Maher v. Thaler
REPORT AND RECOMMENDATIONS; RECOMMENDS that Maher's 1 Petition for Writ of Habeas Corpus be denied. Recommends denial of certificate of appealability. Signed by Judge Andrew W. Austin. (td)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
STEVEN JOHN MAHER,
RICK THALER, Director,
Texas Department of Criminal Justice
Correctional Institutions Division,
REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
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 pro se Petitioner Steven John Maher’s Petition for Writ of Habeas
Corpus (Document 1), Answer with Brief in Support of Respondent, Rick Thaler, Director of the
Texas Department of Criminal Justice, Correctional Institutions Division (Document 21), and
Petitioner’s Reply to Respondent’s Answer (Document 22). For the reasons set forth below, the
undersigned concludes that the petition should be denied.
STATEMENT OF THE CASE
The Director has custody of Maher pursuant to the judgment and sentence of 27th District
Court of Lampasas County, Texas, in Cause Number 7959, styled State of Texas v. Steven John
Maher. Ex parte Maher, No. WR-72,410-01, at 48-49.1 Maher was charged with aggravated assault
with a deadly weapon and obstruction and entered a plea of not guilty. Id. at 47-48. He was then
tried by a jury, which found him guilty. Id. at 48. After finding that Maher had a previous felony
conviction, the court sentenced him to thirty-five years of confinement for the assault conviction.
Id. at 48-49.2
Maher appealed, arguing that the evidence supporting the aggravated assault conviction was
legally insufficient and that the trial court erroneously admitted extraneous misconduct evidence.
Maher v. State, No. 03-07-00179-CR, 2008 WL 2736884, at *1 (Tex. App.–Austin, July 10, 2008,
pet. ref’d). The Third Court of Appeals of Texas affirmed his conviction for aggravated assault, and
reversed his obstruction conviction. Id. Maher subsequently filed a petition for discretionary review,
which was refused. Maher v. State, PDR No. 1042-08 (Tex. Crim. App. Dec. 17, 2008). He then
filed a state habeas application challenging his conviction that was denied by the Texas Court of
Criminal Appeals by order. Ex parte Maher, No. WR-72,410-01, 2009 WL 3049617, at *1 (Sept.
23, 2009). Maher subsequently filed his federal habeas petition in January 2010. Pet. at 9.
The court of appeals summarized the evidence presented at Maher’s trial as follows:
[Victim Michelle] Collins testified that she, appellant, and Joseph Jacobs were at a
trailer house in rural Lampasas County on September 29, 2006, “talking and basically
having fun.”1 Collins said that she and appellant “started kind of having a little bit
of an argument” over a broken glass pipe of the sort used to smoke narcotics. She
Citations to pleadings and documents in the state-court habeas record appear as Ex parte
Maher, Application No. WR-72,410-01, followed by a page number.
Maher was also convicted of obstruction, but the Third Court reversed that conviction on
appeal. Maher v. State, No. 03-07-00179-CR, 2008 WL 2736884, at *4 (Tex. App.–Austin, July 10,
2008, pet. ref’d) (reversing because erroneously admitted extraneous misconduct evidence likely
influenced jury’s determination of intent required for obstruction charge).
testified that she went to the bedroom to avoid the argument, but appellant followed,
jumped on her, and began to choke her. Collins responded by biting appellant on the
chest and striking him with her fists, and he began to slam her head on the floor.
Jacobs heard the ruckus, came to the bedroom, and separated the combatants.
The trailer was the residence of George Truitt. Truitt testified that
appellant was staying there while Truitt was out of town on a trip.
When this fight ended, appellant left the room and Collins began to pack her things
to leave. When Collins and Jacobs went outside, however, appellant was sitting in
Collins’s car. Collins asked appellant to get out of the car, but he refused. Collins
testified that appellant had a “buck knife between him and the seat.”2 This knife,
introduced in evidence, was a hunting knife with a five-inch blade. Collins said that
this encounter “became another fight,” during which one of her car windows “got
busted out.” Collins acknowledged that she broke the window with her fist. Finally,
appellant got out of the car, and Collins and Jacobs drove away.
