. Richter the manner in which
a federal court is to consider an ineffective assistance of counsel claim raised in a habeas
petition subject to AEDPA’s limitations:
The pivotal question is whether the state court’s application of the Strickland
standard was unreasonable. This is different from asking whether defense
counsel’s performance fell below Strickland’s standard. Were that the inquiry,
the analysis would be no different than if, for example, this Court were
adjudicating a Strickland claim on direct review of a criminal conviction in a
United States district court. Under AEDPA, though, it is a necessary premise
that the two questions are different. For purposes of § 2254(d)(1), an
unreasonable application of federal law is different from an incorrect
application of federal law. A state court must be granted a deference and
latitude that are not in operation when the case involves review under the
Strickland standard itself.
Richter, 562 U.S. at 101. (quotation omitted).
Petitioner contends that trial counsel was ineffective in the following particulars.
Adams’s mental health issues
Petitioner contends that trial counsel was ineffective in failing to discover and present
evidence that Adams had a history of reporting hallucinations and delusions. Specifically,
petitioner argues that trial counsel should have been ready to impeach Adams’s denial that
he had any auditory or visual hallucinations or did not remember things that did not really
happen.

16

In rejecting petitioner’s argument on collateral review, the state trial court made the
following relevant findings of fact regarding “Failure to Discover and Present Adams
Medical Records,” which were expressly adopted by the Texas Court of Criminal Appeals
in its published opinion denying habeas relief:3
31.

[Trial counsel’s] pre-trial investigation included a thorough review of
the entire State’s file, a review of the search warrant, a telephone
discussion with Nathan Adams, a review of the letters written by
Nathan Adams to [the prosecutor], direction for her investigator to talk
with Nathan Adams’[s] parents, and a review of Adams’[s] criminal
record.

32.

[Trial counsel] testified on direct examination [at the hearing] regarding
her assessment of Nathan Adams[’s] mental health based on her
pre-trial investigation: ‘I read all his letters to [the prosecutor] and I
had spoken to Nathan myself; and nothing there suggested that he had
any kind of psychotic issues, so I didn’t think – I just attributed it
[bipolar diagnosis] to being a mood disorder.’ As a result she did not
order an instanter subpoena for his jail medical records after Adams[]
testified about his bipolar diagnosis. On cross examination [trial
counsel] further explained that there was nothing relayed by her
investigator who had spoken with Adams’[s] parents that ‘led . . . [her]
to believe that Nathan Adams suffered from instances in which he
heard his father’s voice telling him to kill himself.’ She also testified
that Nathan Adams sounded ‘coherent’ at trial. The Court finds [trial
counsel’s] testimony and explanation to be credible.

Ex parte Weinstein, pp. 310–311 (record citations omitted). The state trial court also made
the following relevant conclusions of law regarding the alleged ineffective assistance of
counsel:
3

“Applicant also claimed that he was denied effective assistance of counsel, but the
habeas judge’s initial factual findings and conclusions of law determined that applicant had not
proven that claim. We adopt those findings and summarily deny relief on that claim.” Ex parte
Weinstein, 421 S.W.3d at 659, n.1.
17

53.

The Court concludes that [trial counsel] conducted a constitutionally
reasonable pre-trial investigation in accord with prevailing professional
standards. Her pre-trial investigation included an interview with
Nathan Adams, a review of his letters to [the prosecutor], and an
interview with his parents. None of this investigation led her to the
conclusion that Nathan Adams suffered in the past from episodes of
[auditory] hallucinations in which he heard voices telling him to hurt
himself. That [trial counsel] was incorrect in her assessment does not
demonstrate that her representation was ineffective. Accordingly, the
Court concludes Applicant’s claim for relief fails to satisfy Strickland’s
first prong.

54.

The Court concludes that [trial counsel’s] failure to discover and
present Nathan Adams medical records did not create a probability
sufficient to undermine confidence in the result of trial given the
significant impeachment evidence presented against him at trial and the
highly corroborated nature of his testimony. Accordingly, the Court
concludes Applicant fails to satisfy Strickland’s second prong.

Ex parte Weinstein, p. 320 (citations omitted).
The Sixth Amendment guarantees reasonable competence, not perfect advocacy
judged with the benefit of hindsight. See Bell v. Cone, 535 U.S. 685, 702 (2002); Strickland,
466 U.S. 689. Here, petitioner again focuses on the fact that medical records existed had trial
counsel subpoenaed and reviewed them. However, his emphasis on the evidence that may
have been available in hindsight fails to address the governing inquiry – what evidence and
information was available to counsel at the time, and what actions counsel took in light of
that evidence and information. Here, the trial court’s findings showed that trial counsel had
made a thorough review of the State’s file, including the letters written by Adams to the
prosecutor. Trial counsel also personally interviewed Adams, and the defense investigator
18

