Dodson v. Thaler

Filing 28

REPORT AND RECOMMENDATIONS re 2 Petition for Writ of Habeas Corpus filed by Verten Dodson, III. It is RECOMMENDED that Dodson's application for writ of habeas corpus be denied. Signed by Judge Robert Pitman. (dm, )

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
VERTEN DODSON III,
Petitioner,
v.
RICK THALER, Director,
Texas Department of
Criminal Justice–Correctional
Institutions Division,
Respondent.

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A-10-CA-099-LY

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE LEE YEAKEL, UNITED STATES DISTRICT JUDGE
The Magistrate Judge submits this Report and Recommendation to the District Court

pursuant to 28 U.S.C. § 636(b) and Rule 1(e) of Appendix C of the Local Court Rules of the United
States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to
United States Magistrates, as amended, effective December 1, 2002.
Before the Court are Petitioner Verten Dodson III’s Petition for Writ of Habeas Corpus,
including attached citations and arguments (Document 2),1 Answer with Brief in Support of
Respondent, Rick Thaler, Director of the Texas Department of Criminal Justice, Correctional
Institutions Division (Document 27), and Respondent’s Original Answer with Brief in Support
(Document 11).2 Dodson, proceeding pro se, has been granted leave to proceed in forma pauperis.
1

2

Citations to “Attach. at [#]” refer to the arguments attached to Dodson’s petition.

This Court previously denied Dodson’s habeas petition. See Order & Final J. (Aug. 25,
2010) (Documents 15, 16). On appeal, the Fifth Circuit Court of Appeals denied and granted in part
a Certificate of Appealability, and vacated and remanded this Court’s judgment in part for further
proceedings. See Dodson v. Thaler, No. 10-50933, 2011 WL 1496963 (5th Cir. Apr. 19,
2011). Following remand, the Director filed a supplemental answer pursuant to order by this Court.
See Order (May 12, 2011) (Document 24).

See Order (Feb. 11, 2010) (granting IFP status) (Document 5). For the reasons set forth below, the
undersigned finds that Dodson’s application for writ of habeas corpus should be denied.
STATEMENT OF THE CASE
I.

PROCEDURAL HISTORY
According to Respondent, the Director has lawful and valid custody of Dodson pursuant to

a judgment and sentence of the 299th Judicial District Court of Travis County, Texas, in Cause No.
D-1-DC-07-300805. Ex parte Dodson, Application No. 72,525-01, at 17-18.3 Dodson was charged
with murder, to which he entered a plea of not guilty. Id. On January 28, 2008, a jury found Dodson
guilty as charged and the court assessed punishment at 30 years imprisonment. Id. at 4-14, 17-18.
The Third Court of Appeals of Texas rejected Dodson’s sole argument on appeal, that the
trial evidence was factually insufficient to support the jury’s verdict in light of evidence indicating
that Dodson acted in self-defense. Dodson v. State, No. 03-08-00108-CR, 2008 WL 4823178 (Tex.
App.–Austin Nov. 7, 2008, no pet.). Dodson did not file a petition for discretionary review after his
conviction was affirmed. See Orig. Answer Ex. A.
On July 20, 2009, Dodson filed a state application for writ of habeas corpus challenging his
conviction on the basis of factual insufficiency. Ex parte Dodson, Appl. No. 72,525-01, at 38, 49.
On September 30, 2009, the Texas Court of Criminal Appeals denied the application without written
order. Id. at cover. Prior to the denial of his state habeas petition, Dodson filed a second application
for habeas corpus relief on September 21, 2009, challenging his conviction on the basis of various
ineffective-assistance-of-counsel grounds. Ex parte Dodson, Appl. No. 72,525-02, at 2-11, 19. The
3

Citations to pleadings and documents in the state-court habeas record appear as Ex parte
Dodson, Application No. 72,525-01 or 72,525-02, followed by a page number. [#] R.R. at [#]
indicates citation to a particular volume of the Reporter’s Record in the trial court.
2

