Williams v. Stephens

Filing 35

MEMORANDUM OPINION AND ORDER granting 30 First MOTION for Summary Judgment , dismissing with prejudice 1 Petition for Writ of Habeas Corpus. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

United States District Court
Southern District of Texas

ENTERED

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

MARLON DANTRUCE WILLIAMS,
TDCJ #935987,
Petitioner,
v.

LORIE DAVIS, Director,
Texas Department of Criminal
Justice - Correctional
Institutions Division,
Respondent.

§
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§

October 10, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. H-14-2098

MEMORANDUM OPINION AND ORDER

Marlon Dantruce Williams (TDCJ #935987) has filed a Petition
for

a

Writ

("Petition")
in Harris

of

Habeas

Corpus

By

a

Person

in

State

Custody

(Docket Entry No. 1) challenging his murder conviction

County cause number

820802

under

28

U.S. C.

§

2254.

Respondent has filed Respondent Davis's Motion for Summary Judgment
With Brief in Support ("Respondent's MSJ")
arguing that

the

(Docket Entry No. 3 0)

Petition is barred by the governing one-year

statute of limitations and, alternatively, the claims lack merit.
Williams has filed Petitioner's Response to Respondent's Motion for
Summary Judgment With Brief in Support
(Docket Entry No. 34).

("Petitioner's Response")

After considering all of the pleadings, the

state court records, and the applicable law, the court will grant
Respondent's MSJ and will dismiss
explained below.

this

action for

the reasons

I.

Background and Procedural History

Williams seeks federal habeas corpus review of a conviction
that

was

entered against

him

in the

Harris County, Texas, on July 14, 2000. 1
part,

178th District

Court

for

The Petition is based, in

on evidence in the form of a police report that Williams

discovered several years after his conviction became final.
follows is a chronology of the offense,

What

investigation, and trial

that led to the murder conviction against Williams,

as well his

belated efforts to challenge that conviction on state and federal
habeas review.
A.

The Offense and Investigation

At approximately 10:15 a.m. on July 10, 1999, two black males
entered the Southern Style Clip Joint Barbershop (the "Barbershop")
in Houston,

Texas . 2

The men were looking for the Barbershop's

owner (Frederick LeBlanc) , who was known as "B. " 3
was working as one of the barbers that day. 4

Tristan Thompson

When Thompson told

the men that B had not yet arrived at the Barbershop, one of the
men shot Thompson in the head,

killing him. 5

1

The same man then

Judgment, Docket Entry No. 28-1, p. 27.
For purposes of
identification all page citations refer to the page number
imprinted by the court's electronic filing system, CM/ECF.
2

Complaint, Docket Entry No. 27-1, p. 6.

3

Id.

4

Id.

5

Id.
-2-

turned the gun on another barber, Danny Swanson ("Swanson"), and
shot him in the right hip. 6

The man fired another shot before

leaving the Barbershop. 7
Sergeant G.J. Novak of the Houston Police Department ("HPD"),
who

investigated

the

case

with

Officer

subsequently received an anonymous

Henry

F.

Chisholm,

tip through Crime Stoppers,

identifying Derrick Turner and Marlon Dantruce Williams as the two
men who entered the
Swanson. 8

barbershop,

killing Thompson and wounding

After viewing a live line-up on August 10, 1999, which

included Turner but not Williams, two witnesses identified Turner
as the person they saw shoot Thompson and Swanson. 9
murder charges were filed against Turner . 10

As a result,

When Swanson saw a

videotape of the same lineup on August 12, 1999, Swanson identified
Turner as being present, but positively identified Williams from a
separate photo array as the man who shot him and killed Thompson in
the Barbershop on July 10,
statement

to

police,

1999. 11

admitting

6

Turner subsequently gave a

that

he

was

present

in

the

Id.
Swanson is mistakenly identified as "Danny Dawson" in
the Complaint and other documents.
To avoid confusion, the court
will refer to him only as Danny Swanson.

8

Id.

lOid.

-3-

Barbershop,

but that Williams was the shooter. 12

Based on this

information, a grand jury returned an indictment against Williams,
charging him with Thompson's murder in Harris County cause number
820802. 13
B.

The Pretrial and Trial Proceedings

Before trial defense counsel filed a motion for the State to
disclose the identity of the confidential informant who made the
anonymous

tip

to

Crime

identification and arrest. 14
of

the

Stoppers,

which

led

to

Williams'

After conducting an in camera review

information provided to police,

the

trial

court denied

defense counsel's request to disclose the confidential informant's
identity. 15
On July 10,

2000,

the

day

that

a

jury trial

was

set

to

commence in the 178th District Court of Harris County, Williams'
defense counsel requested a continuance to secure the presence of
eyewitness Melvina Francis Page, who had identified Derrick Turner

12

Court Reporter's
pp. 10-15.
13

Record,

vol.

6,

Docket

Entry No.

25-8,

Indictment, Docket Entry No. 27-1, p. 14.

