Boykin v. Stephens
Filing
29
MEMORANDUM AND OPINION granting 20 MOTION for Summary Judgment, granting nunc pro tunc 17 MOTION for Extension of Time to File Answer with Brief in Support. All pending motions are DENIED as moot. This court denies Boykins petition after careful consideration of the merits of hisconstitutional claims. A certificate of appealability is DENIED. (Signed by Judge Vanessa D Gilmore) Parties notified. (wbostic, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
§
CURLEY JAMES BOYKIN,
§
(TDCJ-CID #1774868)
§
§
Petitioner,
§
§
VS.
§ CIVIL ACTION NO. H-14-1894
§
WILLIAM STEPHENS,
§
§
Respondent.
§
MEMORANDUM AND OPINION
Petitioner, Curley James Boykin, seeks habeas corpus relief under 28 U.S.C. § 2254,
challenging a conviction in the 185th Judicial District Court of Harris County, Texas. Respondent
filed a motion for summary judgment, (Docket Entry No. 20), and copies of the state court record.
Boykin has filed his response. (Docket Entry No. 21). After consideration of the motion and
response, the record, and applicable authorities, the court grants respondent’s motion. The reasons
for this ruling are stated below.
I.
Background
A jury found Boykin guilty of the felony offense of possession with intent to deliver a
controlled substance, namely, cocaine, in an amount weighing more than one gram but less than four
grams. (Cause Number 131959401010). Boykin pleaded true to two enhancement paragraphs
relating to prior convictions for possession of a controlled substance in Cause Number 619549 and
felon in possession of a weapon in Cause Number 726396. On March 14, 2012, the court sentenced
Boykin to twenty-five years imprisonment. The First Court of Appeals of Texas affirmed Boykin’s
O:\RAO\VDG\2014\14-1894.c02.wpd
conviction on August 22, 2013. Boykin did not file a petition for discretionary review in the Texas
Court of Criminal Appeals. Boykin filed an application for state habeas corpus relief on March 10,
2014, which the Texas Court of Criminal Appeals denied without written order, on findings of the
trial court, without a hearing on June 18, 2014. Ex parte Boykin, Application No. 35,236-09 at
cover.
On July 7, 2014, this court received Boykin’s federal petition. Boykin contends that his
conviction is void for the following reasons:
(1)
His Confrontation Clause rights were violated because the State introduced testimony from
Officer Zamora regarding a confidential informant without demonstrating that the confidential
informant was unavailable to testify at trial.
(2)
His due process protections were violated because the State did not disclose the confidential
informant’s identity and did not allow him to cross-examine the confidential informant.
(3)
Trial counsel, Gerald Fry, rendered ineffective assistance by failing to seek disclosure of the
confidential informant’s identity.
(4)
Appellate counsel, Sara Wood, rendered ineffective assistance by failing to schedule a
hearing on the defendant’s motion for new trial.
(Docket Entry No. 1, Petition for Writ of Habeas Corpus, pp. 6-13).
II.
Statement of Facts
The First Court of Appeals summarized the testimony at trial as follows:
Houston Police Department (“HPD”) Narcotics Officer M. Zamora
testified that he was been specially trained on the subject of how
cocaine is bought and sold. He explained that the street value for one
gram of cocaine is $100 and crack cocaine is sold as “rocks” that
weigh 0.1 to 0.2 grams and cost $10 to $20. Most crack cocaine users
O:\RAO\VDG\2014\14-1894.c02.wpd
2
carry only two to three rocks at one time because of the
highly-addictive nature of the narcotic. Zamora noted that, in his
experience, crack cocaine users do whatever they can to earn some
money and then purchase one crack cocaine rock and smoke it, often
“on the spot.” Thus, it is uncommon for such a user to “walk around”
with more crack cocaine rocks unless the person is selling them.
Officer Zamora further testified that early in September 2011, he
conducted a “proactive investigation” at the address of 2710 Hardy
Street for about one week, during which he “observed activity that
was consistent with narcotics trafficking.” During all hours of the
day, he saw several people arriving at the house on foot, in cars, and
on bicycles. They went to the front door or were met at the front, and
they then left quickly, with a level of traffic that is not “normal” for
a family dwelling. Before executing a search warrant, Zamora also
saw people, including appellant, “hanging out” outside of the house
most of the times that he watched it. Zamora then met with a
confidential informant, who purchased narcotics at the house, and he
obtained and executed a search warrant at the house.
Officer Zamora explained that there is near Hardy Street, an area that
has high-powered electric lines, and people will often jump a fence
and run to the area to dispose of narcotics or guns because it is harder
for police officers to find such contraband in the area. Thus, before
executing the search warrant, HPD’s “entry team” positioned a
uniformed police officer on the other side of the fence behind 2710
Hardy Street.
The “raid team” arrived at the house at about 9:30 p.m. on September
9, 2011, and, when they pulled up in a van, Officer Zamora saw
appellant and his wife, Lasonya White, run into the house, while two
people stayed outside and stood with their hands up. Zamora and
HPD Narcotics Officer J. Castro chased appellant and White as they
ran inside the house. Zamora saw appellant and White run through the
house and out a side door. White fell down and made a “soft toss” of
what Zamora believed to be crack cocaine rocks, and he found a crack
cocaine rock about one-and-a-half feet away from White’s hands
where she fell.
Officer Zamora stated that Officer Castro, who saw appellant toss a
white pill bottle over the fence near the power lines, took him into
custody. Officer J. Annese, who was positioned on the other side of
the fence, saw the bottle fly over the fence, and he turned it over to
O:\RAO\VDG\2014\14-1894.c02.wpd
3
Zamora. Zamora noted that the bottle contained several crack cocaine
rocks, which weighed a total of 6.5 grams, is “way more” than what
is normally kept for personal use, and constitutes 30 to 65 “single
servings.” And Zamora noted that appellant, who had the keys to the
suspect house, told Zamora to give the keys to “Mr. Gordon.”
Officer Castro testified that he assisted in the surveillance of the
house at 2710 Hardy Street and the execution of the search warrant
on September 9, 2011. Castro noted that he saw appellant and White
run into the house from the front yard when the HPD “raid van”
stopped in front of the house. He chased appellant outside the house,
toward the back of the driveway, and he saw appellant stop, throw a
white pill bottle over the fence, and then immediately turn around and
surrender. Castro testified that, based on his training and experience,
it is common for people who possess narcotics to run away from
police officers and often try to “get rid of” anything they have “on
them.” Castro took appellant to the front of the house, and he heard
someone announce on the radio that a bottle had come over the fence.