Texas Court of Criminal Appeals denied that application as well, without written order on the
findings of trial court without hearing. Id. at cover; see also id. at 19 (trial court fact findings and
recommendation).
Dodson filed a federal habeas petition on January 20, 2010. Pet. at 9. On August 25, 2010,
this Court dismissed Dodson’s petition with prejudice on the basis that Dodson’s claim of factual
sufficiency was not cognizable under 28 U.S.C. § 2254 and that his remaining claims were
procedurally barred due to his failure to exhaust them. See Final J. (Aug. 25, 2010); Order (Aug. 25,
2010) (accepting report and recommendation and denying COA); Dodson v. Thaler, No.
10-CA-099-LY, 2010 WL 3211395 (W.D. Tex. Aug. 11, 2010) (report and recommendation).
Dodson subsequently appealed to the Fifth Circuit Court of Appeals, seeking a Certificate
of Appealability to appeal this Court’s dismissal of his petition. On appeal, the Fifth Circuit denied
and granted in part a COA, and vacated and remanded this Court’s judgment in part for further
proceedings. See Dodson v. Thaler, No. 10-50933, 2011 WL 1496963 (5th Cir. Apr. 19, 2011).
More specifically, the Fifth Circuit held that Dodson failed to adequately brief his challenge to this
Court’s determination that a factual-sufficiency-of-the-evidence claim was not cognizable, and he
failed to show that reasonable jurists would find it debatable whether this Court’s procedural rulings
were correct with regard to his claims that he was denied a fair trial, that his trial counsel was
ineffective on the subject of toxicology, and his trial counsel was ineffective for failing to move for
a mistrial. Id. at *1. Accordingly, the court denied a COA with respect to those claims. The Fifth
Circuit also decided that Dodson may have indeed exhausted his claim regarding his trial transcript
by submitting a motion in state court separate from his habeas petition, but determined that
reasonable jurists could not debate whether Dodson made a valid constitutional claim on this point
3

and denied a COA. Id. After concluding that reasonable jurists would find it debatable whether this
Court correctly decided that Dodson failed to exhaust his claim that his trial counsel was ineffective
for failing to investigate a life insurance policy that the victim had allegedly taken out on Dodson’s
life and to present a life insurance company representative as a defense witness, the court did grant
a COA on this claim. Id. at *2. The court accordingly vacated this Court’s judgment with respect
to this single claim and remanded for further proceedings. Id.
II.

FACTUAL BACKGROUND
The court of appeals summarized the evidence presented as follows:
Around noon on April 7, 2007, Dodson, his friend Raul Olalde, and Betty
Olalde–Raul’s mother and Dodson’s girlfriend–were driving through a residential
neighborhood in north Austin. As they approached the intersection of Hunter’s
Chase and Colony Creek, Dodson shot Raul Olalde in the back. After the shooting,
Betty Olalde stopped the car in the middle of the road. According to eye witnesses
in an oncoming car, Raul exited the front passenger seat and walked over to the
sidewalk before collapsing on the ground. Betty then stepped out of the driver’s seat,
screaming and hysterical. A few seconds later, Dodson climbed out of the back seat,
walked calmly away from the car, glanced back at Raul, slipped through a gap in the
fence, and walked away along a creek bed. A man who came upon the scene shortly
thereafter administered CPR to Raul and emergency personnel were called. Raul was
taken to a local hospital, where he was pronounced dead on arrival.
The events immediately prior to the shooting are largely disputed. Betty Olalde
testified that as they were driving, Raul asked Dodson if there was any crack in the
car for Raul to smoke. Dodson indicated that there was a rock of crack in the console
between the front seats. According to Betty, Raul then looked for a soda can he
could use to smoke the crack and as he lit it and began to smoke, Dodson shot Raul.1
FN1. The crime scene photographs of the car show a soda can on the
floorboard and a lighter sitting on the dashboard. Betty testified that
she thought the lighter on the dashboard was hers and that Raul had
his own lighter. However, the police investigators who searched the
car did not find a second lighter nor did they seize crack cocaine or
any other drug during the car’s inventory.