14

Motion for Discovery and Inspection, Docket Entry No. 27-1,
p. 25; Court Reporter's Record, vol. 1A, Docket Entry No. 25-3,
pp. 10-14.
15

Court Reporter's
pp. 18-22.

Record,

vol.
-4-

2,

Docket

Entry No.

25-4,

as

the

shooter,

and

two

other witnesses. 16

The motion

for

a

continuance was denied. 17
At

trial,

the

State

presented

evidence

that

the

offense

stemmed from a "yacht party" in Kemah, Texas, that was attended by
around a hundred people who were filming a music video for a local
rap group on the night of July 9, 2000. 18

At that party Williams

and Turner were injured during a fight with Frederic LeBlanc and
some of his associates. 19

The day after the yacht party Williams

and Turner went to the Barbershop to confront LeBlanc. 20
Danny Swanson testified that Williams was the man who walked
into the Barbershop on July 10, 1999, and shot him in the hip after
he

shot and killed Tristan Thompson without any provocation. 21

Turner also testified as a State's witness, identifying Williams as
the

man

who

killed

Thompson

and

shot

Danny

Swanson

in

the

16

Motion for Continuance, Docket Entry No. 28-1, p. 3; Court
Reporter's Record, vol. 2, Docket Entry No. 25-4, pp. 4-5.
17

Court Reporter's Record, vol. 2, Docket Entry No. 25-4, p. 18.

18

Court Reporter's Record, vol. 5, Docket Entry No. 25-7,
pp. 149-50, 152-53; Court Reporter's Record, vol. 6, Docket Entry
No. 25-8, pp. 114-16.
19

Court Reporter's Record, vol. 5, Docket Entry No. 25-7,
pp. 155-60; Court Reporter's Record, vol. 6, Docket Entry No. 25-8,
pp. 116-21.
2

Record,

vol.

5,

Docket

Entry No.

25-7,

21

Record,

vol.

5,

Docket

Entry No.

25-7,

°Court Reporter's
pp. 161-70.
Court Reporter's
pp. 16-63.

-5-

Barbershop. 22
witnesses

This testimony was further corroborated by additional

who

did

not

see

the

shooter's

face,

but

identified

Williams as the shooter by describing distinctive items of clothing
that he was wearing when the shooting occurred. 23
There

were

conflicting

accounts

during

the

police

investigation about which man, Williams or Turner, opened fire that
day killing Thompson and injuring Swanson.

Officer Chisholm testi-

fied that Swanson strongly identified Williams as the shooter and
Turner as the non-shooter after viewing a photographic line-up on
August 12,

1999, 24 but that Melvina Francis Page made a

"strong

tentative identification" of Turner as the shooter, clarifying that
she was 90% sure of her identification. 25
McCaa,

Page's young son, Robert

also identified Turner as the shooter. 26

Linda McCaa,

Page' s mother,

recognized Turner as one of the men who entered the

Barbershop, but identified Williams as the shooter. 27

22 Id. at 143-190; Court Reporter's Record, vol. 6, Docket Entry
No. 25-8, pp. 6-16.
23 Court
pp. 102-43.

Reporter's

Record,

vol.

5,

Docket

Entry No.

25-7,

24 Court Reporter's
pp. 162-5, 170-71.

Record,

vol.

6,

Docket

Entry No.

25-8,

25 Court Reporter's
p. 165.

Record,

vol.

6,

Docket

Entry No.

25-8,

26Id. at 186.
27Id. at 166-67, 187.
-6-

On July 13, 2000, the jury found Williams guilty as charged in
the Indictment. 28

On July 14,

Williams to life imprisonment,

2000,

29

the trial court sentenced

consistent with the jury's verdict

on punishment. 30
C.

Williams' Direct Appeal

On direct appeal Williams argued that the trial court erred by
denying

his

pretrial

motion

to

disclose

the

identity

of

the

confidential informant. 31 An intermediate court of appeals rejected
the argument and affirmed the conviction on October 17, 2001.

See

Williams v. State, 62 S.W.3d 800 (Tex. App. -San Antonio 2001, no
pet.) . 32

Because Williams did not file a petition for discretionary

review by the Texas
became

final

when

Court of

the

time

Criminal Appeals,

to

seek

further

his

conviction

review expired on

November 16, 2001, 30 days after the appellate court's decision.
D.

State Collateral Review

More than a decade after his conviction became final Williams
asked an unidentified friend to contact HPD and request a copy of

28

Verdict, Docket Entry No. 28-1, p. 18.

29

Judgment in Cause No. 820802, Docket Entry No. 28-1, p. 27.

30

Verdict on Punishment, Docket Entry No. 28-1, p. 25.

31

Appellant's Brief, Docket Entry No. 26-1, p. 9.

32

0pinion dated October 17, 2001, in Williams v. State, No. 0400-646-CR, Docket Entry No. 26-6, pp. 1-3.
-7-

the police report in his case. 33
received the police report.

