Sanders v. Davis

Filing 22

MEMORANDUM AND OPINION ON DISMISSAL re: 13 MOTION for Discovery, 16 MOTION for Extension of Time to File Objection(s) to the Respondent's Answer, 11 MOTION for Summary Judgment with Brief in Support, 15 MOTION for Discovery. A certificate of appealability is denied. (Signed by Judge Charles Eskridge) Parties notified.(jengonzalez, 4)

United States District Court
Southern District of Texas

ENTERED
March 31, 2021
Nathan Ochsner, Clerk

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DANIEL MORRIS
SANDERS (TDCJ–CID
#02044542),
Petitioner,
vs.
BOBBY LUMPKIN,
Respondent.

§ CIVIL ACTION NO.
§ 4:19-cv-04079
§
§
§
§
§ JUDGE CHARLES ESKRIDGE
§
§
§
§

MEMORANDUM AND OPINION ON DISMISSAL
The motion for summary judgment by Respondent Bobby
Lumpkin is granted. Dkt 11. The motion by Petitioner Daniel
Morris Sanders for partial summary judgment is denied. Dkt 17.
The petition for a writ of habeas corpus brought by Sanders is
dismissed with prejudice. Dkt 1. This dismissal resolves several
other pending motions. See Dkts 13, 15, 16.
1. Background
A jury found Sanders guilty in November 2015 in Cause
Number 1438488 before the 184th Judicial District Court of
Harris County, Texas. The First Court of Appeals summarized
the pertinent factual background (with use of pseudonyms for
the victim and family members) as follows:
Tara’s mother is Daphne White. Her father is
Sanders. White and Sanders were dating when
Tara was born and separated when Tara was
almost one year old. Growing up, Tara mostly
lived with her maternal grandmother . . . and
occasionally lived with her mother. Tara never
lived with Sanders and did not have a close
relationship with him.

At the beginning of Tara’s freshman year of
high school, Sanders and White reunited and
began living together. Tara remained living with
her grandmother, but she visited her parents
during the weekends and holidays, including
Christmas break of 2013. During this visit,
Sanders sexually assaulted Tara twice, once
before Christmas and once between Christmas
and New Year’s.
At the end of the break, Tara returned to her
grandmother and eventually told her what had
happened. Tara’s grandmother took her to the
police station, where Tara provided a statement,
and then to the Children’s Assessment Center,
where Tara received a medical examination
from Dr. Marcella Donaruma, a child-abuse
pediatrician. Dr. Donaruma found that Tara’s
hymen had been “broken” and “torn” and that
Tara’s injury was “consistent” with her account
of the assault because the injury indicated that
there had been “blunt force penetrating trauma
to her vagina.”
Sanders v State, 2017 WL 2806785, *1–2 (Tex App—Houston [1st
Dist] pet refd) (unpublished).
The associated testimony and evidence were of their nature
graphic. The jury heard evidence that Sanders sexually assaulted
his biological daughter, Tara, on the 21st and 28th of December
in 2013. Tara testified that she was then sixteen years of age and
described the events in stark terms. Dkt 12-12 at 17–51. The
latter date was more severe, involving forcible penetration after
Sanders induced her to smoke marijuana.
Shortly after, Tara told what had happened to her
grandmother and a female youth minister. Her grandmother
testified. See id at 92–115. This resulted in investigation by the
Houston Police Department. Officer Randall Kelley is an officer
with the Houston Police Department, Child Sexual Abuse Unit,
Special Victims Division. He was the investigating officer, and he
testified on the details of his investigation, including his ultimate

2

decision that charges be filed against Sanders. Id at 125–39. Susan
Odhiambo is an employee at the Children’s Assessment Center,
and she testified on the forensic interview she conducted with
Tara. Id at 146–57. Tara was also seen shortly thereafter for
medical examination by Dr Donaruma. She testified to observing
trauma, including that as described in the appellate opinion
above. Dkt 12-13 at 13–39.
Five other witnesses who spent considerable time at the
house over that Christmas break also testified as to what they
observed about interactions by Sanders with Tara during that
time. See Dkt 12-13 at 104–17 (mother); id at 75–83 (halfbrother); id at 146–51 (cousin); id at 50–57 (godmother); id at 90–
98 (mother’s godson). And Sanders testified in his own defense.
Id at 159–72.
Upon conviction by the jury, Sanders elected to have the trial
court assess punishment. As part of that proceeding, he pleaded
“true” to prior convictions of (1) felony violation of a protective
order, (2) felony attempted violation of a protective order; (3) two
misdemeanor violations of a protective order, (4) felony burglary
of a habitation, (5) felony theft from a person, (6) misdemeanor
assault on a family member, and (7) misdemeanor possession of
marijuana. Dkt 12-16 at 45–46. The trial court sentenced him to
sixty-five years in prison. Dkt 12-36 at 207.
Sanders appealed, asserting issues of ineffective assistance of
counsel and improper jury argument. The First Court of Appeals
overruled those issues and affirmed his conviction in June 2017.
Sanders, 2017 WL 2806785. Sanders filed a petition for
discretionary review with the Texas Court of Criminal Appeals,
which was refused on October 25, 2017. Sanders v State, No PD0768-17 (Tex Crim App 2017). He then filed a state application
for a writ of habeas corpus. Dkt 12-36 at 7–73. The Texas Court of
Criminal Appeals denied it without written order on August 21,
2019. Dkt 12-32 at 1.
Sanders filed the instant federal petition for a writ of habeas
corpus in October 2019. Dkt 1. He contends that his conviction is
void for several reasons specified further below. But broadly
stated, he asserts three things. First, that the trial judge
improperly commented on the weight of the evidence during

3

voir dire. Second, that his trial counsel was ineffective in a number
of ways. And third, that his appellate counsel was also ineffective
as to the same issues on appeal.
2. Legal standard
Respondent moves for summary judgment, arguing that all
claims by Sanders lack merit and must be dismissed. Dkt 11. He
attached the trial transcript and other state-court records to that
motion. Dkts 12, 12-1 through 12-36. Sanders also moves for
summary judgment in part, asserting entitlement to judgment as
a matter of a law as to his claim for trial-court error, two of five
grounds of his claim for ineffective assistance of trial counsel, and
his claim for ineffective assistance of appellate counsel. Dkt 17
at 2; see also Dkt 1 at 6–7, 9.
Sanders proceeds here pro se. A pro se petition is construed
liberally and isn’t held to the same stringent and rigorous
standards as pleadings filed by lawyers. See Martin v Maxey,
98 F3d 844, 847 n 4 (5th Cir 1996); Bledsue v Johnson, 188 F3d 250,
255 (5th Cir 1999).
AEDPA generally. The Antiterrorism and Effective Death
Penalty Act, 28 USC § 2241 et seq, governs this federal petition
for habeas corpus. See Woodford v Garceau, 538 US 202, 205–08
(2003); Lindh v Murphy, 521 US 320, 335–36 (1997). This has
consequences for the standard of review as to disputed questions
of both law and fact.
Disputed questions of law. AEDPA bars federal habeas corpus
relief based upon claims that were adjudicated on the merits by
state courts unless the decision of the state court “was contrary
to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States,” or “was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.” 28 USC § 2254(d); see also Early v Packer, 537 US 3,
7–8 (2002); Cobb v Thaler, 682 F3d 364, 372–73 (5th Cir 2012).
The Fifth Circuit holds that a state-court decision is 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 based on
materially indistinguishable facts.” Gray v Epps, 616 F3d 436, 439