4

Dodson disputed Betty’s version of these events. Dodson testified that, as Raul got
in the car shortly before noon on April 7, he was acting “kind of jerky” and seemed
angry. According to Dodson, Raul began digging around in the car and then made
a sudden move towards his lap, which Dodson interpreted to be reaching for a
gun. Dodson knew Raul owned a gun, because Dodson himself had stolen the gun
from a vehicle a few days before the shooting. Dodson at first testified that he gave
Raul the gun, and then later said that Raul “just snatched it” from him. According
to Dodson, Raul always carried his gun in either the pocket of his cargo shorts or in
his waistband. Because Raul was not wearing cargo shorts that day, Dodson said he
believed Raul’s gun was at his waist, and thought Raul was reaching for it in order
to shoot Dodson. Dodson admitted that there was a possibility that Raul carried a
cell phone at his waist, but maintained that he was certain that Raul was reaching for
a gun when Dodson shot him. Dodson claims he then shot Raul in
self-defense. After the shooting, police found Raul’s gun zippered shut inside a
backpack, which, according to Betty, Raul had been holding in his lap. Dodson
testified, however, that he was not aware of this fact and sincerely and reasonably
believed the gun was at Raul’s waist.
Dodson explained his purported belief that Raul was reaching for his gun in order to
kill Dodson by pointing to events in the weeks leading up to the shooting. Dodson
testified that his relationship with Raul had become strained because Raul was upset
about Dodson dating his mother Betty and was frustrated that Betty seemed to choose
Dodson over Raul. Raul’s wife, Lydia Olalde, also testified to Raul’s concern that
his mother chose Dodson over him. Dodson testified that Raul claimed to have taken
a life insurance policy out on Dodson and to have opened a bank account in Dodson’s
name. Dodson testified that he thought someone who took out a life insurance policy
was “waiting for you to die so they can get some money.” Betty and Lydia shared the
belief that Raul had taken out a life insurance policy on Dodson, though they each
heard this through Dodson, not Raul. Betty testified that Dodson told her about this
policy, and Lydia testified that she learned of it from Betty after Raul’s death.
Dodson also claimed to have been told by Betty that Raul had threatened to kill
Dodson about a week before the shooting.
Dodson testified that he was afraid Raul’s anger and frustration would lead to
violence because Raul had a violent track record with his family and
friends. According to Dodson, Raul had tried to rape his younger sister, Vanessa
Olalde, and had hit and bruised Betty when she tried to stop him. Dodson claimed
that on a different occasion Raul had used his fingers to sexually penetrate Vanessa,
that he regularly sent her to beat up women who owed him money for drugs, and that
he had once slapped her across the face, causing her to bleed. Dodson also testified
that he had seen Raul chase a friend with a knife.

5

Lydia Olalde confirmed the tension between Raul and Dodson. Her characterization
of it, however, was significantly different. According to Lydia, Dodson blamed Raul
for a prior arrest and conviction for a theft the two men committed together. Dodson
believed that Raul had told the police about Dodson’s involvement in that theft and
suspected Raul of speaking to the police about their more recent car burglaries in an
attempt to send Dodson back to jail.2
FN2. The notes taken by the police detective who interviewed Lydia
said that Lydia told the detective that Raul suspected Dodson of
trying to send Raul to jail, rather than the other way around. Lydia
maintained that the police detective had gotten that statement
backwards. When first asked about this possibility, the detective
testified that she didn’t believe she had made a mistake. But on cross
examination, after reading the note in the context of the previous
sentence, which stated that Dodson had pulled a gun on Raul, the
detective changed her mind and testified that she had probably
inadvertently switched the names in her notes.
On April 6, 2007, the night before the shooting, the tension between Dodson and
Raul appeared to be coming to a head. Dodson testified that he and Raul borrowed
Betty’s car and drove around together, burglarizing cars and smoking crack–and
arguing much of the time. According to Betty, who joined them early the next
morning as they drove around north Austin, at one point Dodson accused Raul of
being greedy and then threatened Raul with a gun. Betty testified that Raul’s reaction
to Dodson’s threat was to exit the car and walk off by himself. Dodson
acknowledged that he and Raul had argued and that Raul had walked away from the
car, but testified that he did not recall threatening Raul.
After Raul walked away, he went to the hotel where his wife Lydia and his children
were staying. While there, Raul spoke with Lydia about his conflict-filled
relationships with Dodson, his mother, and Lydia. According to Lydia, Raul told her
that Dodson had pulled a gun on him and accused him of trying to send Dodson back
to jail. Lydia testified that Raul was upset that his mother had watched this happen
and had done nothing to intervene on Raul’s behalf. As they spoke about their own
troubled relationship, Raul told Lydia that if he could just shoot himself and her, then
all of their troubles would go away. Lydia testified that this statement did not
frighten her; she simply took it as evidence that Raul was feeling sad.
While Raul was at the hotel with Lydia and the children, Betty and Dodson drove to
Pflugerville to Dodson’s sister’s house so that Dodson could pick up his social
security card and identification card. According to Dodson, he needed those items
to look into the bank account that Raul allegedly opened in Dodson’s name. As
Dodson and Betty were driving back to north Austin,3 Betty received a call from
6