Williams does not specify when he

When he reviewed the report, Williams

noted that it contained information that Danny Swanson initially
declined to identify anyone as the shooter in this case when he was
shown a

photographic

line-up on August

9,

1999. 34

The report

states, in pertinent part, as follows:
THE PHOTO ARRAY WAS SHOWN TO DANNY AT 1545 HOURS.
IT WAS OBVIOUS TO THIS SERGEANT THAT [SWANSON] RECOGNIZED
SOMEONE IN THE PHOTOS SHOWN. HE BECAME VERY NERVOUS AND
STATED THAT HE [WAS] SO AFRAID THAT THEY ARE GOING TO
FIND HIM AND SHOOT HIM AGAIN. HE STATED THAT HE HAD NOT
WORKED SINCE THIS INCIDENT NOR HAD [HE] GONE HOME
35

In a supplemental entry to the police report on August 12, 1999,
Sergeant Novak showed Swanson the photo array again:
[SWANSON] WAS THEN ASKED IF HE WOULD VIEW THE PHOTO ARRAY
PREPARED IN THIS CASE TO SEE IF [HE] MIGHT RECOGNIZE
ANYONE.
HE WAS AGAIN TOLD THAT HE WAS UNDER NO
OBLIGATION TO IDENTIFY [ANYONE] . HE AGAIN STATED THAT HE
FEARED FOR HIS SAFETY AND THAT THEY MIGHT COME AFTER HIM.
HE WAS ASSURED THAT SHOULD HE RECEIVE ANY THREATS OF
RETALIATION HE SHOULD NOTIFY THIS SERGEANT IMMEDIATELY
. . . . [SWANSON] WAS MAKING EVERY EXCUSE HE COULD NOT TO
VIEW THE PHOTOS.
IT WAS VERY OBVIOUS THAT DANNY
[SWANSON] FEARS FOR HIS SAFETY SHOULD HE IDENTIFY THE
SHOOTER IN THIS CASE. . . . 36

33

Petitioner's Memorandum in Support of Petition for Writ of
Habeas Corpus (2254) ("Petitioner's Memorandum"), Docket Entry
No. 5, p. 2 n.1; p. 4 n.3
34

HPD Current Information Report, Incident No. 089633699,
Exhibit A to Petitioner's Memorandum, Docket Entry No. 5-2,
pp. 2-16.
35

Id. at 7.

36

Id. at 12-13.
-8-

Swanson then identified Williams as the man who shot him and killed
Tristan Thompson in the Barbershop on July 10, 1999. 37
In an Application for a Writ of Habeas Corpus Seeking Relief
From Final Felony Conviction Under Code of Criminal Procedure,
Article 11.07

("State Habeas Application")

that was executed and

filed on February 24, 2012, 38 Williams argued that the police report
contains evidence that Swanson "failed"

to identify him as the

shooter on August 9, 1999, which is "exculpatory" because it casts
doubt on the credibility of the identification that Swanson made
when he was

shown the photo array again on August 12,

1999. 39

Because his trial attorney did not question Swanson or Officer
Chisholm about Swanson's initial failure to identify him as the
shooter, Williams surmised that the State must have suppressed this
exculpatory evidence of his "actual innocence" and that Officer
Chisholm's testimony about Swanson's identification was "false." 40
Asserting these claims along with several others, Williams raised
the following grounds for relief on state court review:
( 1)

Williams
was
denied
a
fair
trial
due
prosecutorial misconduct because the State suppressed exculpatory
police report showing

(a)

to

evidence
from
the
that Danny Swanson

37Id.
38 Exhibit

A

to

Respondent's

pp. 2-15.
39

Id. at 7 .

4oid. at 7

I

10.
-9-

MSJ,

Docket

Entry

No.

30-1,

failed
to
identify him
initially at
photographic line-up on August 9, 1999;

a

(b)

(c)

directed a police officer (Officer Chisholm)
to testify falsely about when Swanson was
shown a photographic line-up; and

(d)

(2)

withheld or omitted evidence from the police
report showing that Swanson viewed a videotape
of the yacht party, but failed to identify
Williams from that footage;

presented false evidence and argument about
whether Melvina Page's
identification of
Derrick Turner as the shooter was "tentative."

Williams was denied effective assistance of counsel
before his trial because his defense attorney
failed to:
(a)

adequately prepare for trial by conducting an
independent investigation beyond the information provided by the State;

(b)

locate three witnesses (Melvina Page, Robert
McCaa, Linda McCaa, and Reandrea Adams) who
were critical to the defense;

(c)

locate, interview, and subpoena Melvina Page,
Robert McCaa, Linda McCaa, and Reandrea Adams;
and

(d)

interview Danny Swanson or Frederic LeBlanc
before trial.

(3)

Williams was denied effective assistance of counsel
during his trial because his defense attorney
failed to file a motion to suppress Swanson's incourt identification after learning during the
trial that police had shown Swanson a video of the
yacht party.