4

(5th Cir 2010), citing Williams v Taylor, 529 US 362, 404–08
(2002). And the Fifth Circuit holds that an unreasonable application
of federal law means that the decision is “unreasonable, not merely
wrong; even clear error will not suffice.” Escamilla v Stephens,
602 F Appx 939, 941 (5th Cir 2015, per curiam), quoting White v
Woodall, 572 US 415, 419 (2014). This is a high bar. To satisfy it,
a petitioner must “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.”
Woods v Donald, 575 US 312, 316 (2015), quoting Harrington v
Richter, 562 US 86, 103 (2011).
Disputed questions of fact. AEDPA precludes federal relief
unless the merits adjudication by the state court was based on an
“unreasonable determination of the facts in light of the evidence
presented in the state court proceeding.” 28 USC § 2254(d)(2);
see also Martinez v Caldwell, 644 F3d 238, 241–42 (5th Cir 2011).
A state court’s factual determinations are “presumed to be
correct” unless the petitioner rebuts those findings with “clear
and convincing evidence.” 28 USC § 2254(e)(1). This
presumption of correctness extends not only to express factual
findings, but also to implicit or “unarticulated findings which are
necessary to the state court’s conclusion of mixed law and fact.”
Murphy v Davis, 901 F3d 578, 597 (5th Cir 2018), quoting Valdez v
Cockrell, 274 F3d 941, 948 n 11 (5th Cir 2001).
AEDPA and Rule 56. The Fifth Circuit holds, “As a general
principle, Rule 56 of the Federal Rules of Civil Procedure, relating
to summary judgment, applies with equal force in the context of
habeas corpus cases.” Clark v Johnson, 202 F3d 760, 764 (5th Cir
2000). But where Rule 56 and the rules governing habeas corpus
petitions conflict, the latter governs. Austin v Davis, 647 F Appx
477, 483 (5th Cir 2016, per curiam); see also Torres v Thaler, 395 F
Appx 101, 106 n 17 (5th Cir 2010, per curiam) (citations omitted).
As such, the presumption of correctness mandated by
§ 2254(e)(1) “overrides the ordinary summary judgment rule that
all disputed facts must be construed in the light most favorable
to the nonmoving party.” Austin, 647 F Appx at 483 (citation
omitted); cf Anderson v Liberty Lobby, 477 US 242, 255 (1986)

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(stating typical summary-judgment standard in civil cases).
Reasonableness of state court findings. When determining the
reasonableness of the state court’s findings and conclusions, a
federal court on petition for writ of habeas corpus may only
consider the factual record that was before the state court.
Cullen v Pinholster, 563 US 170, 180–81 (2011). And the Supreme
Court instructs that it “may not characterize these state-court
factual determinations as unreasonable ‘merely because [it] would
have reached a different conclusion in the first instance.’”
Brumfield v Cain, 576 US 305, 313–14 (2015), quoting Wood v Allen,
558 US 290, 301 (2010). To the contrary, § 2254(d)(2) requires
the federal court to “accord the state trial court substantial
deference.” Brumfield, 576 US at 314.
Pertinence of state court determinations. An articulated opinion
from a state court has natural pertinence to resolution of disputed
questions of both law and fact on habeas corpus review. But some
state-court decisions reach a conclusion without such
articulation. What then? The Fifth Circuit holds, “When faced
with a silent or ambiguous state habeas decision, the federal court
should ‘look through’ to the last clear state decision on the
matter.” Jackson v Johnson, 194 F3d 641, 651 (5th Cir 1999),
quoting Lott v Hargett, 80 F3d 161, 164 (5th Cir 1996). This is
because a presumption exists that later, unexplained orders
rejecting a federal claim are decided on the same basis as earlier,
reasoned orders resting upon the same ground. Ylst v Nunnemaker,
501 US 797, 803 (1991). This also accords with decisional practice
of the Texas criminal courts. The Texas Court of Criminal
Appeals holds that a statement of denial of a state application for
a writ of habeas corpus without written order signifies an
adjudication that the court below reached the correct ruling on
the merits (as compared to a statement of dismissal, which means
only that the claim was declined on grounds other than the
merits). Ex parte Torres, 943 SW2d 469, 472 (Tex Crim App 1997,
en banc); see also Singleton v Johnson, 178 F3d 381, 384 (5th Cir
1999).
Even so, the state court’s decision will at times be
unaccompanied by explanation, with no level of review having
issued a reasoned opinion. The Supreme Court holds in such

6

situations that “the habeas petitioner’s burden still must be met
by showing there was no reasonable basis for the state court to
deny relief.” Harrington, 562 US at 98; see Salts v Epps, 676 F3d
468, 480 n 46 (5th Cir 2012) (applying Harrington).
Requisite injury arising from error. A petitioner seeking a writ of
habeas corpus must also demonstrate injury of a certain character.
To warrant relief based on state-court error, a petitioner must
show the alleged error had “substantial and injurious effect.”
Brecht v Abrahamson, 507 US 619 (1993); for example, see Hughes v
Quarterman, 530 F3d 336, 345 (5th Cir 2008). This high bar isn’t
met where evidence of the defendant’s guilt is overwhelming.
Burgess v Dretke, 350 F3d 461, 472 (5th Cir 2003). There must be
more than a mere reasonable possibility that it contributed to the
verdict. Brecht, 507 US at 638. But where a court is confident that
the error caused grave harm—or even if the record is evenly
balanced in this regard—the petitioner is entitled to relief. See
Fry v Pliler, 551 US 112 n 3 (2007), citing O’Neal v McAninch, 513
US 432, 435 (1995); see also Robertson v Cain, 324 F3d 297, 305
(5th Cir 2003).
Other limitations. Finally, several other technical or procedural
limitations can foreclose federal habeas corpus relief. For instance,
a federal claim is foreclosed if it is barred because of a failure to
comply with state procedural rules. See Coleman v Thompson,
501 US 722 (1991). It is likewise foreclosed if it seeks retroactive
application of a new rule of law to a conviction that was final
before the rule was announced. See Teague v Lane, 489 US 288
(1989).
3. Analysis
Sanders asserts claims for relief of trial-court error,
ineffective assistance of trial counsel, and ineffective assistance
of appellate counsel.
a. Trial court error
Sanders attacks two statements made by the trial judge to the
venire when empaneling the jury, as described below. Dkt 1 at 6;
Dkt 12-11 at 39. These, he says, violated his rights under the Sixth
and Fourteenth Amendments because they improperly
commented on the weight of the evidence and contravened the
presumption of innocence.