HPD Officer J. Annese testified that, during the execution of the
search warrant, his job was to provide rear perimeter security behind
the backyard fence. He positioned himself on the other side of the
fence with another officer, and they waited for anyone that might try
to run. After Officer Annese heard the raid team arrive, he heard the
footsteps of someone running toward the fence, and he saw a white
pill bottle “fly” over the fence as if it was lobbed with a “hook shot.”
Annese caught the bottle, which he gave to Officer Zamora.
HPD Criminologist J. Hamelius testified that she conducted a
chemical spot test on the rock substance dropped by White and the
rocks found in the white pill bottle. She also conducted a
chromatography mass spectrometer or “GC–MS” analysis on the
rocks. And Hamelius confirmed that the rock that White threw on the
ground contained cocaine and weighed 0.0324 grams. She also
confirmed that 15 of the rocks found in the white pill bottle contained
cocaine and weighed a total of 5.2 grams.
Boykin v. State, No. 01–12–00291–CR, 2013 WL 4508366 (Tex. App. -- Houston [1st Dist.] 2013,
no pet.)(not designated for publication).
O:\RAO\VDG\2014\14-1894.c02.wpd
4
III.
The Applicable Legal Standards
A.
28 U.S.C. § 2254
“[C]ollateral review is different from direct review,” Brecht v. Abrahamson, 507 U.S. 619,
633 (1993), and the writ of habeas corpus is “an extraordinary remedy,” Id., reserved for those
petitioners whom “society has grievously wronged.” Id. at 634. It “is designed to guard against
extreme malfunctions in the state criminal justice system.” Id. (citing Justice Stevens’s concurrence
in Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)). It provides an important, but limited,
examination of an inmate’s conviction and sentence. See Harrington v. Richter, 562 U.S. 86 (2011)
(“[S]tate courts are the principal forum for asserting constitutional challenges to state convictions.”).
Accordingly, the federal habeas court’s role in reviewing state prisoner petitions is exceedingly
narrow. “Indeed, federal courts do not sit as courts of appeal and error for state court convictions.”
Dillard v. Blackburn, 780 F.2d 509, 513 (5th Cir. 1986). They must generally defer to state court
decisions on the merits, Moore v. Cockrell, 313 F.3d 880, 881 (5th Cir. 2002), and on procedural
grounds. Coleman v. Thompson, 501 U.S. 722, 729–30 (1991); Muniz v. Johnson, 132 F.3d 214, 220
(5th Cir. 1998). They may not grant relief to correct errors of state constitutional, statutory, or
procedural law, unless a federal issue is also present. Estelle v. McGuire, 502 U.S. 62, 67–68 (1991);
West v. Johnson, 92 F.3d 1385, 1404 (5th Cir. 1996).
A federal court can only grant relief if “the state court’s adjudication of the merits was
‘contrary to, or involved an unreasonable application of, clearly established Federal law,’” Berghuis
v. Thompkins, 560 U.S. 370, 378 (2010) (quoting 28 U.S.C. § 2254(d)(1)), or “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)(2) (2012). The focus of this well-developed
O:\RAO\VDG\2014\14-1894.c02.wpd
5
standard “is not whether a federal court believes the state court’s determination was incorrect but
whether that determination was unreasonable - a substantially higher threshold.” Schriro v.
Landrigan, 550 U.S. 465, 473 (2007).
Moreover, the federal court’s focus is on the state court’s ultimate legal conclusion, not
whether the state court considered and discussed every angle of the evidence. Neal v. Puckett, 286
F.3d 230, 246 (5th Cir. 2002) (en banc); see also Catalan v. Cockrell, 315 F.3d 491, 493 (5th Cir.
2002) (“we review only the state court’s decision, not its reasoning or written opinion”). Indeed,
state courts are presumed to know and follow the law. Woodford v. Visciotti, 537 U.S. 19, 24 (2002).
Factual findings, including credibility choices, are entitled to the statutory presumption, so long as
they are not unreasonable “in light of the evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d)(2). Further, factual determinations made by a state court enjoy a presumption of
correctness which the petitioner can rebut only by clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1); see Clark v. Quarterman, 457 F.3d 441, 444 (5th Cir. 2006) (noting that a state court’s
determination under § 2254(d)(2) is a question of fact). The presumption of correctness applies not
only to express findings of fact, but also to “unarticulated findings which are necessary to the state
court’s conclusions of mixed law and fact.” Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir.
2001).
The AEDPA provides as follows, in pertinent part:
(d) An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the merits
in State court proceedings unless the adjudication of the claim-(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
O:\RAO\VDG\2014\14-1894.c02.wpd
6
(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.
(e)(1) In a proceeding instituted by an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a
State court, a determination of a factual issue made by a State court
shall be presumed to be correct. The applicant shall have the burden
of rebutting the presumption of correctness by clear and convincing
evidence.
In sum, the federal writ serves as a “guard against extreme malfunctions in the state criminal
justice systems,” not as a vehicle for error correction. Harrington v. Richter, 562 U.S. 86 (2011)
(citation omitted) (emphasis added). “If this standard is difficult to meet, that is because it was
meant to be.” Id.
While, “[a]s a general principle, Rule 56 of the Federal Rules of Civil Procedure, relating to
summary judgment, applies with equal force in the context of habeas corpus cases,” Clark v.
Johnson, 202 F.3d 760, 764 (5th Cir.), cert. denied, 531 U.S. 831 (2000), the rule applies only to the
extent that it does not conflict with the habeas rules. Section 2254(e)(1) – which mandates that
findings of fact made by a state court are “presumed to be correct” – overrides the ordinary rule that,
in a summary judgment proceeding, all disputed facts must be construed in the light most favorable
to the nonmoving party. Unless the petitioner can “rebut[ ] the presumption of correctness by clear
and convincing evidence” as to the state court’s findings of fact, those findings must be accepted as
correct. Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002).
Boykin is a pro se petitioner. In this circuit pro se habeas petitions are construed liberally
and are not held to the same stringent and rigorous standards as are pleadings filed by lawyers. See
Martin v. Maxey, 98 F.3d 844, 847 n.4 (5th Cir. 1996); Guidroz v. Lynaugh, 852 F.2d 832, 834 (5th
Cir. 1988); Woodall v. Foti, 648 F.2d 268, 271 (5th Cir. Unit A June 1981). This court accords
O:\RAO\VDG\2014\14-1894.c02.wpd
7
Boykin’s state and federal habeas petitions a broad interpretation. Bledsue v. Johnson, 188 F.3d 250,
255 (5th Cir. 1999).
B.
Ineffective Assistance of Counsel
To prove an ineffective-assistance-of-counsel claim, a petitioner must satisfy both prongs of
the test announced in Strickland v. Washington, 466 U.S. 668, 689–94 (1984), by showing not only
constitutionally deficient performance by counsel, but also actual prejudice to his legal position.