interview Adams’s parents. Trial counsel testified that “nothing there suggested that
[Adams] had any kind of psychotic issues, so I didn’t think – I just attributed it [bipolar
diagnosis] to being a mood disorder.” She also testified that there was nothing relayed by
her investigator who had spoken with Adams’s parents that led her to believe that Adams
suffered from instances in which he heard his father's voice telling him to kill himself, and
she stated that he appeared “coherent” at trial. The trial court expressly found trial counsel’s
explanations and testimony credible, and that her investigations and representation were
constitutionally sufficient and reasonably effective under Strickland. As noted by the trial
court, “That [trial counsel] was incorrect in her assessment [of Adams] does not demonstrate
that her representation was ineffective.” Petitioner’s disagreement with these findings and
conclusions is insufficient to meet his burden of proof under the relitigation bar imposed by
AEDPA.
The state court on collateral review rejected petitioner’s claims of ineffective
assistance and found that petitioner failed to meet his burden of proof under Strickland.
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.

19

Manslaughter jury instruction
Petitioner argues that trial counsel should have requested a jury instruction on the
offense of manslaughter.
In rejecting petitioner’s argument on collateral review, the state trial court made the
following relevant findings of fact regarding “Manslaughter Instruction,” which, as noted
earlier, were expressly adopted by the Texas Court of Criminal Appeals in its published
opinion denying habeas relief:
34.

[Trial counsel] explains in an affidavit, that she employed a three part
strategy on behalf of Applicant. First, she introduced evidence of his
medical history to build reasonable doubt that he was physically
capable of Murder. Second, she introduced evidence of a prior robbery
against Applicant and how it impacted him emotionally in odor to
explain his behavior of trying to mask the smell of Glaspie’s corpse.
Third, she employed an ‘all-or-nothing Strategy’ as she had doubt that
the state could prove the mens rea for Murder. The Court finds [trial
counsel’s] affidavit to be credible and consistent with the trial record.

35.

[Trial counsel] credibly testified that her ‘all-or-nothing’ strategy was
consistent with Applicant’s lack of desire to go to prison and his
insistence that he did not commit the crime, coupled with her belief,
based upon her experience, that the State could convict Applicant of
Manslaughter but had problems proving the mens rea of Murder.

36.

The Court finds as not credible Applicant’s unsworn declaration
indicating that he would have requested a Manslaughter instruction had
[trial counsel] consulted with him about one. The Court makes this
determination based on the following:
a.

Applicant misrepresents that [trial counsel’s] affidavit
indicated the State ‘would’ convict him of Manslaughter;
the affidavit said ‘could.’

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b.

Applicant’s declaration is inconsistent with the credible
testimony of [trial counsel] and [the prosecutor] who
both indicated that Applicant heard a presentation of the
State’s case from [the prosecutor], including a
representation of Nathan Adams[’s] expected testimony,
during a special pre-trial meeting to see if a plea bargain
could be reached. Applicant told [the prosecutor],
‘You’ll never be able to prove it’ and Applicant was not
convinced to plead.

c.

[Trial counsel’s] credible testimony that Applicant did
not want to go to prison: ‘Steven was very clear
throughout my whole representation that he did not want
to do any time – not even on tampering.’

Ex parte Weinstein, pp. 311–313 (record citations omitted). The state trial court also made
the following relevant conclusions of law regarding the alleged ineffective assistance of
counsel:
55.

The Court concludes that [trial counsel’s] decision to pursue an
‘all-or-nothing’ strategy and not request a Manslaughter instruction was
a valid trial strategy in accord with prevailing professional norms. The
Court also concludes that this strategy was in accord with Applicant’s
desire not to go to prison and [trial counsel’s] assessment that the jury
‘could’ convict Applicant of Manslaughter. Accordingly, Applicant
fails to satisfy Strickland’s first prong.

56.

The Court concludes that even if [trial counsel] had requested a
Manslaughter instruction, Applicant has failed to demonstrate with any
evidence that there exists a ‘reasonable probability’ that the jury would
have exercised its discretion and convicted Applicant of this lesser
included charge. Accordingly, the Court concludes Applicant has
failed to satisfy Strickland’s second prong.

Ex parte Weinstein, pp. 321–322 (citations omitted).

21

A decision to forgo a charge on lesser included offenses is strategic in nature.
Strategic choices made after reasonable investigation will seldom if ever be found wanting,
as courts are reluctant to second-guess matters of trial strategy. Geiger v. Cain, 540 F.3d
303, 309 (5th Cir. 2008). Trial counsel in the instant case set forth rational and justified
reasons for her decision not to pursue a manslaughter charge, a trial strategy that petitioner
did not demonstrate to be unreasonable. Petitioner’s disagreement with the state court’s
determinations does not constitute grounds for granting federal habeas relief, and is
insufficient to meet his burden of proof under the relitigation bar imposed by AEDPA.
The state court on collateral review rejected petitioner’s claims of ineffective
assistance and found that petitioner failed to meet his burden of proof under Strickland.
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.

22

Conclusion
Respondent’s motion for summary judgment (Docket Entry No. 18) 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 August 28, 2015.

Gray H. Miller
United States District Judge

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