Jacobs testified that while Collins was trying to get appellant out of
her car, appellant asked Jacobs to take the knife before he did
Collins drove to her father’s house where a package for appellant had been
delivered.3 Collins decided to take this package to appellant “because I didn’t want
anything to do with him anymore.” When Collins and Jacobs returned to the trailer,
appellant “walked around the side of the house” carrying the knife and a hatchet.
Collins testified that she “pretty much got the idea that [appellant] was not in a happy
mood” and sensed that “something was going to happen.” Trying to stay away from
appellant, she threw him the package. When appellant opened the package, Collins
saw that it contained “dope.” During cross-examination, Collins said that this “dope”
was methamphetamine, which she could recognize because she had been a user of
the drug in the past. Collins testified that appellant, referring to the
methamphetamine, “accused me of stealing it,” and she denied it.4 She added, “And
that’s when he got pissed off or got mad or whatever.”
The package was addressed to Collins at her father’s address, but
Collins had been told by appellant that a package for him was being
sent to her. She testified that she did not know what the package
Jacobs testified that appellant told Collins that his “seven grams
better be here.”
Collins testified that she was also “a little bit pissed off” because appellant had had
the methamphetamine mailed to her father’s house, and that she told appellant that
she was going to the police. Asked if appellant’s demeanor changed when she told
him this, Collins answered, “He was already mad as it was. I don’t think he could
have got any madder.”
Collins testified that when she tried to get back in her car to leave, appellant, still
armed with the knife and hatchet, blocked her way. Using the knife, appellant
“started bashing out [Collins’s] driver’s window.” Collins answered affirmatively
when asked if she was afraid that appellant would hurt her. After breaking the car
window, appellant threw the knife into the car. Collins said that she then pulled her
own pocket knife, and appellant backed away from her so that she could get in her
car. As she prepared to drive away with Jacobs, appellant threw the hatchet, which
“came plowing through [Collins’s] back window” and “hit [the] console in between”
the front seats. Collins returned to her father’s house and called the police.
Maher, 2008 WL 2736884, at *1-2.
MAHER ’S CLAIMS FOR RELIEF
Maher contends that he is entitled to habeas relief based on the following grounds:
Denial of the right to present a defense (Claim 1);
Obstruction of the right to present a defense (Claim 2);
Denial of the right to compulsory process (Claim 3);
Tainted jury (Claim 4);
Prosecutorial misconduct (Claim 5);
Violation of the right against self-incrimination (Claim 6);
Denial of due process at trial (Claim 7);
Unconstitutional sentence (Claim 8);
Ineffective assistance of counsel on appeal (Claim 9); and
Actual innocence based on newly discovered evidence (Claim 10).
Pet. at 7-8.
STATE REMEDIES, STATUTE
The Director concedes that Maher’s petition is timely and is not subject to the successive
petition bar. Answer at 5; see also 28 U.S.C. § 2244(b), (d). The Director also admits that Maher
has sufficiently exhausted his state court remedies for the claims presented. Answer at 5; see also
28 U.S.C. § 2254(b).
REVIEW UNDER THE ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996
The Supreme Court has summarized the basic principles that have grown out of the Court’s
many cases interpreting the 1996 Antiterrorism and Effective Death Penalty Act. See Harrington
v. Richter, – U.S. –, 131 S. Ct. 770, 783-85 (2011). The Court has noted that the starting point for
any federal court in reviewing a state conviction is 28 U.S.C. § 2254, which states in part:
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
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
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.
28 U.S.C. § 2254(d). The Court noted that “[b]y its terms § 2254(d) bars relitigation of any claim
‘adjudicated on the merits’ in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2).”
Harrington, 131 S. Ct. at 784.