(4)

Williams was denied effective assistance of counsel
during his trial because his defense attorney
failed to:
(a)

correct the misleading testimony about whether
Melvina Page's pretrial identification of
Turner as the shooter was tentative;
-10-

(b)

(c)

(5)

This

impeach Officer Chisholm's false testimony
about when Swanson was shown the photographic
line-up;
impeach Officer Chisholm and Sergeant Novak
about whether they showed Swanson the yacht
party
video,
in
which
Williams
was
"prominently" shown,
before he identified
Williams as the shooter.

There is "newly discovered" evidence in the form of
a "nonpublic" police report that contains exculpatory
information about
Swanson's
failure
to
identify Williams on August 9, 1999, which shows
that Williams is "actually innocent." 41

State

Habeas

Application

remains

pending

in

state

court

without an adjudication on the merits. 42
E.

Williams' Federal Habeas Proceeding

On July 18,

2014,

Williams executed and filed the pending

pro se federal Petition, raising the same grounds for relief that
he presented in his State Habeas Application. 43
dismissed

the

Petition without

prejudice

The court initially

after

observing

that

Williams's State Habeas Application remained pending in state court
and that he had not yet exhausted available remedies as required by
28 U.S.C.

41

§ 2254(b) by presenting his claims for adjudication to

Id. at 7-11.

42

Harris County District Clerk's Office, State v. Williams,
Cause No. 820802-A, at http://www.hcdistrictclerk.com (last visited
October 4, 2017).
43

Petition, Docket Entry No. 1, p. 11. Because Williams filed
his Petition while incarcerated, the mail box rule applies, meaning
that the date he placed his pleadings in the prison mail system,
July 18, 2014, is considered to be the filing date. See Spotville
v. Cain, 149 F.3d 374, 378 (5th Cir. 1998).
-11-

the Texas Court of Criminal Appeals. 44

Noting that Williams's State

Habeas Application had been pending for several years without any
activity,
and

the Fifth Circuit vacated this court's dismissal order

remanded

the

case

after

the

State

waived

the

exhaustion

requirement. 45
The respondent has now moved for summary judgment,
that

the

police

report

that

Williams

claims

to

have

arguing
recently

discovered was available to defense counsel at the time of trial. 46
To the extent that his claims are based on the trial record and
could have been raised previously if due diligence had been used,
the respondent contends that the Petition must be dismissed because
it is barred by the governing one-year statute of limitations on
federal

habeas

corpus

review. 47

The respondent argues,

in the

alternative, that all of Williams' claims are without merit. 48
Williams, who has filed a response to Respondent's MSJ with
the assistance of counsel, 49 disputes that the entire police report

44

Memorandum Opinion and Order dated July 25,
Entry No. 3.

2014,

45

Docket

Williams v. Davis, No. 14-20543 (5th Cir. Dec. 29, 2016)
curiam), Docket Entry No. 16, p. 2.
46

Respondent's MSJ, Docket Entry No. 30, pp. 27-28.

47

Id. at 28-42.

48

(per

Id. at 42-95.

49

Counsel appears to have been appointed by the Fifth Circuit
for the purpose of Williams' appeal.
-12-

was available at trial and argues that at least three of his claims
are based on evidence that was only discovered by Williams after
trial; the page of the police report that showed that Danny Swanson
initially "failed" to identify Williams from a photographic line-up
on August
suppressed,

9,

1999. 50

Arguing

that

this

page

must

have

been

Williams contends that the Petition is not untimely

with regard to Claims 1a, 1c, and 4b. 51

Williams does not address

the timeliness or merits of his other claims (Claims 1b, 1d, 2a-d,
3, 4a, 4c, and 5), which are not based on the police report; and he
appears to concede that they are time-barred.

As a result,

the

court will not consider those claims further.
II.

Standard of Review

The Respondent's MSJ is governed by Rule 56 of the Federal
Rules of Civil Procedure, which applies in a federal habeas corpus
proceeding to the extent that it does not conflict with the Rules
Governing Section 2254 Proceedings in the United States District
Courts.

See Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002)

("[Rule 56]

applies only to the extent that it does not conflict

with the habeas rules."), abrogated on other grounds by Tennard v.
Dretke, 124 S. Ct. 2562 (2004)
Under Rule 56 a reviewing court "shall grant summary judgment
if the movant shows that there is no genuine dispute as to any
50

Petitioner's Response, Docket Entry No. 34, pp. 5, 24-26.

51

Id. at 5, 16-24.
-13-

material fact and the movant is entitled to judgment as a matter of
law."
106

Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett,

S.

Ct.

2548,

2552

(1986).

A

fact

is

"material"

if

its

resolution in favor of one party might affect the outcome of the
suit under governing law.

Anderson v. Liberty Lobby,

Inc.,

106

S. Ct. 2505, 2510 (1986). An issue is "genuine" if the evidence is
sufficient

for

a

reasonable

nonmoving party.

jury to

return a

verdict

for

the

Id.

In deciding a summary judgment motion,

the reviewing court

must "construe all facts and inferences in the light most favorable
to the nonmoving party."
Cir.