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A trial court plainly must refrain from making any remark
calculated to convey to the jury its opinion of the case. For
example, see Caldwell v Thaler, 770 F Supp 2d 849, 864–65 (SD
Tex 2011), citing Tex Code Crim Proc art 38.05. “A trial judge
may comment on the evidence provided the final decision as to
the guilt or innocence of the defendant is left unequivocally to
the jury’s determination.” United States v Walker, 596 F Appx 302,
318 (5th Cir 2015, per curiam), quoting Thurmond v United States,
377 F2d 448, 451 (5th Cir 1967). “The trial court improperly
comments on the weight of the evidence if it makes a statement
that implies approval of the State’s argument, indicates disbelief
in the defense’s position, or diminishes the credibility of the
defense’s approach to the case.” Dunn v State, 2013 WL 3770917,
*2 (Tex App—Houston [14th Dist] pet refd), citing Simon v State,
203 SW3d 581, 590 (Tex App—Houston [14th Dist] 2006, no
pet). And the trial court must leave intact the presumption of
innocence owed to every defendant. Delo v Lashley, 507 US 272,
278–79 (1993).
Beyond that, the United States Constitution doesn’t establish
or require any particular script that the trial court must follow
with the jury. State trial judges are afforded great discretion in
empaneling a jury and presiding over a trial when reviewed on
federal petition for writ of habeas corpus. United States v Shannon,
21 F3d 77, 82 (5th Cir), cert denied, 513 US 901 (1994). The Fifth
Circuit holds, “Improper comments by a trial judge do not entitle
the defendant to a new trial unless the comments are error that is
substantial and prejudicial to the defendant’s case.” United States v
Wallace, 32 F3d 921, 928 (5th Cir 1994), quoting Ruiz v Estelle,
679 F2d 1115, 1129 (5th Cir), cert denied, 460 US 1042 (1982).
The trial judge addressed the venire during voir dire as follows:
This jury will not determine the punishment if the
defendant is found guilty. In this particular case I will
determine the punishment. Is there anybody who is
troubled by that; who says, Well, if I don’t get
to determine the punishment, I could never find
somebody guilty. Anyone who would have
problems with that? Sometimes the jury does it,

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sometimes the Judge. Anybody have any
questions about it?
Dkt 12-11 at 39 (emphasis added). Sanders maintains that the
italicized portion was a comment on the “weight of the
evidence.” Dkt 1 at 6.
A member of the venire asked why the jury couldn’t assess
punishment. The trial judge responded that she couldn’t answer
at that time, but that she would explain after the trial was over.
Dkt 12-11 at 52–53. Another member of the venire asked shortly
after what the punishment range was. The trial judge responded:
The law does not allow me to discuss that with
you because it’s irrelevant to any finding of guilt
or innocence. So, after the trial, I will be glad to
tell you. And, in fact, I usually I do sentencing right
after the trial. So, some of the jurors might want to stay
and watch the sentencing hearing.
Dkt 12-11 at 55–56 (emphasis added). Sanders argues that the
italicized portion constituted an inference to the venire that “the
trial court knew something of [Sanders]’s guilt that they did not
know . . .” Dkt 1 at 6. He also asserts that the comment “vitiated
the presumption of innocence and jury impartiality adversely
affecting his right to a fair trial.” Ibid.
The Court has made its own review of the record regarding
the challenged statements and the context in which they were
made. These statements occurred during voir dire. This was
necessarily before the jury was empaneled, before any evidence
had been presented, and before it was known whether or not
Sanders would testify. The transcript shows that the trial judge
advised the venire that Sanders wasn’t required to testify. Dkt 1211 at 43. And at the conclusion of all evidence, the charge of the
court stated that the jurors were the exclusive judges of the facts
and the credibility of witnesses. Dkt 12-22 at 85.
The challenged statements also came within a larger
discussion during voir dire itself. Within that context, the trial
judge explained that there are two phases of a trial, with one to
determine guilt or innocence, and another to determine
punishment, if necessary. She described the different standards
of proof and explained that the burden of proof in a criminal case

9

is beyond a reasonable doubt. Dkt 12-11 at 40. And she explained
the presumption of innocence accorded the defendant
throughout trial:
The defendant gets the presumption of
innocence. There are many ways to explain that.
The way that has always worked best for me,
when I see a defendant come into the
courtroom, I see him in like a bubble or space
helmet or something; and that protects him.
That defendant is an innocent person. I know
that you have heard that since you were a kid,
innocent until proven guilty; but it really is a
cornerstone of our system. And so, it’s very
important you be able to give the defendant the
presumption of innocence. And I’m going to
step over here.
Would you stand, please, Mr. Sanders?
So, I’m going to ask everybody to look at him;
and you need to be able to see him as an
innocent person. You don’t have to be able to
see the bubble thing, but you do need to be able
to give him the very important presumption of
innocence. And of course, you haven’t heard
any evidence at all, any testimony. So, he is an
innocent person at this point in time.
Dkt 12-11 at 40–41.
As such, the challenged statements in context weren’t a
comment on the weight of the evidence. They also didn’t
anticipate that the presumption of innocence would be overcome
or impugn that presumption in any way. Rather, these statements
simply reflect an effort by the trial judge to explain the phases of
a jury trial in Texas. She quite clearly specified the presumption
of innocence and accorded it to Sanders.
The Texas Court of Criminal Appeals denied this claim
without written order, meaning it affirmed the decision by the
First Court of Appeals. See Dkt 12-32 at 1; Ex parte Torres,
943 SW2d at 472. Sanders fails to establish, as is his burden, that
the state court’s decision was contrary to clearly established

10

federal law or an objectively unreasonable application of it. 28
USC § 2254(d); Cobb, 682 F3d at 372–73.
Even were error assumed, Sanders hasn’t shown that the
challenged portions of the trial judge’s comments had a
“substantial and injurious effect or influence in determining the
jury’s verdict.” Brecht, 507 US at 623. Indeed, substantial evidence
was presented against Sanders, as summarized above. This
included graphic testimony by Tara of how Sanders sexually
assaulted her twice over Christmas break of 2013. Tara’s
grandmother testified that she had witnessed Sanders wrestling
and touching Tara inappropriately on her breasts and between
her legs prior to that time. Dkt 12-12 at 102. And Dr Donaruma
testified that she examined Tara and saw “blunt force penetrating
trauma to her vagina,” which resulted in an interrupted hymen
consistent with what Tara said happened to her. Dkt 12-13 at 24–
25. As such, Sanders fails to establish that a reasonable
probability exists that the verdict would have been different if the
trial judge hadn’t made the statements about assessing
punishment. This means that any such error was harmless.
Sanders hasn’t shown that he is entitled to relief on this
assertion of error by the trial court as to statements made during
voir dire. The decision by the state appellate court as to trial-court
error also reasonably applied the law to the facts, consistent with
clearly established federal law. As such, Sanders hasn’t shown
that he is entitled to habeas corpus relief on this claim. 28 USC
§ 2254(d)(1).
b. Ineffective assistance of trial counsel
Sanders asserts that his trial counsel was ineffective in a
number of ways. As detailed below, he asserts that his counsel
failed to object and request a mistrial due to the trial judge’s
improper comments; to seek recusal of the trial judge based upon
questionable impartiality; to object to the State’s bolstering of the
veracity of witnesses; to prepare Sanders to testify; and to request
a balancing test for admittance of prior convictions.
Sanders must demonstrate both deficient performance and
ensuing prejudice to establish ineffective assistance by his trial
counsel. See Strickland v Washington, 466 US 668 (1984); see also
Charles v Stephens, 736 F3d 380, 388 (5th Cir 2013). “Both the