Raul, who asked her to bring some clothes to his hotel room. Betty testified that Raul
was still angry with Dodson and asked her to not bring Dodson; however, she and
Dodson went to the hotel together anyway.
FN3. Dodson testified that he and Betty were driving to a bank to
check on the supposed bank account that Raul had opened. Betty
testified that Dodson had wanted to go by the bank to check on the
supposed life insurance policy, but that she had refused, and that they
were not headed to any specific place when Raul called.
When they arrived at the hotel, Betty went inside to give Raul his clothes. Betty
testified that Raul then asked her to give him a ride. When Betty returned to the car,
she told Dodson that Raul was coming with them. She asked Dodson if he wanted
to continue to drive or if he wanted her to drive. Dodson told her to drive. Raul then
came out to the car, carrying his daughter’s backpack with his gun inside.4 Dodson
moved to the back seat and told Raul to sit in the front passenger seat.
FN4. Betty testified at trial that she did not know Raul had his gun
with him. This testimony contradicted her testimony before the grand
jury. Defense counsel drew this contradiction to the jury’s
attention. Once Betty finished testifying about this issue before the
trial court, she was arrested, outside the presence of the jury, on
suspicion of perjury.
They had only driven a few miles when Dodson shot Raul. When police first arrived
on the scene and questioned Betty, she told them that she did not know the person
who had shot her son. She said they had picked up an unknown hitchhiker who had
then shot her son and walked away. She also told the police she was unable to
describe the hitchhiker or even tell them his race. After the police found Dodson’s
identification card on her, Betty admitted that he had been the shooter. Betty testified
at trial that she had been protecting Dodson because she loved him and did not want
to be alone.
Dodson was arrested on April 9, 2007. The booking officer testified that Dodson told
him that “he didn’t understand why he was in jail, he did a good thing taking him
out. He told me that someone was selling a lot of drugs, kidnapping kids, and he did
it and he’ll take it.” The officer further testified that Dodson said he was “the only
one who could get close enough” and that Dodson did not make any statements
indicating he was afraid of Raul or had shot Raul in order to protect himself or
anyone else.
Dodson, 2008 WL 4823178, at *1-3.

7

III.

DODSON ’S CLAIM FOR RELIEF
Dodson contends that he is entitled to habeas relief because his trial counsel was ineffective

in failing to investigate a life insurance policy that Dodson claimed that the victim took out on
Dodson, and in failing to present a representative from the life insurance company at trial. Pet. at
8 & Attach. at 9, 11.
IV.

EXHAUSTION OF STATE REMEDIES, STATUTE
PETITION BAR

OF

LIMITATIONS,

AND

SUCCESSIVE

The Director asserts that Dodson procedurally defaulted his claim by failing to exhaust his
state-court remedies. Answer at 10-12. The Director does not contend that the claim is barred by
limitations, 28 U.S.C. § 2244(d), or the successive petition bar, 28 U.S.C. § 2244(b). Id. at 4.
DISCUSSION AND ANALYSIS
I.