2010)

However,

(internal

Dillon v. Rogers, 596 F.3d 260, 266 (5th
citation

and

quotation

marks

omitted).

the non-movant cannot avoid summary judgment simply by

presenting "' [c)onclusional allegations and denials, speculation,
improbable inferences, unsubstantiated assertions, and legalistic
argumentation."
344,

348

Jones v.

(5th Cir.

2012)

Lowndes County,

Mississippi,

678 F.3d

(quoting TIG Insurance Co. v.

Sedgwick

James of Washington, 276 F.3d 754,

759 (5th Cir. 2002)).

If the

movant demonstrates the absence of a genuine issue of material
fact,

the burden shifts to the non-movant to provide "'specific

facts showing that there is a genuine issue for trial,'" Matsushita
Electric Industrial Co.,
1348,

1356

(1986),

or,

Ltd. v.

Zenith Radio Corp.,

106 S. Ct.

in the context of federal habeas corpus

review, an evidentiary hearing under 28 U.S.C.
-14-

§

2254(e) (2).

III.
A.

Discussion

Statute of Limitations

According to the Antiterrorism and Effective Death Penalty Act
of 1996 (the "AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996),
all federal habeas corpus petitions filed after April 24, 1996, are
subject
§

to

a

one-year

limitations

period

found

in

28

U.S.C.

2244(d), which provides as follows:
(d) (1)

A 1-year period of limitation shall apply to
an application for a writ of habeas corpus by
a person in custody pursuant to the judgment
of a State court. The limitation period shall
run from the latest of--

(A)

(B)

the date on which the constitutional right
asserted was initially recognized by the
Supreme Court, if the right has been newly
recognized by the Supreme Court and made
retroactively
applicable
to
cases
on
collateral review; or

(D)

u.s.c.

the date on which the impediment to filing an
application
created by
State
action
in
violation of the Constitution or laws of the
United States is removed, if the applicant was
prevented from filing by such State action;

(C)

28

the date on which the judgment became final by
the conclusion of direct review or the
expiration of the time for seeking such
review;

the date on which the factual predicate of the
claim or claims presented could have been
discovered
through
the
exercise
of
due
diligence.

§

2244 (d) (1).

Because the pending Petition was filed

well after April 24, 1996, the one-year limitations period clearly
applies.
1998)

See Flanagan v.

Johnson,

(citation omitted).
-15-

154 F.3d 196,

198

(5th Cir.

To the extent that Williams challenges a state court judgment
of conviction, the statute of limitations began to run pursuant to
§

2244 (d) ( 1) (A)

when his time to pursue direct review expired.

Because Williams did not file a petition for discretionary review
with the Texas Court of Criminal Appeals after his conviction was
affirmed on October 17,
expired

thirty

days

2001,

later

his time to pursue direct review

on November

16,

2001. 52

That

date

triggered the statute of limitations, which expired one year later
on November 16, 2002.

The Petition, which is dated July 18, 2014,

is nearly 12 years late and is time-barred unless a statutory or
equitable exception applies.
B.

Statutory Tolling

Williams asserts that he is entitled to tolling of the statute
of limitations until the time that his friend obtained a copy of
the police
defense

report

from HPD. 53

counsel had access

Williams

does

to the police

not

dispute

that

report before trial.

However, because defense counsel did not cross-examine Swanson or
Officer

Chisholm

about

Swanson's

initial

failure

to

make

an

identification from the photo array that he was shown on August 9,
1999, Williams reasons that this page of the report must have been

52

See Tex. R. App. P. 68.2(a) (the time to seek a petition for
discretionary review expires 30 days after the intermediate court
issues its opinion); see also Roberts v. Cockrell, 319 F.3d 690,
694 (5th Cir. 2003) (observing that a conviction "becomes final
when the time for seeking further direct review in the state court
expires") .
53

Petitioner's Response, Docket Entry No. 34, pp. 25-26.
-16-

suppressed. 54 Williams therefore contends that tolling is warranted
because he was subject to state action that impeded him from filing
three of his grounds for relief (Claims 1a, 1c, and 4b) in a timely
manner. 5 5

See 28 U.S.C.

§

2244 (d) (1) (B).

Alternatively, Williams

argues that these grounds for relief rely on a factual predicate
that could not have been discovered previously if due diligence had
been used. 5 6

See 28 U.S.C.

§

2244 (d) (1) (D).

The record confirms that defense counsel had access to the
police report before Williams' trial.
an

affidavit

from

Williams'

trial

The respondent has provided
attorney,

George

Farnham. 57

Farnham conceded in that affidavit that he had little recollection
of his pretrial preparation because substantial time has passed
since the case was tried 17 years ago. 58

Farnham confirms, however,

that he had access to the police report in Williams' case and would
have reviewed a copy "very early on in [his]
defense of Marlon Williams. " 59
the exact date

preparation for the

Although Farnham could not recall

that he reviewed the police report,

private investigator used the report to

he and his

identify and interview

witnesses who identified Derrick Turner as the shooter on the same

54

Id. at 17.

