Williams v. Stephens
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
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
MARLON DANTRUCE WILLIAMS,
LORIE DAVIS, Director,
Texas Department of Criminal
Justice - Correctional
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
(Docket Entry No. 1) challenging his murder conviction
County cause number
Respondent has filed Respondent Davis's Motion for Summary Judgment
With Brief in Support ("Respondent's MSJ")
(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).
After considering all of the pleadings, the
state court records, and the applicable law, the court will grant
Respondent's MSJ and will dismiss
Background and Procedural History
Williams seeks federal habeas corpus review of a conviction
Harris County, Texas, on July 14, 2000. 1
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,
investigation, and trial
that led to the murder conviction against Williams,
as well his
belated efforts to challenge that conviction on state and federal
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")
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
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
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.
Complaint, Docket Entry No. 27-1, p. 6.
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"),
subsequently received an anonymous
tip through Crime Stoppers,
identifying Derrick Turner and Marlon Dantruce Williams as the two
men who entered the
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,
Turner subsequently gave a
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.
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
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
identification and arrest. 14
After conducting an in camera review
information provided to police,
defense counsel's request to disclose the confidential informant's
On July 10,
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
Indictment, Docket Entry No. 27-1, p. 14.
Motion for Discovery and Inspection, Docket Entry No. 27-1,
p. 25; Court Reporter's Record, vol. 1A, Docket Entry No. 25-3,
other witnesses. 16
continuance was denied. 17
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
shot and killed Tristan Thompson without any provocation. 21
Turner also testified as a State's witness, identifying Williams as
Motion for Continuance, Docket Entry No. 28-1, p. 3; Court
Reporter's Record, vol. 2, Docket Entry No. 25-4, pp. 4-5.
Court Reporter's Record, vol. 2, Docket Entry No. 25-4, p. 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.
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,
This testimony was further corroborated by additional
Williams as the shooter by describing distinctive items of clothing
that he was wearing when the shooting occurred. 23
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
1999, 24 but that Melvina Francis Page made a
tentative identification" of Turner as the shooter, clarifying that
she was 90% sure of her identification. 25
Page's young son, Robert
also identified Turner as the shooter. 26
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.
24 Court Reporter's
pp. 162-5, 170-71.
25 Court Reporter's
26Id. at 186.
27Id. at 166-67, 187.
On July 13, 2000, the jury found Williams guilty as charged in
the Indictment. 28
On July 14,
Williams to life imprisonment,
the trial court sentenced
consistent with the jury's verdict
on punishment. 30
Williams' Direct Appeal
On direct appeal Williams argued that the trial court erred by
confidential informant. 31 An intermediate court of appeals rejected
the argument and affirmed the conviction on October 17, 2001.
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
review expired on
November 16, 2001, 30 days after the appellate court's decision.
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
Verdict, Docket Entry No. 28-1, p. 18.
Judgment in Cause No. 820802, Docket Entry No. 28-1, p. 27.
Verdict on Punishment, Docket Entry No. 28-1, p. 25.
Appellant's Brief, Docket Entry No. 26-1, p. 9.
0pinion dated October 17, 2001, in Williams v. State, No. 0400-646-CR, Docket Entry No. 26-6, pp. 1-3.
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
line-up on August
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
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
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
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
HPD Current Information Report, Incident No. 089633699,
Exhibit A to Petitioner's Memorandum, Docket Entry No. 5-2,
Id. at 7.
Id. at 12-13.
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,
("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,
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:
prosecutorial misconduct because the State suppressed exculpatory
police report showing
that Danny Swanson
Id. at 7 .
4oid. at 7
photographic line-up on August 9, 1999;
directed a police officer (Officer Chisholm)
to testify falsely about when Swanson was
shown a photographic line-up; and
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
Derrick Turner as the shooter was "tentative."
Williams was denied effective assistance of counsel
before his trial because his defense attorney
adequately prepare for trial by conducting an
independent investigation beyond the information provided by the State;
locate three witnesses (Melvina Page, Robert
McCaa, Linda McCaa, and Reandrea Adams) who
were critical to the defense;
locate, interview, and subpoena Melvina Page,
Robert McCaa, Linda McCaa, and Reandrea Adams;
interview Danny Swanson or Frederic LeBlanc
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
Williams was denied effective assistance of counsel
during his trial because his defense attorney
correct the misleading testimony about whether
Melvina Page's pretrial identification of
Turner as the shooter was tentative;
impeach Officer Chisholm's false testimony
about when Swanson was shown the photographic
impeach Officer Chisholm and Sergeant Novak
about whether they showed Swanson the yacht
before he identified
Williams as the shooter.