Motley v. Collins, 18 F.3d 1223, 1226 (5th Cir. 1994) (summarizing the Strickland standard of
review). The Court need not address both components if the petitioner makes an insufficient
showing on one. Strickland, 466 U.S. at 697. To demonstrate deficiency, a petitioner must show that
“counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Id. at 687. A court considering such a claim “must apply a
‘strong presumption’ that counsel’s representation was within the ‘wide range’ of reasonable
professional assistance.” Harrington v. Richter, 562 U.S. 86 (2011) (citation omitted). To
demonstrate prejudice, a petitioner must show “that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” Porter v.
McCollum, 558 U.S. 30, 38–39 (2009) (internal quotation marks and citation omitted). A mere
allegation of prejudice is not sufficient to satisfy the prejudice prong of Strickland. Armstead v. Scott,
37 F.3d 202, 206 (5th Cir. 1994). The probability “of a different result must be substantial, not just
conceivable.” Richter, 131 S. Ct. at 792. Thus, counsel’s performance is entitled to “a heavy
measure of deference” by a reviewing court. Cullen v. Pinholster, ––– U.S. ––––, ––––, 131 S. Ct.
1388 (2011) (internal quotation marks and citation omitted).
O:\RAO\VDG\2014\14-1894.c02.wpd
8
Moreover, the court must review a petitioner’s ineffective-assistance-of-counsel claim
“through the deferential lens of [28 U.S.C.] § 2254(d),” Id. at 1403, and consider not only whether
the state court’s determination was incorrect, but also “whether that determination was unreasonable
- a substantially higher threshold.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citing Schriro
v. Landrigan, 550 U.S. 465, 473 (2007)). Thus, in light of the deference accorded by § 2254(d),
“[t]he pivotal question is whether the state court’s application of the Strickland standard was
unreasonable:” Richter, 131 S. Ct. at 785.
The standards created by Strickland and § 2254(d) are both highly deferential, and when the
two apply in tandem, review is doubly so. The Strickland standard is a general one, so the range of
reasonable applications is substantial. Federal habeas courts must guard against the danger of
equating unreasonableness under Strickland with unreasonableness under § 2254(d). When
§ 2254(d) applies, the question is not whether counsel’s actions were reasonable. The question is
whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard. Id.
at 788.
IV.
The Confrontation Clause Claim
Boykin complains that his Sixth Amendment right to confrontation was violated when the
State introduced testimonial statements of a confidential informant. Officer Zamora testified that
his confidential informant purchased crack at Boykin’s residence. Boykin asserts that the admission
of this hearsay statement by a nontestifying witness violated his rights under the Confrontation
Clause of the Sixth Amendment. Boykin complains that he never had an opportunity to crossexamine the confidential informant. Boykin alleges that the prosecutor never established that the
O:\RAO\VDG\2014\14-1894.c02.wpd
9
confidential informant was unavailable to testify at trial. Boykin maintains that the prosecutor
should not have been allowed to introduce statements from the probable cause affidavit.
The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”
In Crawford v. Washington, the Supreme Court held that this provision bars “admission of
testimonial statements of a witness who did not appear at trial unless he was unavailable to testify,
and the defendant had had a prior opportunity for cross-examination.” 541 U.S. 36, 53–4 (2004).
The Supreme Court held that only “testimonial statements” caused the declarant to be a “witness”
within the meaning of the Confrontation Clause. See id. at 51.
In Davis v. Washington, 547 U.S. 813, 822 (2006), the Supreme Court clarified the
distinction between testimonial and nontestimonial statements:
Without attempting to produce an exhaustive classification of all
conceivable statements - or even all conceivable statements in
response to police interrogation - as either testimonial or
nontestimonial, it suffices to decide the present cases to hold as
follows: Statements are nontestimonial when made in the course of
police interrogation under circumstances objectively indicating that
the primary purpose of the interrogation is to enable police assistance
to meet an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal
prosecution.
Id.
Crawford involved tape recorded statements by a declarant made during a police interview,
while Davis involved a 9–1–1 call by the declarant detailing a domestic violence dispute. The
declarant’s interrogation in Crawford took place hours after the events she described, but the
O:\RAO\VDG\2014\14-1894.c02.wpd
10
declarant in Davis spoke about events as they actually occurred. The Supreme Court noted that any
reasonable listener would recognize that the declarant in Davis was facing an ongoing emergency
and that the questioning was necessary to resolve it. Davis, 547 U.S. at 823. This included the
operator’s effort to establish the identity of the assailant, so that the dispatched officers might know
whether they would be encountering a violent felon. Id. Finally, the court noted the difference in
formality between the interviews of the Davis and Crawford declarants. Davis, 547 U.S. at 827. In
Crawford, the declarant responded calmly at the station house to a series of questions, with the
officer-interrogator taping and making notes of her answers. Id. In Davis, the declarant’s answers
were provided over the telephone, in an environment that was neither tranquil nor safe. Id.
This court also finds guidance in Langham v. State, 269 S.W.3d 108, 113 (Tex. App. Eastland 2008, pet. granted). There, a detective was allowed to testify concerning information
provided by a confidential informant. The informant was not “bearing testimony” or making “[a]
solemn declaration or affirmation made for the purpose of establishing or proving some fact”
necessary to the criminal prosecution in the case. Id., citing Crawford, 541 U.S. at 51. Instead, the
primary purpose was to provide sufficient information to the detective so that he could obtain a
search warrant. These statements were admissible because they were nontestimonial. Id. at 114.
In the instant case, Officer Zamora testified about his dealings with the confidential informant
as follows:
Q
(BY MS. DAVIS) And did you ever see Mr. Boykin at 2710
Hardy Street?
A
Yes, I did.
Q
How often would you see Mr. Boykin there?
A
Three out of four times that I would go by, I would see him
hanging outside.
O:\RAO\VDG\2014\14-1894.c02.wpd
11
Q
What is the next step that you take after you conduct
surveillance on a house like this?
A
After we establish that, okay, there*s traffic coming in and out,
that it*s unusual, it*s consistent with what we believe to be narcotics
trafficking, after that we try to -- basically we need to get some type
of narcotics out of that house to say that narcotics are being sold out
of that location to take the next step into drafting a narcotics search
warrant.
Q
And so how did you do that in this case?
A
I got with a confidential informant and I explained to the
informant the situation, what was going on, and I basically gave the
informant instructions to go to that location and attempt to purchase
narcotics and bring those narcotics back to me.
Q
And what day did you do that? Were you able to do that?
