Barnes v. Stephens

Filing 28

MEMORANDUM OPINION AND ORDER granting 19 MOTION for Summary Judgment with Brief in Support. Barnes' 1 Petition for a Writ of Habeas Corpus is denied. A certificate of appealability is denied. (Signed by Judge Sim Lake) Parties notified.(aboyd, 4)

United States District Court
Southern District of Texas

ENTERED
February 11, 2016

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

ANDREW BARNES, TDCJ #1531062,
Petitioner,
v.
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice - Correctional
Institutions Division,
Respondent.

§
§
§
§
§
§
§
§
§
§
§
§

David J. Bradley, Clerk

CIVIL ACTION NO. H-15-0815

MEMORANDUM OPINION AND ORDER

The petitioner, Andrew Barnes, seeks a writ of habeas corpus
under 28 U.S.C.
has

resulted

§

2254 to challenge a state court conviction that

in his

Criminal Justice

-

incarceration by

the

Texas

Department

Correctional Institutions Division

of

( "TDCJ") .

The respondent, William Stephens, has filed a Motion for Summary
Judgment with Brief in Support

("Motion for Summary Judgment")

(Docket Entry No. 19), along with a copy of the state court record.
Barnes has filed a response in opposition to the Motion for Summary
Judgment ("Response")

(Docket Entry No. 26) .

After considering all

of the pleadings, the state court record, and the applicable law,
the court will grant respondent's Motion and will dismiss this
action for the reasons explained below.

I.

Background

A local grand jury returned an indictment against Barnes in
cause number 1179556, charging him with capital murder for killing
Robert Jackson by striking him with a

baseball bat during the

course of either a burglary or a robbery. 1

Because the State did

not seek the death penalty, Barnes faced a mandatory sentence of
life without parole if convicted of capital murder as charged in
the

indictment. 2

A

Harris County, Texas,

jury

in

the

183rd

District

Court

of

found Barnes guilty of the lesser-included

offense of murder and sentenced him to 40 years'

imprisonment in

TDCJ. 3
On direct appeal Barnes argued that the evidence was factually
and

legally

insufficient

to

rebut

his

claim

of

self -defense. 4

Barnes also argued that the trial court erred by excluding evidence
of the victim's violent character and by admitting prejudicial

1

Indictment, Docket Entry No. 10-1, p. 7.

2

See TEx. PENAL CODE § 12.31 (a) (2) (2008). The record indicates
that Barnes was 16 at the time the offense occurred and 18 at the
time of his trial in 2008.
See Reporter's Record, vol. 4, Docket
Entry No. 12-1, pp. 22-23; Reporter's Record, vol. 6, Docket Entry
No. 12-6, p. 9.
Texas law now excludes from eligibility for a
sentence of life without parole individuals who committed the
offense of capital murder while younger than 18 years of age. See
TEX. PENAL CODE§ 12.31(a) (2) (2015); see also Acts 2013, 83rd Leg.,
2nd C.S. ch. 2 (S.B. 2), § 1, eff. July 22, 2013.
3

4

Judgment of Conviction by Jury, Docket Entry No. 10-10, p. 4.

Brief for Appellant
Entry No. 10-21, p. 4.

("Appellant's Brief")
-2-

(Part 1) , Docket

autopsy photographs. 5

Barnes argued further that he was denied

effective

of

assistance

arguments,

and

intermediate
arguments

and

the

state

counsel

punishment
court

affirmed

of
the

during
phase

appeals

of

voir
the

rejected

conviction

after

dire,

closing

trial. 6
all

of

The
Barnes'

summarizing

evidence at length:
Houston Police Department ( "HPD") Officer P. Jackson
testified that on the morning of September 3, 2006, he
was dispatched to the home of sixty-nine-year-old Robert
Jackson, the complainant.
An emergency dispatcher had
received a telephone call from the complainant's
residence, but the caller did not speak into the phone.
When he arrived at the complainant's house, Officer
Jackson noted burglar bars completely enclosed the front
porch and front door and "the burglar bar doors were
locked."
On the front door was a sign that read,
"Occupants are armed; Intruders will be shot." A window
to the left of the front door, inside the enclosed front
porch, was broken.
Because he was unable to enter
through the front door, Jackson went around the house,
through an open gate, to the backyard, where he saw that
"the back door and all the windows were boarded up."
Seeing nowhere to enter the house from the backyard,
Jackson returned to the broken window in the front of the
house where he heard what sounded like a radio playing at
a low volume. Jackson looked through the broken window
and "saw what looked to be an outline of a person's upper
torso" on the floor.
Jackson pounded on the house,
yelled that he was a police officer, and asked if
everything was "okay." He then thought that he saw the
person on the floor raise his hand intermittently as if
he needed help.
Using a key
complainant's
and saw blood
floor, on a

5

Id.

6

that a neighbor showed him under the
mailbox, Officer Jackson entered the house
"all over" - on the kitchen counter, on the
desk, and on a telephone.
He saw the

Id.
-3-

the

complainant sitting in a chair by a desk with blood "on
his face, all over his head, his arms, his hands, [and]
his legs." Jackson asked the complainant, "Do you know
The complainant responded, "It's the boy
who did it?"
that cuts my grass."
HPD Officer R. King testified that when he arrived at the
complainant's house after Officer Jackson, he saw "blood
spatter evidence on many surfaces" and a "pool of
coagulated blood" on the floor.
King also saw a knife
lying on the living room floor.
King explained that later in the day, he received
information about a possible suspect at appellant's
house, which is two blocks away from the complainant's
house.
King and HPD Officer R. Moreno went to
appellant's house and knocked on the door.
A man
answered the door and allowed them to enter the house,
where they found appellant standing in a bedroom closet.
King informed appellant that he was under arrest and
searched him for weapons and identification.
In
appellant's left hip pocket,
King discovered the
complainant's wallet. King also testified that appellant
"could have been under the influence of some substance
that made him more lethargic" when he was arrested.
HPD Crime Scene Unit Officer D. Lambright testified that
after he arrived at the complainant's home, he collected
a baseball bat that officers had found in a vacant lot
near the complainant's house. Lambright noted that the
bat had blood and scratches on it. When he examined the
broken window at the complainant's home, Lambright
determined that it had been "broken with a blunt object"
and "was struck from the outside to the inside."
Lambright explained that the blood spatter in the
complainant's living room indicated that the complainant
had been bludgeoned.
He noted that the knife found on
the living room floor only had small droplets of blood on
it, indicating that the knife had not been used to cut
anyone.
Lambright further testified that on a table in the
complainant's master bedroom he saw a "revel ver- type
handgun," which appeared to have "been there for a
while."
Lambright also saw a large number of pill
bottles, with prescription labels made out to the
complainant, in the master bathroom and the living room.
In the living room,
Lambright retrieved from the
-4-

complainant's desk a notebook in which the complainant
had written appellant's name and phone number and a note
that appellant would cut the complainant's grass.
Lambright retrieved this notebook because,
at the
hospital, the complainant told HPD Sergeant J. Parker
that the name of the person who attacked him was on a pad
on his table.
When Officer Lambright later went to appellant's house,
he recovered from appellant's room three bottles of pills
with the complainant's name on them. One of the bottles,
which was labeled "Clari tin D," was empty. The other two
bottles contained pills and were labeled "Hydralazine"
and "Amoxi/Clav."
Harris County Assistant Medical Examiner M. Anzalone
testified that the complainant died on March 1, 2007,
after six months of "required chronic ventilatory support
and nursing home placement." Based on his autopsy on the
complainant's body, Anzalone opined that fractures on the
complainant's skull indicated that he had been hit in the
head at least five times.
Appellant testified that in 2000, when he was eleven
years old, he began mowing the complainant's lawn and
would also do other jobs around his house. Sometimes the
complainant would "just want to talk to [appellant] or
have [him] inside [the] house."
At some point, the
complainant began to "[t]ouch [appellant's] private
parts" approximately "once every couple of weeks."
In
2005, when appellant told the complainant that he "was
tired of it and [he] didn't want it to go on anymore,"
the complainant "started cursing at [him] ... and said
that [appellant had] to let him do things to [appellant]
or [the complainant] was going to call the police," and
accuse appellant of stealing his wallet. The complainant
did later accuse appellant of stealing his wallet, and
when HPD Officer Hadnot contacted appellant about the
accusation, appellant "made a statement that [he] didn't
steal [the complainant's] wallet that day."
Appellant
explained that the complainant further began to call
appellant's telephone "and threaten to kill [him]."
However, they reconciled later that summer, and appellant
started working for him again.
Appellant further testified that the complainant, over
time, had given him many bottles of pills and that the
pill bottles found by police officers in his room had
-5-

been given to him sometime in 2004 or 2005.
Although,
appellant asserted that he had not stolen any pills from
the complainant, he acknowledged that he had been
convicted of possessing a controlled substance in 2003
and of burglary in 2005.
Appellant explained that at 10:30 p.m. on September 2,
2006, the complainant picked him up from his house and
drove him to the complainant's house,
where the
complainant gave him seven or eight pills.
After
appellant swallowed five of the pills and put the rest in
his pocket, he then "passed out."
When he awoke, the
complainant "was over [him] , touching [his] private
parts," and appellant said, "Let me out.
I don't want
this to happen anymore . "
They began arguing, and the
complainant said, "I'm going to kill you, you little
bastard."
Appellant found the complainant's wallet by
the fireplace and said, "Is this the wallet you're going
to accuse me of stealing? I'm going to take this to my
mom and Officer Hadnot." Appellant explained that he did
not "intend to use it for [his] own gain." Appellant put
the wallet in his pocket and said, "Let me out right
now."
The complainant threatened appellant again and
then "opened his front door to let [appellant] out as
[he] requested."
After appellant walked onto the front patio area, which
was enclosed by the locked burglar bars, the complainant
"slammed the door ... and started screaming he was going
to kill [appellant] and blow [his] head off." Appellant
screamed for help for about two minutes and then grabbed
a baseball bat that was near the porch and broke a window
so that he could go into the house to "look for some keys
or another window that might be open without bars" to get
away from the house. When he entered the house through
the window, appellant saw the complainant standing near
the kitchen with a knife in his hand.
When appellant
told the complainant to give him a key and let him out,
the complainant "came at [appellant] with the knife."
Appellant then hit the complainant with the baseball bat.
After hitting the complainant, appellant "ran to the back
part of the house looking for a window or keys," but,
finding nothing, he returned to the living room, where
the complainant attacked him again without the knife.
Appellant "hit him some more times" until the complainant
fell down.
Then appellant "jumped back through the
window and . . . [saw that he] might be able to squeeze
through the top of the burglar bars."
After squeezing
through the bars, appellant went back to his house.
-6-