11

Strickland standard and the AEDPA standard are highly
deferential, and when the two apply in tandem, review is doubly
so.” Charles, 736 F3d at 389 (internal quotations and citation
omitted); see also Harrington, 562 US at 105.
To establish deficiency, the petitioner must show that the
performance by trial counsel fell below an objective standard of
reasonableness based on “prevailing norms of practice.” Loden v
McCarty, 778 F3d 484, 494 (5th Cir 2016); see also Kitchens v
Johnson, 190 F3d 698, 701 (5th Cir 1999). Courts should be
“highly deferential” to counsel. Strickland, 466 US at 689. This
means that “counsel is strongly presumed to have rendered
adequate assistance and to have made all significant decisions in
the exercise of reasonable professional judgment.” Id at 690. This
is particularly true as to “strategic choices made after thorough
investigation of law and facts relevant to plausible options,”
which are “virtually unchallengeable.” Id at 690–91; see also
United States v Jones, 287 F3d 325, 331 (5th Cir), cert denied,
537 US 1018 (2002). “Strickland does not require deference to
those decisions of counsel that, viewed in light of the facts known
at the time of the purported decision, do not serve any
conceivable strategic purpose.” Moore v Johnson, 194 F3d 586, 615
(5th Cir 1999). But beyond this, the Fifth Circuit describes the
deficient-performance standard as requiring counsel to have
“blundered through trial, attempted to put on an unsupported
defense, abandoned a trial tactic, failed to pursue a reasonable
alternative course, or surrendered his client.” Jones, 287 F3d
at 331.
To establish prejudice, the petitioner must show a reasonable
probability that—absent the deficient performance—the
outcome of the proceedings would have been different. Reed v
Stephens, 739 F3d 753, 773 (5th Cir 2014), quoting Strickland, 466
US at 687. In this context, a reasonable probability is one that is
sufficient to undermine confidence in the outcome of the
proceedings. Strickland, 466 US at 694.
i. Failure to object and request a mistrial
As discussed above, Sanders contends that the trial judge
made improper comments on the weight of the evidence during

12

voir dire. Here, he argues that his counsel was ineffective for failing
to object and request a mistrial as to these statements. Dkt 1 at 7.
It has already been determined that the subject comments
weren’t improper. Assertion about the supposed failures of his
counsel in this regard lacks merit. Counsel can’t be deficient for
failing to press a meritless point. Koch v Puckett, 907 F2d 524, 527
(5th Cir 1990); see also Green v Johnson, 160 F3d 1029, 1036–37
(5th Cir 1998), cert denied, 525 US 1174 (1999), citing Sones v
Hargett, 61 F3d 410, 415 (5th Cir 1995).
Beyond this, Sanders fails to prove that the trial court would
have sustained an objection or granted a mistrial in this regard, if
made or requested. He offers no evidentiary support besides
conclusory allegations.
ii. Failure to seek recusal
Sanders asserts that his counsel was ineffective by failing to
seek recusal of the trial judge on the basis that she was biased
against him. Dkt 1 at 8. Sanders alleges that the trial judge
coached the prosecutor on “what evidence they needed to prove
their case; what evidence they should or should not present; what
evidence the State earlier mentioned that the jury would want to
see, then making erroneous admissibility rulings that benefitted
the State.” Ibid. Sanders further asserts that the case would have
been reassigned to another judge if counsel had sought recusal.
It is incumbent on the petitioner to identify clear grounds of
ineffective assistance. See Clark v Collins, 19 F3d 959, 964 (5th Cir
1994). As to this issue, those grounds are stated under Texas law
at Rule 18b of the Texas Rules of Civil Procedure, which governs
recusal in “any trial court other than a statutory probate court or
justice court.” Tex R Civ Proc 18a(a); for example, see Arnold v
State, 853 SW2d 543, 544 (Tex Crim App 1993, en banc). Sanders
identifies nothing under these rules demonstrating actual or
presumptive bias that could have supported a recusal motion.
Failure to raise a meritless motion isn’t ineffective assistance. See
United States v Gibson, 55 F3d 173, 179 (5th Cir 1995).
Given that Sanders proceeds pro se, the record has
nonetheless been reviewed for discussions that the trial judge had
with the prosecutor and his trial counsel. These include:

13

Discussion whether Tara made an outcry statement
when she was eight years old against her stepfather,
who pleaded guilty to indecency by contact. The trial
judge observed that such evidence wouldn’t
undermine the State’s case, and instead showed that
Tara’s mother was “not very responsible for keeping
her safe.” Dkt 12-12 at 59–60.
o Discussion whether Officer Kelley could testify
about Sanders’s statement that the clothing Tara
wore on the night of the offense was available for
testing. The trial judge identified the pertinent
hearsay rule and sustained the State’s objection. Dkt
12-12 at 141.
o Discussion whether testimony by a specialist in child
protection and forensic pediatrics left a false
impression with the jury that Sanders touched Tara
in one way but not another. The prosecutor was
referring to the fact that Sanders tickled Tara in
addition to other violent touching on a different
date. The trial judge told the prosecutor that she
could clarify that Sanders also touched her when he
tickled her. Dkt 12-13 at 47–48.
None of these demonstrates the sort of obviously prejudicial
comments to which Sanders’s trial counsel should have objected
and sought recusal. Cf Evans v Cockrell, 285 F3d 370, 377 (5th Cir
2002).
The trial judge also expressed skepticism during discussions
with counsel about certain arguments the prosecutor intended to
raise. For instance, the trial judge stated:
THE COURT: Can I—can I make a
suggestion? And, really, I don’t need this on the
record, I guess; but I will put it on because I like
everything on the record. But I think instead of
worrying about some of this simple stuff, the
State would have worried more about their
evidence, you know. I mean, you got some
serious issues on some evidence that was never
explained about. And, you know, I just—just—
o