One of the issues Harrington resolved was “whether § 2254(d) applies when a state court’s
order is unaccompanied by an opinion explaining the reasons relief has been denied.” Id. Following
all of the Courts of Appeals’ decisions on this question, Harrington concluded that the deference due
a state court decision under § 2554(d) “does not require that there be an opinion from the state court
explaining the state court’s reasoning.” Id. (citations omitted). The Court noted that it had
previously concluded that “a state court need not cite nor even be aware of our cases under
§ 2254(d).” Id. (citing Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam)). When there is no
explanation with a state court decision, the habeas petitioner’s burden is to show there was “no
reasonable basis for the state court to deny relief.” Id. And even when a state court fails to state
which of the elements in a multi-part claim it found insufficient, deference is still due to that
decision, because “§ 2254(d) applies when a ‘claim,’ not a component of one, has been adjudicated.”
As Harrington noted, § 2254(d) permits the granting of federal habeas relief in only three
circumstances: (1) when the earlier state court’s decision “was contrary to” federal law then clearly
established in the holdings of the Supreme Court; (2) when the earlier decision “involved an
unreasonable application of” such law; or (3) when the decision “was based on an unreasonable
determination of the facts” in light of the record before the state court. Id. at 785 (citing 28 U.S.C.
§ 2254(d); Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495, 1523 (2000)). The “contrary to”
requirement “refers to the holdings, as opposed to the dicta, of . . . [the Supreme Court’s] decisions
as of the time of the relevant state-court decision.” Dowthitt v. Johnson, 230 F.3d 733, 740 (5th Cir.
2000) (quotation and citation omitted).
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.
Id. at 740-41 (quotation and citation omitted). Under the “unreasonable application” clause of
§ 2254(d)(1), a federal 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.” Id. at 741 (quotation and citation omitted). The provisions of
§ 2254(d)(2), which allow the granting of federal habeas relief when the state court made an
“unreasonable determination of the facts,” are limited by the terms of the next section of the statute,
§ 2254(e). That section states that a federal court must presume state court fact determinations to
be correct, though a petitioner can rebut that presumption by clear and convincing evidence. See 28
U.S.C. § 2254(e)(1). But absent such a showing, the federal court must give deference to the state
court’s fact findings. Id.
MAHER ’S CLAIMS
Having independently reviewed the state-court record and Maher’s asserted claims, 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.
Right to Present a Defense (Claims 1 & 2)
Maher claims that he was denied his right to present a defense and also contends that this
right was obstructed because he was forced to represent himself at trial and after being denied critical
discovery and Brady material, was denied a continuance to properly prepare his defense. Pet. at 7.
He also contends that his right to present a defense was obstructed by his standby counsel’s alleged
failure to advise Maher that he had received a plea offer. Id. at 7; Reply at 3-4. The Director
contends that Maher fails to present evidence to overcome the presumption that the state court’s fact
findings on these claims were correct. Answer at 10. The Director also asserts that Maher’s Brady
claim must fail because he does not identify any favorable material evidence or show that any such
evidence was withheld by the prosecution after an appropriate request. Id. at 9-11.
The state habeas court addressed the claims regarding Maher’s right to present a defense as
[Maher] first assert[s] that he was denied the right to present a defense. [He]
complains that the State did not provide him with discovery on a timely basis nor did
the State secure the identity of a witness, “Josh.” Other than speculating that “Josh”
might have relevant testimony, [Maher] offers no basis for relief. Based on trial
testimony, Maher personally knew “Josh.” [Maher] did not attempt to subpoena
“Josh” and does not relate any anticipated defense testimony. [Maher] does not offer
any basis to claim photographs entered in the evidence were altered, and he had the
opportunity to cross-examine sponsoring witnesses as to those photographs. [Maher]
was not denied the right to present a defense.