A
Yes, we were able to do that before the narcotics search
warrant was drafted.
Q
And were you able then to obtain a search warrant?
A
Yes.
MS. DAVIS: May I approach the witness?
THE COURT: You may.
Q
(BY MS. DAVIS) I*m showing you what has been marked as
State*s Exhibit No. 1. Does this fairly and accurately represent the
search warrant that you were able to obtain?
A
Yes, it does.
MS. DAVIS: Your Honor, may we approach?
THE COURT: Sure.
(Discussion up at bench:)
MS. DAVIS: I would move to admit State*s 1. The only issue is the
affidavit is in between.
THE COURT: So do you approve of taking out the affidavit, because
you are just offering the search warrant and the affidavit in support of
that?
MS. DAVIS: Yes.
MS. SHELTON: We have no objection to that either, Your Honor.
MR. FRY: We have no objection to the warrant, but we do object to
the affidavit.
THE COURT: If you all don*t mind, I*ll go ahead and do that while
I*m sitting here. (In the hearing of the jury)
THE COURT: State*s Exhibit 1 will be admitted.
MS. DAVIS: May I publish this to the jury?
THE COURT: Sure.
(BY MS. DAVIS) Officer Zamora, after you obtain a search warrant,
what is the next step in your investigation?
O:\RAO\VDG\2014\14-1894.c02.wpd
12
A
After we present the search warrant to a hearing officer or a
judge, once the search warrant is signed, our next step is to continue
to conduct surveillance, make sure that everything is still going the
way we saw it going originally. Basically if we still think they*re still
selling crack, or in this situation it was crack out of the house, after
that we just come together as a narcotics unit and we get an entry
team together, we get marked police cars, uniformed officers, that
way there*s no confusion about the police presence and why we*re
there, and we go to the target location, which is 2710 Hardy, and we
execute the search warrant.
Q
Let me back up and ask you the question in case some of the
jurors may not know. What is a search warrant?
A
Basically a narcotics search warrant, it gives us permission to
go to somebody*s house that we suspect they*re selling narcotics and
we have reasonable belief that there is narcotics at that location, and
after a judge signs it, that piece of paper grants us permission to go to
somebody*s house, detain everybody inside and search the location
for the narcotics.
(Reporter’s Record, Vol. III, pp. 20-24).
During the trial, when questioned by the State as to how he began his investigation of the
location in question, Officer Zamora stated that he received information from a confidential
informant, which he used to secure the search and arrest warrant. Officer Zamora investigated the
location and then conducted surveillance over a period of several days.
An officer may rely on the information provided by a confidential informant (“CI”) when,
based on the totality of the circumstances, it determines that the information is sufficient to establish
probable cause: veracity, reliability, and the informant’s basis of knowledge are “highly relevant”
to this inquiry. See, e.g., Illinois v. Gates, 462 U.S. 213, 230 (1983). In Schaffer v. State, the Court
of Criminal Appeals noted that, frequently, testimony will have an impermissible hearsay aspect
along with a permissible nonhearsay aspect. Almost always it will be relevant for a testifying officer
to relate how he happened upon the scene of a crime or accident; thus, it is permissible for him to
O:\RAO\VDG\2014\14-1894.c02.wpd
13
testify that he was acting in response to information received. An arresting officer should not be put
in the false position of seeming just to have happened upon the scene; he should be allowed some
explanation of his presence and conduct. The police officer, however, should not be permitted to
relate historical aspects of the case, replete with hearsay statements in the form of complaints and
reports on grounds that he was entitled to tell the jury the information upon which he acted.
Here, the testimony in question did not reveal the details of the information that the informant
provided to Officer Zamora. Officer Zamora’s reference to the confidential informant was merely
a general description of possible criminality that provided an explanation for why Officer Zamora
developed Boykin as a suspect and later secured a warrant.
Any questioning by police officers was conducted to enable police officers to locate an
individual suspected of selling crack cocaine. Officer Zamora relied on the information from the
confidential informant to secure a search warrant of the residence located at 2710 Hardy Street. The
confidential informant’s statements to the police were nontestimonial. The confidential informant
simply relayed information to police officers on the scene about what he had seen in relation to his
purchase of drugs at 2710 Hardy Street.
Officer Zamora testified about how he procured a search warrant for 2710 Hardy Street. He
explained that he had initially instructed a confidential informant to go to 2710 Hardy Street and
purchase narcotics. Officer Zamora made no further reference to the confidential informant in his
testimony. The record shows that the probable cause affidavit prepared by Officer Zamora was
removed from the search warrant before the warrant was admitted into evidence. Assuming that the
State introduced testimonial statements made by the confidential informant, this evidence was not
admitted to establish the truth of the matter purportedly asserted. Neither Officer Zamora’s
O:\RAO\VDG\2014\14-1894.c02.wpd
14
testimony, nor the search warrant, were offered to prove the truth of the confidential informant’s
representation that he had been able to purchase drugs at 2710 Hardy Street. Officer Zamora’s trial
testimony regarding a confidential informant and the search warrant that was admitted into evidence
were offered to prove that there was probable cause to believe that illegal narcotics could be found
at a target location, 2710 Hardy Street.
Even assuming error by the trial court, a violation of the confrontation clause is subject to
harmless error analysis. See Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986); see also Arizona
v. Fulminante, 499 U.S. 279, 306–07 (1991). This Court determines whether an erroneous
admission of the informant’s statements was harmless beyond a reasonable doubt by using the
following factors: (1) the importance of the statements to the State’s case; (2) whether the statements
were cumulative of other evidence; (3) the presence or absence of evidence corroborating or
contradicting the informant’s statements on material points; and (4) the overall strength of the State’s
case. Van Arsdall, 475 U.S. at 684. Under Brecht v. Abrahamson, the Court may grant federal
habeas relief only if a constitutional error had a substantial and injurious effect or influence in
determining the outcome of the case. 507 U.S. 619, 623 (1993). A thorough review of the trial
record in the instant case fails to show that Boykin was harmed by any erroneous admission of
Officer Zamora’s reference to the confidential informant. Officer Zamora testified that a confidential
informant had purchased drugs from the residence located at 2710 Hardy Street. Officer Zamora did
not testify as to any details concerning the purchase of drugs by the confidential informant.
At trial, Officer Zamora testified about a drug raid that took place on September 9, 2011. The
State relied on testimony from several experienced officers who searched Boykin’s house and
witnessed Boykin in possession of the particular drugs at issue. Boykin was convicted of possessing
O:\RAO\VDG\2014\14-1894.c02.wpd
15
crack cocaine on September 9, 2011. The jury never heard any specific details about the confidential
informant’s purchase of drugs. Officer Zamora relied on the confidential informant’s information
to secure a search warrant. As it was not necessary to rely on the testimony of the confidential
informant to establish Boykin’s drug possession on September 9, 2011, admission of Officer
Zamora’s testimony concerning the confidential informant into evidence at the trial was harmless.