55

Id. at 24.

57

Affidavit of George J.
Farnham ("Farnham Affidavit"),
Exhibit A to Respondent's MSJ, Docket Entry No. 30-1, pp. 17-21.
58

Id. at 19-20.

59

Id. at 18.
-17-

page that Williams claims was suppressed. 60

Parnham also recalled

Swanson's positive identification as the result of being shown a
photo spread by HPD and determined that it was not suggestive or
that there was any "viable suppression issue. " 61
The

record

confirms

that

the

State's

file

was

"open"

to

defense counsel once Williams was indicted and Parnham had access
to the police report,

which he referenced on several occasions

during pretrial proceedings. 62

Because Parnham made reference to

other information found on the same page as the photo array shown
to Swanson and other witnesses on August 9,

1999, the record is

evidence that Parnham had access to that page of the report. 63
Williams presents no evidence to the contrary.

Williams' specula-

tion that defense counsel must have lacked access to the precise
page of the police report showing that Swanson was too afraid to
make an identification on August 9,

1999,

when defense counsel

referenced information from the same page of that report during
pretrial proceedings, raises nothing more than a metaphysical doubt
60

Id. at 18-19 (noting identifications that were made by
Melvina Page, her son, Robert McCaa, and her mother, Linda McCaa,
and documented on the same page that Williams' claims were
suppressed);
HPD
Current
Information
Report,
Incident
No. 089633699, Docket Entry No. 5-2, p. 7.
61

Parnham Affidavit,
Entry No. 30-1, p. 20.

Exhibit A to Respondent's MSJ,

Docket

62

Court Reporter's Record, vol. 1A, Docket Entry No. 25-3,
pp. 10-11, 15;
Court Reporter's Record, vol. 2, Docket Entry
No. 25-4, p. 15; Court Reporter's Record, vol. 3, Docket Entry
No. 25-5, p. 13.
63

Court Reporter's Record, vol. 3, Docket Entry No. 25-5, p. 13
(referencing information about the confidential informant) .
-18-

about whether this portion of the report was available, which is
not sufficient to preclude summary judgment.

See Matsushita, 106

S. Ct. at 1356 (the party opposing summary judgment "must do more
than simply show that there is some metaphysical doubt as to the
material facts"); McCarty v. Hillstone Restaurant Group, Inc., 864
F.3d 354,

357

(5th Cir.

2017)

(observing that the non-movant's

burden "will not be satisfied by 'some metaphysical doubt as to the
material

facts,

by

conclusory

allegations,

by

unsubstantiated

assertions, or by only a scintilla of evidence'")

(quoting Little

v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)

(en bane)).

Williams gives no explanation for his decision to wait over a
decade before requesting a copy of the police report or pursuing
collateral review.

Williams does not otherwise establish that he

was impeded by state action or that the facts underlying his claims
could not have been discovered previously if due diligence had been
used.

Because Williams does not demonstrate that statutory tolling

is available under 28 U.S.C.

§

2244 (d) (1) (B)

or

§

2244 (d) (1) (D),

the Petition is untimely, and the respondent is entitled to summary
judgment on all of petitioner's claims.

Alternatively, the claims

briefed by Williams in response to Respondent's MSJ (Claims 1a, 1c,
and 4b) lack merit for reasons discussed briefly below.
C.

Alternatively, the Claims Lack Merit

1.

The Brady Claim (Claim 1a)

Williams claims that the prosecution violated his right to due
process

under

Brady

v.

Maryland,
-19-

83

S.

Ct.

1194

(1963),

by

suppressing a page from the police report that showed that Danny
Swanson was too afraid to identify the shooter from a photo array
that he was shown on August 9, 1999.

In Brady the Supreme Court

held that the government violates due process when it fails to
disclose evidence favorable to the accused where such evidence is
"material either to guilt or to punishment,

irrespective of the

good faith or bad faith of the prosecution."

Id. at 1196-97.

government's

duty

to disclose

exculpatory evidence.
3375,

3380

(1985).

to both

See United States v.
Thus,

defendant must prove that:
by the prosecutor,

extends

to

establish

a

Bagley,

105 S.

Brady violation,

inadvertently;

evidence was favorable to the defendant,
it

impeachment and
Ct.
a

(1) evidence was withheld or suppressed

either willfully or

exculpatory or because

The

has

the

either because it was

impeachment

value;

evidence was material such that prejudice ensued.
Greene, 119 S. Ct. 1936, 1948 (1999).

(2)

and

(3)

the

See Strickler v.

Evidence is material under

Brady "only if there is a reasonable probability that,

had the

evidence

of

been

disclosed

to

the

defense,

proceeding would have been different."

the

result

the

Bagley, 105 S. Ct. at 3383.

For reasons discussed previously, Williams has not shown that
any portion of the police report was suppressed or that his defense
counsel lacked access to it before trial.

Williams' unsupported

suspicion that a page was missing from the police report is "purely
speculative"

and cannot support a

Brady claim.

