McCarty v. Davis
Filing
35
MEMORANDUM OPINION AND ORDER granting 18 MOTION for Summary Judgment with Brief in Support, denying 29 MOTION for Leave to File Affidavit, denying 30 MOTION for Summary Judgment MOTION for Leave to File, granting 31 MOTION fo r Leave to File Motion for Judicial Notice with Final Supplement Brief in Support, granting 32 MOTION for Leave to File To Add, denying 33 MOTION for Leave to File To Considered. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
ENTERED
January 23, 2019
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JAMES LAWRENCE McCARTY,
TDCJ #2045586,
§
§
§
§
§
§
§
§
§
§
§
§
§
Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice - Correctional
Institutions Division,
Respondent.
David J. Bradley, Clerk
CIVIL ACTION NO. H-18-0711
MEMORANDUM OPINION AND ORDER
James Lawrence McCarty has filed a
Petition for a Writ of
Habeas Corpus By a Person in State Custody
("Petition")
Entry No. 1), seeking relief under 28 U.S.C.
§
(Docket
2254 from a murder
conviction entered against him in Harris County.
Pending before
the court is Respondent Lorie Davis's Motion for Summary Judgment
With Brief in Support ("Respondent's MSJ")
(Docket Entry No. 18).
In response McCarty has filed his own Motion for Summary Judgment,
Motion for Leave of Court, and Demand for Jury Trial, With Brief in
Support
("Petitioner's MSJ")
(Docket Entry No.
30).
McCarty has
also filed more than one motion to supplement the pleadings with
additional exhibits, authority, argument, and a new claim (Docket
Entry
Nos.
pleadings,
29,
31,
32,
33).
After
the state court record,
considering
all
of
the
and the applicable law,
the
court will grant Respondent's MSJ and will dismiss this action for
the reasons explained below.
I.
Background
A grand jury in Harris County, Texas, returned an indictment
against McCarty in Case No. 1431305, charging him with causing the
death of
firearm.
1
Cyril
Jones
by shooting her with a
On September 8,
2015,
deadly weapon,
a
McCarty entered a plea of nolo
contendere or no contest to the murder charges against him without
an agreed recommendation from the State as to punishment,
which
would be determined by the trial court following a presentence
investigation ("PSI") . 2
After admonishing McCarty orally and in
writing of the consequences of his plea, the trial court found him
guilty and deferred making any further findings
Probation
officers
with
the
Harris
subject to the
County
Community
Supervision and Corrections Department conducted an investigation
and prepared a PSI Report regarding the incident that resulted in
1
Indictment, Docket Entry No. 19-19, p. 11.
For purposes of
identification, all page numbers refer to the pagination imprinted
by the court's electronic filing system, CM/ECF.
2
Waiver of Constitutional Rights [and] Agreement to Stipulate
("Waiver and Agreement"), Docket Entry No. 19-19, pp. 57-58;
Admonishments, Docket Entry No. 19-19, pp. 59-62; Court Reporter's
Record, vol. 2, Plea to a PSI Hearing ("Plea Hearing"), Docket
Entry No. 20-1.
3
Admonishments, Docket Entry No. 19-19, pp. 59-62; Court
Reporter's Record, vol. 2, Plea Hearing, Docket Entry No. 20-1.
-2-
the murder charges against McCarty. 4
According to the PSI Report
McCarty was a passenger in a white van driven by the victim's
husband,
Willie Jones,
Valero gas
station
when they stopped to buy some beer at a
in Houston,
Texas,
on June
7,
2014. 5
The
victim, who was seated in the front passenger seat, remained in the
van along with an acquaintance named Myra Robinson. 6
When McCarty
was unable to purchase beer because his credit card was declined,
he became agitated and left the store. 7
McCarty then pulled out a
. 25 caliber automatic pistol and had a brief exchange with the
victim before he shot her in the head,
seated in the van. 8
killing her as she was
When a bystander (Chance Perkins) attempted to
intervene McCarty fired at
him three
times until
someone else
helped take McCarty to the ground. 9
McCarty told investigators that he "really [didn't] know what
happened," and did not recall the shooting or how he ended up in
police custody. 10 McCarty denied being under the influence of drugs
or alcohol on the day of the offense,
but claimed that he had
4
PSI Report, Docket Entry No. 20-3, pp. 5-33.
5
Id. at 6.
6
Id.
7
Id.
8
Id. at 6-7.
9
Id. at 7-8.
lOid. at 8.
-3-
previously ingested some PCP or synthetic marijuana ("K-2") dipped
in embalming fluid while partying with two women he did not know on
the night before. 11
The offense was captured on the gas station's surveillance
video
camera,
which
depicts
McCarty
leaving
the
store
and
approaching the victim while she was seated in the front passenger
side of the van with the window rolled down.
12
The video shows that
McCarty had words with the victim before firing a single shot at
close range,
striking her in the head,
then being apprehended by
Perkins, who happened to be passing by at the time. 13
At
a
sentencing hearing
in
the
230th District
Court
for
Harris County, held on January 20, 2016, Perkins testified that he
saw McCarty shoot and kill the victim as she sat in the front
passenger seat of the van. 14
Iraq and Afghanistan,
A combat veteran who served in both
Perkins recounted how McCarty shot at him
three times as he struggled to take McCarty to the ground and that,
in Perkins'
opinion,
McCarty was definitely trying to kill him
during that altercation. 15
11
Id. at 8-9, 10-11, 17.
12
Docket Entry
14
Presentence Investigation
Hearing"),
Docket Entry
Id. at 9 (summarizing the video) ; Video CD,
No. 21 (DA28 File 20140607184430 at 18:48:10-35)
Court Reporter's Record, vol. 3,
Sentencing Hearing
("PSI Sentencing
No. 20-2, pp. 11-12, 15-16.
15
Id. at 13-14, 16.
-4-
Willie Jones testified that he believed McCarty had smoked some
PCP on the day the incident occurred because he had seen McCarty
under the influence previously. 16
Jones testified that McCarty was
not acting normally before they arrived at the gas station and that
McCarty became agitated when his credit card was declined by the
cashier. 17
While Jones was in the store attempting to cash in some
lottery tickets, he saw McCarty start "flipping out" near the van. 18
Jones then saw McCarty shoot his wife, killing her. 19
In
support
of
provided numerous
the
PSI
Report
McCarty's
character-reference
letters
defense
from
counsel
friends
and
family members who described McCarty's work ethic, his reputation
as a kind person, and his religious faith.
20
Defense counsel also
called several character witnesses at the sentencing hearing who
testified that McCarty's actions on the day of the offense were
totally out of character. 21
McCarty testified on his own behalf during the sentencing
proceeding and denied doing any drugs the day of the offense. 22
16
Id. at 19, 28.
17
Id. at 22-27.
18
Id. at 27-31.
19
Id. at 31-34.
20
Attachment 'A' - Defendants' Character Reference Letters to
the PSI Report, Docket Entry No. 20-3, pp. 21-33.
21
Court Reporter's Record, vol.
Docket Entry No. 20-2, pp. 45-62.
22
Id. at 64.
-5-
3,
PSI Sentencing Hearing,
When
pressed
to
explain
his
behavior,
McCarty
reiterated
the
statement given previously to investigators by admitting that he
had smoked some K-2 cigarettes that had been dipped in embalming
fluid by two women he did not know on the evening before the
offense occurred. 23
After
considering
the
PSI
Report,
the
exhibits,
and
the
testimony at the sentencing hearing, the trial court sentenced him
to 55 years in prison. 24
Although McCarty filed a notice of appeal from the judgment,
his
appointed
counsel
reviewed
the
record
and
filed
a
brief
pursuant to Anders v. California, 87 S. Ct. 1396 (1967)
(an "Anders
brief") ,
appeal
certifying
without merit. 25
appeal
was
that
in
counsel's
opinion
the
The intermediate court of appeals agreed that the
"wholly frivolous
and without merit"
affirmed the conviction in an unpublished opinion.