[Maher] second assert[s] that his right to represent himself was
obstructed. Throughout the pendency of trial, the Court repeatedly counseled
[Maher] about the dangers of self-representation. [Maher] claimed to have legal
training and claimed to be a certified paralegal. [He] now complains that he did not
have adequate time to prepare for trial and the Court admonished him before the jury
about continuing with overruled objections. [Maher] repeatedly tried to introduce
irrelevant information and evidence to the jury. [Maher] compelled the Court to
admonish him by his behavior and trial antics before the jury. [Maher] was allowed
to represent himself and now complains that his representative antics were not
Ex parte Maher, No. WR-72,410-01, Supp., Findings of Fact & Conc. of Law, at 1-2 (Sept. 11,
2009). Maher fails to present clear and convincing evidence, or any evidence, rebutting the
presumption under the AEDPA that the state court’s determinations underlying its rejection of these
two claims were correct. See 28 U.S.C. § 2254(e)(1).
Moreover, Maher does not support his vague allegation that the prosecution failed to provide
exculpatory evidence. See Pet. at 7. To prevail on a due process claim brought under Brady v.
Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), Maher must show that the prosecution: (1) suppressed
evidence; (2) that was favorable to the defense; and (3) was material. See, e.g., Mahler v. Kaylo, 537
F.3d 494, 500 (5th Cir. 2008). Evidence is material only if there is “a reasonable probability that,
had the evidence been disclosed to the defense, the result of the proceeding would have been
different.” United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383 (1985); accord Banks
v. Thaler, 583 F.3d 295, 311 (5th Cir. 2009), cert. denied, – U.S. –, 130 S. Ct. 2092 (2010); see also
Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S. Ct. 1555, 1565-66 (1995). The Supreme Court
elaborated on the materiality standard in Kyles, explaining that “[a] ‘reasonable probability’ of a
different result is . . . shown when the government’s evidentiary suppression ‘undermines confidence
in the outcome of the trial’” and when “the favorable evidence could reasonably be taken to put the
whole case in such a different light as to undermine confidence in the verdict.” Id. at 434, 435, 115
S. Ct. at 1566 (quoting Bagley, 473 U.S. at 678, 105 S. Ct. at 3381). In addition, a Brady claimant
must show that the information was not otherwise available through due diligence. See, e.g., United
States v. Aubin, 87 F.3d 141, 148-49 (5th Cir. 1996).
Maher has not pointed to any favorable material evidence, much less demonstrated that it was
withheld by the State after an appropriate request.
Because Maher’s arguments on the factual findings do not prevail, the Court should find no
basis for habeas relief in the state court’s underlying factual findings. See 28 U.S.C. § 2254(d),
(e)(1). In addition, the Court should conclude that Maher fails to show that the state habeas court’s
denial of his claim was contrary to, or involved an unreasonable application of, clearly established
federal law, as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d).
Compulsory Process (Claim 3)
Maher contends that he was denied the right to compulsory process. Pet. at 7. The Director
argues that the claim lacks merit because Maher never filed an application for a subpoena, leaving
him without a basis for his complaint. Answer at 11. The state court found that Maher never filed
an application for a subpoena. Ex parte Maher, No. WR-72,410-01, Supp., Findings of Fact &
Conc. of Law, at 2. Maher has not put forward clear and convincing evidence to overcome the
presumption that the state court’s finding was correct, and this claim for relief should be denied as
well. See 28 U.S.C. § 2254(d), (e)(1).
Jury Taint (Claim 4)
Maher contends that his jury was tainted because his mother allegedly informed one of the
jurors that Maher had a past criminal record and because he was repeatedly rebuked by the judge
during the trial, in front of the jury. Pet. at 7A. The Director asserts that Maher’s claim of jury taint
is factually inaccurate. Answer at 12. He also asserts that Maher fails to identify any specific
“rebuke” that “tainted” the jury or demonstrate that the trial court’s comments were misplaced. Id.