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I just don’t understand why you put so much
time and energy in trying to get this poetic stuff
into the record, getting him to admit stuff about
the girl’s motive, you know. I think the things
to focus on are diagrams and clothing we don’t
know what happened to. And we get to see all
these pictures of the equipment in the exam, but
we don’t ever see the picture of the hymen after
we heard there was a videotape of it. I’m just
saying—
MR. KEITER: Well, because that would be
highly intrusive and we would not want to do
that to the complainant—I can think of only
one case where we ever exposed some
complainant’s personal, private vaginal area, I
mean, to a jury.
THE COURT: It’s—that’s up to you how you
want to strategize it. But it’s the key evidence in
your case. And the jury knows you can make a
video. So, I’m not telling you how to try your
case; but this is not—this is not what direct and
cross were designed for. I’m just telling you, I
think you need to focus on the important issues
in the case. I’m just letting you know.
Dkt 12-13 at 214–18. Likewise, the trial judge expressed
skepticism during discussion with counsel about whether
Sanders’s prior convictions were a motive to lie, insofar as he
faced a sentence of twenty-five years to life if convicted. Dkt 1213 at 142–43, 157–59, 214–18.
Comments of skepticism such as these don’t amount to
improper coaching. The Supreme Court in California Insurance Co
v Union Compress Co long ago stated:
In the courts of the United States, as in those in
England, from which our practice was derived,
the judge, in submitting a case to a jury, may, at
his discretion, whenever he thinks it necessary
to assist them in arriving at a just conclusion,
comment upon the evidence, call their attention

15

to parts of it which he thinks important, and
express his opinion upon the facts . . . .
133 US 387, 417 (1890) (quotation omitted).
It is thus well-settled that it is “within the prerogative” of a
trial judge “to manage the pace of a trial, to comment on the
evidence, and even to question witnesses and elicit facts not yet
adduced or clarify those previously presented.” For example, see
United States v Reyes, 227 F3d 263, 265 (5th Cir 2000) (quotation
omitted); see also United States v Blevins, 555 F2d 1236, 1240
(5th Cir 1977).
Even so, the trial judge mustn’t give the appearance of
partiality. This curtails the prerogative of the trial judge to
comment, question, and clarify, which determination is made by
examining the record in its entirety. See United States v Cantu,
167 F3d 198, 202 (5th Cir 1999); United States v Munoz, 150 F3d
401, 413 (5th Cir 1998). And in the context of this case, the
comment by the trial judge didn’t have a significant impact on the
jury and didn’t give the appearance of partiality. It was a single
comment within a three-day trial in which eleven witnesses
(including Sanders) testified. For example, see Reyes, 227 F3d at
265–66 (questions favoring government by trial judge to six of
seven witnesses though didn’t have cumulative effect of
depriving defendant of constitutional rights even though
improper in at least two instances); United States v Carpenter,
776 F2d 1291, 1295–96 (5th Cir 1985) (improper comment by
trial court to defense counsel that it still hadn’t heard a defense
not so substantial or prejudicial as to require reversal).
iii. Failure to object to bolstering
Sanders claims that his counsel failed to object to the State’s
bolstering the testimony of two important witnesses, Tara and
her grandmother. Dkt 1 at 8.
The Texas Court of Criminal Appeals has said as to
bolstering that the determination of a witness’s truthfulness is a
task solely for the jury. Yount v State, 872 SW2d 706, 710
(Tex Crim App 1993, en banc). That principle is set down in Texas
Rules of Evidence 608 and 702, which prohibit lay and expert
witnesses from testifying that a particular witness is truthful. See

16

also Schutz v State, 957 SW2d 52, 59 (Tex Crim App 1997, en banc).
Of course, character witnesses may offer opinion or reputation
testimony on the truthful or untruthful character of a witness.
Tex R Evid 608. But they may not testify to the witness’s
truthfulness in the particular allegations. See Tex R Evid
608(a)(1); Schutz, 957 SW2d at 72; Salinas v State, 368 SW3d 550,
555 (Tex App—Houston [14th Dist] 2011), affirmed, Salinas v
Texas, 570 US 178 (2013).
For context, the record reflects that trial counsel in fact
successfully objected on the basis of improper bolstering to
several of the State’s questions. For example:
Q. (BY MS. ASSAAD) When you were
speaking—I’m sorry. When you were listening
to Tara speak with Ms. Odhiambo in the
forensic interview, did you find what Tara said
clear and consistent?
A. Yes, I did.
Q. Did you find what Tara said consistent with
what she had told the other officers?
MR. COYNE: Judge, I object to that. I have a
Motion in Limine which prohibits her from
asking any witness to bolster or speak to the
veracity of any other witness.
THE COURT: Well, of course, you’re alleging
language that was not in the Motion in Limine;
but that’s bound to call for hearsay. So, his
objection would be sustained.
Dkt 12-12 at 136.
Q. So, she was lying when she said that you told
her you would never hurt her?
A. She was fabricating on a lot of stuff when she
sat up here on the stand.
Q. And that was one of the things that she was
lying about?
A. Yes, ma’am.

17

Q. That’s not even a—that’s not even a rude
thing, right?
A. Ma’am?
Q. That’s not even a rude thing to say about
you, is it?
A. What?
Q. That you would never hurt her. Correct?
A. I would never hurt my daughter.
Q. That’s not a mean thing for her to say that
you said to her, right?
A. No. But why would I have to pull my
daughter to the side to say, You know I would
never hurt you?
Q. Well, at that time you knew what you were
going to do to her, right?
A. I would never do anything to my daughter.
Q. So, you know that her saying that—her
explaining that you said that to her makes her
story even more believable, doesn’t it?
A. Ma’am? Say that again?
MR. COYNE: Judge, I’m going to object to the
comment on the veracity of other witnesses.
THE COURT: Sustained.
Dkt 12-13 at 192.
Q. But you’re telling the jury that when Tara
told them what you said to her about angel dust,
she was making that up?
A. Yes, ma’am.
MR. COYNE: Again, Judge, she’s commenting
on the veracity of another witness. Could you
just instruct her not to do that anymore?
THE COURT: Sustained.
Dkt 12-13 at 205.
MS. ASSAAD: And you have a motive to lie,
right?