State,
No.
14-16-00085-CR,
2016 WL 6238406,
Houston [14th Dist.] Oct. 25, 2016) . 26
of
Criminal
was
Appeals
denied
at *1
and
summarily
See McCarty v.
(Tex.
App.-
Thereafter, the Texas Court
McCarty's
pro
se
petition
for
discretionary review. 27
23
Id. at 69-71.
Id. at 88i Judgment of Conviction by Court - Waiver of Jury
Trial, Docket Entry No. 19-19, p. 75.
24
25
Brief For Appellant, Docket Entry No. 19-8.
26
Memorandum Opinion, Docket Entry No. 19-3.
27
Electronic Record, Docket Entry No. 19-18.
-6-
McCarty challenged his conviction by filing an Application for
a Writ of Habeas Corpus Seeking Relief From Final Felony Conviction
Under
[Texas]
Code
of
Criminal
("Application") with the trial court. 28
Procedure,
Article
11.07
In his Application, McCarty
raised the following claims:
1.
His trial counsel was deficient for coercing his
plea and a litany of other reasons.
2.
The trial court abused its discretion by holding a
hearing on the PSI Report, which amounted to a
bench trial.
3.
The trial court violated his right to due process
at the sentencing hearing by denying him the right
to cross-examine witnesses and admitting his
statements in violation of the privilege against
self-incrimination.
4.
The evidence was factually and legally insufficient
to support a finding of guilt. 29
The trial court, which also presided over the plea and sentencing
proceedings, entered findings of fact and concluded that McCarty
was not entitled to relief. 30
The Texas Court of Criminal Appeals
agreed and denied relief without a written order on March 7, 2018,
adopting findings made by the trial court without a hearing. 31
28
Application, Docket Entry No. 20-14, pp. 5-21.
29
See id. at 10-18.
30
State's Proposed Findings of Fact, Conclusions of Law, and
Order ("Findings and Conclusions"), Docket Entry No. 20-14, pp. 7480.
31
Action Taken on Application No. WR-87,220-03, Docket Entry
No. 20-10.
McCarty filed a previous state habeas application,
which the Texas Court of Criminal Appeals dismissed on August 16,
(continued ... )
-7-
McCarty now contends that he is entitled to federal habeas
relief from his conviction under 28 U.S.C.
2254(d).
§
McCarty's
Petition, which the court has allowed him to supplement, raises the
following
claims
that
have
been
re-ordered
by
the
court
for
purposes of analysis:
1.
The state courts "failed to rule correctly" on the
claims he presented on collateral review.
2.
He was denied effective assistance of counsel
because his trial attorney failed to adequately
investigate or raise defenses and coerced his plea
without mounting any defense.
3.
He was denied effective assistance of counsel on
direct appeal when his attorney filed an Anders
brief.
4.
His defense counsel allowed the trial court to hold
an illegal PSI hearing for the purpose of securing
an "involuntary plea."
5.
The trial court erred by holding a PSI hearing.
6.
His statements were admitted into evidence at the
PSI hearing in violation of the Fifth Amendment
privilege against self-incrimination.
7.
He was denied the right to cross-examine witnesses
at the PSI hearing.
8.
The trial court
bench trial.
9.
The evidence was factually and legally insufficient
to support a finding of guilt. 32
treated the
PSI
hearing
like
a
continued)
2017, for failure to comply with Tex. R. App. P. 73.1. See Action
Taken on Application No. WR-87,220-01, Docket Entry No. 20-5.
McCarty also filed a motion for leave to file a writ of mandamus,
which the Texas Court of Criminal Appeals denied on that same day.
See Action Taken on Application No. WR-87,220-02.
31
( •••
32
Petition, Docket Entry No. 1, pp. 6-7, 18-26; Motion for
Court's Leave to Amend Writ of H/C Title 28 U.S.C. § 2254, Docket
(continued ... )
-8-
The respondent moves for summary judgment, arguing that Claims Five
through Eight are barred by the doctrine of procedural default. 33
Noting that McCarty's plea was voluntarily and knowingly made, the
respondent argues that his remaining claims are either waived or
without merit. 34
After the respondent moved for summary judgment, McCarty filed
a series of motions in response.
McCarty filed Petitioner's MSJ,
which argues primarily that he is entitled to relief because he was
denied effective assistance by his trial and appellate counsel. 35
McCarty filed Petitioner's Motion for Leave of Court, to Submit an
Affidavit by Ruby Robinson,
Support
and Medical Records,
("Motion to Supplement the Record")
obtain and submit additional evidence. 36
filed a Motion
Final
[for]
Supplement
with Brief in
that seeks leave to
In addition, McCarty has
Leave to File Motion for Judicial Notice,
with
Brief
in
Support
("Motion
for
Judicial
32
( • • • continued)
Entry No. 8, pp. 1-3, which the court construed as a supplement to
the petition, Docket Entry No. 9.
Although many of McCarty's
allegations are difficult to decipher, the court has reviewed all
of his pro se pleadings under a less stringent standard than those
drafted by lawyers.
See Haines v. Kerner, 92 S. Ct. 594, 596
(1972) (per curiam); see also Erickson v. Pardus, 127 S. Ct. 2197,
2200 (2007)
("A document filed pro se is 'to be liberally
construed[.]'") (quoting Estelle v. Gamble, 97 S. Ct. 285, 292
(1976)) .
33
Respondent's MSJ, Docket Entry No. 18, pp. 6-7.
34
Id. at 7-22.
35
Petitioner's MSJ, Docket Entry No. 30.
36
Motion to Supplement the Record, Docket Entry No. 29.
-9-
Notice") ,
Argument
and a Motion
Due
to
[for]
Newly
Leave to File to Add Supplemental
Discovered
U.S.
Supreme
("Motion to Provide Supplemental Argument"),
Court
Decision
asking the court to
take note of a recent Supreme Court case, Wilson v. Sellers, 138
S. Ct. 1188
(2018), and to consider additional argument based on
that decision. 37
McCarty has also filed a Motion for Leave to
Consider Claim of Incorrect Date (Birth), on Indictment ("Motion to
Add New Claim") ,
challenging a
indictment. 38
deficiency in his
McCarty's motions will be addressed below after the court has
addressed Respondent's MSJ under the governing standard of review.
II.
The
federal
petitioner
to
habeas
first
Standard of Review
corpus
present
standard
his
claims
of
review
in state
requires
court
and
exhaust all state court remedies through proper adjudication.
28 u.s.c.
§
2254(b).
a
to
See
To satisfy the exhaustion requirement the
petitioner must present his claims to the highest state court in a
procedurally proper manner so that the state court is given a fair
opportunity to consider and pass upon challenges to a conviction
before those issues come to federal court for habeas corpus review.
See,
e.g.,
O'Sullivan v. Boerckel,
119 S.
Ct.
1728,
1732
(1999)
(explaining that comity dictates that state courts should have the
Motion for Judicial Notice, Docket Entry No. 31; Motion to
Provide Supplemental Argument, Docket Entry No. 32.
37
38
Motion to Add New Claim, Docket Entry No. 33.
-10-
first
opportunity to review a
relief) .
When a
claim and provide any necessary
state court declines
to address a
prisoner's
federal claims because he has failed to meet a state procedural
requirement, or state remedies are otherwise rendered unavailable
by a prisoner's own procedural default, federal courts are barred
from reviewing the claims.