On cross-examination, appellant testified that he had cut
his hands and arms when he crawled through the broken
window. He admitted that he did not see the complainant
with a firearm in his hands that night even though the
complainant had approximately two minutes to retrieve the
firearm from his bedroom while appellant was on the front
porch.
Appellant agreed that when he first hit the
complainant with the baseball bat, he hit him on the
head. Then, returning to the living room, appellant hit
him on the head "around four or five times" with the
baseball bat even though the complainant did not "have a
knife or gun in his hand at the time."
When he struck
the complainant with the last several blows, appellant
agreed that the complainant had dropped to one knee.
Sandra Villalta and Ben Amos, who lived in the same
neighborhood as the complainant and appellant, both
testified about
numerous
incidents
in which
the
complainant threatened to kill them and had used crude
and abusive language towards them.
Villalta testified
that the complainant, who had threatened to kill her
husband, had previously accused her husband of stealing
from him and trespassing on his property. Amos testified
that once, when he was driving down the complainant's
street, the complainant came at him with a baseball bat
and a gun and threatened to kill him.
HPD Officer A.
Castillo testified that the complainant had previously
called him to complain about neighbors trespassing on his
property and that the complainant had threatened three
times to kill his neighbors if they did not stop.
HPD
Officer D.
Carbajal testified that he previously
responded to a call from the complainant who alleged that
appellant had stolen money from his wallet.
Carbajal
explained that the complainant did not want to "pursue
charges.
[The complainant] just wanted to cover his end
of the deal-he wanted to cover himself in case the
[appellant] stated he fondled him."
Barnes v. State, No. 01-08-00797-CR, 2009 WL 3248172, *1-4
App. - Hous.

[1st Dist.] Oct. 8, 2009)

(unpublished).

(Tex.

Thereafter,

the Texas Court of Criminal Appeals refused Barnes' petition for
discretionary review.

See Barnes v. State, PDR No. 1634-09 (Tex.

Crim. App. March 24, 2010).
-7-

Barnes
review,

7

challenged

his

conviction

further

on

collateral

arguing that he was entitled to relief because:

(1) he

was denied effective assistance of counsel when his trial attorney
advanced a theory of self-defense rather than a defense of "sudden
passion";

( 2)

he was denied effective assistance of counsel on

direct appeal when his attorney failed to raise an ineffectiveassistance claim regarding his trial counsel's failure to advance
from the beginning of trial a defense of sudden passion;
trial

judge

was

biased against

conflict of interest;

him;

(4)

trial

(3) the

counsel

had a

(5) evidence of the victim's character was

improperly excluded; and

(6)

the jury charge was misleading and

confusing. 8

The state habeas corpus court,

over Barnes'

trial,

which also presided

entered findings of fact and concluded that

Barnes was not entitled to relief. 9

The Texas Court of Criminal

7

The background and procedural history of Barnes' efforts to
obtain state collateral review are set forth in more detail in the
court's Memorandum Opinion and Order dated August 11, 2015 (Docket
Entry No. 14). In that Order the court denied the respondent's
motion to dismiss based on the one-year statute of limitations
found at 28 U.S.C. § 2244 (d) (1), concluding that Barnes was
entitled to equitable tolling.
The respondent re-urges his
argument that the petition is time-barred, but the court declines
the invitation to reconsider its previous ruling and does not
address this issue further.
8

Application for a Writ of Habeas Corpus, Writ No. 81,067-06,
Docket Entry No. 12-23, pp. 10-20.
9

Findings of Fact, Conclusions of Law, and
No. 81,067-06, Docket Entry No. 12-23, pp. 60-73.
-8-

Order,

Writ

Appeals

agreed

and

denied

relief

without

a

written

order

on

findings made by the trial court. 10
Barnes has now filed a
relief under 28

u.s.c.

§ 2254.

Petition for federal habeas corpus
11

In that Petition Barnes raises the

same claims that were rejected on direct appeal and state habeas
corpus review. 12

The respondent has filed a Motion for Summary

Judgment, arguing that Barnes is not entitled to relief. 13
II.

Standard of Review

To the extent that the petitioner's claims were adjudicated on
the merits in state court, these claims are subject to review under
the

Antiterrorism

("AEDPA"),

and

Effective

codified at 28 U.S.C.

Death
§

Penalty

2254 (d).

Act

of

1996

Under the AEDPA a

federal habeas corpus court may not grant relief unless the state
court's adjudication "resulted in a decision that was contrary to,
or involved an unreasonable application of,
Federal

law,

as

United States [.] "

determined
28

u.s.c.

by
§

the

clearly established

Supreme

2254 (d) (1).

Court

"A state

of

the

court's

decision is deemed contrary to clearly established federal law if
it reaches a

10

legal conclusion in direct conflict with a prior

Action Taken,

Writ No.

81,067-06,

Docket Entry No.

12-22,

p. 1.
11

Petition for a Writ of Habeas Corpus By a Person in State
Custody ("Petition"), Docket Entry No. 1.
12

Id. at 6-8.

13

Motion for Summary Judgment, Docket Entry No. 19.
-9-

decision

of

the

Supreme

Court

or

if

it

reaches

a

different

conclusion than the Supreme Court on materially indistinguishable
facts."

Matamoros v. Stephens, 783 F.3d 212, 215 (5th Cir. 2015)

(citations omitted); see also Williams v. Taylor, 120 S. Ct. 1495,
1519-20

(2000).

To constitute an "unreasonable application of"

clearly established federal law, a state court's holding "must be
objectively unreasonable, not merely wrong; even clear error will
not

suffice."

Woods

(quoting White v.

Donald,

Woodall,

satisfy this high bar,
that

v.

134 S.

135

S.

1372,

Ct.

1376

(2015)

(2014)).

"To

a habeas petitioner is required to

'show

Ct.

1697,

1702

the state court's ruling on the claim being presented in

federal court was so lacking in justification that there was an
error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.'"
v. Richter, 131

Id. (quoting Harrington

s. Ct. 770, 786-87 (2011)}.

The AEDPA standard "imposes a 'highly deferential standard for
evaluating

state-court

[which]

rulings,

' demands

state-court decisions be given the benefit of the doubt."
v. Lett, 130 S. Ct. 1855, 1862

(2010)

that

Renico

(citations omitted).

This

standard is intentionally "difficult to meet" because it was meant
to bar relitigation of claims already rejected in state proceedings
and to preserve federal habeas review as "a 'guard against extreme
malfunctions

in

the

state

criminal

justice

systems,'

substitute for ordinary error correction through appeal."
131 S. Ct. at 786

(quoting Jackson v. Virginia,
-10-

not

a

Richter,

99 S. Ct. 2781,

2796, n.5

(1979)

(Stevens, J.,

concurring)); see also White, 134

s. Ct. at 1702.
A state court's factual determinations are also entitled to
deference on federal habeas corpus review.
"presumed
findings
§

to
with

2254 (e) (1).

be

correct"

"clear

2006)

the

petitioner

convincing

and

rebuts

evidence."

28

those

u.s.c.

This presumption of correctness extends not only to

express factual findings,
findings.

unless

Findings of fact are

but also to the state court's implicit

See Garcia v. Quarterman, 454 F.3d 441, 444-45 (5th Cir.

(citing Summers v. Dretke, 431 F.3d 861, 876 (5th Cir. 2005);

Young v. Dretke, 356 F.3d 616,
presents a question of fact,

629

(5th Cir. 2004)).

If a claim

a petitioner cannot obtain federal

habeas relief unless he shows that the state court's denial of
relief "was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding."

u.s.c.

§

2254 (d) (2).

characterize

these

A federal

habeas

factual

state-court

unreasonable 'merely because

[it]

2277

(2010)).

(2015)

(quoting Wood v.

"Instead,

§

2254 (d) (2)

court

determinations

For ease of analysis,
challenge to the

as

Brumfield v. Cain, 135 S. Ct.
Allen,

130 S.

requires that

Ct.

841,

849

[a federal court]

accord the state trial court substantial deference."
III.

"may not

would have reached a different

conclusion in the first instance.'"
2269,

corpus

28

Id.

Discussion

the court will first consider Barnes'

sufficiency of
-11-

the

evidence,

followed by his

allegations of erroneous evidentiary rulings by the trial court,
bias on the trial court's part, mistakes in the jury charge, and
ineffective assistance of counsel.
A.

Sufficiency of the Evidence

Barnes contends that the evidence at trial was factually and
legally insufficient to rebut his claim of self -defense . 14 These
claims were rejected on direct appeal.