18

A. No, ma’am.
Q. You don’t think that facing prison is a
motive to lie?
A. Facing prison?
Q. You don’t think that facing a conviction for
sexually assaulting a child is a motive to lie?
A. I believe if you tell the truth, the truth shall
set you free.
Q. Just as Tara said, correct?
A. I guess.
Q. And you’re telling the jury that Tara is lying
because—
MR. COYNE: Judge, again, she is commenting
on the veracity of other witnesses, and I don’t
know how to make her stop.
THE COURT: Sustained.
Dkt 12-13 at 213–214.
Despite this apparent attention to the State’s bolstering,
Sanders asserts three instances where his counsel should have
objected but didn’t. Dkt 1 at 8. One pertains to questioning by
the prosecutor of Officer Kelley:
Q. (BY MS. ASSAAD) Did you speak with [the
grandmother], as well?
A. I did.
Q. And you also said that that is Tara’s
grandmother, right?
A. Correct.
Q. What was her demeanor when you spoke
with her?
A. To me, [the grandmother] is definitely a
spiritual woman. She was definitely -- I
wouldn’t say she was really emotional, but she
was able to provide me with clear and
consistent information. Definitely an excellent

19

woman, and she was very -- very supportive
throughout the investigation.
Q. When Tara was at the CAC, did she also
have a medical examination?
A. She did.
Q. As part of your investigation, do you receive
the results of that medical examination?
A. We did.
Q. Did you also speak with [a witness], the
outcry witness in this case?
A. I did.
Q. Did -- what was her demeanor when you
spoke with her?
A. I would say the same. She was definitely -appeared to be a spiritual woman. And based on
the information she provided, it was consistent
with the forensic interview, as well.
Dkt 12-12 at 137–38.
Another pertains to questioning by the prosecutor of
Sanders himself:
Q. And [the grandmother] is the person who
you saw come here and testify, right?
A. Yes, ma’am.
Q. Tara’s grandmother?
A. Yes, ma’am.
Q. You spent a lot of time with [the
grandmother], right?
A. Who me?
Q. Yes.
A. No.
Q. You haven’t?
A. I spent a few times here and there, but we
never just spent a whole like a lot of time like
that.

20

Q. So, you have only been with [the
grandmother] a few times?
A. Yes, ma’am.
Q. And that’s your daughter’s grandmother,
right?
A. Yes, ma’am.
Q. That’s who your daughter -A. I never -- I’m sorry.
Q. That’s who your daughter lives with?
A. Yes, ma’am.
Q. Do you think that [the grandmother] is a
good person?
A. Yes, she a good person.
Q. Do you think she has done a good job of
raising Tara?
A. She had a hand in it.
Q. She had Tara since Tara was 3 weeks old,
right?
A. No, no. No, ma’am.
Q. Have you ever had Tara in your custody?
A. Well, me and her mother used to stay
together.
Q. For just a year, right?
A. Yes, ma’am.
Q. You think Tara is a good kid, right?
A. She is an awesome kid.
Q. You really proud of her, right?
A. Yes, ma’am.
Dkt 12-13 at 175–76.
Neither of those exchanges involve bolstering questions.
Nowhere does the prosecutor ask questions pertaining to the
truthfulness of a witness in that particular occasion. United States v
Taylor, 210 F3d 311, 318–319 (5th Cir 2000). To the contrary, the
questions pertain to the two witnesses’ general demeanor and

21

consistency, which is legitimate inquiry. United States v Aguilar,
645 F3d 319, 323 (5th Cir 2011).
The third instance also pertained to questioning of Sanders.
Dkt 12-13 at 213–14. But trial counsel there successfully objected
as to bolstering, mooting an ineffectiveness claim. And it wasn’t
a bolstering question in any event.
None of this shows that the performance by trial counsel fell
below objective standards of reasonableness. But even assuming
these instances showed deficient performance in failing to object
to bolstering questions, Sanders hasn’t shown prejudice. That is,
he hasn’t shown there is a reasonable probability that the result
would have been otherwise if his counsel successfully objected to
a few largely insignificant questions. The Fifth Circuit holds that
an ineffectiveness claim may be disposed of solely on the basis of
inability to demonstrate prejudice. See Mays v Stephens, 757 F3d
211, 215 (5th Cir 2014).
iv. Failure to prepare Sanders to testify
Sanders alleges that his counsel failed to properly prepare
him to testify. Dkt 1 at 9. He asserts that counsel didn’t let him
review his prior recorded statements made to law enforcement.
That testimony, Sanders says, contradicted the entirety of the
State’s case. Ibid.
Trial counsel has “wide latitude in deciding how best to
represent a client.” Yarborough v Gentry, 540 US 1, 5–6 (2003).
“When counsel focuses on some issues to the exclusion of others,
there is a strong presumption that he did so for tactical reasons
rather than through sheer neglect.” Id at 8. Indeed, counsel’s
strategic choices, made after a thorough investigation of the law
and facts relevant to plausible options, are virtually
unchallengeable. Strickland, 466 US at 673; Pape v Thaler, 645 F3d
281, 289–90 (5th Cir 2011). “A conscious and informed decision
on trial tactics and strategy cannot be the basis for
constitutionally ineffective assistance of counsel unless it is so ill
chosen that it permeates the entire trial with obvious unfairness.”
Cotton v Cockrell, 343 F3d 746, 752–53 (5th Cir 2003).
On federal habeas review, this Court is mindful that
“Strickland does not allow second guessing of trial strategy and
must be applied with keen awareness that this is an after-the-fact

22

inquiry.” Granados v Quarterman, 455 F3d 529, 534 (5th Cir 2006).
In other words, simply because counsel’s strategy was not
successful does not mean counsel’s performance was deficient.
Avila v Quarterman, 560 F3d 299, 314 (5th Cir 2009).
In Garza v Stephens, 575 F Appx 404 (5th Cir 2014, per curiam),
the Fifth Circuit found that trial counsel appeared to have acted
reasonably in advising him not to testify. The Fifth Circuit noted
that Garza would be exposed to cross-examination and a far
wider inquiry into his past behavior, coupled with the fact that
trial counsel believed Garza’s testifying would waive two viable
errors on appeal. “Indeed, given the severe potential problems
that Garza’s choosing to testify would have raised, we cannot say
that his trial counsel was unreasonable even in failing to prepare
him for that ill-advised testimony.” Id at 413.
Assuming trial counsel failed to fully prepare Sanders to
testify, Sanders only argues that Sanders would have been more
effective if he had been better prepared, which does not come
close to suggesting that “but for counsel’s errors, the result of the
proceeding would have been different.” Coble v Quarterman,
496 F3d 430, 436 (5th Cir 2007).
Sanders fails to demonstrate that trial counsel’s strategy was
ill-chosen. To the contrary, the record indicates that counsel
advised Sanders not to testify because it would open the door to
Sanders’s prior convictions. Counsel made the informed strategic
decision not to call Sanders to testify, but Sanders insisted on
taking the stand and providing his own account of events.
Sanders denied that he sexually assaulted Tara and claimed he was
never alone in his bedroom with her over the Christmas break.
Dkt 12-13 at 160, 169, 207. Sanders claimed Tara falsely accused
him of committing the offenses in retaliation for his attempt to
discipline her. Id at 160–161.
On cross-examination, the prosecutor questioned Sanders
about his lengthy criminal history, including several convictions
for violating protective orders. Dkt 12-13 at 208–10. The
prosecutor asked Sanders if he remembered the events over
Christmas break of 2013; if his various medications for bipolar
disorder and seizures affected his memory; whether the side
effects of the medications he was taking on a daily basis