The state habeas court found:
3. The Court finds, based on the clerk*s record and the court
reporter*s record, that there was no testimony by a confidential
informant during the applicant*s trial in the primary case.
4. The Court finds, based on the clerk*s record and the court
reporter*s record, that Officer Zamora, the lead investigator in the
primary case, testified that he gave the informant instructions to go to
the applicant*s residence and attempt to purchase narcotics and bring
those narcotics back. However, Zamora never testified to what was
said by the informant. (II CR. at 21-22).
5. The Court finds, based on the clerk*s record and the court
reporter*s record, that the State offered into evidence the search
warrant used to search the applicant*s residence. (III CR at 22);
State*s Trial Exhibit 1.
6. The Court finds, based on the clerk*s record and the court
reporter*s record, that the affidavit supporting the warrant was left
out, and was not admitted or published to the jury. (III CR at 21-22);
State*s Trial Exhibit 1.
7. The Court finds, based on the clerk*s record and the court
reporter*s record, that there is no evidence to support that[] the
informant was present during the execution of the warrant leading to
the applicant*s charges, that the State used the testimony of the
informant during trial, that the State caused the absence of that
informant, or that the applicant was prevented from confronting the
informant.
8. The Court finds, based on the clerk*s record and the court
reporter*s record, that there is no evidence that the informant would
O:\RAO\VDG\2014\14-1894.c02.wpd
16
have been able to give testimony necessary to a fair determination of
guilt and innocence in the primary case.
9. The Court finds, based on the clerk*s record and the court
reporter*s record, that there is no evidence to support that the
informant*s testimony would likely have changed the outcome of
trial.
(Docket Entry No. 15-26, pp. 58-59).
Boykin has failed to show that the state court adjudication was contrary to, or involved an
unreasonable application of, clearly established federal law, as determined by the Supreme Court of
the United States, or that the adjudication 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.
Accordingly, Boykin’s grounds for review should be denied. Boykin is not entitled to federal habeas
corpus relief on this claim.
V.
Disclosure of the Confidential Informant
Boykin argues that the trial court erred by not requiring the prosecution to disclose the
identity of the confidential informant who told Officer Zamora about the drugs in Boykin’s house.
Boykin complains that the State violated his right to procedural due process by depriving him of the
opportunity to confront the confidential informant. Officer Zamora testified that his confidential
informant was able to purchase crack from Boykin’s residence. Officer Zamora testified that he
instructed the confidential informant to go to Boykin’s residence and purchase the narcotics. Boykin
argues that the trial court should have dismissed the charges because the State refused to disclose
the identity of the confidential informant even though the confidential informant could have provided
favorable evidence for the defense.
O:\RAO\VDG\2014\14-1894.c02.wpd
17
The State possesses a general privilege to withhold the identity of an individual who has
provided information that assists in a criminal investigation. TEX. R. EVID. 508(a). However, a court
must order disclosure of the individual’s identity if the informant may reasonably be able to provide
testimony necessary to a fair determination of guilt or innocence. TEX. R. EVID. 508(c)(2). If it
appears from the evidence in the case, or from some other showing by a party, that an informant may
be able to give testimony necessary to a fair determination of guilt or innocence, and the State
invokes the privilege, the trial court must give the State an opportunity to show in camera facts
relevant to determining whether the informant can, in fact, supply that testimony. Id. The defendant
possesses the initial burden to prove that the informant’s potential testimony will significantly aid
in the determination of the defendant’s guilt or innocence. Bodin v. State, 807 S.W.2d 313, 318 (Tex.
Crim. App. 1991); Ford v. State, 179 S.W.3d 203, 210 (Tex. App. - Houston [14th Dist.] 2005, pet.
ref’d), cert. denied, 549 U.S. 922 (2006). Evidence from any source, but not mere conjecture about
possible relevance, must be presented. Bodin, 807 S.W.2d at 318; Haggerty v. State, 429 S.W.3d 1,
8 (Tex. App. - Houston [14th Dist.] 2013, pet. ref’d). The mere filing of a motion to reveal an
informant’s identity is insufficient to obtain a hearing, much less compel disclosure. Bodin, 807
S.W.2d at 318. The defendant must make a plausible showing of how the informant’s information
may be important, and only after such a showing is the trial court required to hold an in camera
hearing to determine whether disclosure is necessary. See Haggerty, 429 S.W.3d at 8.
Disclosure of an informant’s identity may be required if the informant was an eyewitness to
or participated in an alleged offense. Ford, 179 S.W.3d at 210 (citing Anderson v. State, 817 S.W.2d
69, 72 (Tex. Crim. App. 1991)). Similarly, disclosure may be required if the informant was present
at the time of the offense or arrest or was otherwise shown to be a material witness to the transaction.
O:\RAO\VDG\2014\14-1894.c02.wpd
18
See Anderson, 817 S.W.2d at 72; Washington v. State, 902 S.W.2d 649, 656–57 (Tex. App. Houston [14th Dist.] 1995, pet. ref’d). This court reviews the district court’s decision not to disclose
the identity of a confidential informant for an abuse of discretion. United States v. Sanchez, 988 F.2d
1384, 1391 (5th Cir. 1993). “The purpose of the [informer’s] privilege is the furtherance and
protection of the public interest in effective law enforcement. The privilege recognizes the obligation
of citizens to communicate their knowledge of the commission of crimes to law-enforcement
officials and, by preserving their anonymity, encourages them to perform that obligation.” Roviaro
v. United States, 353 U.S. 53, 59 (1957). However, “[w]here the disclosure of an informer’s identity,
or of the contents of his communication, is relevant and helpful to the defense of an accused, or is
essential to a fair determination of a cause, the privilege must give way.” Id. at 60–61.