See Coleman v.
Thompson,
111 S.
Ct.
2546 (1991); Sones v. Hargett, 61 F.3d 410, 416 (5th Cir. 1995).
To the extent that the petitioner's claims were adjudicated on
the merits in state court, his claims are subject to review under
the
Antiterrorism
( "AEDPA"),
and
Effective
Death
codified at 28 U.S. C.
Penalty
of
1996
Under the AEDPA a
2254 (d) .
§
Act
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
2254(d) (1)
clearly established
Supreme
Court
of
the
If a claim presents a
question of fact, 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
evidence presented in the State court proceeding."
the
28 U.S.C.
§
2254 (d) (2).
"'A state
court's
decision
is
deemed contrary to
clearly
established federal law if it reaches a legal conclusion in direct
conflict with a
prior decision of
the Supreme
Court
or if
it
reaches a different conclusion than the Supreme Court on materially
-11-
indistinguishable facts.'n
215
(5th
Cir.
2015)
Matamoros v. Stephens,
(citations
omitted) .
To
783 F.3d 212,
constitute
an
"unreasonable application ofn clearly established federal law, a
state court's holding "must be objectively unreasonable, not merely
wrong; even clear error will not suffice.n
Woods v. Donald, 135
S.
Woodall,
Ct.
1372,
1376
(2015)
1697, 1702 (2014)).
(quoting White v.
134 S.
Ct.
This highly deferential standard "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
for
substitute
state
ordinary
criminal
error
justice
correction
systems,'
through
Harrington v. Richter, 131 S. Ct. 770, 786 (2011)
v.
Virginia,
concurring)) .
99
S.
Ct.
2781,
2796,
n.5
not
a
appeal.n
(quoting Jackson
(1979)
(Stevens,
J.,
"To satisfy this high bar, a habeas petitioner is
required to 'show that 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.'n
Woods, 135
S. Ct. at 1376 (quoting Richter, 131 S. Ct. at 786-87)
A state court's factual determinations are also entitled to
deference on federal habeas corpus review.
"presumed
findings
§
to
with
2254 (e) (1).
be
correctn
"clear
and
unless
Findings of fact are
the
petitioner
convincing
evidence.n
rebuts
28
those
u.s.c.
This presumption of correctness extends not only to
express factual findings, but also to implicit or "'unarticulated
-12-
findings which are necessary to the state court's conclusions of
mixed law and fact.'"
2018)
Murphy v. Davis, 901 F.3d 578, 597 (5th Cir.
(quoting Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir.
2001)); see also Garcia v. Quarterman,
Cir. 2006)
2005);
454 F.3d 441,
444-45
(5th
(citing Summers v. Dretke, 431 F.3d 861, 876 (5th Cir.
Young v.
Dretke,
356 F.3d 616,
629
(5th Cir.
2004))
A
federal habeas corpus court "may not characterize these state-court
factual determinations as unreasonable 'merely because [it] would
have
reached
a
different
conclusion
Brumfield v. Cain, 135 S. Ct. 2269,
Allen,
130
requires
S.
that
Ct.
[a
841,
849
federal
substantial deference."
2277
(2010)).
court]
the
first
(2015)
(quoting Wood v.
"Instead,
accord
the
instance.'"
state
2254 (d) (2)
§
trial
court
Id.
III.
A.
in
Discussion
Claims Five Through Eight are Procedurally Barred
In Claims Five through Eight McCarty contends that the trial
court erred by holding a PSI hearing or bench trial after McCarty
waived his right to a trial, and that the trial court violated his
right to cross-examine witnesses and his privilege against selfincrimination during the proceeding. 39
for
the
first
time
in his
McCarty raised these issues
state habeas Application,
reviewing court declined to consider them.
39
40
The
where
the
state habeas
Petition, Docket Entry No. 1, pp. 20, 22.
4
°Findings and Conclusions, Docket Entry No. 20-14, Finding of
Fact No. 22, p. 76.
-13-
corpus court found that these issues were record-based claims that
should have been raised on direct appeal and were, therefore, "not
cognizable" on collateral review.
41
The Texas Court of Criminal
Appeals adopted these findings when it denied relief without a
writ ten order. 42
Under Texas
law habeas corpus review is not available for
matters that could have and "should have been raised on appeal."
Ex
parte
Carter,
521
(citation omitted)
S.W.3d
344,
347
Under this rule,
(Tex.
Crim.
App.
2017)
"' [e] ven a constitutional
claim is forfeited if the applicant had the opportunity to raise
the issue on appeal.
This is because the writ of habeas corpus is
an extraordinary remedy that is available only when there is no
other adequate
remedy at
law.'"
(quoting Ex parte Townsend,
Carter,
137 S.W.3d 79,
521
81
S.W.3d at
(Tex.
347-48
Crim.
App.
2004)) .
The Fifth Circuit has recognized that this procedural rule,
which requires that a petitioner raise any claims based on the
trial record on direct appeal before raising them in a state habeas
petition, is an "'adequate state ground capable of barring federal
habeas review.'"
Cir. 2007)
2004)).
Scheanette v. Quarterman, 482 F.3d 815, 827 (5th
(quoting Busby v. Dretke,
359 F.3d 708,
719
(5th Cir.
Because the state habeas corpus court expressly based its
dismissal on a state procedural rule found adequate to bar federal
41
Id.
42
Action Taken on Application No. WR-87,220-03, Docket Entry
No. 20-10.
-14-
review,
McCarty has procedurally defaulted the issues raised in
Claims Five through Eight.
See Rocha v. Thaler, 626 F.3d 815, 820-
21 (5th Cir. 2010).
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
not demonstrate cause for his default
likewise fails
(1991).
McCarty does
in this case. 43
McCarty
to establish prejudice or that his default will
result in a fundamental miscarriage of justice because he has not
provided the court with evidence that would support a "colorable
Kuhlmann v.
showing of factual
innocence."
2616,
see ,?.lso Schlup v. Delo,
2627
(1995)
habeas
(1986);
Wilson,
106 S.
115 S. Ct.
851,
Ct.
861
(describing actual innocence as a "'gateway through which a
petitioner
constitutional
omitted) .
must
claim
pass
to
considered
Accordingly,
the
court
have
on
the
his
otherwise
merits'")
concludes
that
barred
(citation
Claims
Five
through Eight are procedurally barred.
43
In Claim Three, McCarty contends that he was denied effective
assistance of counsel on direct appeal. Ineffective assistance of
counsel can constitute cause for purposes of excusing a procedural
default.
See Edwards v. Carpenter, 120 S. Ct. 1587, 1591 (2000).
"Not just any deficiency in counsel's performance will do, however;
the assistance must have been so ineffective as to violate the
Federal Constitution." Id.
For reasons discussed in more detail
below, McCarty has not shown that he was denied effective
assistance of counsel on appeal.
Accordingly, this allegation
cannot qualify as cause and does not overcome the procedural bar.
-15-
B.
Alternatively, Claims Five Through Eight Are Without Merit
Even if not procedurally barred, McCarty does not demonstrate
that his defaulted claims have merit.
Although McCarty contends in
Claims Five and Eight that the trial court erred by holding a PSI
hearing or bench trial,
the record shows that McCarty entered a
plea of no contest to the charges against him without an agreed
recommendation from the State as to punishment,
decided pursuant to a PSI. 44
which would be
The trial court explained what this
meant to McCarty during the plea proceeding, advising McCarty that
the court would assess his sentence after reading the PSI Report
and holding a hearing. 45
McCarty acknowledged that he understood
and indicated that he had discussed the process with his defense
counsel, whom he described as "very thorough." 46
The trial court
further explained that because McCarty had entered a plea of no
contest the State would be required to present evidence of his
guilt. 47
McCarty again acknowledged that he understood. 48
Under Texas law "[a] plea of nolo contendere or no contest has
the same legal effect as a plea of guilty except that such plea may
not be used as an admission in any civil suit."