The Sixth Amendment, made applicable to the states through the Due Process Clause of the
Fourteenth Amendment, guarantees that an accused shall enjoy the right to a trial by an impartial
jury. See Parker v. Gladden, 385 U.S. 363, 364, 87 S. Ct. 468, 470 (1966). The state habeas court
found that “[Maher]’s complaint is inconsistent with the affidavit of [Maher]’s mother and there is
no evidence that the conversation influenced the jury in any way.” Ex parte Maher, No. WR-72,41001, Supp., Findings of Fact & Conc. of Law, at 2. Maher does not present clear and convincing
evidence to overcome the presumption that the state court’s finding was correct. Indeed, in the
affidavit by Maher’s mother that was submitted with his state habeas application, it is not clear that
the juror with whom Maher’s mother spoke was serving in Maher’s trial. See Ex parte Maher, No.
WR-72,410-01, Mem. in Support of Pet. for Writ of Habeas Corpus, Ex. 4 (Aff. of J. Maher (Apr.
1, 2009)). In addition, Maher fails to show that the judge’s admonishments caused the jury to be
tainted. He has not pointed to any specific comments that might have tainted the jury nor has he
shown that any “rebuke” was improper.
The Court should conclude that Maher fails to present clear and convincing evidence, or any
evidence, rebutting the presumption that the state court made correct determinations underlying its
rejection of this claim, see 28 U.S.C. § 2254(e)(1), and also conclude that Maher fails to show that
the state habeas court’s denial of relief was unreasonable under, or contrary to, clearly established
federal law as established by the U.S. Supreme Court.
Prosecutorial Misconduct and Right Against Self-Incrimination (Claims 5 & 6)
Maher contends that prosecutorial misconduct occurred through a failure to disclose Brady
material, giving notice of intent to offer evidence of other bad acts, and use of a 25 year-old prior
conviction . Pet. at 7A. He also asserts that his right against self-incrimination was violated by use
of the 25 year-old conviction in an attempt to preclude Maher from explaining at trial what happened
on the day at issue. Id. The Director argues that Maher’s claim must fail because he does not
demonstrate that the State had any exculpatory evidence, Maher did not testify, and there was
nothing improper in the prosecution’s giving notice of evidence of other bad acts. Answer at 13.
With regard to these claims, the state habeas court found:
[Maher] complains that the State gave notice of evidence of other bad acts. [Maher]
now claims that this notice prevented him from taking the stand in his own defense.
As [Maher] did not take the stand, he did not incriminate himself. By giving notice
of the conviction(s), the State gave [Maher] the opportunity to evaluate the risk of
taking the stand and being subject to cross-examination and the possible admission
of his criminal history.
Ex parte Maher, No. WR-72,410-01, Supp., Findings of Fact & Conc. of Law, at 2. Because Maher
offers only conclusory assertions that his rights were violated, he does not demonstrate how the state
habeas court’s determination was an unreasonable or contrary application of federal law, as
established by the U.S. Supreme Court. See 28 U.S.C. § 2254(d). This Court should deny relief on
Due Process (Claim 7)
Maher claims that he was denied due process in how his case proceeded to trial. Pet. at
7B-7C. He argues that his ability to prepare for trial was impaired by the prosecution’s insufficient
notice of witnesses and motions, the denial of a continuance, incomplete discovery, a rush to
complete the trial, an increase in his bond, and the trial’s one-sided character. Pet. at 7B-7C. The
Director contends that this claim should fail because Maher offers only conclusory and vague
arguments. Answer at 13-14.
With regard to this claim, the state habeas court found:
[Maher]’s fifth ground claims a non-specific violation of due process of law. [He]
complains of the timing of the production of discovery. [Maher] does not and did not
offer any reason why the timing of the production of discovery or trial notices
hampered his ability to prepare a defense or how additional time would have [led] to
a different result.
Ex parte Maher, No. WR-72,410-01, Supp., Findings of Fact & Conc. of Law, at 2. Maher fails to
explain, much less demonstrate, how the state court’s determination was an unreasonable or contrary
application of federal law as established by the U.S. Supreme Court. See 28 U.S.C. § 2254(d).