In weighing the government’s interest in confidentiality against the defendant’s interest in
disclosure, the Fifth Circuit has established a three-pronged test to determine when disclosure is
mandated. United States v. Cooper, 949 F.2d 737, 749 (5th Cir. 1991). Under this test, this court
examines: (1) the level of the informant’s participation in the alleged criminal activity; (2) the
helpfulness of disclosure to any asserted defense; and (3) the government’s interest in nondisclosure
(the “Roviaro factors”). See Roviaro, 353 U.S. at 62–65; United States v. Diaz, 655 F.2d 580,
587–89 (5th Cir. 1981). Neither an in camera review nor an “on-the-record” Roviaro analysis is
required in every instance involving disclosure of a CI’s identity. See Diaz, 655 F.2d at 588 (“We
do not think that it was necessary for the district court to interview the informant in camera for we
conclude that the informant’s testimony could not have been significantly helpful to the appellant’s
defense.”); United States v. Hernandez–Vela, 533 F.2d 211, 213 (5th Cir. 1976) (“[A]n appellant
must develop such factors on the record to support an assertion of such error.”)(emphasis added);
O:\RAO\VDG\2014\14-1894.c02.wpd
19
see also United States v. Alexander, 559 F.2d 1339, 1344 (5th Cir. 1977) (“We refuse to adopt a rule
requiring a district court to hold an in camera hearing whenever the identity of an informant is
requested.”); United States v. Toombs, 497 F.2d 88, 90 (5th Cir. 1974) (affirming a district court’s
bench ruling that the defendant’s motion for disclosure was “not . . . sufficient to require the Court
to grant the motion.”). Furthermore, Boykin’s interest in the disclosure is limited by the fact that the
CI’s testimony was only used to establish probable cause to search Boykin’s house and was not
introduced by the Government at trial. See United States v. Jackson, 918 F.2d 236, 240 (1st Cir.
1990) (“[T]he defendant’s interest in disclosure at the suppression state is less than at trial.”).
With these principles in mind, this court turns to the Roviaro factors. The first factor, the
CI’s involvement in the crime, weighs in favor of nondisclosure. “The more active the participation,
the greater the need for identification.” United States v. Ayala, 643 F.2d 244, 246 (5th Cir. 1981).
This factor does not weigh in favor of disclosure where an informant was only a tipster, or when his
“level of involvement in the criminal activity is that of minimal participation.” Diaz, 655 F.2d at 588.
Here, the informant had only minimal participation in the alleged criminal activity. The informant’s
role was more akin to that of a tipster. Officer Zamora testified that he instructed the confidential
informant to attempt to purchase narcotics from Boykin’s residence. Based on information learned
from the confidential informant, Officer Zamora was able to secure a search warrant of Boykin’s
residence. Boykin has pointed to no evidence in the record that suggests that the CI’s involvement
was more than minimal, so this factor does not weigh in favor of disclosure.
The second factor, the helpfulness of disclosure to any asserted defense, also weighs in favor
of nondisclosure. Boykin’s stated reason for wanting to call the CI as a witness is to test his
credibility. See United States v. Orozco, 982 F.2d 152, 155 (5th Cir. 1993) (“Mere conjecture or
O:\RAO\VDG\2014\14-1894.c02.wpd
20
supposition about the possible relevancy of the [CI’s] testimony is insufficient to warrant
disclosure.”); see also Toombs, 497 F.2d at 93 n.5 (“Much more than speculation is required. There
must be a compelling reason for the disclosure.”). Similarly, because the CI’s information only went
to establishing probable cause for searching Boykin’s home, his credibility cannot be put at issue.
This is, at least in part, because “the magistrate is concerned, not with whether the informant lied,
but with whether the affiant is truthful in his recitation of what he was told.” McCray v. Illinois, 386
U.S. 300, 307 (1967). Similarly, there is no indication that the CI’s testimony would be exculpatory,
which would require disclosure pursuant to Brady v. Maryland, 373 U.S. 83 (1963).
There was substantial evidence in the record that the drugs found in Boykin’s home belonged
to Boykin. The testimony at trial showed that on September 9, 2011, the “raid team” arrived at
Boykin’s house at about 9:30 p.m. Officer Zamora saw Boykin and his wife, Lasonya White, run
into the house. Officer Zamora and HPD Narcotics Officer J. Castro chased Boykin and White
through the house. Officer Zamora saw Boykin and White run through the house and out a side
door. White fell down and made a “soft toss” of what Officer Zamora believed to be crack cocaine
rocks, and he found a crack cocaine rock about one-and-a-half feet away from White’s hands where
she fell. After seeing Boykin toss a white pill bottle over the fence near the power lines, Officer
Castro took Boykin into custody. Castro testified that, based on his training and experience, it is
common for people who possess narcotics to run away from police officers and often try to “get rid
of” anything they have “on them.”
Officer J. Annese, who was positioned on the other side of the fence, saw the bottle fly over
the fence, and he turned it over to Officer Zamora. Officer Zamora noted that the bottle contained
several crack cocaine rocks, which weighed a total of 6.5 grams and that this amount was
O:\RAO\VDG\2014\14-1894.c02.wpd
21
significantly more than what is normally kept for personal use. Officer Zamora noted that Boykin
had the keys to the suspect house located at 2710 Hardy Street. Boykin further told Officer Zamora
to give the keys to “Mr. Gordon.” HPD Officer J. Annese testified that, during the execution of the
search warrant, his job was to provide rear perimeter security behind the backyard fence. He
positioned himself on the other side of the fence with another officer, and they waited for anyone that
might try to run. After Officer Annese heard the raid team arrive, he heard the footsteps of someone
running toward the fence, and he saw a white pill bottle “fly” over the fence. Officer Annese caught
the bottle and gave it to Officer Zamora. HPD Criminologist J. Hamelius testified that she
conducted a chemical spot test on the rock substance dropped by White and the rocks found in the
white pill bottle. She also conducted a chromatography mass spectrometer or “GC–MS” analysis
on the rocks. She also confirmed that 15 of the rocks found in the white pill bottle contained cocaine
and weighed a total of 5.2 grams. In light of the overwhelming evidence of guilt, Boykin has not
shown that disclosure of the confidential informant’s identity would have been helpful to any
asserted defense.
Because the first two Roviaro factors do not establish a case for disclosure, this court need
not consider the third factor, the government’s interest in nondisclosure. See Cooper, 949 F.2d at
749–50.
The state habeas court concluded:
3. The State has a privilege to refuse or disclose the identity of a
person who has furnished information relating to or assisting in an
investigation of a possible violation of a law. TEX. R. EVID. 508.
4. However, if it appears from the evidence in the case or other
showing that an informer may be able to give testimony necessary to
a fair determination of guilt and innocence and the State invokes the
O:\RAO\VDG\2014\14-1894.c02.wpd
22
privilege, the trial court shall allow the State to show in camera facts
relevant to determine whether the informer can, in fact, supply the
testimony. Id. 508(c)(2).
5. If the trial court finds that there is a reasonable possibility that the
informer can give the testimony and the State elects not to disclose
the identity, the judge on motion of the defendant shall dismiss the
charges to which the testimony would relate. Id.
6. The applicant has failed to meet his burden of proof and
demonstrate that the informant was present during the execution of
the warrant leading to the applicant*s charges, that the State used the
testimony of the informant during trial, that the State caused the
absence of that informant, or that the applicant was prevented from
confronting the informant.