The state court held that

the evidence was both legally and factually sufficient to support
the jury's implied finding that Barnes was not justified in using
deadly force when he killed Robert Jackson:
In his first and second issues, appellant argues that the
evidence is legally and factually "insufficient to rebut
appellant's claim of self defense" because the evidence
established that appellant "reasonably believed he could
not have retreated . . . [,] that [the complainant] was
about to use deadly force against him
[, and] that he
had to protect himself by the use of deadly force."
We review the legal sufficiency of the evidence by
considering all of the evidence in the light most
favorable to the verdict to determine whether any
rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt.
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.
2007) (citing Jackson v. Virginia, 443 U.S. 307, 318-19,
9 9 s . Ct . 2 7 81, 2 7 8 8-8 9 , 61 L. Ed. 2 d 56 o ( 19 7 9) ) .
In
doing so, we give deference to the responsibility of the
fact-finder to fairly resolve conflicts in testimony, to
weigh evidence, and to draw reasonable inferences from
the facts. Id. However, our duty requires us to "ensure
that
the
evidence
presented actually
supports
a
conclusion that the defendant committed" the criminal
offense of which he is accused.
Id.

14

Peti tion, Docket Entry No. 1, p. 8.
-12-

In a factual sufficiency review, we view all the evidence
in a neutral light, both for and against the finding, and
set aside the verdict if the proof of guilt is so
obviously weak as to undermine confidence in the jury's
determination, i.e., that the verdict seems "clearly
wrong and manifestly unjust," or the proof of guilt,
although legally sufficient, is nevertheless against the
great weight and preponderance of the evidence. Watson
v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006).
We note that a jury is in the best position to evaluate
the credibility of witnesses, and we afford due deference
to the jury's determinations.
Marshall v. State, 210
S.W.3d 618, 625 (Tex. Crim. App. 2006).
Although we
should always be "mindful" that a jury is in the best
position to decide the facts and that we should not order
a new trial simply because we disagree with the verdict,
it is "the very nature of a factual-sufficiency review
that ... authorizes an appellate court, albeit to a very
limited degree, to act in the capacity of a so-called
'thirteenth juror."'
Watson, 204 S.W.3d at 416-17.
Thus, when an appellate court is "able to say, with some
objective basis in the record, that the great weight and
preponderance of the (albeit legally sufficient) evidence
contradicts the jury's verdict[,] ... it is justified in
exercising its appellate fact jurisdiction to order a new
trial."
Id. at 417.
A person is justified in using deadly force if he has a
reasonable belief that it is immediately necessary to
protect himself from another's use of deadly force and a
reasonable person in his place would not retreat.
See
TEx. PENAL CoDE ANN. §§ 9.31(a), 9.32(a) (Vernon 2003). []
A defendant has the burden of producing some evidence to
support a claim of self-defense.
Zuliani v. State, 97
S.W.3d 589, 594 (Tex. Crim. App. 2003) (citing Saxton v.
State, 804 S.W.2d 910, 913-14 (Tex. Crim. App. 1991)).
Once a defendant presents evidence of self-defense, the
State has the burden of persuasion in disproving the
evidence of self-defense. Id. The State is not required
to produce evidence refuting the self-defense claim; the
State need only prove its case beyond a reasonable doubt.
Id.
A jury verdict of guilty is an implicit finding
rejecting a defendant's self-defense theory.
Id.
When an appellant challenges the legal sufficiency of the
rejection of a self-defense claim, it is well-settled law
that appellate courts "look not to whether the State
presented evidence which refuted appellant's [defensive
-13-

evidence] , but rather we determine whether after viewing
all the evidence in the light most favorable to the
prosecution, any rational trier of fact would have found
... against appellant on the [defensive] issue beyond a
reasonable doubt."
Saxton, 804 S.W.2d at 914.
In a
factual sufficiency review of the rejection of a
self-defense claim, we review "all of the evidence in a
neutral light and [ask] whether the State's evidence
taken alone is too weak to support the finding and
whether the proof of guilt, although adequate if taken
alone, is against the great weight and preponderance of
the evidence." Zuliani, 97 S.W.3d at 595.
In support of his legal sufficiency challenge, appellant
emphasizes that the complainant had a reputation in the
community for carrying a weapon and for aggressive
conduct; the complainant's home had a sign on the front
door stating, "Occupants are armed; Intruders will be
shot"; the burglar bars and sealed windows in the
complainant's home made leaving the home difficult; a
handgun was lying on a TV stand in the complainant's
bedroom; a bloody knife was found near the complainant's
body; and appellant knew the complainant had weapons,
feared the complainant, and believed the complainant
would kill him.
Viewing all of the evidence in the light most favorable
to the verdict, we note the critical fact that appellant
was able to climb into, or out of, the complainant's
front porch through the locked burglar bars.
He broke
the complainant's window to enter the house and struck
the complainant with a baseball bat several times even
after the complainant had dropped his knife and had
fallen to one knee.
The complainant's wallet and
medicine were subsequently found in appellant's bedroom.
Given this evidence, a reasonable trier of fact could
have disbelieved appellant's explanation that he had
struck the complainant repeatedly with a baseball bat
because he was in fear of his life. A reasonable trier
of fact could have found that appellant either did not
have a reasonable belief that such force was immediately
necessary to protect himself or that he could have
retreated.
Accordingly, we hold that the evidence is
legally sufficient to support the jury's implied finding
that appellant was not justified in using deadly force.
In support of his
appellant emphasizes

factual sufficiency challenge,
that the complainant "had an
-14-

aggressive, quarrelsome character" and a reputation in
the community for "displaying weapons to threaten
neighbors and passers-by"; the complainant's house "was
a fortress with limited means of egress"; the complainant
owned weapons; and the complainant had threatened to kill
appellant and others in the neighborhood numerous times.
Viewing the evidence in a neutral light, it is true that
the complainant had previously threatened to kill certain
neighbors, passers-by, and appellant.
The complainant
had charged others, either while carrying a bat or other
implement, but he never actually physically as saul ted any
of them.
Appellant himself testified that before any
violence had occurred, the complainant let him out of the
house onto the front porch. Most importantly, although
burglar bars enclosed the front porch and appellant
testified that he had broken back into the house only to
find another way to leave, appellant also testified that
he was later physically able to squeeze through the bars
to leave the home. The complainant did have a knife in
his hand when appellant re-entered the house, but
appellant testified that the complainant dropped the
knife after appellant hit him with the baseball bat.
Appellant also admitted that he did not see the
complainant with any other kind of weapon in his hands
after he struck the complainant, and he testified that he
hit the complainant an additional four or five times in
the head, striking the final blows after the complainant
had dropped to one knee.
Viewing the evidence in a neutral light, a reasonable
trier of fact could have concluded that it was not
necessary for appellant to use deadly force or that a
reasonable person in appellant's place would have
retreated.
See TEX. PENAL CODE ANN. §§ 9.31(a), 9.32(a).
Thus, we conclude that the verdict is not "clearly wrong
and manifestly unjust" and the proof of guilt is not
against the great weight and preponderance of the
evidence. See Watson, 204 S. W. 3d at 414-15. Accordingly,
we hold that the evidence is factually sufficient to
support the jury's implied finding that appellant was not
justified in using deadly force.
Barnes v. State, No.
App.

-

Hous.

omitted).

01-08-00797-CR, 2009 WL 3248172, *4-6

[1st Dist.]

Oct.

8,

2009,

pet.

ref'd)

(Tex.

(footnote

Because the Texas Court of Criminal Appeals refused
-15-

discretionary review without a written order, the court considers
the intermediate appellate court's decision as "the last reasoned
opinion" on Barnes' claims.

Ylst v. Nunnemaker, 111 S. Ct. 2594-95

(1991).
1.

Factual Sufficiency

To the extent that Barnes now seeks to challenge the factual
sufficiency of the evidence on federal habeas review, his claim is
not cognizable because, as clearly articulated by the intermediate
court of appeals, the Texas factual-sufficiency standard is based
on state law.

See Barnes, 2009 WL 3248172,

*4

(citing Watson v.

State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006)).

A federal

habeas corpus court does not sit as a super state supreme court for
review of issues decided by state courts on state law grounds.
Smith v. McCotter, 786 F.2d 697,

700

(5th Cir. 1986)

court reviewing a petition under 28 U.S.C.

§

A federal

2254 asks only whether

a constitutional violation infected the petitioner's state trial.
See Estelle v. McGuire, 112 S. Ct. 475, 480

(1991); Pemberton v.

Collins, 991 F.2d 1218, 1223 (5th Cir. 1993).

Because a challenge

to the factual sufficiency of the evidence does not implicate a
constitutional issue, federal habeas corpus review is unavailable
for this claim.
2.
On

Legal Sufficiency
habeas

challenges

to

corpus
the

review

of

sufficiency of
-16-

a
the

state

court

conviction,

evidence are governed by

Jackson v.
federal

Virginia,

99 S.

constitutional

Ct.

due

2781

process

Cockrell, 307 F.3d 353, 358

(1979),

which reflects the

standard.

(5th Cir. 2002).

See

Woods

v.

"[T]he Due Process

Clause protects the accused against conviction except upon proof
beyond a reasonable doubt of every fact necessary to constitute the
crime with which he is charged."
194, 198

(5th Cir. 2013)

1073 (1970)).

United States v. Davis, 735 F.3d

(quoting In re Winship,

90 S. Ct. 1068,

Thus, the Jackson standard requires that a reviewing

court determine "whether, after viewing the evidence in the light

I

I
I

I

most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable

I

doubt."