Accordingly, the Court should deny relief on this claim as well.
Sentence (Claim 8)
Maher claims that his sentence is unconstitutional, apparently based on an equal-protection
argument that he was sentenced to what amounts to a life sentence whereas other individuals
convicted of more severe offenses, including offenses involving physical injury and death, have been
sentenced to the same or lesser terms. Pet. at 7B. The Director argues that Maher fails to show that
he was treated differently from a similarly situated group of people. Answer at 14-15. The Director
also asserts that Maher’s sentence is legal because it is within the authorized statutory range for his
The state habeas court rejected the claim as being within the statutorily authorized range of
[Maher] cites the court to the sentences of other individuals to suggest that his
sentence is unfairly high. [Maher]’s sentence is within the range of punishment.
Ex parte Maher, No. WR-72,410-01, Supp., Findings of Fact & Conc. of Law, at 2. The Equal
Protection Clause of the Fourteenth Amendment commands that no State shall “deny to any person
within its jurisdiction the equal protection of the laws.” U.S. CONST . amend. XIV. To make such
a claim, Maher must have demonstrated that similarly situated persons are subject to disparate
treatment without a rational basis. See, e.g., United States v. Abou-Kassem, 78 F.3d 161, 165 (5th
Cir. 1996); see also City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439-42, 105 S. Ct.
3249, 3254-56 (1989). Maher failed to identify similarly situated individuals, and his claim of an
equal protection violation thus necessarily failed. Additionally, Maher does not suggest that his
sentence is not within the authorized statutory range for his offense,3 nor that the statutorily defined
Maher was convicted of aggravated assault, a second-degree felony, which was enhanced
by a prior felony conviction. Ex parte Maher, No. WR-72,410-01, at 47-48; TEX . PENAL CODE
§ 22.02. The statutorily authorized sentencing range for his conviction was five to ninety-nine years,
ranges of sentences result in disparate treatment of similarly situated individuals. The state habeas
court’s denial of relief on this claim was not an unreasonable or contrary application of federal law.
See 28 U.S.C. § 2254(d). This Court should deny relief.
Ineffective Assistance of Appellate Counsel (Claim 9)
Maher contends that he received ineffective assistance of appellate counsel because counsel
did not raise certain claims on appeal. Pet. at 7B. The Director asserts that Maher fails to identity
any arguments that appellate counsel should have raised, much less arguments that were stronger
than those actually presented to the appellate court. Answer at 16.
To succeed on an ineffective-assistance-of-counsel-on-appeal claim, a petitioner must satisfy
the two standards set out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). See
Smith v. Robbins, 528 U.S. 259, 286, 120 S. Ct. 746, 764 (2000). A petitioner must demonstrate that
appellate counsel was deficient, and that the deficiency prejudiced his appeal. See Strickland, 466
U.S. at 687, 104 S. Ct. at 2064. To demonstrate the first requirement, deficiency on the part of
counsel, a petitioner must show that counsel “fail[ed] to find arguable issues to appeal–that is, that
counsel unreasonably failed to discover nonfrivolous issues and to file a merits brief raising them.”
Smith, 528 U.S. at 286, 120 S. Ct. at 764. Appellate counsel “need not (and should not) raise every
nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of
success on appeal.” Id. at 288, 120 S. Ct. at 764 (citing Jones v. Barnes, 463 U.S. 745, 103 S. Ct.
3308 (1983)). Thus, it is possible that an ineffectiveness claim may be “based on counsel’s failure
to raise a particular claim, but it is difficult to demonstrate that counsel was incompetent.” Id. (citing
Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)). To demonstrate that a failure to raise an issue
or life, and up to a $10,000 fine. See TEX . PENAL CODE § 12.42(b). He was sentenced to thirty-five
years’ imprisonment. Ex parte Maher, No. WR-72,410-01, at 48.
was deficient, a petitioner must show that a particular nonfrivolous issue was clearly stronger than
issues that counsel did present. Id.