7. The State had a privilege to refuse to disclose the identity of the
informant. TEX. R. EVID. 508 (West 2013).
8. The applicant was afforded due process in the instant application.
(Docket Entry No. 15-26, pp. 60-61).
Boykin has failed to show that the state court adjudication was contrary to, or involved an
unreasonable application of, clearly established federal law, as determined by the Supreme Court of
the United States, or that the adjudication 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.
Accordingly, Boykin’s grounds for review should be denied. Boykin is not entitled to federal habeas
corpus relief on this claim.
VI.
The Claim of Ineffective Assistance of Trial Counsel
Boykin complains that trial counsel rendered ineffective assistance by failing to discover the
identity of the confidential informant. Boykin asserts that counsel failed to file a motion seeking to
discover the confidential informant’s identity.
O:\RAO\VDG\2014\14-1894.c02.wpd
23
The state habeas court found:
1. The Court finds, based on the clerk*s record and the court
reporter*s record, that the applicant was represented in the primary
case by Gerald Fry (hereinafter referred to as “Fry”) at his trial.
....
7. The Court finds, based on the clerk*s record and the court
reporter*s record, that there is no evidence to support that, the
informant was present during the execution of the warrant leading to
the applicant*s charges, that the State used the testimony of the
informant during trial, that the State caused the absence of that
informant, or that the applicant was prevented from confronting the
informant.
8. The Court finds, based on the clerk*s record and the court
reporter*s record, that there is no evidence that the informant would
have been able to give testimony necessary to a fair determination of
guilt and innocence in the primary case.
9. The Court finds, based on the clerk*s record and the court
reporter*s record, that there is no evidence to support that the
informant*s testimony would likely have changed the outcome of
trial.
10. The Court finds, based on the clerk*s record and the court
reporter*s record, that there is no evidence to support that trial counsel
would have been successful in pursuing a motion to reveal the
identity of the confidential informant.
11. The Court finds, based on the clerk*s record and the court
reporter*s record, that trial counsel*s failure to seek disclosure of the
confidential informant*s identity was not deficient and did not cause
the applicant harm. See TEX. R. APP. P. 50(d).
...
14. The Court finds that the applicant failed to specifically allege any
factual basis that supports the allegations that his trial counsel
provided deficient conduct or how he was prejudiced as a result in the
instant application.
(Docket Entry No. 15-26, pp. 57-60).
O:\RAO\VDG\2014\14-1894.c02.wpd
24
The state habeas court concluded:
9. The applicant fails to overcome the strong presumption that trial
counsel*s conduct was within the range of reasonable professional
assistance. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. Ap[p].
1999) (citing Strickland v. Washington, 466 U.S. 668 (1984).
10. The totality of the representation afforded the applicant was
sufficient to protect his right to reasonably effective assistance of trial
counsel. Mercado v. State, 615 S.W.2d 225, 228 (Tex. Crim. App.
1981).
(Docket Entry No. 15-26, pp. 61-62).
Boykin faults his counsel for failing to object to Officer Zamora’s testimony regarding the
confidential informant. As noted, Officer Zamora only referred to the confidential informant in
explaining how he was able to establish probable cause for a search warrant. Boykin’s conclusory
allegation is unsupported. “Mere conclusory statements do not raise a constitutional issue in a
habeas case.” Schlang v. Heard, 691 F.2d 796, 798 (5th Cir. 1982). Further, counsel is not
ineffective for failing to raise meritless objections. See Clark v. Collins, 19 F.3d 959, 966 (5th Cir.
1994) (“[f]ailure to raise meritless objections is not ineffective lawyering; it is the very opposite”).
To establish his ineffective-assistance-of-counsel claim, Boykin must show that his counsel’s
performance was deficient and that he was actually prejudiced as a result. Strickland v. Washington,
466 U.S. 668, 68 (1984). Counsel made a strategic decision not to file a motion for the disclosure
of the confidential informant’s identity. This court’s “scrutiny of counsel’s performance must be
highly deferential.” Strickland, 466 U.S. at 689. Counsel is presumed to have rendered adequate
assistance and to have made all significant decisions in the exercise of reasonable professional
judgment. Id. at 690. “[S]trategic choices made after thorough investigation of law and facts relevant
O:\RAO\VDG\2014\14-1894.c02.wpd
25
to plausible options are virtually unchallengeable.” Id. at 690-91; see also United States v. Jones, 287
F.3d 325, 331 (5th Cir.)(“Informed strategic decisions of counsel are given a heavy measure of
deference and should not be second guessed.”), cert. denied, 537 U.S. 1018 (2002); Lockett v.
Anderson, 230 F.3d 695, 714 (5th Cir. 2000) (Strickland requires deference to counsel’s “informed
strategic choices”).
Boykin has failed to show that the state court adjudication was contrary to, or involved an
unreasonable application of, clearly established federal law, as determined by the Supreme Court of
the United States or that the adjudication 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.
Accordingly, Boykin’s grounds for review should be denied.
Boykin is not entitled to federal habeas corpus relief on this claim.
VII.
The Claim of Ineffective Assistance of Appellate Counsel
Boykin complains that appellate counsel rendered ineffective assistance by failing to file a
motion for new trial.
Persons convicted of a crime are entitled to effective assistance of counsel on direct appeal.
See Evitts v. Lucey, 469 U.S. 387 (1985). This court reviews counsel’s appellate performance under
Strickland v. Washington, 466 U.S. 668 (1984). See Goodwin v. Johnson, 132 F.3d 162, 170 (5th
Cir. 1998). Boykin must allege and present facts that, if proven, would show that his attorney’s
representation was deficient and that the deficient performance caused Boykin prejudice. See
Strickland, 466 U.S. at 687-88, 692; Jones v. Jones, 163 F.3d 285, 300 (5th Cir. 1998).
The first element requires Boykin to show that his appellate counsel’s conduct “fell below
an objective standard of reasonableness.” United States v. Williamson, 183 F.3d 458, 463 (5th Cir.
O:\RAO\VDG\2014\14-1894.c02.wpd
26
1999)(quoting Strickland, 466 U.S. at 688). This court’s review is deferential, presuming that
“counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. Effective
assistance of appellate counsel does not mean counsel will raise every available nonfrivolous ground
for appeal. See Evitts, 469 U.S. at 394; West v. Johnson, 92 F.3d 1385, 1396 (5th Cir. 1996).