!

I

Jackson, 99 S. Ct. at 2789 (emphasis in original).

!

The intermediate court of appeals correctly identified the
Jackson

standard when

sufficient
(citing

in Barnes'

Jackson,

99

deciding
case.
S.

that

the

evidence

See Barnes,

Ct.

2788-89).

2009

WL

Applying

was

legally

3248172,
the

*4

Jackson

standard, the court of appeals considered all of the evidence and
concluded that the jury could have found that Barnes did not show
that he was justified in using deadly force when he bludgeoned the
elderly victim in the head multiple times after breaking into his
house.

See Barnes, 2009 WL 3248172, *5.

Where a state appellate

court has reviewed the sufficiency of the evidence, that court's
opinion is entitled to "great weight."
F.2d 665, 666 (5th Cir. 1985)
v.

Collins,

998

F.2d 269,

Parker v. Procunier, 763

(citation omitted); see also Callins

276

(5th Cir.

-17-

1993)

("Where a

state

I
I

I

I

I
I

I

I

I

I

I
I
I

l

I
~

f

t
~

appellate court has conducted a thoughtful review of the evidence
its determination is entitled to great deference").

This

court's own review of the evidence leads it to conclude that a
rational trier of fact could have found the essential elements of
the offense beyond a reasonable doubt and decided that Barnes was
not justified in using deadly force.

See Jackson,

99 S. Ct. at

2789.
To the extent that Barnes asks this court to re-weigh the
evidence and decide if the jury's decision was correct, this type
of inquiry is "beyond the scope of review" permitted under the
Jackson standard.

Schlup v.

Delo,

115 S.

Ct.

851,

868

(1995)

(discussing the standard for challenges to the legal sufficiency of
the evidence under Jackson) .

A federal habeas corpus court may not

substitute its view of the evidence for that of the fact-finder.
See Weeks v. Scott, 55 F.3d 1059, 1062 (5th Cir. 1995)
omitted).

(citation

Under the Jackson standard, "[a]ll credibility choices

and conflicting inferences are to be resolved in favor of the
verdict."
(citation

Ramirez v. Dretke,
omitted) .

398 F.3d 691,

Viewing

all

of

the

695

(5th Cir.

evidence

2005)

under

the

deferential standard that applies on federal habeas review, Barnes
does not

show that

unreasonable

or

the

that

he

state court's decision was objectively
is

entitled

to

relief

under Jackson.

Accordingly, Barnes' challenge to the sufficiency of the evidence
must be denied.

-18-

B.

Exclusion of Character Evidence

Barnes

contends

excluding evidence

of

that
the

the

trial

victim's

court
violent

erred by wrongfully
character . 15

Barnes

raised this claim on direct appeal, where he claimed that the trial
court erred by excluding testimony from Lydia Winterrowd,

Brian

Mcilwain, Troy Pope, Joseph Santhoff, and James Santhoff, who would
have testified that the victim "had an aggressive character and had
committed prior aggressive acts. " 16
The intermediate state court of appeals acknowledged that a
defendant who raises the issue of self-defense may present evidence
of the victim's violent character to show "the reasonableness of
the defendant's fear of danger, or to show that the deceased was
the

first

aggressor."

Barnes,

2009 WL 3248172,

*6-7

(quoting

Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002)).

The

court of appeals summarized the proffered testimony from Winterrowd
and the Santhoffs, as follows:
Here, Winterrowd's proffered testimony was that the
complainant had discharged a firearm outside her front
door, left human feces at her door, and attempted to "run
[her] over with his car" as she was walking through a
parking lot. Appellant's trial counsel argued that her
testimony was admissible as reputation evidence and as
specific "bad acts."
Joseph and James Santhoff both
testified that they saw the complainant walk down his
driveway and wave his fist or gardening tools at them as
they drove past his house. Additionally, James Santhoff
testified that one morning the complainant waved him down

15

Petition, Docket Entry No. 1, pp. 7-8.

16

Appellant's Brief (Part 5), Docket Entry No. 10-25, pp. 3-5.
-19-

as he drove by, opened his car door, and began "yelling
at [Santhoff] and screaming profanities, saying he was
going to kick [Santhoff's] butt and that he was mad that
[Santhoff]
was driving so fast down his street."
Appellant's trial counsel argued that this testimony
demonstrated that the complainant had "a violent temper"
and would counter the State's argument that the
complainant was a "frail, tiring, old man in his dotage."
Barnes, 2009 WL 3248172, *8.

Pope purportedly would have testified

that the victim was "not a feeble old man in his dotage."

Id.

Mcilwain would have testified that the victim's house was "strewn
with liquor bottles and pill bottles."

Id. at *9.

The court of appeals held that the proposed testimony from
Winterrowd and the Santhoffs was properly excluded because Barnes
failed

to

demonstrate

that

the

testimony

was

sufficiently

probative:
On appeal, appellant asserts that the testimony of
Winterrowd and the Santhoffs about specific acts of the
complainant is "probative of [his] state of mind" to show
he was the aggressor. Appellant did present evidence of
violent and aggressive acts committed by the complainant
that tended to raise the issue of self-defense. However,
in his brief, appellant does not offer any explanation as
to how the complainant's acts towards Winterrowd and the
Santhoffs is probative as to the complainant's state of
mind during the incident in question.
See TEX. R. EvrD.
404(b); Torres, 71 S.W.3d at 760.
To be admissible,
a witness'
testimony about the
aggressive conduct of a complainant must explain the
aggressive conduct toward a defendant at the time of the
confrontation and in a manner other than demonstrating
character conformity only.
Torres, 71 S.W.3d at 762.
Here, appellant did not explain to the trial court and
does not explain in his brief how the testimony of
Winterrowd and the Santhoffs demonstrates more than
character conformity. Unlike the situations presented in
Torres, Jenkins and Tate, where the witnesses' testimony
about the deceaseds' prior violent acts clarified the
-20-

deceaseds' confrontations with the defendants, appellant
offers no explanation as to how the complainant's actions
towards Winterrowd and the Santhoffs clarify his actions
toward appellant during the incident in question.
Accordingly, we hold that the trial court did not err in
excluding the testimony of Winterrowd and the Santhoffs.
Barnes,

2009

WL

3248172,

*8.

The

court

of

appeals

concluded

further that Barnes did not preserve error for review with respect
to Pope's proposed testimony and that Barnes also failed to explain
in his briefing how the trial court erred in excluding the proposed
testimony from Mcilwain,
WL3248172, *9.

thereby waiving review.

Barnes,

2009

Without providing any additional analysis the court

of appeals concluded, in the alternative, that "the trial court did
not err in excluding the testimony of Pope and Mcilwain."
1.

Id.

Procedural Default

Under the doctrine of procedural default,

a federal habeas

court "will not consider a claim that the last state court rejected
on

the

ground."

basis

of

an adequate

Busby v.

(citation omitted) .

Dretke,

and

359

independent

F. 3d 708,

718

state

procedural

(5th Cir.

2004)

The respondent correctly notes that Barnes'

failure to preserve error or file adequate briefing with respect to
the

proposed

testimony

from

Pope

and

Mcilwain

constitutes

procedural defaults that are adequate to bar federal review. 17
Corwin v. Johnson,

150 F. 3d 467,

4 73

(5th Cir.

1998)

See

(The Texas

rule requiring a contemporaneous objection to preserve error is

17

Motion for Summary Judgment, Docket Entry No. 19, p. 25.
-21-

"strictly

and

regularly

applied,"

therefore,

procedural bar."); see also Roberts v. Thaler,
(5th Cir. 2012)

"an

adequate

681 F.3d 597, 607

(holding that the Texas appellate rule regarding

inadequate briefing constitutes "a valid procedural bar to federal
habeas relief").
If a petitioner has committed a procedural default,
habeas

corpus review is available only if he

federal

can demonstrate:

(1) "cause for the default and actual prejudice as a result of the
alleged violation of federal law," or (2) that "failure to consider
the claims will result in a fundamental miscarriage of justice."
Coleman v. Thompson, 111 S. Ct. 2546, 2565 (1991).
effort

to

demonstrate

that

any

of

these

Barnes makes no

exceptions

apply.

Accordingly, Barnes' claim concerning the trial court's decision to
exclude testimony from Pope and Mcilwain is barred from review.
2.

Barnes Does Not State a Claim for Relief

The respondent argues further that Barnes fails to show that
the

proposed

testimony was

improperly excluded or

otherwise entitled to relief. 18
reflects,

he

is

As the court of appeals' decision

the admissibility of the proposed evidence concerns an

interpretation of state law.
Importantly,
including
conviction,

18

that

"a

one

state

announced

binds

a

See Barnes, 2009 WL 3248172, *8-9.

court's
on

federal

interpretation

direct
court

appeal

of

sitting

in

of
the

state

law,

challenged

habeas

corpus."

Motion for Summary Judgment, Docket Entry No. 19, pp. 24-25.
-22-

Bradshaw v.

Richey,

(citations omitted).

s.

126

Ct.

602,

604

(2005)

(per

curiam)

Thus, federal habeas corpus courts typically

"do not review state courts' application of state evidence law."
Jones v. Cain, 600 F.3d 527, 536 (5th Cir. 2010)

(citing Castillo

v. Johnson, 141 F.3d 218, 222 (5th Cir. 1998); Mercado v. Massey,
536 F.2d 107, 108 (5th Cir. 1976)); see also Little v. Johnson, 162
F.3d 855, 862 (5th Cir. 1998)

("In habeas actions, this court does

not sit to review the mere admissibility of evidence under state
law.").