See Hughes v.

Johnson, 191 F.3d 607, 629-30 (5th Cir. 1999) (citing United States
-20-

v. Pretel, 939 F.2d 233, 240 (5th Cir. 1991)); see also Murphy v.
Johnson, 205 F.3d 809, 814 (5th Cir. 2000)

("Allegations that are

merely 'conclusionary' or are purely speculative cannot support a
Brady claim.").
More importantly, Williams does not show that the evidence at
issue

(Swanson's refusal to identify anyone on August 9,

1999,

because he feared for his life), would have made any difference in
this case.

It is undisputed that Swanson identified Williams as

the shooter on August 12, 1999, when Swanson reiterated that he was
"very scared" and feared for his safety. 64
Williams as the shooter at trial. 65

Swanson also identified

Swanson's identification was

corroborated by Derrick Turner and other eyewitnesses who described
Williams as the shooter. 66

Impeachment evidence is not material

where the testimony of the witness who might have been impeached is
strongly corroborated by additional evidence supporting a guilty
verdict.
Cir.

See United States v. Weintraub, 871 F.2d 1257, 1262 (5th

1989)

(citing United States v.

Risken,

788 F.2d 1361,

1375

(8th Cir. 1986)); see also Rocha v. Thaler, 619 F.3d 387, 396-97
(5th Cir. 2010).

64

HPD Current Information Report,
Docket Entry No. 5-2, pp. 12-13.
65

Court
pp. 16-63.

Reporter' s

Record,

vol .

66

5,

Incident
Docket

No.

089633699,

Entry No.

2 5-7,

Id. at 143-190; Court Reporter's Record, vol. 6, Docket Entry
No. 25-8, pp. 6-16.
-21-

Because Williams does not demonstrate that the result of the
proceeding would have been any different if the jury had known that
Swanson was too afraid to make an identification on August 9, 1999,
he does not raise a genuine issue of material fact on whether a
Brady violation occurred.

Therefore, the respondent is entitled to

summary judgment on this claim.
2.

The Giglio Claim (Claim 1c)

Williams contends that the prosecutor violated his right to
due process under Giglio v. United States,

92 S. Ct. 763

(1972),

when she directed Swanson and Officer Chisholm to testify falsely
about when Swanson was shown a photographic line-up.

The State

violates due process when it knowingly presents false evidence at
trial or allows untrue testimony to go uncorrected.

See Giglio, 92

S. Ct. at 766; see also Napue v. People of the State of Illinois,
79 S. Ct. 1173, 1177 (1959).

To establish a due process violation

based on the government's use of false or misleading testimony, a
habeas petitioner must demonstrate the following:

" ( 1) the witness

gave false testimony; (2) the falsity was material in that it would
have affected the jury's verdict; and (3) the prosecution used the
testimony knowing it was false."
473 (5th Cir. 2007)

Reed v. Quarterman, 504 F. 3d 465,

(citing May v. Collins, 955 F.2d 299, 315 (5th

Cir. 1992)).
Williams

takes

issue

with

testimony

showing

that

Swanson

identified Williams as the shooter from a photo array that he was
-22-

shown on August 12, 1999.

Williams argues that the testimony is

"actually false" because Swanson was first shown the photo array on
August 9, 1999, but he did not actually make an identification at
that time. 67

Officer Chisholm testified that on August 12, 1999,

Swanson positively identified Williams as the shooter. 68
testified

generally

to

the

identification

that

he

Swanson

made

after

viewing a photographic line-up, without specifying the particular
date that he made the identification. 69

The record does not reflect

that either witness intentionally testified falsely or that the
prosecutor directed them to do so.

Williams fails to establish a

violation of Giglio or show that he is entitled to relief on this
issue.

Accordingly, the respondent is entitled to summary judgment

on this claim.
3.

Ineffective Assistance of Counsel (Claim 4b)

Assuming that defense counsel had a
police

report,

Williams

contends

that

complete copy of

he

was

ineffective

the
for

failing to impeach Officer Chisholm about Swanson's initial failure
to

identify him on August

assistance

67

of

counsel

are

1999. 70

9,

governed

by

Claims
the

for

ineffective

standard

found

in

Petitioner's Response, Docket Entry No. 34, p. 19.

68

Record,

vol.

6,

Docket

Entry No.

25-8,

69

Record,

vol.

5,

Docket

Entry No.

25-7,

Court Reporter's
pp. 145, 159-161.
Court Reporter's
pp. 53-60.
70

Petitioner's Response, Docket Entry No. 34, pp. 5, 16-24.
-23-

Strickland v. Washington, 104 S. Ct. 2052 (1984).

To prevail under

the Strickland standard a defendant must demonstrate (1) that his
counsel's performance was deficient and
performance prejudiced the
defendant

makes

conviction

both

defense.

showings,

(2)

Id.

it

that the deficient

at

cannot

2064.
be

"Unless

said

that

a

the

. . resulted from a breakdown in the adversary process

that renders the result unreliable."