There is "newly discovered" evidence in the form of
a "nonpublic" police report that contains exculpatory
identify Williams on August 9, 1999, which shows
that Williams is "actually innocent." 41
without an adjudication on the merits. 42
Williams' Federal Habeas Proceeding
On July 18,
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
The court initially
Williams's State Habeas Application remained pending in state court
and that he had not yet exhausted available remedies as required by
§ 2254(b) by presenting his claims for adjudication to
Id. at 7-11.
Harris County District Clerk's Office, State v. Williams,
Cause No. 820802-A, at http://www.hcdistrictclerk.com (last visited
October 4, 2017).
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).
the Texas Court of Criminal Appeals. 44
Noting that Williams's State
Habeas Application had been pending for several years without any
the Fifth Circuit vacated this court's dismissal order
The respondent has now moved for summary judgment,
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
The respondent argues,
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
Memorandum Opinion and Order dated July 25,
Entry No. 3.
Williams v. Davis, No. 14-20543 (5th Cir. Dec. 29, 2016)
curiam), Docket Entry No. 16, p. 2.
Respondent's MSJ, Docket Entry No. 30, pp. 27-28.
Id. at 28-42.
Id. at 42-95.
Counsel appears to have been appointed by the Fifth Circuit
for the purpose of Williams' appeal.
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
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,
court will not consider those claims further.
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
See Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002)
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
Petitioner's Response, Docket Entry No. 34, pp. 5, 24-26.
Id. at 5, 16-24.
material fact and the movant is entitled to judgment as a matter of
Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett,
resolution in favor of one party might affect the outcome of the
suit under governing law.
Anderson v. Liberty Lobby,
S. Ct. 2505, 2510 (1986). An issue is "genuine" if the evidence is
In deciding a summary judgment motion,
the reviewing court
must "construe all facts and inferences in the light most favorable
to the nonmoving party."
Dillon v. Rogers, 596 F.3d 260, 266 (5th
the non-movant cannot avoid summary judgment simply by
presenting "' [c)onclusional allegations and denials, speculation,
improbable inferences, unsubstantiated assertions, and legalistic
(quoting TIG Insurance Co. v.
James of Washington, 276 F.3d 754,
759 (5th Cir. 2002)).
movant demonstrates the absence of a genuine issue of material
the burden shifts to the non-movant to provide "'specific
facts showing that there is a genuine issue for trial,'" Matsushita
Electric Industrial Co.,
Zenith Radio Corp.,
106 S. Ct.
in the context of federal habeas corpus
review, an evidentiary hearing under 28 U.S.C.
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
2244(d), which provides as follows:
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--
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
collateral review; or
the date on which the impediment to filing an
violation of the Constitution or laws of the
United States is removed, if the applicant was
prevented from filing by such State action;
the date on which the judgment became final by
the conclusion of direct review or the
expiration of the time for seeking such
the date on which the factual predicate of the
claim or claims presented could have been
2244 (d) (1).
Because the pending Petition was filed
well after April 24, 1996, the one-year limitations period clearly
See Flanagan v.
154 F.3d 196,
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,
his time to pursue direct review
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.
Williams asserts that he is entitled to tolling of the statute
of limitations until the time that his friend obtained a copy of
from HPD. 53
counsel had access
to the police
report before trial.
However, because defense counsel did not cross-examine Swanson or
identification from the photo array that he was shown on August 9,
1999, Williams reasons that this page of the report must have been
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
Petitioner's Response, Docket Entry No. 34, pp. 25-26.
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).
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.
The respondent has provided
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
Id. at 17.
Id. at 24.
Affidavit of George J.
Farnham ("Farnham Affidavit"),
Exhibit A to Respondent's MSJ, Docket Entry No. 30-1, pp. 17-21.
Id. at 19-20.
Id. at 18.
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
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.
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,
when defense counsel
referenced information from the same page of that report during
pretrial proceedings, raises nothing more than a metaphysical doubt
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
No. 089633699, Docket Entry No. 5-2, p. 7.
Entry No. 30-1, p. 20.
Exhibit A to Respondent's MSJ,
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.
Court Reporter's Record, vol. 3, Docket Entry No. 25-5, p. 13
(referencing information about the confidential informant) .
