Victorian v. Davis
ORDER OF DISMISSAL - The petition is DISMISSED WITH PREJUDICE. A certificate of appealability is DENIED. Any and all pending motions are DENIED AS MOOT. Case terminated on 7/13/2017. (Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
BRIAN VICTORIAN, A/K/A BRIAN MALVO,
July 13, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. H-17-1807
ORDER OF DISMISSAL
Petitioner, a state inmate proceeding pro se and requesting leave to proceed in
forma pauperis, filed this section 2254 habeas petition challenging his conviction and
45-year sentence for aggravated sexual assault of a child under the age of fourteen.
After reviewing the pleadings under Rule 4 of the Rules Governing Section 2254 Cases
in the United States District Courts, the Court concludes that this case must be dismissed
for the reasons that follow.
Background and Claims
Petitioner was convicted of aggravated sexual assault of a child under the age of
fourteen in 2013 in Harris County, Texas. The conviction was affirmed on appeal, and
discretionary review was refused. The Texas Court of Criminal Appeals denied habeas
relief on April 5, 2017.
Petitioner complains in the instant federal petition that (1) the state courts on
collateral review denied him due process by not ordering an affidavit from trial counsel;
(2) trial counsel failed to set petitioner’s pro se motions for hearing; and (3) trial counsel
failed to request a lesser-included offense instruction.
This petition is governed by the applicable provisions of the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA). 28 U .S.C. § 2254. Under the AEDPA,
federal habeas relief cannot be granted on legal issues adjudicated on the merits in state
court unless the state adjudication was contrary to clearly established federal law as
determined by the Supreme Court, or involved an unreasonable application of clearly
established federal law as determined by the Supreme Court. Harrington v. Richter, 562
U.S. 86, 98–99 (2011); Williams v. Taylor, 529 U.S. 362, 404–05 (2000); 28 U.S.C. §§
2254(d)(1), (2). A state court decision is contrary to federal precedent if it applies a rule
that contradicts the governing law set forth by the Supreme Court, or if it confronts a set
of facts that are materially indistinguishable from such a decision and arrives at a result
different from the Supreme Court’s precedent. Early v. Packer, 537 U.S. 3, 7–8 (2002).
A state court unreasonably applies Supreme Court precedent if it unreasonably
applies the correct legal rule to the facts of a particular case, or unreasonably extends a
legal principle from Supreme Court precedent to a new context where it should not
apply, or unreasonably refuses to extend that principle to a new context where it should
apply. Williams, 529 U.S. at 409. In deciding whether a state court’s application was
unreasonable, this Court considers whether the application was objectively unreasonable.
Id. at 411. “It bears repeating that even a strong case for relief does not mean the state
court’s contrary conclusion was unreasonable.” Richter, 562 U.S. at 102. As stated by
the Supreme Court in Richter,
If this standard is difficult to meet, that is because it was meant to be. As
amended by AEDPA, § 2254(d) stops short of imposing a complete bar on
federal court relitigation of claims already rejected in state proceedings. It
preserves authority to issue the writ in cases where there is no possibility
fairminded jurists could disagree that the state court’s decision conflicts
with this Court’s precedents. It goes no farther. Section 2254(d) reflects
the view that habeas corpus is a “guard against extreme malfunctions in the
state criminal justice systems,” not a substitute for ordinary error
correction through appeal.
Id., at 102–03 (emphasis added; internal citations omitted).
The AEDPA affords deference to a state court’s resolution of factual issues.
Under 28 U.S.C. § 2254(d)(2), a decision adjudicated on the merits in a state court and
based on a factual determination will not be overturned on factual grounds unless it is
objectively unreasonable in light of the evidence presented in the state court proceeding.
Miller–El v. Cockrell, 537 U.S. 322, 343 (2003). A federal habeas court must presume
the underlying factual determination of the state court to be correct, unless the petitioner
rebuts the presumption of correctness by clear and convincing evidence. 28 U.S.C. §
2254(e)(1); see also Miller–El, 537 U.S. at 330–31.
State Habeas Court Error
Petitioner complains that the state courts on collateral review denied him due
process by failing to order an affidavit from trial counsel. This claim provides petitioner
no basis for federal habeas relief. See Millard v. Lynaugh, 810 F.2d 1403, 1410 (5th Cir.