23

prevented him from realizing that Tara was in his bed rather than
his wife; how he was able to remember the television program his
wife was watching on the night of the assault, but he could not
remember that Tara was in the bed; whether he became upset
with Tara when she talked to other boys; whether he searched
Tara’s phone to monitor if she was talking to other boys; whether
he was surprised by Tara’s physical maturity; whether he thought
Tara was jealous when she saw Sanders kiss Tara’s mother;
whether he wanted to prepare Tara for the real world by exposing
her to drugs and sex; and whether he wrestled with Tara. Dkt 1213 at 178–81.
Sanders testified on cross that he “might not remember all—
the statements that I made with Officer Kelley, but quite a few
statements that I have made with Officer Kelley.” Dkt 12-13
at 186. The prosecutor then asked Sanders if he told the officer
the truth, to which he replied that he did “try to.” Ibid. Sanders
was then asked if he was “trying to tell the jury the truth” at that
moment, to which he replied, “Yes, ma’am.” Ibid. The following
exchange then took place:
Q. And you now recall that you previously
stated that you wrestled with Tara?
A. Yes, ma’am.
Q. And that you touched her legs when you did
that, right?
A. Ma’am?
Q. You recall that you touched her legs when
you wrestled with her, right?
A. Yes, ma’am.
Q. And you now recall that you stated regarding
the second incident the second day that Tara
took a shower in your room that day, right?
A. Yes, ma’am.
Q. And you now recall that you stated that Tara
was always in your bed, correct?
A. Yes.
MS. ASSAAD: No further questions.

24

Sanders’s counsel then conducted the following redirect
examination:
Q. (BY MR. COYNE) Mr. Sanders, how did
you come to recall these statements that you
made earlier?
A. Because I watched the video of the interview
that me and Officer Kelley had at the CAC.
Q. Okay. And how long ago was that interview
taken? Do you remember?
A. I want to say in 2013.
Q. Okay. Almost two years ago?
A. Yes, sir.
Q. And do you recall it pretty vividly or not so
much?
A. Not so much.
Q. Why is that?
A. Because I have epilepsy. I have seizures and
I take a lot of meds. And I was on some
medication when I told him.
Q. And did you tell the officer that at the time?
A. Yes, sir.
Q. You were—you specifically told him you
were on medication?
A. I specificall—
MS. ASSAAD: Calls for hearsay, Your Honor,
objection.
THE COURT: Are you referring to during the
statement?
MR. COYNE: Yes, Your Honor.
THE COURT: Overruled.
A. Yes, sir.
Q. (BY MR. COYNE) And that was made clear
to the officer, correct?

25

A. Yes, that I was on medication.
Dkt 12-14 at 6–7.
Sanders argues that he wouldn’t have contradicted himself if
he were better prepared. But even if his counsel had allowed
Sanders to review his taped statement to Officer Kelley, he
doesn’t establish that he wouldn’t have contradicted himself
during his testimony.
On the other hand, the record does establish that trial
counsel advised Sanders not to take the stand. Dkt 12-13 at 153–
54. And the primary strategy of trial counsel remained intact,
seeking to attack Tara’s credibility. For instance, he tried to
discredit her by asking why she didn’t immediately make an
outcry when so many family members were in the apartment at
the time; by asking how it was possible for Sanders to have
sexually assaulted Tara while a family friend was in the bed; by
questioning her on supposition that she didn’t want her parents
to get back together; and by questioning her about making up the
sexual assault to retaliate against Sanders after he disciplined her
with a belt. Dkt 12-12 at 71–84.
To the contrary, as already summarized, the jury was
presented an array of graphic testimony and evidence supportive
of Sanders’s guilt. In that sense, it simply can’t be said that it is
reasonably likely that the trial result would have been different if
his trial counsel had prepared him differently to testify.
v. Failure to request a balancing test
Sanders contends that his counsel rendered ineffective
assistance when he failed to request a balancing test for admitting
Sanders’s prior convictions. Dkt 1 at 9.
The record shows that Sanders was advised by his counsel
that the prosecution would introduce his many prior convictions.
Sanders voiced his understanding but testified anyway. Dkt 1213 at 154. Several of his prior convictions were then introduced
to impeach him, including attempted violation of a protective
order, multiple violations of a protective order, and assault on a
family member. Id at 208–10.
Rule 609(a) of the Texas Rules of Evidence allows admission
of prior convictions to impeach the credibility of a witness absent

26

unfair prejudice that outweighs probative value of convictions.
Subsection (c) also provides:
(c) In General. Evidence of a criminal
conviction offered to attack a witness’s
character for truthfulness must be admitted if:
(1) the crime was a felony or involved moral
turpitude, regardless of punishment;
(2) the probative value of the evidence
outweighs its prejudicial effect to a party; and
(3) it is elicited from the witness or established
by public record.
The prior convictions used to impeach Sanders were
admissible under this rule. Indeed, he admitted that he had
several convictions for violating protective orders for his ex-wife.
The prior convictions involved felonies or crimes of moral
turpitude—while also relating directly to why Tara believed she
was unable to report the crime immediately. Dkt 12-12 at 32, 54,
77. It is well-established that such convictions are probative of
truthfulness, and they are not unduly prejudicial. Morrow v Dretke,
99 F Appx 505, 511–12 (5th Cir 2004, per curiam), citing Theus v
State, 845 SW2d 874, 877 n 1 (Tex Crim App 1992, en banc). And
they were elicited from Sanders. As such, the trial judge was
required to admit them.
Sanders fails to explain a basis upon which the trial judge
would have determined that these prior convictions weren’t
admissible for purposes of impeaching his credibility during the
guilt/innocence stage. Rather, it appears that objection by his trial
counsel would have been futile. As such, he can’t show deficiency
for failing to object or make a frivolous motion. Roberts v Thaler,
681 F3d 597, 611 (5th Cir 2012).
Nor can he show prejudice. In actuality, the harm of which
Sanders complains derives from the fact that his prior
convictions impeached his credibility—the very purpose for
which such evidence may be admitted. He points to no other
undue prejudice that the convictions purportedly engendered.
Sanders appears to assert that the trial judge stated that she
would have excluded the evidence if requested. Dkt 1 at 9. But