A federal habeas corpus court will not grant relief from

alleged errors in a state trial court's evidentiary rulings unless
the

application

of

a

state

United States Constitution.

evidentiary

See Jones,

Estelle v. McGuire, 112 S. Ct. 475

rule

violates

600 F.3d at 536

the

(citing

(1991)); see also Little, 162

F.3d at 862 (noting that erroneous state evidentiary rulings merit
federal habeas relief only where the errors "are so extreme that
they constitute a denial of fundamental fairness").
The federal habeas Petition filed by Barnes does not allege
facts demonstrating that the trial court erred,

and he does not

otherwise demonstrate that a constitutional violation occurred when
the

trial

Winterrowd,
Barnes

court

excluded the proposed character evidence

the Santhoffs,

cites

South Carolina,

to

a

Pope,

series

126 S.

Ct.

or Mcilwain. 19

of
1727,

cases,
1734-35

In his Response

including
(2006)

from

Holmes

v.

(holding that

exclusion of defense evidence of third-party guilt denies defendant

19

Petition, Docket Entry No. 1, p. 7.
-23-

a fair trial); Webb v. Texas,
curiam)

93 S. Ct. 351,

353-54

(1972)

(per

(holding that the trial judge's threatening remarks to the

defendant's

sole

Washington v.

witness

Texas,

deprived

87 S.

Ct.

defendant

1920,

1925

of

due

(1967)

process);

(holding that

defendants have a fundamental right to have compulsory process for
obtaining witnesses who are physically and mentally capable of
testifying

and

whose

testimony

would

have

been

relevant

and

material to the defense); Hardin v. Estelle, 484 F.2d 944, 945 (5th
Cir. 1973) (affirming the district court's decision to grant habeas
relief

based

on

United States v.

the
Burks,

denial
470

of

compulsory

F.2d 432,

437-38

process);
(D.C.

Cir.

and
1972)

(holding that the victim's prior conviction for child cruelty was
admissible

in

character) . 20

a

murder

trial

to

show

the

victim's

violent

However, none of these cases call into question the

state court's conclusion that because the proposed testimony was
not sufficiently probative, it was correctly excluded.

Thus, the

cases

does

cited

by

Barnes

are

distinguishable.

Barnes

not

otherwise demonstrate that the proposed testimony was excluded in
violation of the constitution or that he is otherwise entitled to
relief under the governing habeas corpus standard of review.
3.
Even
dimension,

20

The Error, if any, was Harmless
assuming
the

that

there

respondent

was

argues

an

that

error
the

Response, Docket Entry No. 2 6, p. 8.
-24-

of

error,

constitutional
if

any,

was

harmless. 21

The standard for reviewing trial court error in a

federal habeas petition is outlined in Brecht v. Abrahamson, 113
S. Ct. 1710 (1993); see also Fry v. Pliler, 127 S. Ct. 2321, 2328
(2007)

(holding that,

U.S.C.

§

prevail

on federal habeas corpus review under 28

2254, the Brecht standard of harmless error applies).
Barnes

must

show

that

the

trial

court's

error

To

had

a

"substantial and injurious effect or influence in determining the
jury's verdict."

Brecht, 113

s. Ct. at 1722 (quoting Kotteakos v.

United States, 66 S. Ct. 1239, 1253 (1946)).

Under this standard

a habeas petitioner is not entitled to relief based on trial error
unless he can establish that it resulted in "actual prejudice."
113 S.

Brecht,
S.

Ct.

(2015)

725,

732

Ct.

at 1722

(1986));

(citing United States v.

Davis v.

Ayala,

135 S.

Ct.

Lane,
2187,

106
2198

(The Brecht standard reflects the view that a "State is not

to be put to th[e] arduous task [of retrying a defendant] based on
mere speculation that the defendant was prejudiced by trial error;
the court must find that the defendant was actually prejudiced by
the error.")
The

(quotation omitted).

record

prejudice as a

does

not

reflect

that

Barnes

suffered

actual

result of the trial court's decision to exclude

testimony from the proposed witnesses (Winterrowd, the Santhoffs,
Pope,

and Mcilwain)

regarding the victim's character.

At trial

Barnes testified that the victim was a "mean" old man who sexually

21

Motion for Summary Judgment, Docket Entry No. 19, pp. 23-24.
-25-

assaulted or molested him and threatened to kill him multiple times
during their turbulent relationship. 22

To reinforce the characteri-

zation that the victim was prone to violence Barnes was able to
call

several

other witnesses

aggressive nature. 23

who

testified about

the victim's

Because Barnes was not denied the ability to

present evidence about the victim's mean-spirited character, he has
not shown that the trial court's decision to exclude testimony from
Winterrowd,

the Santhoffs,

Pope, and Mcilwain resulted in actual

prejudice or that it had a substantial and injurious effect on the
verdict.

Accordingly, the court concludes that the error, if any,

was harmless.
C.

Admission of Autopsy Photographs
Barnes

contends

that

the

trial

prejudicial autopsy photographs. 24

court

erred

by

admitting

This claim was rejected by the

intermediate court of appeals, which held that "the probative value
of

the

photographs

prejudicial effect,

11

was

not

substantially

therefore,

outweighed

by

any

"the trial court did not err in

admitting the autopsy photographs into evidence.

11

Barnes,

2009

WL 3248172, **10-11.

22

Reporter's Record, vol. 6, Docket Entry No. 12-6, pp. 74, 80,
83-84, 85, 88.
23

Reporter's Record, vol. 8, Docket Entry No. 12-9, pp. 22-37,
38-42, 47-51, 54-66.
24

Peti tion, Docket Entry No. 1, p. 8 .
-26-

As with Barnes' claim concerning the exclusion of character
evidence,

his challenge to the trial court's evidentiary ruling

concerning the autopsy photographs turns on a question of state law
that is not subject to federal habeas review unless he demonstrates
that a constitutional violation occurred.
536.

See Jones, 600 F.3d at

Barnes makes no effort to show that the photographs were

improperly admitted.

The Fifth Circuit has repeatedly emphasized

that "mere conclusory allegations do not raise a constitutional
issue in a habeas proceeding."
1012

(5th Cir. 1983)

(5th Cir. 1982)

Ross v.

(citing Schlang v. Heard,

(collecting cases)).

the photographs were

Estelle,

694 F.2d 1008,

691 F.2d 796, 798

Barnes' bare assertion that

improperly admitted,

without more,

is not

sufficient to establish error on the trial court's part or to state
a claim for relief on federal habeas review.

Because Barnes has

failed to articulate a valid claim, his request for relief on this
issue will be denied.
D.

Bias by the Trial Court

Barnes contends that the trial court demonstrated bias against
him

by

participating

in

proposed by the State. 25

a

discussion

about

a

plea

agreement

The record reflects that shortly before

the State rested its case, the parties had a discussion in chambers
about the State's proposed plea bargain offer of a life sentence. 26

25

Petition, Docket Entry No. 1, p. 6.

26

Reporter's Record, vol. 6, Docket Entry No. 12-6, pp. 8-21.
-27-

During that lengthy exchange the trial court expressed concern that
Barnes could be found guilty and explained the difference between
the sentence that Barnes faced if convicted of capital murder,
i.e., life without parole, and the life sentence proposed by the
State,

which would grant him parole eligibility by the time he

turned 48. 27

Barnes contends that the discussion is evidence of

bias and that the trial judge should have recused herself after
this exchange. 28
over the
failed

trial,

The state habeas corpus court, which also presided
rejected this

"to allege

and prove

contention,

acts

of

finding

that

judicial bias

that

Barnes
would

entitle him to relief on his claim." 29
Barnes fails to allege facts that would demonstrate that he is
entitled to relief on this claim.

To the extent that Barnes claims

that the trial court had already made up her mind about his guilt,
the Supreme Court has held that "opinions formed by the judge on
the basis of facts introduced or events occurring in the course of
prior proceedings do not

constitute a

basis

for

[recusal]

unless they display a deep-seated favoritism or antagonism that
would make fair judgment impossible."
S.

Ct.

1147,

1157

(1994).

"Thus,

Li teky v. United States, 114
judicial remarks during the

course of a trial that are critical or disapproving of, or even

27

Id.

28

Petition, Docket Entry No. 1, p. 6.

at 9-12.

29

Findings of Fact, Conclusions of Law, and Order, Docket Entry
No. 12-23, p. 65.
-28-

hostile to, counsel, the parties, or their cases, ordinarily do not
support a bias or partiality challenge."

Barnes does not

allege facts showing that the trial judge displayed any animosity
towards him or favoritism towards the State.
judicial bias,

Absent evidence of

Barnes fails to establish that the state court's

conclusion was objectively unreasonable or that he is entitled to
relief under the federal habeas corpus standard of review.
E.

Errors in the Jury Charge

Barnes contends that the jury charge was misleading because it
contained significant errors. 30

Barnes alleges that the charge

erroneously advised the jury that the victim was "shot .
a firearm," when no firearm was used. 31

with

Barnes also asserts that

the charge erroneously advised the jury that he had elected not to
testify,

when in fact he did testify during the guilt/innocence

phase of the trial. 32

Barnes contends further that the charge

contained "numerous theories" under which the jury could convict
him of an offense, which was confusing. 33

30

Petition, Docket Entry No. 1, p. 8.

31

Id.

32

Id.
Barnes indicates in his Petition that he testified at
both the guilt/innocence and the punishment phases of the trial.
Id. The record reflects, however, that Barnes did not testify
during the punishment phase.
See Reporter's Record, vol. 10,
Docket Entry No. 12-10, pp. 83, 86-88; Docket Entry No. 12-11,
pp. 1-16.