1987) (holding that because there is no federal constitutional right to state postconviction review, irregularities during such a review do not provide a basis for federal
habeas relief); see also Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995) (noting that
an attack on a state habeas proceeding does not entitle a petitioner to federal habeas
relief, as it is an attack on a proceeding collateral to the conviction and not the conviction
Petitioner’s challenge to the state habeas proceedings fails to state a cognizable
federal habeas claim, and habeas relief is unwarranted.
Pro Se Motions
Petitioner next complains that trial counsel failed to adopt and set for hearing the
pro se motions filed by petitioner. In rejecting this claim on state collateral review, the
state trial court found that petitioner “fails to show that his pro se motions had merit or
that the trial court would have granted the motions.” Ex parte Victorian, Cause No.
1363644-A, in the 182nd Judicial District Court of Harris County, Texas. The Texas
Court of Criminal Appeals relied on the trial court’s findings of fact and conclusions of
law in denying habeas relief. Ex parte Victorian, WR-86,469-01.
Ineffective assistance of counsel claims are governed by Strickland v.
Washington, 466 U.S. 668 (1984).
To assert a successful ineffectiveness claim, a
petitioner must establish both constitutionally deficient performance by counsel and
actual prejudice as a result of counsel’s deficient performance. Id. at 687. A counsel’s
performance is deficient if it falls below an objective standard of reasonableness. Id. at
688. Actual prejudice from a deficiency is shown if there is a reasonable probability
that, but for counsel’s unprofessional error, the result of the proceeding would have been
different. Id. at 694.
In his federal habeas petition and memorandum of law, petitioner fails to argue
and present authority showing that his pro se motions had merit and would have been
granted had they been heard. To the contrary, petitioner proffers only that “the pro se
motions were made part of the record once they were filed, therefore they needed to be
adjudicated on the merits.” (Docket Entry No. 4, pp. 6, 8.) Because petitioner fails to
argue and show that his pro se motions had merit and would have been granted, he fails
to demonstrate deficient performance by counsel under Strickland. Moreover, because
petitioner fails to argue and show that, but for counsel’s failure to present the motions,
there was a reasonable probability that the result of his trial would have been different,
he fails to demonstrate actual prejudice under Strickland.
Petitioner does not meet his burden of proof under AEDPA, and habeas relief is
Lesser Included Instruction
Petitioner contends that trial counsel should have requested a lesser included jury
instruction as to indecency with a child. However, the trial court on state collateral
review found that petitioner had argued that he was not entitled to a jury instruction on
indecency with a child. The state court then rejected petitioner’s claim, noting that the
jury charge in his case did not contain a jury instruction on indecency with a child. Ex
parte Victorian, Cause No. 1363644-A, in the 182nd Judicial District Court of Harris
County, Texas. The Texas Court of Criminal Appeals relied on the trial court’s findings
of fact and conclusions of law in denying habeas relief.
Ex parte Victorian,
Petitioner contends here that the state trial court misunderstood his argument, and
that his intended argument should have been clear given the lack of a lesser included jury
instruction. Petitioner further argues that he merited the instruction because “there was
no proof that a physical aggravated sexual assault of a child took place.” (Docket Entry
No. 4, p. 8.) However, the intermediate state court of appeals expressly found the
evidence sufficient to support petitioner’s conviction for aggravated sexual assault of a
child under the age of fourteen. Victorian v. State, 2015 WL 3915966 (Tex. App. –
Houston [1st Dist.] 2015, pet. ref’d). Consequently, petitioner does not demonstrate that
he was entitled to the jury instruction under state law and that a request for the
instruction would have been granted. Nor does he establish that, but for counsel’s failure
to request the instruction, there is a reasonable probability that the result of the trial
would have been different.
Assuming he properly raised the issue on state collateral review, petitioner fails to
show either deficient performance or actual prejudice under Strickland. Habeas relief is
The petition is DISMISSED WITH PREJUDICE. A certificate of appealability is
DENIED. Any and all pending motions are DENIED AS MOOT.
Signed at Houston, Texas on July 13, 2017.
Gray H. Miller
United States District Judge
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