Id.

"To satisfy the deficient performance prong,

'the defendant

must show that counsel's representation fell below an objective
standard of reasonableness.'"
(5th Cir.
denied,

2014)

Hoffman v. Cain, 752 F.3d 430, 440

(quoting Strickland,

135 S. Ct.

1160

(2015).

104 S.

Ct.

at 2064),

cert.

This is a "highly deferential"

inquiry; "[t]here is 'a strong presumption that counsel's conduct
falls

within

assistance.'"

the
Id.

wide

range

professional

(quoting Strickland, 104 S. Ct. at 2065).

To satisfy the prejudice prong,
that there is a

reasonable

of

"[t] he defendant must show

reasonable probability that,

but for counsel's

unprofessional errors, the result of the proceeding would have been
different."

Strickland, 466 U.S. at 694.

"affirmatively prove prejudice."

A habeas petitioner must

Id. at 693.

A petitioner cannot

satisfy the second prong of Strickland with mere speculation and
conjecture.
1992).

See Bradford v. Whitley, 953 F.2d 1008, 1012 (5th Cir.

Conclusory allegations are

insufficient to demonstrate

either deficient performance or actual prejudice.

See Day v.

Quarterman, 566 F.3d 527, 540-41 (5th Cir. 2009); see also Lincecum
-24-

v. Collins, 958 F.2d 1271, 1279-80 (5th Cir. 1992)

(stating that an

ineffectiveness claim based on speculation or conclusional rhetoric
will not warrant relief).
In response to this claim, Parnham states that the three-day
difference between the photo spreads shown to Swanson on August 9
and 12, 1999, were "not significant in importance in the crossexamination of Officer Chisolm." 71

Williams does not show that it

was significant or material and he does not demonstrate that his
counsel's strategic decision was deficient.

Impeaching Officer

Chisholm with information showing that Swanson was too afraid to
make

an

identification

on

August

1999,

9,

would

likely

have

reinforced the fact that Swanson was in fear for his life from the
shooter,

whom he positively

Williams. 72

identified as

Although Williams disagrees, he has not overcome the

substantial
counsel's

("a hundred percent")

deference

strategic

that

Strickland

decisions

are

requires

where

defense

Strickland,

concerned.

104

S. Ct. at 2065 ("Judicial scrutiny of counsel's performance must be
highly deferential.").

Based on this record,

Williams has not

established deficient performance or actual prejudice and he has
not

demonstrated

counsel.

that

he

was

denied

effective

assistance

of

Therefore, the respondent is entitled to summary judgment

on this claim.

71

Parham Affidavit, Exhibit A to Respondent's MSJ, Docket Entry
No. 30-1, p. 21.
72

Court Reporter's
pp. 57-60.

Record,

vol.

-25-

5,

Docket Entry No.

25-7,

Because all of Williams' remaining claims (Claims 1b, 1d, 2ad,

3, 4a, 4c,

and 5)

are time-barred or have been abandoned for

reasons stated previously, Williams does not establish that he is
entitled

to

federal

habeas

corpus

relief.

Accordingly,

the

Petition will be denied and this case will be dismissed.
IV.

Certificate of Appealability

Rule 11 of the Rules Governing Section 2254 Cases requires a
district court to issue or deny a certificate of appealability when
entering a

final

order that

is adverse

to

the petitioner.

A

certificate of appealability will not issue unless the petitioner
makes

"a substantial showing of the denial of a

right,"

28 U.S.C.

demonstrate
court's
wrong."'

"that

assessment

§

2253 (c) (2),

'reasonable
of

the

constitutional

which requires a petitioner to
jurists

would

constitutional

find

claims

the

debatable

Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004)

Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000)).

district
or

(quoting

Where denial of

relief is based on procedural grounds, the petitioner must show not
only that "jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional
right," but also that they "would find it debatable whether the
district court was correct in its procedural ruling."

Slack, 120

s. Ct. at 1604.
A district court may deny a

certificate of appealability,

sua sponte, without requiring further briefing or argument.
-26-

See

Alexander v.
reasons set

Johnson,

211 F.3d 895,

forth above,

this

898

court

(5th Cir.

concludes

2000).

that

For

jurists of

reason would not debate whether any procedural ruling in this case
was correct or whether the petitioner states a valid claim for
relief.

Therefore, a certificate of appealability will not issue.
V.

Conclusion and Order

The court ORDERS as follows:
1.

Respondent Davis's Motion for Summary
(Docket Entry No. 30) is GRANTED.

Judgment

2.

The Petition for a Writ of Habeas Corpus By a
Person in State Custody filed by Marlon Dantruce
Williams (Docket Entry No. 1) is DISMISSED with
prejudice.

3.

A certificate of appealability is DENIED.

The Clerk shall provide a copy of this Memorandum Opinion and
Order to the parties.
SIGNED at Houston, Texas, on this lOth day of October, 2017.

UNITED STATES DISTRICT JUDGE

-27-