REVIEW UNDER THE ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996
The statutory authority of federal courts to issue habeas corpus relief for persons in state

custody is defined by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). Section 2254(d) states:
An application for a writ of habeas corpus on behalf of a person in custody pursuant
to the judgment of a State court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings unless the adjudication of
the claim–
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

8

28 U.S.C. § 2254(d). By its terms, § 2254(d) bars relief on any claim “adjudicated on the merits”
in state court, subject only to the exceptions in § 2254(d)(1) and (d)(2). See, e.g., Harrington v.
Richter, – U.S. –, 131 S. Ct. 770, 780-81 (2011). Federal habeas relief may not be granted for claims
subject to § 2254(d) unless the state habeas court’s decision “was contrary to” federal law then
clearly established by holdings of the Supreme Court, 28 U.S.C. § 2254(d)(1), “involved an
unreasonable application of” such law, id., or “was based on an unreasonable determination of the
facts” in light of the record before the state court, 28 U.S.C. § 2254(d)(2).
In Williams v. Taylor, the Supreme Court explained the “contrary to” and “unreasonable
application” provisions of § 2254(d)(1):
Under the “contrary to” clause, a federal habeas court may grant the writ if the state
court arrives at a conclusion opposite to that reached by [the Supreme Court] on a
question of law or if the state court decides a case differently than [the Supreme
Court] has on a set of materially indistinguishable facts. Under the “unreasonable
application” clause, a federal habeas court may grant the writ if the state court
identifies the correct governing legal principle from [the Supreme Court’s] decisions
but unreasonably applies that principle to the facts of the prisoner’s case.
529 U.S. 362, 412-13, 120 S. Ct. 1495, 1523 (2000).

An application of federal law is

“unreasonable” only if it is “so clearly incorrect that it would not be debatable among reasonable
jurists.” Nobles v. Johnson, 127 F.3d 409, 418 (5th Cir. 1997) (quotation and citation omitted).
Section 2254(d)(2) likewise commands deference to the state habeas court’s factual
determinations by precluding relief on any claim that was adjudicated on the merits unless the statecourt decision was “based on an unreasonable determination of the facts in light of the evidence
presented in the State court.” 28 U.S.C. § 2254(d)(2). Such determinations are presumed to be
correct, although a petitioner can rebut this presumption with clear and convincing evidence. 28
U.S.C. § 2254(e)(1). The presumption of correctness not only applies to explicit findings of fact,
9

but also to “those unarticulated findings which are necessary to the state court’s conclusions of
mixed law and fact.” Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir. 2001).
Determining whether a state court’s decision resulted from an unreasonable legal or factual
conclusion does not require that there be an opinion from the state court explaining the state court’s
reasoning. See, e.g., Harrington, 131 S. Ct. at 780-81. Under § 2254(d), a state court need not cite
or even be aware of Supreme Court decisions. Id. (citing Early v. Packer, 537 U.S. 3, 8, 123 S. Ct.
362, 365 (2002) (per curiam)). When a state court’s decision is unaccompanied by an explanation,
the habeas petitioner’s burden is met by showing that there was no reasonable basis for the state
court to deny relief. Id. This is so whether or not the state court indicates which of the elements in
a multi-part claim it found insufficient; as the Supreme Court explained, § 2254(d) applies when a
“claim,” not a component of one, has been adjudicated. Id.
With these principles in mind, the Court turns to the issues raised in this case.
II.

DODSON ’S CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
Dodson contends that his trial counsel was ineffective by failing to investigate a life

insurance policy that Dodson believed the victim had taken out on Dodson, and by failing to present
a representative from the life insurance company at trial. Pet. at 8 & Attach. at 9-11. Dodson argues
that a life insurance company representative would have testified that the victim had a policy on
Dodson and that evidence of potential proceeds from Dodson’s death would have supported his selfdefense theory that the victim was the first aggressor and Dodson was in fear of imminent danger

10

or death. Pet. Attach. at 11. The Director counters that the claim is conclusory and meritless.
Answer at 13.4
Having independently reviewed the entire state-court record and Dodson’s asserted claim,
the Court finds nothing unreasonable or contrary in the state court’s application of clearly established
federal law or in its determination of facts in light of the evidence, as discussed below.
A.