-29-

1.

Procedural Default

The

respondent

contends

that

doctrine of procedural default,

this

claim is barred by the

noting that petitioner did not

raise his claim concerning the jury charge on direct appeal when he
should have. 34
review,

When Barnes

raised this

claim on state habeas

the court found that the claim was procedurally barred

because it had not been raised on direct appeal. 35

In doing so, the

state habeas corpus court relied on Ex parte Gardner,

959 S.W.2d

189, 199 (Tex. Crim. App. 1996), which holds that failure to raise
an issue apparent from the trial court record on direct appeal bars
consideration of that issue on state habeas review. 36

The Fifth

Circuit has repeatedly recognized that the holding in Gardner is an
independent state procedural rule that is adequate to foreclose
federal habeas review.
(5th Cir.

See Brewer v. Quarterman, 466 F.3d 344, 347

2006); Aguilar v. Dretke,

428 F.3d 526,

535

(5th Cir.

2005); Soria v. Johnson, 207 F.3d 232, 249 (5th Cir. 2000).

Barnes

fails to show that this claim is not barred by the doctrine of
procedural default.

See Coleman, 111 S. Ct. at 2565.

Accordingly,

this claim is barred from federal review.

34

Motion for Summary Judgment, Docket Entry No. 19, p. 27.

35

Findings of Fact, Conclusions of Law, and Order, Docket Entry
No. 12-23, pp. 65-66.
36Id.

-30-

2.

The Claim Lacks Merit

Alternatively,
merit. 37

the respondent argues

that

the

claim lacks

The propriety of jury instructions in a state criminal

trial presents an issue of state law and,

as such,

error in the

jury charge does not generally form the basis for federal habeas
relief.

See Estelle v.

McGuire,

112

s. Ct. 475, 482 (1991) .

Federal habeas corpus review of state court jury instructions does
not concern "whether there was prejudice to the

[petitioner] , or

whether state law was violated, but whether there was prejudice of
constitutional magnitude."
887 (5th Cir. 1986).
instruction

"by

Sullivan v. Blackburn,

804 F.2d 885,

The relevant inquiry is whether the erroneous

itself

so

infected

the

resulting conviction violates due process."

entire

trial

that

the

McGuire, 112 S. Ct. at

482 (quoting Cupp v. Naughten, 94 S. Ct. 396, 400 (1973)); see also
Henderson v. Kibbe, 97

s. Ct. 1730, 1736-37 (1977) (same).

The record does not support Barnes' claim that the jury charge
contained mistakes.
given at Barnes'
firearm.

38

The court has reviewed the jury instructions

trial and finds no reference to the use of a

Likewise, there is no instruction in the charge given

at the guilt/innocence phase of the trial that comments on the

37

Motion for Summary Judgment, Docket Entry No. 19, pp. 27-28.

38

Court's Charge on Guilt/Innocence, Docket Entry No. 10-6,
pp. 5-7; Docket Entry No. 10-7, pp. 1-8; Docket Entry No. 10-8,
pp. 1-5; Court's Charge on Punishment, Docket Entry No. 10-8, p. 9;
Docket Entry No. 10-9, pp. 1-10.
-31-

defendant's decision not to testify. 39

Thus, Barnes fails to show

that the jury instructions contained incorrect information.
The jury instructions presented multiple theories during the
guilt/innocence

phase

of

the

trial. 40

The

instructions

asked

whether the jury could find Barnes guilty beyond a reasonable doubt
of capital murder as charged in the indictment,

but also gave

jurors the option to find Barnes guilty of several lesser-included
offenses, including murder, aggravated robbery, aggravated assault,
and burglary. 41

Ultimately,

the jury found Barnes guilty of the

lesser- included

offense

murder

charge. 42

of

as

outlined

in

the

court's

Barnes does not demonstrate that the jury instructions

on any of the lesser-included offenses were incorrect, misleading,

39

Court's Charge on Guilt/Innocence, Docket Entry No. 10-6,
pp. 5-7; Docket Entry No. 10-7, pp. 1-8; Docket Entry No. 10-8,
pp. 1-5. Because Barnes did not testify at the punishment phase of
the trial, the court's charge on punishment did contain the
following instruction:
You are instructed that the defendant may testify in
his own behalf if he chooses to do so, but if he elects
not to do so, that fact cannot be taken by you as a
circumstance against him nor prejudice him in any way.
The defendant has elected not to testify in this
punishment phase of trial, and you are instructed that
you cannot and must not refer to or allude to that fact
throughout
your
deliberations
or
take
it
into
consideration for any purpose whatsoever.
Court's Charge on Punishment, Docket Entry No. 10-9, p. 5.
°Court's Charge on Guilt/Innocence,
pp. 2-4.
4

Docket Entry No.

10-7,

41Id.

42

Verdict on Guilt/Innocence, Docket Entry No. 10-8, pp. 6-7.
-32-

or confusing when considered in context with the evidence presented
in

this

case.

He

does

not

otherwise

show

that

the

jury

instructions rendered his trial fundamentally unfair in violation
of due process.

See McGuire,

112 S.

Ct.

at 4 82.

Accordingly,

Barnes is not entitled to relief on this claim.
F.

Ineffective Assistance of Counsel at Trial

Barnes alleges that he was denied effective assistance of
counsel during voir dire, closing argument, and punishment. 43

These

claims were rejected by the intermediate court of appeals, which
held that Barnes failed to demonstrate ineffective assistance under
the standard found in Strickland v. Washington,
2064 (1984).

104 S. Ct. 2052,

See Barnes, 2009 WL 3248172, *11-13.

Barnes contends

further that his trial attorney was deficient for pursuing a theory
of self-defense instead of advancing the defense of sudden passion
from the start of trial. 44

The state habeas corpus court considered

this allegation and concluded that Barnes' claim was without merit,
also relying on Strickland. 45
As the state courts correctly observed, claims for ineffective
assistance
Strickland.

of

counsel

See,

~'

are

governed

Williams v.

by

the

Stephens,

43

found

761 F.3d 561,

in
566

Peti tion, Docket Entry No. 1, p. 8.

44

standard

Id. at 6.

45

Findings of Fact, Conclusions of Law, and Order, Docket Entry
No. 12-23, pp. 66-67.
-33-

(5th Cir. 2014), cert. denied, 135 S. Ct. 1735 (2015).

To prevail

under the Strickland standard a defendant must demonstrate (1) that
his counsel's performance was deficient and (2) that the deficient
performance prejudiced the defense.
2064.
that

Strickland,

104 S.

Ct.

at

"Unless a defendant makes both showings, it cannot be said
the

conviction

resulted

from

a

breakdown

adversary process that renders the result unreliable."
"To satisfy the deficient performance prong,

in

the

Id.

'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"

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

within

assistance.'"

the
Id.

wide

range

of

reasonable

professional

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

"To

satisfy the prejudice prong, '[t]he defendant must show that there
is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different.'"
Id.

(quoting Strickland, 104 S. Ct. at 2068).
Because Barnes' ineffective-assistance claims were rejected in

state court,

the issue is not whether this court "'believes the

state court's determination'
incorrect but whether that
substantially higher
S.

Ct.

1411,

1420

under the Strickland standard 'was
determination was

threshold. '"
(2009)

Knowles

(quotation
-34-

v.

omitted)

unreasonable Mirzayance,
In

a
129

addition,

"because the Strickland standard is a general standard,
court

has

even more

latitude

to

reasonably

defendant has not satisfied that standard."

determine

Id.

a state
that

a

When applied in

tandem with the highly deferential standard found in 28 U.S.C.
§

2254 (d),

review of

ineffective-assistance

deferential" on habeas corpus review.

claims

is

"doubly

Knowles, 129 S. Ct. at 1411;

see also Richter, 131 S. Ct. at 788 (emphasizing that the standards
created by Strickland and§ 2254(d) are both "highly deferential,"
and "'doubly' so" when applied in tandem)

( citations and quotations

omitted); Beatty v. Stephens, 759 F. 3d 455, 463
cert. denied, 135 S. Ct. 2312 (2015)
1.

(5th Cir. 2014),

(same) .

Voir Dire

On direct appeal Barnes argued that his trial attorney was
deficient for the way he broached the theory of self-defense during
voir dire. 46

The state court of appeals rejected this claim after

making the following findings:
Appellant asserts that his trial counsel devoted his
entire voir dire to the subject of self-defense but his
approach "hampered [him] in his obligation to educate
members of the jury panel about the requirements of
self -defense."
Also, appellant complains that trial
counsel used a hypothetical that supported the State's
theory of the case and "led jurors to misunderstand what
Appellant's defense was likely to be." Trial counsel did
use a hypothetical that was not entirely consistent with
the facts of the case to illustrate the concept of
self -defense.
However, the hypothetical was only one
technique trial counsel employed to educate the jury

46

Appellant's Brief (Part 6), Docket Entry No.
(Part 7), Docket Entry No. 10-27, pp. 1-2.
-35-

10-26, p.

5;

about self-defense. He also explained that "you have to
put yourself in the shoes of the person claiming
[self-defense] and look at it from his standpoint alone
at the time he claims it and evaluate it." Trial counsel
further explained that "a person asserting self-defense
can consider the words spoken along with the bodily
language that's being used by the person [he acts] in
self-defense against" in determining the reasonableness
of the person's actions.
Trial counsel emphasized the
law of self-defense throughout voir dire, leading any
prospective jurors who had trouble with the hypothetical
back to the basic principle that "you as a citizen have
a right to use deadly force against another who you
reasonably believe is about to cause you serious bodily
injury or death."
Barnes, 2009 WL 3248172, *12.