Flores-Alonzo v.
44
Waiver and Agreement, Docket Entry No. 19-19, pp. 57-58;
Admonishments, Docket Entry No. 19-19, pp. 59-62; Court Reporter's
Record, vol. 2, Plea Hearing, Docket Entry No. 20-1.
45
Court Reporter's Record, vol. 2, Plea Hearing, Docket Entry
No. 20-1, p. 5.
46
Id. at 5-6.
-16-
State, 460 S.W.3d 197, 201
(citing
Tex.
Code
Crim.
(Tex. App. -Texarkana 2015, no pet.)
Proc.
art.
27.02(5)).
The
State
is
required to substantiate a no-contest plea by presenting evidence
that "embraces each essential element of the offense charged," but
is not required to prove guilt beyond a reasonable doubt.
at 203
(citations omitted).
See id.
Because the State was required to
present proof of guilt to substantiate the plea, McCarty has not
shown that the trial court erred by holding a PSI hearing that
featured testimony from witnesses and evidence.
To the extent that
denied
the
opportunity
r~cCarty
to
asserts in Claim Seven that he was
cross-examine
witnesses
at
the
PSI
hearing, he expressly waived that right both in writing and in open
court when he entered his plea. 49
The trial court addressed the
written waiver during the plea hearing, confirming that McCarty was
giving up the right to confront and cross-examine witnesses by
pleading no contest,
and McCarty indicated that he understood. 50
The record further reflects that McCarty's defense counsel had an
opportunity to cross-examine each of
testified at the PSI hearing. 51
the State's witnesses who
McCarty does not propose any other
49
Admonishments, Docket Entry No. 19-19, p. 62 ("I waive and
give up my right to a jury in this case and my right to require the
appearance,
confrontation
and
cross-examination
of
the
witnesses."); Court Reporter's Record, vol. 2, Plea Hearing, Docket
Entry No. 20-1, pp. 6-8.
5
°Court Reporter's Record, vol. 2, Plea Hearing, Docket Entry
No. 20-1, pp. 6-8.
51
Court Reporter's Record, vol. 3,
Docket Entry No. 20-2, pp. 14-17, 39-44.
-17-
PSI
Sentencing Hearing,
questions she could have asked or shown that it would have made a
difference in the outcome.
Based on this record/ McCarty does not
show that his right to confront and cross-examine witnesses was
violated.
McCarty/ s
assertion in Claim Six/
in which he claims that
post-arrest statements that he made to law enforcement without the
benefit of counsel were admitted at the PSI hearing in violation of
the
privilege
against
self-incrimination/
also
lacks
merit.
McCarty agreed to have his sentence determined by the trial court
following a PSI hearing when he pled no contest without an agreed
recommendation as to punishment. 52
During his interview for the PSI
McCarty provided little in the way of
inculpatory information/
stating only that he did not remember the shooting because he had
used synthetic marijuana possibly mixed with embalming fluid or PCP
the day before the offense. 53
is
no
requirement
that
a
Texas courts have held that "there
defendant
be warned of
his
right
to
refrain from self-incrimination prior to submitting to a routine/
authorized presentence investigation."
621
624
1
State/
1983
-
(Tex.
App.
652 S.W.2d 519
Tyler 1996
1
519-20
Garcia v. State/ 930 S.W.2d
no pet.)
1
(Tex.
App.
-
(citing Edwards v.
Houston
pet. ref d); Trimmer v. State/ 651 S.W.2d 904
906 (Tex. App.
1
1
Houston
52
53
[1st Dist.]
1983
1
pet.
ref d);
1
1
Stewart v.
Waiver and Agreement/ Docket Entry No. 19-19
PSI Report/ Docket Entry No. 20-3
-18-
1
pp. 8-9
1
[1st Dist.]
1
State/
pp. 57-58.
10-11.
675
S. W. 2d
524,
525
(Tex.
App.
Houston
[14th Dist.]
1983,
pet.
ref' d)); see also United States v. Woods, 907 F.2d 1540, 1543 (5th
Cir.
1990)
(holding that
a
probation officer's
interview of
a
defendant without counsel during a presentence investigation did
not violate the defendant's Fifth or Sixth Amendment rights).
The record shows that McCarty repeated the substance of his
post-arrest statements on the witness stand at the PSI hearing when
he testified on his own behalf. 54
A defendant waives the privilege
against self-incrimination with respect to testimony given when he
voluntarily testifies.
1307,
1311-12
(1999)
See Mitchell v. United States, 119 S. Ct.
(observing that a
witness may not
testify
voluntarily and then invoke the privilege against self-incrimination
when questioned about the details); Harrison v. United States, 88 S.
Ct. 2008,
2010
(1968)
("A defendant who chooses to testify waives
his privilege against compulsory self-incrimination with respect to
the testimony he gives[.]"); Chavez v. State,
508 S.W.2d 384, 386
(Tex. Crim. App. 1974)
(''[A]n accused, taking the stand on his own
behalf,
privilege"
waives
the
(citations omitted); Birdsong v.
App.- Austin 2002, no pet.)
against
State,
self-incrimination.)
82 S.W.3d 538,
543
(Tex.
(citing Brumfield v. State, 445 S.W.2d
732, 735 (Tex. Crim. App. 1969)).
McCarty
does
not
cite
authority
or
provide
any
argument
showing that he is entitled to relief on the allegations he makes
54
Court Reporter's Record, vol.
Docket Entry No. 20-2, pp. 63-81.
-19-
3,
PSI Sentencing Hearing,
in Claims Five through Eight.
emphasized
that
"mere
The Fifth Circuit has repeatedly
conclusory
allegations
constitutional issue in a habeas proceeding."
F.2d 1008, 1012 (5th Cir. 1983)
796, 798 (5th Cir. 1982)
do
not
raise
a
Ross v. Estelle, 694
(citing Schlang v. Heard, 691 F.2d
(collecting cases)).
For these additional
reasons, McCarty is not entitled to relief on Claims Five through
Eight.
C.
McCarty's Plea was Voluntarily and Knowingly Made (Claim Four)
McCarty alleges in Claim Four that his plea of nolo contendere
was involuntarily or unknowingly made because the trial court held
a hearing on the PSI although McCarty did not agree to a hearing. 55
The
Fifth
Circuit
has
observed
that
"because
a
plea
of
nolo
the law
contendere is treated as an admission of guilt,
applicable to a guilty plea is also applicable to a plea of nolo
contendere."
1990)
Carter v. Collins, 918 F.2d 1198, 1200 n.1 (5th Cir.
(citing Hudson v. United States, 47 S. Ct. 127, 129 (1926)
and Norman v. McCotter, 765 F.2d 504, 509-11 (5th Cir 1985)).
It
is well established that "[a] guilty plea will be upheld on habeas
review if entered into knowingly, voluntarily, and intelligently."
Montoya v. Johnson,
226 F.3d 399,
404
Bradshaw v. Stumpf, 125 S. Ct. 2398,
(5th Cir.
2405
2000);
(2005)
see also
("A guilty plea
operates as a waiver of important rights, and is valid only if done
voluntarily,
55
knowingly,
and
intelligently,
Petition, Docket Entry No. 1, p. 7.
-20-
'with
sufficient
awareness of the relevant circumstances and likely consequences. '")
(quoting Brady v. United States, 90S. Ct. 1463, 1469 (1970)).