Review of an Ineffective-Assistance Claim

Ineffective assistance of counsel claims are analyzed under the well-settled requirements set
forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).
First, the defendant must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a
defendant can make both showings, it cannot be said that the conviction or death
sentence resulted from a breakdown in the adversary process that renders the result
unreliable.
4

The Director also argues that Dodson did not exhaust his state-court remedies for the claim
that his trial counsel was ineffective for failing to call a representative from the life insurance
company as a witness. Answer at 9-12. It not entirely clear if the Director is asserting that Dodson’s
entire claim was unexhausted or just the claim of ineffectiveness for failing to present a life
insurance company representative as a witness. In any event, the Fifth Circuit has treated the two
aspects of the ineffectiveness claim based on the life insurance policy as a single claim (failure to
investigate and failure to present a witness), Dodson, 2011 WL 1496963, at *1, and this Court should
follow the direction of that court in vacating and remanding that portion of this Court’s earlier
judgment. Dodson presented the claim that “counsel failed to investigate thoroughly the life
insurance policy taken out on appellant[’]s life by the decedent” and invoked the Sixth and
Fourteenth Amendments in his second state-court habeas petition. Ex parte Dodson, Application
No. 72,525-02, at 11. The state habeas court reviewed and decided the claim on the merits. Id. at
cover (denying petition on findings of trial court); id. at 19 (making findings on life-insurance claim).
Given the Fifth Circuit’s opinion, the Court should conclude that Dodson did exhaust his state-court
remedies for this claim and consider the merits of the claim.

11

Id. at 687, 104 S. Ct. at 2064.
For the first requirement, the proper measure of attorney performance is “simply
reasonableness under prevailing professional norms.” Id. at 688, 104 S. Ct. at 2065. In deciding
whether counsel’s performance was deficient, the Court applies a standard of objective
reasonableness, keeping in mind that judicial scrutiny of counsel’s performance must be highly
deferential. Id. at 686-89, 104 S. Ct. at 2064-65. “[A] fair assessment of attorney performance
requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Id. at 689, 104 S. Ct. at 2065. Indeed, the Supreme Court has established
that counsel should be “‘strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment,’” and cautioned against
an “‘intrusive post-trial inquiry into attorney performance’” and the “‘tempt[ation] for a defendant
to second-guess counsel’s assistance after conviction or adverse sentence.’” Cullen v. Pinholster,
– U.S. –, 131 S. Ct. 1388, 1403 (2011) (quoting Strickland, 466 U.S. at 688-90, 104 S. Ct. at 206566).
For the second requirement, the question is whether there is a reasonable probability that,
absent the alleged error, the result of the proceeding would have been different, a question that must
be considered in the context of the entire evidence. Strickland, 466 U.S. at 694-95, 104 S. Ct. at
2068-69. A reasonable probability is “‘a probability sufficient to undermine confidence in the
outcome,’” Pinholster, 131 S. Ct at 1403 (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068),

12

which requires a “‘substantial,’ not just ‘conceivable,’ likelihood of a different result,” id. (quoting
Harrington, 131 S. Ct. at 791).
Accordingly, in order to prevail on a claim of ineffective assistance of counsel, a habeas
petitioner must show that: (1) counsel’s representation fell below an objective standard of
reasonableness; and (2) there is a substantial likelihood that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. Id. at 1403; Strickland, 466 U.S. at 687, 104
S. Ct. at 2064. Because a convicted defendant must satisfy both Strickland requirements to
demonstrate ineffective assistance, a failure to establish either deficient performance or prejudice
makes it unnecessary to consider the other requirement. Id. at 697, 104 S. Ct. at 2069; Black v.
Collins, 962 F.2d 394, 401 (5th Cir. 1992).
In addition to the “highly deferential” view taken of counsel’s performance under Strickland,
466 U.S. at 689, 104 S. Ct. at 2065, the Court is also limited in its examination of such claims by
the “‘deferential lens of § 2254(d).’” Pinholster, 131 S. Ct. at 1404 (quoting Knowles v. Mirzayance,
556 U.S. –, – n.2, 129 S. Ct. 1411, 1419 n.2 (2009)). In this way, the Court’s review of the state
habeas court’s determination of ineffective assistance claims is “‘doubly’” deferential. Harrington,
131 S. Ct. at 788 (quoting Knowles, 129 S. Ct. at 1420).
As discussed below, Dodson’s ineffective-assistance claim fails to satisfy Strickland’s and
the AEDPA’s requirements.
B.

Merits of Dodson’s Claim

Dodson’s ineffective-assistance claim fails to satisfy the established prerequisites for such
a claim.

13

1.