Based on these facts the state court

of appeals concluded that Barnes failed to show that his trial
counsel was deficient.

See id.

The Fifth Circuit has recognized that an "attorney's actions
during voir dire are considered to be a matter of trial strategy."
Teague v. Scott,

60 F.3d 1167, 1172

Strategic

(5th Cir. 1995)

decisions made by counsel during the course of trial are entitled
to substantial deference on federal habeas review.
104

S.

Ct.

at

2065

(emphasizing

that

See Strickland,

"[j] udicial

scrutiny of

counsel's performance must be highly deferential" and that "every
effort

[must]

be

made

to

eliminate

the

distorting

effects

of

hindsight"); see also Yohey v. Collins, 985 F.2d 222, 228 (5th Cir.
1993)

("Given

techniques

and

the

almost

tactics

infinite

available

to

variety

of

counsel,

possible
this

trial

Circuit

careful not to second guess legitimate strategic choices.").
conscious

and

informed decision on trial

tactics

is
"A

and strategy

cannot be the basis for constitutionally ineffective assistance of
-36-

counsel unless it is so ill chosen that it permeates the entire
trial with obvious
(5th Cir. 2005)

unfairness.~~

Lave v. Dretke, 416 F.3d 372, 380

(quoting United States v. Jones, 287 F.3d 325, 331

(5th Cir. 2002))
The

record confirms

that both the prosecutor and defense

counsel questioned potential jurors regarding the issue of selfdefense. 47

The

accurately

record

further

characterized

the

confirms

law

on

that

defense

self-defense

and

counsel
capably

questioned the potential jurors to ensure that they understood and
could follow the

law. 48

Barnes does

not attempt

to show that

counsel 1 s performance fell below professional norms or that his
trial was tainted with obvious unfairness as the result of his
counsel,s chosen strategy during voir dire.

See Lave, 416 F.3d at

He does not otherwise demonstrate that the state court, s

380.

ultimate

conclusion

was

objectively

unreasonable.

Therefore,

Barnes fails to demonstrate that he is entitled to relief under the
doubly deferential standard that applies to ineffective-assistance
claims on federal habeas review.
2.

Closing Argument

Barnes argued on direct appeal that his trial attorney was
deficient during closing argument on guilt or innocence for failing

47

Reporter,s Record, vol. 3, Docket Entry No. 11-25, pp. 13235; Docket Entry No. 11-26, pp. 6-27.
48

See id.
-37-

to adequately explain the court's charge to the jury. 49

The state

court of appeals rejected this claim after making the following
findings:
Appellant
next
asserts
that
the
"court's
charge
include[d] many legal terms and concepts whose meaning
would not be immediately clear to the members of the
jury" and that "[h] ad defense counsel explained the
charge to the jury and explained how the defense evidence
satisfied its requirement" the outcome likely would have
been different.
At the beginning of his closing argument, trial counsel
stated "I'm not going to get into the jury charge. You
people are plenty intelligent and can read this thing
yourselves." From the record, trial counsel's strategy
focused on the story of the relationship between
appellant and the complainant and how that led up to both
the incident in question and how appellant reacted during
the incident. He did remind the jury that in determining
the facts and applying them to the charge that "as we've
all agreed, you have to look at it from [appellant's]
point of view as he saw it at the time. And you have to
consider the relationship between the parties." He also
admonished the jury to consider the reasonableness of
appellant's actions in the situation, his right to defend
himself, his right to try to live, and the real danger
that appellant faced. Trial counsel further highlighted
weaknesses in the State's theory that this was a homicide
committed during a burglary or robbery. He also pointed
out uncontroverted evidence from appellant and from the
complainant's neighbors
that
supported appellant's
self-defense claim. It is apparent that the jury understood the argument because it acquitted appellant of the
offense of capital murder and found him guilty of the
lesser offense of murder.
Thus, we cannot say trial
counsel's performance was deficient.
Barnes, 2009 WL 3248172, *12.
As with Barnes'

claim concerning the conduct of voir dire,

remarks by defense counsel during closing argument are matters of

49

Appellant's Brief (Part 7), Docket Entry No. 10-27, pp. 2-3.
-38-

trial

strategy

that

are

afforded

significant

latitude.

Kitchens v. Johnson, 190 F.3d 698, 704 (5th Cir. 1999).

See

The record

reflects that defense counsel capably argued the facts of the case,
emphasizing evidence to support the theory of self -defense and
undermining the State's contention that Barnes committed capital
murder by killing the victim during the course of a burglary or
robbery. 5 °

Considering the entire summation with the requisite

deference, counsel's argument "clearly falls within the ambit of
reasonable trial strategy."

Westley v. Johnson, 83 F.3d 714, 724

(5th Cir.

the jury did not convict Barnes of

1996).

Notably,

capital murder as charged in the indictment,
instead of a
Barnes

does

prejudice.

lesser- included offense. 51
not

demonstrate

deficient

finding him guilty

Based on this
performance

or

record,
actual

Thus, Barnes does not establish that the state court's

conclusion was objectively unreasonable.

Accordingly, Barnes fails

to show that he is entitled to relief on this issue.
3.

Punishment Phase

During his direct appeal Barnes argued that his trial attorney
was

deficient

for

failing

to

present

medical

or

psychiatric

testimony during the punishment phase of the proceeding. 52

The

50

Reporter's Record, vol. 8, Docket Entry No. 12-9, pp. 117-24;
Docket Entry No. 12-10, pp. 1-23.
51

Verdict on Guilt/Innocence, Docket Entry No. 10-8, pp. 6-7.

52

Appellant's Brief (Part 7), Docket Entry No. 10-27, pp. 4-5;
(Part 8), Docket Entry No. 10-28, p. 1.
-39-

state

court

of

appeals

rejected

this

claim

for

the

following

reasons:
Appellant next asserts that, during the punishment phase,
trial counsel failed to present medical and psychiatric
testimony about appellant "to help the jury understand
why [appellant] acted as he did."
The decision whether to present witnesses is largely a
matter of trial strategy. See Rodd v. State, 886 S.W.2d
381, 384 (Tex. App. - Houston [1st Dist.] 1994, pet.
ref'd). Moreover, an attorney's decision not to present
particular witnesses at the punishment stage may be a
strategically sound decision if the attorney bases it on
a determination that the testimony of the witnesses may
be harmful, rather than helpful, to the defendant. See
Weisinger v. State, 775 S.W.2d 424, 427 (Tex. App. Houston [14th Dist.] 1989, pet. ref'd) (holding that it
is trial counsel's prerogative, as matter of trial
strategy to decide which witnesses to call). However, a
failure to uncover and present mitigating evidence cannot
be justified as a tactical decision when defense counsel
has not conducted a thorough investigation of the
defendant's background. Wiggins v. Smith, 539 U.S. 510,
5 21, 12 3 s . Ct . 2 52 7
2 53 5
15 6 L . Ed . 2 d 4 71 ( 2 0 0 3 ) i
Rivera v. State, 123 S.W.3d 21, 31 (Tex. App. -Houston
[1st Dist.] 2003, pet. ref'd).
I

I

Here, trial counsel called only appellant's brother
during the punishment phase to testify on appellant's
behalf. While this may appear to be a failure to uncover
and present mitigating evidence, we simply have no facts
in the record regarding trial counsel's strategy at
sentencing. It is possible that trial counsel determined
that psychiatric testimony would not be favorable to
appellant. Accordingly, we hold that appellant has not
satisfied the first prong of Strickland. See Strickland,
466 U.S. at 687, 104 s. Ct. at 2064.
Barnes, 2009 WL 3248172, *13.
As in state court, Barnes provides no facts in support of his
claim concerning counsel's failure to call a medical or psychiatric
expert during the punishment phase of the trial, and he makes no
effort to show that such expert testimony would have been helpful.
-40-

"Claims of uncalled witnesses are disfavored,
claim

is

unsupported

willingness

to

by

testify

evidence
and

testimony." Gregory v. Thaler,

the

especially if the

indicating
substance

the
of

601 F.3d 347, 353

witnesses's

the

proposed

(5th Cir. 2010)

(citing Harrison v. Quarterman, 496 F.3d 419, 428 (5th Cir. 2007)).
A petitioner who alleges ineffective assistance of counsel based on
the failure to call either a "lay or expert witness" must "name the
witness, demonstrate that the witness was available to testify and
would have done so, set out the content of the witness's proposed
testimony, and show that the testimony would have been favorable to
theparticulardefense."
Cir. 2009)

Dayv. Quarterman, 566 F.3d527, 538 (5th

(citations omitted).

Absent a showing that a particular

witness would have offered testimony favorable to the defense, the
petitioner's claim is speculative and conclusory,

and does not

demonstrate either deficient performance or resulting prejudice on
his trial counsel's part.
(5th Cir.

2001).

See Sayre v. Anderson, 238 F.3d 631, 636

Because Barnes fails

to demonstrate that an

expert would have provided helpful testimony, he fails to show that
the adjudication of his claim was contrary to or an unreasonable
application of

the Strickland standard.

Therefore,

he

is not

entitled to relief on this claim.
4.