McCarty's claim was denied on state habeas corpus review,
where the trial court pointed to documents in the record and found
that McCarty was properly admonished orally and in writing of the
consequences
of
his
plea. 56
Because
McCarty
was
properly
admonished, his plea was presumed to have been voluntarily made as
a matter of law. 57
The state habeas corpus court found that McCarty
failed to overcome that presumption because he did not meet his
burden to plead and prove facts showing that his plea was rendered
involuntarily. 58
The
state
habeas
corpus
court
concluded,
therefore, that McCarty was not entitled to habeas relief on this
claim. 59
McCarty has not presented any evidence to rebut the findings
of fact made by the state habeas corpus court, which are presumed
correct on federal
review.
See
28
presumption of correctness found in
U.S.C.
§
§
2254 (e) (1).
2254 (e) (1)
The
is "especially
strong" where, as here, "the state habeas court and the trial court
are one in the same."
)'1ays v. Stephens,
757 F.3d 211,
214
(5th
56
Findings and Conclusions, Docket Entry No. 20-14, Finding of
Fact No. 12, p. 75.
57
Id. at 76, Finding of Fact No. 13 (citing Mitschke v. State,
129 S.W.3d 130, 136 (Tex. Crim. App. 2004))
58
Id. at 7 8, Conclusions of Law Nos. 6, 7, 8, and 9 ( citations
omitted) .
59
Id., Conclusion of Law No. 11.
-21-
Cir. 2014)
2000))
i
(citing Clark v. Johnson,
202 F.3d 760,
764
(5th Cir.
Boyle v. Johnson, 93 F. 3d 180, 186 (5th Cir. 1996)
(citing
May v. Collins, 955 F.2d 299, 314 (5th Cir. 1992)).
In addition,
the state habeas corpus court's
supported by official documents
in the record,
findings are
which include a
waiver form signed by McCarty indicating that he intended to enter
a plea of nolo contendere without an agreed recommendation as to
punishment,
which
would
be
determined
investigation. 60
The
detailed
admonishments,
writ ten
waiver
form
in
is
after
a
accompanied
which
presentence
by
McCarty
a
set
of
specifically
acknowledged that he understood the consequences of his plea and
assured the trial court that it was "freely and voluntarily made." 61
Both of these forms are executed by McCarty, defense counsel, the
prosecutor, and the trial court. 62
The record further confirms that
the trial court discussed the plea,
the waiver form,
and related
admonishments with McCarty, who acknowledged in open court that he
understood the consequences of his decision to plead no contest. 63
McCarty
argues
that
his
signature
and
the
signature on the written admonishment form were
trial
court's
"forged. " 64
60
Waiver and Agreement, Docket Entry No. 19-19, pp. 57-58.
61
He
Admonishments, Docket Entry No. 19-19, p. 62.
62
Waiver and Agreement, Docket Entry No.
Admonishments, Docket Entry No. 19-19, p. 62.
19-19,
p.
58i
63
Court Reporter's Record, vol. 2, Plea Hearing, Docket Entry
No. 20-1, pp. 3-10.
64
Petition, Docket Entry No. 1, p. 7i Petitioner's MSJ, Docket
Entry No. 30, p. 6.
-22-
provides
no
evidence
in
support
otherwise supported by the record.
of
this
claim,
which
is
not
Official court records, such as
the waiver form and written admonishments
executed by McCarty,
defense counsel, the prosecutor, and the trial court, "are entitled
to a presumption of regularity and are accorded great evidentiary
weight"
1079,
on habeas corpu:3 review.
1081-82
(5th Cir.
1985)
Hobbs v.
(citations
Blackburn,
omitted).
752 F. 2d
Likewise,
"[s]olemn declarations in open court carry a strong presumption of
verity."
Blackledge v. Allison, 97 S. Ct. 1621, 1629 (1977); see
also United States v. Cothran, 302 F.3d 279, 283-84 (5th Cir. 2002)
("Reviewing courts give great weight to the defendant's statements
at the plea colloquy."); DeVille v. Whitley, 21 F.3d 654, 659 (5th
Cir. 1994)
("Although their attestations to voluntariness are not
an absolute bar to raising this claim,
Appellants face a heavy
burden in proving that they are entitled to relief because such
testimony in open court carries a strong presumption of verity.").
Representations made by the defendant, his lawyer, and the prosecutor at a plea hearing, as well as the findings made by the trial
judge accepting the plea, constitute a formidable barrier to any
subsequent collateral attack.
See Blackledge, 97 S. Ct. at 1629.
McCarty's allegation that his signature was forged is also
refuted by representations that McCarty made in open court during
the plea hearing,
where McCarty acknowledged that he signed the
waiver form along with the admonishments and that he understood the
-23-
consequences of his plea. 65
McCarty's unsupported allegations are
not sufficient to overcome the presumption of regularity accorded
to the written waiver and admonishment forms or the substantial
barrier imposed by the representations that he made in open court.
See Blackledge, 97 S. Ct. at 1629 (stating that "[t]he subsequent
presentation of conclusory allegations unsupported by specifics" is
inadequate to challenge a defendant's sworn declaration made during
a plea colloquy) .
McCarty has not otherwise demonstrated that his
plea was involuntarily or unknowingly made.
Based on this record
McCarty does not establish that the state habeas corpus court's
decision to deny relief was unreasonable or contrary to clearly
established law.
Accordingly, McCarty is not entitled to relief on
this claim.
D.
McCarty Was Not Denied Effective Assistance by Trial Counsel
In Claim Two McCarty alleges that he was denied effective
assistance of counsel because his trial attorney failed to "raise
all affirmative defenses available" by investigating an "insanity
defense" or seeking his civil commitment on the grounds that he had
ingested "illicit" drugs laced with embalming fluid on the evening
before the offense occurred. 66
McCarty contends that his attorney
should have requested blood tests to prove that he was insane or
65
Court Reporter's Record, vol. 2, Plea Hearing, Docket Entry
No. 20-1, pp. 6-8.
66
Petition, Docket Entry No. 1, pp. 6, 18, 26.
-24-
that
his
mental
intoxicated. 67
state was
compromised as
the
result
of
being
McCarty alleges that his trial attorney improperly
coerced him to "sign his life away" and failed to defend him or
challenge
the
Sentencing
evidence
Hearing. 68
presented by
In
addition,
the
State
McCarty
during
contends
the
PSI
that
his
counsel failed to challenge his "malicious, vindictive, unprofessional prosecution," which he believes was the result of "racial
profiling by the State." 69
Claims for ineffective assistance of counsel are governed by
the standard announced in Strickland v. Washington, 104 S. Ct. 2052
(1984).
To prevail under the Strickland standard a defendant must
demonstrate
(1)
that his counsel's performance was deficient and
(2) that the deficient performance prejudiced the defense.
2064.
"To satisfy the deficient performance prong,
Id. at
'the defendant
must show that counsel's representation fell below an objective
standard of reasonableness.'"
(5th Cir. 2014)
Hoffman v. Cain, 752 F.3d 430, 440
(quoting Strickland, 104 S. Ct. at 2064).
This is
a "highly deferential" inquiry; "[t]here is 'a strong presumption
that counsel's conduct falls within the wide range of reasonable
professional assistance.'"
Id.
(quoting Strickland, 104 S. Ct. at
2065) .
67
Id. at 18.
6sid.
69
§
Motion for Court's Leave to Amend Writ of H/C Title 28 USC
2254, Docket Entry No. 8, p. 2.
-25-
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."
Strickland, 104 S. Ct. at 2068.
The prejudice inquiry
under Strickland is altered in the guilty-plea context, where the
defendant
bears
the
burden of
demonstrating
that
"there
is
a
reasonable probability that, but for counsel's errors, he would not
have pleaded guilty and would have insisted on going to trial."