27

he cites only a statement that she “never did make a ruling as to
whether or not his priors were more probative and prejudicial
because nobody ever asked for that ruling.” Dkt 12-13 at 214.
That in no way indicates that the ruling would have been
favorable to Sanders. To the contrary, the evidence shows that
such motion would quite likely have been unfavorable to him.
vi. Conclusion as to assistance of trial counsel
As to each of the foregoing assertions, Sanders hasn’t shown
that the performance by his trial counsel was deficient or that he
was actually prejudiced as a result. Strickland v Washington, 466 US
668 (1984). The Texas Court of Criminal Appeals also denied this
claim for ineffective assistance without written order, meaning it
affirmed the decision by the First Court of Appeals. See Dkt 1232 at 1; Ex parte Torres, 943 SW2d at 472. Sanders fails to establish
(as is his burden) that the state court’s decision was contrary to
clearly established federal law or an objectively unreasonable
application of it. 28 USC § 2254(d); Cobb, 682 F3d at 372–73. As
such, Sanders hasn’t shown that he is entitled to habeas corpus relief
on this claim. 28 USC § 2254(d)(1).
c. Ineffective assistance of appellate counsel
Sanders argues that his appellate counsel was ineffective for
reasons related to the above assertions as to ineffective assistance
of trial counsel. See Dkt 1 at 6–9.
A criminal defendant is constitutionally entitled to effective
assistance of appellate counsel when he has a right to appeal
under state law. Evitts v Lucey, 469 US 387 (1985); United States v
Phillips, 210 F3d 345, 348 (5th Cir 2000). The Strickland standard
applies to complaints about the performance of counsel on
appeal. See Smith v Robbins, 528 US 259, 285 (2000). And so to
obtain relief, Sanders must demonstrate that appellate counsel’s
conduct was objectively unreasonable under then-current legal
standards, and that there is a reasonable probability that, but for
the deficient performance, the outcome on appeal would have
been different. See Smith, 528 US at 285; Higgins v Cain, 720 F3d
255, 260–61 (5th Cir 2015).
Appellate counsel who files a merits brief needn’t and
shouldn’t raise every nonfrivolous claim. Such counsel may
instead select from among available arguments in order to

28

maximize the likelihood of success on appeal. Smith, 528 US
at 288; Jones v Barnes, 463 US 745, 751 (1983). The process of
winnowing out weaker arguments on appeal and focusing on
those more likely to prevail is the hallmark of effective appellate
advocacy. Smith v Murray, 477 US 527, 536 (1986); Jones, 463 US
at 751–52. Moreover, the Supreme Court instructs in this regard
that appellate arguments that assertedly should have been raised
are considered by comparison to arguments that were raised.
Declining to raise a claim on appeal isn’t deficient performance
unless that claim was plainly stronger than those actually
presented to the appellate court. See Davila v Davis, 137 S Ct 2058,
2067 (2017); Smith, 528 US at 288.
Sanders again contends that the trial judge improperly
commented on the weight of the evidence during voir dire, which
he says vitiated the presumption of innocence and jury
impartiality. He argues here that appellate counsel rendered
ineffective assistance because she failed to raise this claim as one
of fundamental error. Dkt 1 at 6. It has already been determined
above that the subject comments weren’t improper. Assertion
about supposed failures by his trial counsel in this regard lacks
merit. Counsel can’t be deficient for failing to press a frivolous
point. Koch v Puckett, 907 F2d 524, 527 (5th Cir 1990); Green v
Johnson, 160 F3d 1029, 1036–37 (5th Cir 1998), cert denied,
525 US 1174 (1999), citing Sones v Hargett, 61 F3d 410, 415
(5th Cir 1995). Where the grounds underlying alleged errors by
appellate counsel are found to lack merit, failure to pursue
appellate relief on those bases doesn’t constitute ineffective
assistance of counsel. Styron v Johnson, 262 F3d 438, 449 (5th Cir
2001). More precisely, no prejudice can be shown where the
reliability of the result on appeal necessarily hasn’t been
undermined.
Sanders also argues that his appellate counsel should have
argued that the trial court erred in denying the motion for new
trial based on the failure of trial counsel to object to the allegedimproper comment by the trial judge. Again, it has already been
established that no improper comment occurred.
Beyond this, appellate counsel did indeed argue for a new
trial based on ineffective assistance of trial counsel—although

29

basing it on argument that trial counsel was ineffective in failing
to investigate and present mitigation evidence. Dkt 12-17 at 7. In
particular, appellate counsel argued that Sanders received
ineffective assistance of counsel as to “trial counsel’s failure to
investigate Sanders’ mental health history and did not contact
witnesses who were willing and able to testify regarding Sanders’
positive character traits.” Id at 15. Appellate counsel also
presented the argument that the trial court abused its discretion
in overruling trial counsel’s objection to an improper comment
made by the State during closing argument and in sustaining his
objection to but failing to instruct the jury to disregard another
such improper comment. Id at 7. These were strategic decisions
on appeal, raising arguments apparently thought more likely to
succeed. The constitutional complaint by Sanders now—that
appellate counsel failed to raise other and different claims—
doesn’t show plainly stronger appellate arguments than those
actually raised on direct appeal. Indeed, while ultimately
determined to be without merit, those points of error on direct
appeal were at least as strong (if not stronger) than the failures he
now asserts. Not presenting them wasn’t deficient performance,
where the arguments weren’t plainly stronger than those actually
presented. See Davila, 137 S Ct at 2067; Smith, 528 US at 288.
As to each of the foregoing assertions, Sanders hasn’t shown
that the performance by his appellate counsel was deficient or
that he was actually prejudiced as a result. Strickland v Washington,
466 US 668 (1984). The Texas Court of Criminal Appeals also
denied this claim for ineffective assistance of appellate counsel
without written order, meaning it affirmed the decision by the
First Court of Appeals. See Dkt 12-32 at 1; Ex parte Torres, 943
SW2d at 472. Sanders fails to establish (as is his burden) that the
state court’s decision was contrary to clearly established federal
law or an objectively unreasonable application of it. 28 USC
§ 2254(d); Cobb, 682 F3d at 372–73. As such, Sanders hasn’t
shown that he is entitled to habeas corpus relief on this claim.
28 USC § 2254(d)(1).
4. 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

30

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 USC § 2253(c)(2). This requires a petitioner to demonstrate
“that reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong.” Slack v
McDaniel, 529 US 473, 484 (2000). Where the court denies relief
based on procedural grounds, the petitioner must show that
“jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right,” and
that they “would find it debatable whether the district court was
correct in its procedural ruling.” Ibid.
The Court finds that reasonable jurists wouldn’t find this
Court’s assessment of the constitutional claims debatable or
wrong. As such, Sanders hasn’t made the necessary showing to
obtain a certificate of appealability.
A certificate of appealability will be denied.
5. Conclusion
The pleadings and state court records show that the federal
petition for a writ of habeas corpus brought by Petitioner Daniel
Morris Sanders lacks merit.
The motion by Respondent Bobby Lumpkin for summary
judgment is GRANTED. Dkt 11.
The motion by Sanders for partial summary judgment is
DENIED. Dkt 17.
The petition by Sanders for a writ of habeas corpus is DENIED.
Dkt 1.
Sanders’s pleadings are replete with references to the trial
transcript. His motions for discovery and production of summary
judgment evidence are DENIED. Dkts 13, 15.
His motion for extension of time to respond is GRANTED
nunc pro tunc. Dkt 16.
Any other pending motions are DENIED AS MOOT.
This case is DISMISSED WITH PREJUDICE.
A certificate of appealability is DENIED.

31

SO ORDERED.
Signed on March 31, 2021 , at Houston, Texas.

________________________
Hon. Charles Eskridge
United States District Judge

32