Sudden Passion as a Defense

Barnes claims that his trial attorney was

ineffective for

failing to present as a defense during the guilt/innocence phase of
-41-

the trial an argument that the victim's death was caused under the
immediate influence of "sudden passion" arising from an adequate
cause. 53

The state habeas corpus court noted that, as a matter of

Texas law,

sudden passion is "a punishment stage issue in murder

trials," and not a defensive theory that can be raised during the
guilt/ innocence

phase. 54

Finding

that

trial

counsel

properly

presented and argued sudden passion as a theory during punishment,
the state habeas corpus court concluded that Barnes was not denied
effective assistance of counsel. 55
The record confirms that trial counsel solicited testimony
from Barnes regarding both the issue of sudden passion and selfdefense during the guilt/innocence phase of the trial. 56

Trial

counsel requested and received a jury instruction and special issue
on sudden passion in the court's charge on punishment. 57

Trial

counsel also presented argument on the issue of sudden passion
during the punishment phase. 58

53

Barnes has not shown that counsel's

Petition, Docket Entry No. 1, p. 6.

54

Findings of Fact, Conclusions of Law, and Order, Docket Entry
No. 12-23, p. 61 (citing TEX. PENAL CODE§ 19.02(d) (2012); and
Benavides v. State, 992 S.W.2d 511, 528 (Tex. App. - Hous. [1st
Dist.] 1999, pet. ref'd) (discussing the change in the law)).
55

Findings of Fact, Conclusions of Law, and Order, Docket Entry
No. 12-23, p. 62.
56

Reporter's Record,
109-21, 125-27.
57

Court's
pp. 8-10.
58

Charge

on

vol.

6,

Docket Entry No.

Punishment,

Docket

12-6, pp.

Entry

No.

69,

10-9,

Reporter's Record, vol. 10, Docket Entry No. 12-11, pp. 17-25.
-42-

performance fell below professional norms or that he was deficient
in any way.
state

More importantly, Barnes has not demonstrated that the

court's

conclusion

was

objectively

unreasonable.

Accordingly, Barnes is not entitled to relief on this issue.
G.

Conflict of Interest by Trial Counsel

In

addition

contends

that

to

his

his
trial

ineffective-assistance

claims,

attorney

a

demonstrated

Barnes

conflict

of

interest when he advised Barnes during plea negotiations that the
State had "a very strong case." 59

The state habeas corpus court

rejected this claim after finding that Barnes failed to show that
counsel's

advice

constituted

a

conflict

of

interest

or

to

demonstrate that any actual conflict of interest existed between
Barnes and his trial attorney. 60
To establish a

constitutional violation on the basis of a

conflict of interest the defendant must demonstrate that an actual
conflict adversely affected his counsel's performance.
v. Sullivan, 100 S. Ct. 1708, 1718 (1980);
F.2d 1478, 1483

(5th Cir. 1993).

places defense counsel
United States v.

in a

Beets v. Collins, 986

An actual conflict is one that

position of divided loyalty.

Infante, 404 F. 3d 376, 392

See

(5th Cir. 2005); see

also Mickens v. Taylor, 122 S. Ct. 1237, 1243

59

See Cuyler

(2002)

(explaining

Peti tion, Docket Entry No. 1, p. 7.

6

°Findings of Fact, Conclusions of Law, and Order, Docket Entry
No. 12-23, pp. 63-64, 69.
-43-

that "an actual conflict of interest" means "precisely a conflict
that

affected

counsel's

performance-as

theoretical division of loyalties").

opposed

For example,

to

a

mere

" [a] n actual

conflict exists if 'counsel's introduction of probative evidence or
plausible arguments that would significantly benefit one defendant
would damage the defense of another defendant whom the same counsel
is representing.'"
Cir. 1983)

United States v. Lyons, 703 F.2d 815, 820 (5th

(quoting Baty v. Balkcom, 661 F.2d 391, 395

1981)) .

For

purposes

of

an

(5th Cir.

ineffective-assistance

inquiry,

prejudice is presumed once a defendant establishes (1) that counsel
acted under the influence of the conflict, and (2) that counsel's
actions had an adverse effect upon his defense.
v.

Culverhouse,

effect

is

507 F.3d 888,

892

(5th Cir.

established with evidence

See United States
2007).

that presents

An

a

adverse

plausible

defense strategy or tactic that could have been pursued but for the
actual conflict.

See Perillo v. Johnson, 205 F.3d 775,

781 (5th

Cir. 2000).
As a general matter, a criminal defense attorney has a duty to
advise a defendant whether a plea agreement may be in his best
interest, which necessarily entails an assessment of the strength
of the prosecution's case.

See,

F.2d 1083, 1087 (5th Cir. 1981)
"duty

to

assist

actually

~'

Bradbury v. Wainwright, 658

(noting that defense counsel has a

and

substantially

deciding whether to plead guilty").

the

defendant

in

Barnes has not shown that by

commenting on the strength of the State's case in connection with
-44-

plea

negotiations

conflicting

his

interests

trial
or

attorney

that

his

actively

performance

affected as the result of an actual conflict.

was

represented
adversely

Absent a showing

that counsel's performance was hampered by an actual conflict of
interest, Barnes has not demonstrated that he was denied effective
assistance

by

conflict-free

violation occurred.

counsel

or

that

a

constitutional

Barnes further fails to show that the state

court's conclusion is objectively unreasonable.

Therefore, he is

not entitled to relief on this issue.
H.

Ineffective Assistance of Counsel on Appeal

Barnes contends that he was denied effective assistance of
counsel

on

direct

appeal. 61

Although

Barnes

does

not

allege

specific facts in his Petition, he appears to claim as he did on
state habeas review that his appellate attorney was deficient for
failing to raise an ineffective-assistance claim on direct appeal
concerning his

trial

counsel's

failure

to pursue a

defense of

sudden passion during the guilt/innocence phase of the trial. 62

The

state habeas corpus court rejected this allegation, concluding that
Barnes failed to demonstrate that the proposed claim had merit or
that appellate counsel was ineffective for failing to raise it. 63

61

Peti tion, Docket Entry No. 1, p. 8.

62

Application for a Writ of Habeas Corpus, Writ No. 81,067-06,
Docket Entry No. 12-23, p. 12.
63

Findings of Fact, Conclusions of Law, and Order, Docket Entry
No. 12-23, pp. 62-63, 68-69.
-45-

A claim of ineffective assistance on appeal is governed by the
test set out in Strickland, 104 S. Ct. at 2052, which requires the
defendant to establish both constitutionally deficient performance
and actual prejudice.

See Smith v. Murray, 106 S. Ct. 2661, 2667

(1986)

Strickland test to a claim of ineffective

(applying the

assistance of counsel on appeal) .

To establish that appellate

counsel's performance was deficient in the context of an appeal,
the

defendant

must

unreasonable

show

that

his

attorney

"was

objectively

. in failing to find arguable issues to appeal -

that is, that counsel unreasonably failed to discover non-frivolous
issues and to file a merits brief raising them."
120 S. Ct.

746,

764

(2000)

Smith v. Robbins,

(internal citation omitted).

If the

defendant succeeds in such a showing, then he must establish actual
prejudice by demonstrating a "reasonable probability" that, but for
his counsel's deficient performance,
his appeal."

"he would have prevailed on

Id.

For reasons explained previously, Barnes has not shown that
his trial counsel was deficient for not raising the issue of sudden
passion during the guilt/innocence phase of his trial because, as
a matter of Texas law,

this defensive theory is considered only

during the punishment phase. 64

Because Barnes fails to establish

64

Findings of Fact, Conclusions of Law, and Order, Docket Entry
No. 12-23, p. 61 (citing TEX. PENAL CODE§ 19.02(d) (2012); and
Benavides v. State, 992 S.W.2d at 528 (discussing the change in the
law)).
-46-

that his proposed claim had merit, he does not demonstrate that his
appellate counsel was deficient

or that

there

is a

reasonable

probability that he would have prevailed on appeal if the proposed
claim had been presented.

Barnes does not show that he was denied

effective assistance of counsel on appeal or that the state court's
conclusion was objectively unreasonable.

Therefore,

he is not

entitled to relief on this claim.
Because Barnes has

failed to establish a

valid claim for

relief, Respondent's Motion for Summary Judgment will be granted
and the Petition will be denied.
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

"that

§

2253 (c) (2),

reasonable

jurists

would

the

wrong."

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

controlling standard this

constitutional

find

assessment

McDaniel,

the

which requires a petitioner to

court's

Slack v.

of

constitutional

Ct.

1595,

requires

a

1604

claims

debatable

(2000)).

petitioner

district

to

or

(quoting
Under the

show

"that

reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner
-47-

or

that

the

issues

presented

were

encouragement to proceed further.'"

s. Ct. 10 2 9

I

10 3 9

( 2 0 0 3)

'adequate

Miller-El v.

to

deserve

Cockrell,

123

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

correct in its procedural ruling."
A district court may deny a

the

district

court

Slack, 120 S. Ct. at 1604.
certificate of appealability,

sua sponte, without requiring further briefing or argument.
Alexander v. Johnson,

was

211 F.3d 895,

898

(5th Cir.

2000).

See
After

careful review of the pleadings and the applicable law, the court
concludes that reasonable jurists would not find the assessment of
the

constitutional

claims

debatable

or

wrong.

Because

the

petitioner does not allege facts showing that his claims could be
resolved in a different manner, a certificate of appealability will
not issue in this case.

v.

Conclusion and Order

The court ORDERS as follows:
1.

Respondent Stephens's Motion for Summary Judgment
(Docket Entry No. 19) is GRANTED.

2.

Andrew Barnes' Petition for a Writ of Habeas Corpus
By a Person in State Custody (Docket Entry No. 1)
is DENIED, and this action will be dismissed with
prejudice.

3.

A certificate of appealability is DENIED.
-48-

The Clerk shall provide a copy of this Memorandum Opinion and
Order to the parties.
SIGNED at Houston, Texas, on this 11th day of February, 2016.

UNITED

-49-

DISTRICT JUDGE