Hill v.
Moore,
Lockhart,
131 S.
106 S . Ct.
Ct.
733,
743
366,
370
(2011)
(1985);
see also Premo v.
(quoting Lockhart).
petitioner must "affirmatively prove prejudice."
S. Ct. at 2067.
953
allegations
Strickland, 104
A petitioner cannot satisfy the second prong of
Strickland with mere speculation and conjecture.
Whitley,
A habeas
F. 2d
are
100!3,
1012
insufficient
(5th
to
performance or actual prejudice.
Cir.
See Bradford v.
1992) .
demonstrate
Conclusory
either
deficient
See Day v. Quarterman, 566 F.3d
527, 540-41 (5th Cir. 2009)
McCarty's allegations of ineffective assistance against his
trial attorney were rejected on state habeas corpus review.
The
state habeas corpus court found that McCarty failed to "allege or
prove that but for trial counsel's alleged deficient conduct, he
would not have pled guilty and would have insisted on going to
trial." 70
The
state
habeas
corpus
7
court
also
found
that
°Findings and Conclusions, Docket Entry No. 20-14, Finding of
Fact No. 14, p. 76.
-26-
"[McCarty's] conclusory allegation that trial counsel 'coerced' him
into pleading guilty is not sufficient proof to warrant habeas
relief." 71
corpus
therefore,
that
The
state
McCarty
habeas
failed
to
corpus
court
concluded,
establish
objectively
unreasonable performance or actual prejudice as the result of his
attorney's alleged deficiencies and that McCarty was not entitled
to relief on his claim that trial counsel rendered ineffective
assistance. 72
As the state habeas corpus court correctly noted, McCarty does
not
allege
that,
but
for
any
shortcoming
on
the
part
of
his
counsel, he would have pled not guilty and would have insisted on
a trial.
More importantly, McCarty does not establish that his
plea was involuntarily made for reasons outlined above.
Given the
state
and
court
record,
which
contains
representations of voluntariness made
both
written
in open court,
oral
McCarty's
conclusory allegations are insufficient to show that his plea was
coerced by counsel or anyone else.
see also Lee v.
United States,
See Day,
137 S.
Ct.
566 F.3d at 540-41;
1958,
1967
(2017)
(A
reviewing court should not upset a guilty plea "solely because of
post hoc
assertions
from a
defendant
about
how he
would have
pleaded but for his attorney's deficiencies," but "should instead
look to contemporaneous evidence to substantiate a
defendant's
71
Id., Finding of Fact No. 17 (citing Ex parte Empey,
S.W.2d 771, 775 (Tex. Crim. App. 1988)).
72
Id. at 77-78, Conclusions of Law Nos. 1, 2, 3, and 4.
-27-
757
expressed preferences.").
Thus, McCarty fails to show that he was
denied effective assistance of counsel in connection with his plea
or that the state habeas corpus court's decision was unreasonable
in that regard.
Although McCarty makes many other allegations of ineffective
assistance against his trial attorney,
73
the respondent correctly
notes that ineffective-assistance claims and other nonjurisdictional defects unrelated to the validity of a defendant's plea are
waived
by
a
valid
guilty
plea
and
are
consideration on federal habeas review. 74
93
S.
Ct.
1602,
1608
(1973)
("When
therefore
barred
from
See Tollett v. Henderson,
a
criminal
defendant
has
solemnly admitted in open court that he is in fact guilty of the
offense with which he
:Ls charged,
he may not
thereafter raise
independent claims relating to the deprivation of constitutional
rights that occurred prior to the entry of the guilty plea.") ;
Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983)
plea
has
been
entered,
all
nonjurisdictional
(Once a guilty
defects
in
the
proceedings against a defendant are waived, including all claims of
ineffective
assistance
of
counsel
that
do
not
relate
to
the
voluntariness of the guilty plea) .
The respondent also correctly notes
support
his
allegations
of
ineffective
that McCarty does not
assistance
with
73
facts
See Petitioner's MSJ, Docket Entry No. 30, pp. 3-4 (listing
additional issues) .
74
Respondent's MSJ, Docket Entry No. 18, pp. 12-14.
-28-
showing that counsel's performance was constitutionally deficient. 75
The
Fifth Circuit
has
made
clear
that
conclusory
ineffective-
assistance claims of the type made by the petitioner do not merit
federal habeas corpus relief.
F.3d 577,
587
(5th Cir.
See, e.g., Collier v. Cockrell, 300
2002)
('"This Court has made clear that
conclusory allegations of ineffective assistance of counsel do not
raise a constitutional issue in a federal habeas proceeding.'")
(citing Miller v.
Green v.
conclusory
Johnson,
Johnson,
160
allegations
200 F. 3d 274,
F.3d 1029,
in
support
1042
of
282
(5th Cir.
(5th Cir.
a
claim
2000));
1998)
of
("Mere
ineffective
assistance of counsel are insufficient to raise a constitutional
issue.");
Koch v.
Puckett,
907
F.2d
524,
530
(5th Cir.
1990)
(holding that the petitioner's conclusory allegations failed to
establish a valid ineffective assistance of counsel claim) .
After considering all of his allegations, the court concludes
that McCarty has not shown that his counsel had,
raise,
but failed to
a viable defense on his behalf or that the result of his
proceeding would have been different
if
she had.
Under these
circumstances McCarty fails to show that the state habeas corpus
court's decision was unreasonable, and he does not demonstrate that
he is entitled to relief on his claim that he was denied effective
assistance by his trial attorney.
75
Id. at 15-16.
-29-
E.
McCarty Was Not Denied Effective Assistance on Appeal
In Claim Three McCarty contends that he was denied effective
assistance on appeal when his attorney filed an Anders brief. 76
Although the state habeas corpus court did not directly address
this allegation,
McCarty does not allege facts showing that his
claim is meritorious.
To
establish
that
appellate
counsel's
performance
was
deficient in the context of an appeal, the defendant must show that
his attorney was "objectively unreasonable . . . in failing to find
arguable issues to appeal -
that is,
that counsel unreasonably
failed to discover nonfrivolous issues and to file a merits brief
raising
them."
(internal
counsel
Smith v.
Robbins,
citation omit ted)
was
deficient
for
120
(rejecting
filing
an
S.
Ct.
a
claim
Anders
746,
that
brief) .
764
(2000)
appellate
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.
McCarty does not allege any facts showing that his appellate
attorney had, but failed to raise, a nonfrivolous issue during his
direct appeal.
Likewise,
he does not demonstrate that he would
have prevailed or that the result of his appeal would have been any
different if any particular issue had been raised.
76
Petition, Docket Entry No. 1, pp. 6, 18, 26.
-30-
Because he does
not
demonstrate
deficient
performance
or
actual
prejudice
in
connection with his appellate attorney's efforts, McCarty has not
established that he was denied effective assistance of counsel on
direct appeal.
Therefore, he is not entitled to relief on this
issue.
F.
McCarty Waived His Challenge to the Sufficiency
Evidence; Alternatively, the Claim is Without Merit
In
Claim
Nine
McCarty
contends
that
insufficient to support a finding of guilt. 77
the
evidence
the
of
was
McCarty argues that
the State failed to present evidence showing that his fingerprints
were on the firearm or that there was any gunpowder residue on his
person. 78
who
McCarty also argues that the credibility of the witnesses
testified
against
him
at
the
PSI
Sentencing
Hearing
was
waived
any
"questionable. " 79
The
respondent
correctly
notes
that
McCarty
challenge to the sufficiency of the evidence by entering a plea of
no
contest,
in
which
establish his guilt. 80
77
he
stipulated
;See Tollett,
that
the
evidence
would
93 S. Ct. at 1608; see also
Petition, Docket Entry No. 1, p. 24.