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
(observing that the non-movant's
burden "will not be satisfied by 'some metaphysical doubt as to the
assertions, or by only a scintilla of evidence'")
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
Williams gives no explanation for his decision to wait over a
decade before requesting a copy of the police report or pursuing
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
Because Williams does not demonstrate that statutory tolling
is available under 28 U.S.C.
2244 (d) (1) (B)
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.
Alternatively, the Claims Lack Merit
The Brady Claim (Claim 1a)
Williams claims that the prosecution violated his right to due
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.
See United States v.
defendant must prove that:
by the prosecutor,
evidence was favorable to the defendant,
(1) evidence was withheld or suppressed
either willfully or
exculpatory or because
either because it was
evidence was material such that prejudice ensued.
Greene, 119 S. Ct. 1936, 1948 (1999).
See Strickler v.
Evidence is material under
Brady "only if there is a reasonable probability that,
proceeding would have been different."
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.
suspicion that a page was missing from the police report is "purely
and cannot support a
See Hughes v.
Johnson, 191 F.3d 607, 629-30 (5th Cir. 1999) (citing United States
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
More importantly, Williams does not show that the evidence at
(Swanson's refusal to identify anyone on August 9,
because he feared for his life), would have made any difference in
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
See United States v. Weintraub, 871 F.2d 1257, 1262 (5th
(citing United States v.
788 F.2d 1361,
(8th Cir. 1986)); see also Rocha v. Thaler, 619 F.3d 387, 396-97
(5th Cir. 2010).
HPD Current Information Report,
Docket Entry No. 5-2, pp. 12-13.
Id. at 143-190; Court Reporter's Record, vol. 6, Docket Entry
No. 25-8, pp. 6-16.
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.
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
when she directed Swanson and Officer Chisholm to testify falsely
about when Swanson was shown a photographic line-up.
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
identified Williams as the shooter from a photo array that he was
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
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
Accordingly, the respondent is entitled to summary judgment
on this claim.
Ineffective Assistance of Counsel (Claim 4b)
Assuming that defense counsel had a
complete copy of
failing to impeach Officer Chisholm about Swanson's initial failure
identify him on August
Petitioner's Response, Docket Entry No. 34, p. 19.
pp. 145, 159-161.
Petitioner's Response, Docket Entry No. 34, pp. 5, 16-24.
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
that the deficient
. . resulted from a breakdown in the adversary process
that renders the result unreliable."
"To satisfy the deficient performance prong,
must show that counsel's representation fell below an objective
standard of reasonableness.'"
Hoffman v. Cain, 752 F.3d 430, 440
135 S. Ct.
This is a "highly deferential"
inquiry; "[t]here is 'a strong presumption that counsel's conduct
(quoting Strickland, 104 S. Ct. at 2065).
To satisfy the prejudice prong,
that there is a
"[t] he defendant must show
reasonable probability that,
but for counsel's
unprofessional errors, the result of the proceeding would have been
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
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
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.
Chisholm with information showing that Swanson was too afraid to
reinforced the fact that Swanson was in fear for his life from the
whom he positively
Although Williams disagrees, he has not overcome the
("a hundred percent")
S. Ct. at 2065 ("Judicial scrutiny of counsel's performance must be
Based on this record,
Williams has not
established deficient performance or actual prejudice and he has
Therefore, the respondent is entitled to summary judgment
on this claim.
Parham Affidavit, Exhibit A to Respondent's MSJ, Docket Entry
No. 30-1, p. 21.
Docket Entry No.
Because all of Williams' remaining claims (Claims 1b, 1d, 2ad,
3, 4a, 4c,
are time-barred or have been abandoned for
reasons stated previously, Williams does not establish that he is
Petition will be denied and this case will be dismissed.
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
certificate of appealability will not issue unless the petitioner
"a substantial showing of the denial of a
2253 (c) (2),
which requires a petitioner to
Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004)
Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000)).
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."
s. Ct. at 1604.
A district court may deny a
certificate of appealability,
sua sponte, without requiring further briefing or argument.
211 F.3d 895,
reason would not debate whether any procedural ruling in this case
was correct or whether the petitioner states a valid claim for
Therefore, a certificate of appealability will not issue.
Conclusion and Order
The court ORDERS as follows:
Respondent Davis's Motion for Summary
(Docket Entry No. 30) is GRANTED.
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
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
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