No Demonstration of Error

Dodson fails to demonstrate how any failure by his trial counsel to investigate a possible
insurance policy, and based on a potentially discoverable policy, how a failure to present a life
insurance company witness constituted professional errors that support ineffective assistance under
Strickland.
As discussed, Strickland commands a strong presumption that counsel’s conduct falls within
the scope of reasonable professional representation.
Because of the difficulties inherent in making the evaluation, a court must indulge
a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might be considered sound trial
strategy.
Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (quotation and citations omitted); see also Pinholster,
131 S. Ct. at 1404 (stating same).
To render effective assistance, the Sixth Amendment requires counsel to make a reasonable
investigation of defendant’s case or to make a reasonable decision that a particular investigation is
unnecessary. Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066. Dodson has not overcome the
strong presumption that trial counsel rendered adequate assistance and the challenged conduct was
the product of reasoned trial strategy. There is no basis anywhere in the record–except Dodson’s
assertions in his briefing–to support his claim of professional error, and Dodson does not provide
any information regarding the supposed life insurance policy. Absent evidence in the record, a court
cannot consider a habeas petitioner’s mere allegations to raise a constitutional issue. See, e.g., Miller
v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000); Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir.

14

1983) (citing Woodard v. Beto, 447 F.2d 103, 104 (5th Cir. 1971)). Moreover, the subject of the
purported life insurance policy was actually addressed at trial. Under his attorney’s questioning,
Dodson himself testified regarding the existence of a life insurance policy, 7 R.R. at 237, 239-41,
as did the wife of the victim, id. at 32-34, 64. Neither could substantiate the existence of such a
policy, and on cross-examination, the prosecution interjected questions raising real doubts about the
existence of a policy, see, e.g., id. at 270-75, all of which supports the presumption that there was
no professional error.
2.

No Demonstration of Prejudice

Dodson also fails to satisfy the second Strickland requirement, prejudice. See Strickland, 466
U.S. at 694-95, 104 S.Ct. at 2068. Although Dodson asserts that his attorney was ineffective in
failing to investigate the possible life insurance policy and put on a witness from the hypothetical
life insurance company, he fails to explain how such potential evidence would have affected the
outcome of his trial.
The state habeas court has already considered and rejected the contention that his trial
attorney was ineffective for failing to investigate an insurance policy that the victim had supposedly
obtained on Dodson’s life. The trial court made the following findings in rejecting Dodson’s
argument:
6.

Applicant testified at trial that Raul had taken out [] an insurance
policy on applicants’s life, and does not allege what other evidence
of such a policy counsel might have discovered.

Ex parte Dodson, Application No. 72,525-02, at 19.5
5

The state trial court recommended that relief be denied and the Texas Court of Criminal
Appeals adopted the trial court’s findings and denied relief. Id. at 19, cover. When there has been

15

The prosecution presented strong evidence of Dodson’s guilt, and even if counsel had
investigated the supposed life insurance policy, the outcome of Dodson’s trial would still have
resulted in a verdict of guilty. At trial, there was no dispute that Dodson shot the victim. Dodson
sought to obtain a jury verdict of not guilty by showing that he was justified in using deadly force
because he reasonably believed that such force was necessary to protect himself against attempted
unlawful deadly force by the victim. See Dodson, 2008 WL 4823178, at *4. The prosecution
presented testimony by Betty Olalde that when Dodson shot the victim, the victim did not threaten
Dodson, the victim was in the process of smoking crack, and Dodson and the victim were not
arguing. Id. The prosecution presented further evidence that Dodson was angry with the victim, had
threatened him in the past, and had accompanied Betty to the hotel to meet the victim, even though
Dodson knew the victim did not want him around. Id. In addition, the fact that the victim was shot
in the back and that impartial, third-party witnesses testified that Dodson exited the vehicle from the
rear seat and then walked calmly away from the scene just moments after the shooting provided
additional support for the rejection of the self-defense theory. Id. Although Dodson’s testimony
raised the possibility of self-defense, his version of how events transpired in the car was contradicted
by Betty Olalde’s testimony that the victim was smoking crack at the time of the shooting and did
not reach for his lap. Id. In addition, Dodson’s testimony that the victim had threatened him in the
past and was angry with Dodson was countered by the testimony of Betty Olalde and Lydia Olalde
one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that
judgment or rejecting the same claim are presumed to rest on the same ground. Ylst v. Nunnemaker,
501 U.S. 797, 803, 111 S. Ct. 2590, 2594-95 (1991). In this case, the Texas Court of Criminal
Appeals adopted the trial court’s findings and denied relief on this claim. Because the state trial
court issued “the last reasoned opinion” on the matter, this Court “looks through” the Texas Court
of Criminal Appeals’s order to the trial court’s decision. Id. at 803, 111 S. Ct. at 2594.