7sid.
80
Respondent' s MSJ, Docket Entry No.
shows that McCarty attempted to raise
habeas corpus Application, but that the
because challenges to the sufficiency
cognizable" on collateral review.
See
-31-
18, pp. 12-13.
The record
this claim in his state
trial court denied relief
of the evidence are "not
Findings and Conclusions,
Kelley v. Alabama,
(per curiam)
636 F.2d 1082, 1083-84
(5th Cir. Unit B 1981)
(rejecting a habeas petitioner's attempt to challenge
the sufficiency of the evidence in a guilty plea case)
Moreover,
the record confirms tha.t the State presented ample evidence to
corroborate the plea at the PSI Sentencing Hearing, which showed
that McCarty committed the offense in plain view of the witnesses
who testified against him.
surveillance
video.
82
81
The offense was also captured on
McCarty
does
not
allege
any
facts
undercutting the credibility or reliability of the evidence against
him, which was more than sufficient to substantiate his plea and
the trial court's finding of guilt.
Accordingly, McCarty is not
entitled to relief on this claim.
G.
McCarty's Claim of Error on State Habeas Review
McCarty's only remaining claim
(Claim One)
is that he was
denied due process on state habeas corpus because the reviewing
court "failed to rule correctlyn on his claims. 83
The respondent
notes that this allegation does not articulate a viable claim for
Docket Entry No. 20-14, p. 77 (citing Ex parte Christian, 760
S.W.2d 659, 660 (Tex. Cr:Lm. App. 1988)). Although this appears to
constitute a procedural default, the court does not address this
issue because the claim fails for other reasons stated by the
respondent.
81
Court Reporter's Record, vol.
Docket Entry No. 20-2, pp. 9-44.
82
Video CD, Docket Entry No. 21
18:48:10-35)
83
3,
(DA28 File 20140607184430 at
Petition, Docket Entry No 1, p. 6.
-32-
PSI Sentencing Hearing,
relief on federal habeas review.
84
held
errors
that
"infirmities"
or
The Fifth Circuit has repeatedly
that
occur
during
state
collateral review proceedings "do not constitute grounds for relief
in federal court."
2001)
(quoting Trevino v.
1999))
must
Rudd v. Johnson, 256 F.3d 317, 319 (5th Cir.
Johnson,
(citations omitted)
demonstrate
168 F.3d 173,
180
(5th Cir.
Instead, a habeas corpus petitioner
"constitutional
error at
the
trial
or direct
review level" before a federal court may issue the writ.
Morris v.
Cain, 186 F.3d 581, 585 n.6 (5th Cir. 1999).
so
here.
Accordingly,
this
McCarty has not done
allegation must
be
dismissed
for
failure to state a claim.
Because
McCarty
has
failed
to
establish
that
the
claims
presented in his Petition and supplemental pleadings have merit,
Respondent's MSJ will be granted and Petitioner's MSJ will be
denied.
For reasons outlined briefly below,
none of the other
motions filed by McCarty demonstrate that he has a meritorious
claim for relief.
Therefore, this case will be dismissed.
IV.
A.
Petitioner's Motions
Petitioner's Motion to Supplement the Record
McCarty has
filed a
additional evidence. 85
Motion to Supplement
the Record with
In particular, McCarty requests leave to
submit an affidavit from his sister, Ms. Ruby Robinson, and medical
84
Respondent's MSJ, Docket Entry No. 18, pp. 7-8.
85
Motion to Supplement the Record, Docket Entry No. 29, pp. 1-3.
-33-
records
that show that he was treated at a
local hospital for
abnormal blood pressure due to drug use on June 9, 2014, two days
after the offense occurred on June 7, 2014, but that no blood work
was done to test for the presence of illicit drugs in his system. 86
Federal habeas corpus review is ordinarily "limited to the
record that was before the state court that adjudicated the claim
on the merits."
(2011).
Cullen v.
Pinholster,
131 S.
Ct.
1388,
1398
McCarty provides no explanation for his failure to present
these exhibits in support of his Application for habeas relief in
state court.
The proposed evidence does not otherwise demonstrate
that he is entitled to relief for reasons discussed briefly below.
McCarty provides thirty pages of medical records showing that
he was treated at Ben Taub Hospital, which is operated by Harris
Health
System,
"[d]rug abuse." 87
alcohol,
on June
9,
for
symptoms
associated with
During that treatment McCarty reported "drinking
smoking marijuana,
occurred and
2014,
that
he
lost
and taking PCP"
consciousness
before the offense
until
he
woke
up
the
following day "in the back of a cop car. " 88 McCarty argues that
these medical records are evidence of his mental state on the day
of the offense. 89
86Id.
87
Medical Records
No. 29-1, pp. 3-33.
89
from
Harris
Health
System,
Docket
Entry
Motion to Supplement the Record, Docket Entry No. 29, p. 1.
-34-
In
addition
to
the
medical
records,
McCarty
provides
a
statement from Robinson, dated October 1, 2018, in which she claims
that defense counsel was
reasons:
(1)
"totally inadequate"
for the following
she discounted the fact that McCarty committed the
offense while "under the influence of hallucinegenic [sic] drugs"
because drug use was not a defense to the commission of a crime;
(2)
she did not contact several individuals
Hackney,
Samentrice Young,
(Reverend Kenneth R.
Reverend Carl Jones,
Patricia Mays,
Gloria Jean King, Michael and Sylvia Thomas, and Karl Schmidbauer)
who could have served as character witnesses; and (3) she failed to
conduct an adequate cross-examination of the State's witnesses. 90
To the extent that McCarty contends that the medical records
show that
he was unconscious
on the
statement is refuted by the record.
day of
the
offense,
that
McCarty admitted during his
testimony at the PSI hearing that he remembered events that took
place during the day the offense occurred, but that he could not
recall what happened when the shooting took place, attributing his
lack of recollection to the fact that he had used PCP the night
before.
91
Although McCarty appears to contend that this evidence
demonstrates
that
counsel
failed
to
investigate
or
preserve
evidence of drug usage that affected his mental state, it is well
established
90
in
Texas
that
"'v]oluntary
intoxication
does
not
Statement from Ruby Robinson, Docket Entry No. 29-1, p. 1.
91
Court Reporter's Record, vol.
Docket Entry No. 20-2, pp. 72-74.
-35-
3,
PSI Sentencing Hearing,
constitute a defense to the commission of crime.'"
313 S.W.3d 317,
Code
328
8 . o4 (a) )
§
(Tex.
Thus,
Crim. App.
2010)
Davis v. State,
(quoting Texas Penal
Texas law "bars the use of evidence of
voluntary intoxication to negate the culpable mental state of a
crime."
Id.
at
329
(citations
and
internal
quotation
marks
omitted)
Ruby Robinson's
contention that defense
counsel
failed to
contact character references on McCarty's behalf is also refuted by
the record, which shows that defense counsel presented letters from
Robinson and numerous
indi victuals,
identified (Dorothy Gatson,
including some of those she
Gloria Jordan-King,
Kimberly Dorsey,
Cynthia McCarty, Bernell Russell, Danyelle Dorsey,
Pastor Carl P.
Jones, Charles Robinson, Jr., and Brenda Gatson) in support of the
PSI Report.
92
and
Schmidbauer
Karl
Defense counsel also called Robinson, Patricia Mays,
sentencing hearing.
93
to
testify
in
person
during
McCarty's
McCarty's claim that defense counsel failed
to call these individuals as witnesses is without merit.
To
the
extent
that
defense
counsel
failed
to
contact
or
present testimony from any of the other individuals identified by
Ms.