Under the second Strickland prerequisite, appellate counsel is ineffective when counsel’s
errors are prejudicial, that is, when there is a reasonable probability that but for the error, the ultimate
result would have been different. To demonstrate prejudice, a petitioner must show that, but for
appellate counsel’s deficient performance, he would have prevailed on appeal. Id. at 286,
Regarding this claim, the state habeas court found:
[Maher] does not identify any claimed deficiencies in appellate counsel performance.
[Maher] claims he wished to raise other issues, but presents no such issues in his
application. [Maher]’s counsel did achieve the reversal of one count of conviction,
that was subsequently dismissed by the State.
Ex parte Maher, No. WR-72,410-01, Supp., Findings of Fact & Conc. of Law, at 3. Maher failed
to identify particular arguments that appellate counsel should have raised, but did not. See Pet. at
7B. Maher also failed to demonstrate any prejudice. Indeed, his counsel was successful on appeal
in obtaining a reversal of his conviction for obstruction.
Because Maher fails to demonstrate by clear and convincing evidence that the state habeas
court’s findings were not entitled to the AEDPA’s presumption of correctness or that its rejection
of this claim involved an unreasonable application of the established law of Strickland, or one
contrary to that established law, this Court should deny relief. See 28 U.S.C. § 2254(d), (e)(1).
Actual Innocence (Claim 10)
Maher claims that based on new evidence, he is actually innocent of the crime for which he
was convicted. Pet. at 8. The Director counters that freestanding claims of actual innocence are not
cognizable on federal habeas review, and in any event, Maher provides no newly discovered
evidence. Answer at 17.
The state court found:
[Maher] claims that he is now in possession of a letter written by the victim of his
offense that constitutes a defense. The letter purports to make menacing remarks that
[Maher] possibly believes justify his assaultive actions. [Maher] admits he was
aware of the existence of the letter prior to the offense and prior to trial. The letter
is not newly discovered evidence given [Maher]’s knowledge of the letter prior to the
offense and prior to trial. [Maher] did not cross examine the victim of the offense,
about the letter, threats, or menacing remarks.
Ex parte Maher, No. WR-72,410-01, Supp., Findings of Fact & Conc. of Law, at 3. Maher fails to
demonstrate by clear and convincing evidence that the state habeas court’s finding was incorrect.
See 28 U.S.C. § 2254(e)(1). Without any newly discovered evidence, he is unable to advance his
claim of actual innocence.
Even if Maher presented newly discovered evidence, claims of actual innocence are
ordinarily not cognizable on federal habeas review and do not state a ground for relief “absent an
independent constitutional violation occurring in the underlying state criminal proceeding.” Herrera
v. Collins, 506 U.S. 390, 400, 113 S. Ct. 853, 860 (1993); Boyd v. Puckett, 905 F.2d 895, 896-97
(5th Cir. 1990). Thus, the claim of innocence is not itself a constitutional claim on federal habeas
review, but acts instead as “a gateway through which a habeas petitioner must pass to have his
otherwise barred constitutional claim considered on the merits.” Schlup v. Delo, 513 U.S. 298, 314,
115 S. Ct. 851, 861 (1995) (quoting Herrera, 506 U.S. at 404, 113 S. Ct. at 862). Moreover, “even
if a truly persuasive claim of actual innocence could be a basis for relief, the Supreme Court made
clear that federal habeas relief would only be available if there was no state procedure for making
such a claim.” Graves v. Cockrell, 351 F.3d 143, 151(5th Cir. 2003).
The state court’s rejection of this claim was not an unreasonable application of federal law
as determined by the Supreme Court, nor was it based on underlying factual findings undeserving
of the presumption of correctness. See 28 U.S.C. §2254(d), (e)(1). The Court should deny relief.
It is recommended that Maher’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 “[u]nless 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 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
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 Maher’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 not issue a certificate of appealability.
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. Battle
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, 150-53, 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
ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return
SIGNED this 2nd day of February, 2012.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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