Rather, it means, as it does at trial, that counsel performs in a reasonably effective manner. See
Evitts, 469 U.S. at 394. A reasonable attorney has an obligation to research relevant facts and law
and make informed decisions as to whether avenues will, or will not, prove fruitful. See Strickland,
466 U.S. at 690-91.
To show prejudice, Boykin must demonstrate “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Jones, 163 F.3d at
302 (quoting Strickland, 466 U.S. at 694). Such a reasonable probability makes the proceeding
unfair or unreliable, so as to undermine confidence in the outcome. Green v. Johnson, 160 F.3d
1029, 1043 (5th Cir. 1998)(citing Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)).
Boykin complains that appellate counsel rendered ineffective assistance by failing to schedule
an evidentiary hearing on a motion for new trial. Boykin states that on April 12, 2012, appellate
counsel filed a motion for new trial. Boykin complains that appellate counsel failed to schedule an
evidentiary hearing on the seventy-fifth day after sentencing.
The state habeas court found:
2. The Court finds, based on the clerk*s record and the court
reporter*s record, that the applicant was represented in the primary
case by Sara Wood (hereinafter referred to as “Wood”) at his appeal.
...
12. The Court finds, based on the clerk*s record and the court
reporter*s record, that on April 13, 2012, the applicant*s appellate
O:\RAO\VDG\2014\14-1894.c02.wpd
27
attorney filed a motion for new trial and asked for an evidentiary
hearing. See State*s Writ Exhibit A, Motion for New Trial.
...
15. The Court finds that the applicant failed to specifically allege any
factual basis that supports the allegations that his appellate counsel
provided deficient conduct or how he was prejudiced as a result in the
instant application.
(Docket Entry No. 15-26, pp. 57, 59, 60).
The state habeas court concluded:
11. The applicant fails to overcome the strong presumption that
appellate counsel*s conduct was within the range of reasonable
professional assistance. Thompson v. State, 9 S.W.3d 808, 813 (Tex.
Crim. App. 1999) (citing Strickland v. Washington, 466 U.S. 668
(1984); see also Ex parte Jarrett, 891 S.W.2d 935, 938 (Tex. Crim.
App. 1994), overruled on other grounds, Ex parte Wilson, 956
S.W.2d 25 (Tex. Crim. App. 1997).
12. The totality of the representation afforded the applicant was
sufficient to protect his right to reasonably effective assistance of
appellate counsel. Mercado v. State, 615 S.W.2d 225, 228 (Tex.
Crim. App. 1981).
(Docket Entry No. 15-26, p. 62).
As noted, Boykin alleges that appellate counsel rendered ineffective assistance by failing to
schedule a hearing on the defense’s motion for new trial. A defendant must file a motion for new
trial within thirty days of the trial court imposing sentence. See TEX. R. APP. P. 21.4 (a)-(b). The
records shows that appellate counsel did file a timely motion for new trial on April 13, 2012.
(Clerk’s Record, Vol. I, pp. 207-214). Appellate counsel filed the certificate of presentment of
motion for new trial on April 23, 2012. (Clerk’s Record, Vol. I, p. 218). Texas law further requires
a defendant to present a motion for new trial to the trial court within ten days of filing it. See TEX.
R. APP. P. 21.6. Appellate counsel complied with Texas’s procedural requirements for filing and
O:\RAO\VDG\2014\14-1894.c02.wpd
28
presenting a motion for new trial. The trial court must rule on a motion for new trial by written order
within seventy-five days of imposing sentence or the motion will be deemed denied. See TEX. R.
APP. P. 21.8 (a)-(c). Though appellate counsel complied with procedural requirements for filing a
motion for new trial, the trial court denied the motion for new trial by operation of law.
Boykin cannot prevail on his claim of ineffective assistance of counsel because he has not
shown that his counsel’s actions fell below an objective standard of reasonableness and that Boykin
suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668 (1984). Boykin has failed to
establish that but for appellate counsel’s alleged errors, the trial court would have granted Boykin’s
motion for a new trial. As grounds for the motion for new trial, Boykin complains of the failure to
disclose the identity of the confidential informant. This court has considered and rejected Boykin’s
claim based on a violation of his Sixth Amendment right to confront his accuser. Any ineffective
assistance claim predicated on the Confrontation Clause violation also fails. Styron v. Johnson, 262
F.3d 438, 449 (5th Cir. 2001)(finding that where each of the grounds underlying the alleged errors
by counsel on appeal were found to lack merit, appellate counsel’s failure to pursue relief on those
bases does not constitute ineffective assistance of counsel since no prejudice resulted therefrom and
because the reliability of the result of the appeal was not undermined thereby).
Boykin has failed to show that the state court adjudication was contrary to, or involved an
unreasonable application of, clearly established federal law, as determined by the Supreme Court of
the United States or that the adjudication 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.
Accordingly, Boykin’s grounds for review should be denied.
Boykin is not entitled to federal habeas corpus relief on this claim.
O:\RAO\VDG\2014\14-1894.c02.wpd
29
VIII. Conclusion
Respondent’s Motion for Summary Judgment, (Docket Entry No. 20), is GRANTED.
Boykin’s petition for a writ of habeas corpus is DENIED. This case is DISMISSED. Boykin’s
motion for a writ of mandamus, (Docket Entry No. 23), is DENIED. Boykin’s motion for “rogatory”
and settlement of case, (Docket Entry No. 18), and motion for evidentiary hearing, (Docket Entry
No. 26), are DENIED. Respondent’s motion for extension of time, (Docket Entry No. 17), is
GRANTED nunc pro tunc. Any remaining pending motions are DENIED as moot.
The Supreme Court has stated that the showing necessary for a Certificate of Appealability
is a substantial showing of the denial of a constitutional right. Hernandez v. Johnson, 213 F.3d 243,
248 (5th Cir. 2000) (citing Slack v. McDaniel, 529 U.S. 473, 483-84 (2000)). Under that standard,
an applicant makes a substantial showing when he demonstrates that his application involves issues
that are debatable among jurists of reason, that another court could resolve the issues differently, or
that the issues are suitable enough to deserve encouragement to proceed further. See Clark v.
Johnson, 202 F.3d 760, 763 (5th Cir. 2000). Where a district court has rejected a prisoner’s
constitutional claims on the merits, the applicant must demonstrate that reasonable jurists would find
the district court’s assessment of the constitutional claims debatable or wrong. Slack, 529 U.S. 484.
This court denies Boykin’s petition after careful consideration of the merits of his
constitutional claims. This court denies a COA because Boykin has not made the necessary showing
for issuance. Accordingly, a certificate of appealability is DENIED.
August 20
SIGNED at Houston, Texas, on
, 2015.
VANESSA D. GILMORE
UNITED STATES DISTRICT JUDGE
O:\RAO\VDG\2014\14-1894.c02.wpd
30
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?