Robinson,
McCarty
provides
no
statement
from
any
other
potential witness and he does not provide other information about
92
PSI Report, Docket Entry No. 20-3, pp. 22-33.
93
Court Reporter's Record, vol.
Docket Entry No. 20-2, pp. 45-62.
-36-
3,
PSI Sentencing Hearing,
what
they would
have
uncalled witnesses
said
are
if
called
disfavored,
to
testify.
especially
if
"Claims
the
of
claim is
unsupported by evidence indicating the witnesses's willingness to
testify and the substance of the proposed testimony."
Thaler,
601
F.3d 347,
352
(5th Cir.
Quarterman, 496 F.3d 419, 428
2010)
Gregory v.
(citing Harrison v.
(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
a particular defense."
Cir. 2009)
Day v. Quarterman, 566 F.3d 527, 538 (5th
(citations omitted).
Absent a showing that a particular
witness would have offered testimony favorable to the defense, a
petitioner's claim is E:peculative and conclusory,
and does not
demonstrate either deficient performance or resulting prejudice on
his trial counsel's part.
See Sayre v. Anderson, 238 F.3d 631, 636
(5th Cir. 2001).
Robinson's critic ism of defense counsel's cross -examination is
similarly
unsupported
by
performance was deficient.
specific
facts
showing
that
her
Robinson contends that defense counsel
should have challenged the testimony given by Chance Perkins, who
she claims should not have been "treated as a hero," but neither
Robinson
nor
McCarty
propose
any
particular
question
defense
counsel could have asked that would have called his testimony into
-37-
question. 94
Robinson also claims that defense counsel should have
asked the victim's husband, Willie Jones, who saw McCarty shoot his
wife in the head while he was standing inside the gas station, "why
he didn't run out of the store to stop [McCarty]
at any point." 95
McCarty offers no argument showing that the question, if asked and
answered,
would have changed the result in this case.
The mere
allegation of inadequate performance during cross-examination is
conclusory
and
insufficient
to
performance or actual prejudice.
United
States
(unpublished)
counsel's
v.
Irby,
(denying
failure
"to
103
establish
either
deficient
See Day, 566 F.3d at 540 (citing
F.3d
126,
*4
(5th
ineffective
assistance
adequately
cross-examine
Cir.
claim
government witnesses" because petitioner "fail [ed]
a
1996)
based
on
number
of
to set forth
. the possible impact of any additional cross-examination");
Lincecum v. Collins, 958 F.2d 1271, 1279 (5th Cir. 1992)
habeas
relief
where petitioner
conclusory allegations
counsel was
ineffective
"offered nothing more
in his pleadings"
for
(denying
than
the
to support claim that
failing to investigate and present
evidence)).
Because McCarty does not demonstrate that any of the proposed
new evidence would entitle him to prevail, his Motion to Supplement
the Record will be denied.
94
Statement of Ruby Robinson, Docket Entry No. 29-1, p. 1.
9sid.
-38-
B.
Petitioner's Motion for Judicial Notice and Motion to Provide
Supplemental Argument
McCarty has filed a Motion for Judicial Notice and a Motion to
Provide Supplemental Ar•:rument
recent Supreme Court case,
(2018) . 96
regarding the
Wilson v.
applicability of
Sellers,
13 8 S.
Ct.
a
118 8
In Wilson the Supreme Court explained that when the most
recent state court to consider a constitutional issue provides a
"reasoned opinion," a federal habeas corpus court must "review[]
the specific reasons given by the state court and defer[] to those
reasons if they are reasonable."
Id. at 1192.
If the opinion was
made without a written explanation, a federal court should "'look
through' the unexplained decision to the last related state-court
decision" and "presume that the unexplained decision adopted the
same reasoning."
Id.
In other words, federal habeas corpus courts
confronted with an unexplained state court decision "are to 'look
through' the decision to an earlier state court opinion and presume
that the earlier one provides the relevant rationale."
Vannoy,
s.
898
F.3d 561,
S68
(5th Cir.
2018)
Thomas v.
(citing Wilson,
138
Ct . at 119 2) .
To the extent that McCarty asks the court to take notice of
the holding in Wilson and his supplemental briefing, his motions
will be granted.
McCarty does not show, however, that the holding
96
Motion for Judicial Notice, Docket Entry No. 31, pp. 1-4;
Motion to Provide Supplemental Argument, Docket Entry No. 32,
pp. 1-3.
-39-
in Wilson or its application to the state court's decision in this
instance benefits him in any way or makes a difference in this
case.
McCarty's contention that he is entitled to relief under
Wilson, therefore, is without merit.
C.
Petitioner's Motion to Add a New Claim
McCarty has also filed a Motion that requests leave to add a
new
claim,
challengin<:J
Specifically,
a
deficiency
in
his
indictment.
97
McCarty contends that the indictment is defective
because it incorrectly lists his birth date as June 1, 1958, when
his actual date of birth is June 1, 1959. 98
The indictment returned by the grand jury lists McCarty's
birth date
as
"06-01-1959." 99
McCarty does
not
show that
the
indictment contains an error or that he would be entitled to relief
if it did.
The type of error he describes is the sort of non-
jurisdictional defect that is waived by a valid guilty plea.
Cothran, 302 F.3d at 283
apply to defects
in the
See
(noting that "standard waiver principles
indictment")
Cotton, 122 S. Ct. 1781, 1785-86 (2002))
(citing United States v.
Because McCarty does not
establish a valid claim for relief, his Motion to Add a New Claim
will be denied.
97
Motion to Add New Claim, Docket Entry No. 33, p. 1.
9sid.
99
Indictment, Docket Entry No. 19-19, p. 11.
-40-
v.
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 constitutional
right,"
28 U.S. C.
demonstrate
court's
"that
225,3 {c) {2) ,
§
'reasonable
assessment
of
the
which requires a petitioner to
jurists
would
constitutional
find
the
claims
district
debatable
wrong.'"
Tennard v. Dretke, 124 S. Ct. 2562, 2565 {2004)
Slack v.
McDaniel,
controlling
120 S.
standard
this
Ct.
1595,
requires
1604
a
{quoting
Under the
{2000)).
petitioner
to
show
"jurists of reason could disagree with the
[reviewing]
resolution of
that
his
constitutional
claims
or
or
that
court's
jurists
could
conclude the issues presented are adequate to deserve encouragement
Buck v. Davis,
to proceed further."
137 S. Ct.
759,
773
{2017)
{citation and internal quotation marks omitted)
A district court may deny a
certificate of appealability,
sua sponte, without requiring further briefing or argument.
Alexander v.
Johnson,
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 demonstrate that his claims could be resolved
-41-
in a
different manner,
a
certificate of appealability will not
issue in this case.
VI.
Conclusion and Order
The court ORDERS as follows:
1.
Respondent
Lorie
Davis's
Motion
for
Summary
Judgment (Docket Entry No. 18) is GRANTED.
2.
Petitioner James Lawrence McCarty's Motion for
Summary Judgment (Docket Entry No. 30) is DENIED.
3.
McCarty's Motion for Judicial Notice (Docket Entry
No. 31) and Motion to Submit Supplemental Argument
(Docket Entry No. 32) are GRANTED.
4.
McCarty's Motion to Supplement the Record (Docket
Entry No. 29) and Motion to Add a New Claim (Docket
Entry No. 33) are DENIED.
5.
McCarty's 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.
6.
A certificate of appealability is DENIED.
The Clerk shall provide a copy of this Memorandum Opinion and
Order to the parties.
SIGNED at Houston, Texas, on this 23rd day of January, 2019.
UNITED STATES DISTRICT JUDGE
-42-
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