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that it was in fact Dodson who was angry with Raul and threatened him. Id. at *5. Lastly, the
booking officer’s testimony that Dodson had volunteered that “he did a good thing taking him out,”
“he was the only one that could get close enough,” and “he did it and he’ll take it,” together with the
conspicuous absence of any statements by Dodson that the victim was reaching for his gun or that
he was afraid of the victim, further undermined Dodson’s self-serving testimony. 7 R.R. at 85;
Dodson, 2008 WL 4823178, at *5.6
In the context of this evidence, even if there had been an investigation of a life insurance
policy or evidence of the purported policy had been presented to the jury, such evidence would not
have undermined the overwhelming evidence supporting the rejection of the self-defense
theory. Dodson fails to demonstrate a “‘substantial,’not just ‘conceivable,’ likelihood of a different
result.” Pinholster, 131 S. Ct at 1403 (quoting Harrington, 131 S. Ct. at 791).
In addition, with regard to the claim that counsel should have called a life insurance company
representative as a witness, Dodson also fails to satisfy the specific requirements for showing
prejudice. To demonstrate prejudice based on an omitted witness, a petitioner must show that the
witness’s testimony would have been favorable and that the witness would have testified at trial.
See, e.g., Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985). Dodson fails to identify any
particular witness, show that the witness would have testified at the trial, or present the testimony
that would have been favorable to his defense.

6

In addition, the jury was presented with impeachment evidence against Dodson,
specifically, seventeen prior misdemeanor convictions and four prior felonies, as well admissions
of being a regular user of crack cocaine, burglarizing cars, selling crack, smoking crack in the hours
just before the shooting, and having impaired judgment when high. Dodson, 2008 WL 4823178, at
*5 n.6.

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Without a demonstration of either error or prejudice, Dodson fails to show that the state
court’s decision was an unreasonable application of the clearly established federal law of Strickland,
or was contrary to that established law. Accordingly, 28 U.S.C. § 2254(d), as amended by the
AEDPA, bars habeas relief.
RECOMMENDATION
It is recommended that Dodson’s application for writ of habeas corpus be denied.
CERTIFICATE OF APPEALABILTY
An appeal may not be taken to the court of appeals from a final order in a habeas corpus
proceeding “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C.
§ 2253(c)(1)(A). Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, effective
December 1, 2009, the district court must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.
A certificate of appealability may issue only if a petitioner has made a substantial showing
of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained
the requirement associated with a “substantial showing of the denial of a constitutional right” in
Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 1604 (2000). In cases in which a district
court rejects a petitioner’s constitutional claims on the merits, “[t]he petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional claims debatable
or wrong.” Id. “When the district court denies a habeas petition on procedural grounds without
reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner
shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim

18

of the denial of a constitutional right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Id.
In this case, reasonable jurists could not debate the dismissal or denial of Dodson’s Section
2254 petition on substantive or procedural grounds, nor find that the issues presented are adequate
to deserve encouragement to proceed. See Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S. Ct. 1029,
1034 (2003) (citing Slack, 529 U.S. at 484, 120 S. Ct. at 1604). Accordingly, it is respectfully
recommended that the Court shall not issue a certificate of appealability.
OBJECTIONS
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The district court need not consider frivolous, conclusive, or general objections.
Battles v. U.S. Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the district court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall also bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
district court. See 28 U.S.C. § 636(b)(1)(c); Thomas v. Arn, 474 U.S. 140, 150-153, 106 S. Ct. 466,
472-74 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc).
To the extent that a party has not been served by the Clerk with this Report and
Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is

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ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 28th day of June, 2011.

____________________________________
ROBERT PITMAN
UNITED STATES MAGISTRATE JUDGE

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