Medearis v. Thaler
MEMORANDUM OPINION AND ORDER DENYING RELIEF: all relief requested in petitioner's 1 federal habeas corpus petition, filed November 8, 2012, as supplemented by petitioner's 2 memorandum in support of petition, filed November 8, 2012, is DENIED; petitioner is DENIED a Certificate of Appealability on all issues herein; motions pending with the Court, if any, are DISMISSED as MOOT and this case is CLOSED. Signed by Chief Judge Fred Biery. (kkc)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
RONI L. MEDEARIS.
TDCJ No. 1530043,
WILLIAM STEPHENS, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
CIVIL ACTION NO. A-12-CA-1102-FB
MEMORANDUM OPINION AND ORDER DENYING RELIEF
Petitioner Roni L. Medearis filed this federal habeas corpus action pursuant to Title 28
U.S.C. Section 2254 challenging his September, 2008, Travis County convictions for aggravated
sexual assault and burglary of a habitation with intent to commit sexual assault. For the reasons set
forth hereinafter, the Court finds that petitioner is not entitled to federal habeas corpus relief or a
Certificate of Appealability from this Court.
The uncontradicted testimony from petitioner’s victim established (1) on the morning of
August 14, 2005, she returned to the rental home in East Austin into which she had just moved and,
as she entered the house, she observed a number of strange details, including a ball cap she did not
recognize sitting on her sofa, the radio and television were both on, and a small pink bag she did not
recognize also sitting on her sofa, (2) within seconds of her arrival, a shadow moving behind her
caught her attention, (3) she turned to see the petitioner, completely naked and with all his body hair
shaven off, close and lock her front door behind her, (4) petitioner spoke to her, (5) she grabbed his
scrotum and tried to hurt petitioner, (6) petitioner struck her hard in the face with the palm of his
hand and she let of petitioner, (7) over the next several minutes, she fought hard with petitioner,
repeatedly striking him while petitioner grabbed her hair and slammed her head against the floor, (8)
petitioner’s mouth began to bleed profusely when she slammed his face against a wall, (9) at one
point she managed to push the petitioner off of her, (10) she and petitioner continued to struggle with
petitioner pulling her head hard against her chest, (11) petitioner bit her on her forearm, (12) growing
weary, she attempted to feign tears in an attempt to but time, (13) she tried unsuccessfully to hold
on to a door frame but petitioner pulled her into the bedroom and directed her to remove her clothes,
(14) she resigned herself to the inevitability she would be raped and followed petitioner’s
instructions, (15) petitioner asked for a condom and, when she said she did not have one, petitioner
went to get one, (16) she attempted to rush past petitioner while he was distracted but petitioner
grabbed her, (17) petitioner then said he was not going to wear a condom but she begged him to do
so and he relented, (18) petitioner led her back to the bedroom where he put on a purple or blue
condom and spoke crudely to her, (19) petitioner raped her vaginally, (20) petitioner told her he
wanted her to have an orgasm and she pretended to do so, (21) petitioner apparently did not
ejaculate, (22) eventually, petitioner withdrew from her and tried to kiss her but she would not let
him, (23) petitioner directed her to wash herself off in the bathroom, (24) she got into the bathtub,
ran some water, and splashed it on herself in an effort to comply with petitioner’s directive, (25) she
was frightened petitioner would kill her and her primary concern was her own survival, (26) when
she glanced at herself in the mirror, she had blood on her face and in her hair, (27) when petitioner
commented that his DNA was everywhere, she offered to clean it up and began wiping the blood on
the walls with a green wash cloth or hand towel, (28) she also pulled the bloodstained sheets off her
bed, (29) she got a band aid for a cut on petitioner’s hand, (30) petitioner asked if they could do it
again but she refused, (31) after she assured petitioner she would not call the police, petitioner put
on his clothes and walked out the front door, (32) she locked the door behind her, grabbed a robe,
and went down the street to a neighbor’s where she tried to call her boyfriend, (33) after
unsuccessfully attempting to reach her boyfriend by phone, she got on her bike and rode to his house
a few blocks away but no one answered his door, and (34) she then went to a neighbor of her
boyfriend where she obtained clothing and called her father, who instructed her to call the police.1
A Travis County grand jury indicted petitioner initially in cause no. D-1-DC-06-302558 on
December 14, 2006 on two Counts charging petitioner with (1) burglary of a habitation with intent
to commit sexual assault and (2) sexual assault.2 On July 18, 2008, a Travis County grand jury
indicted petitioner in cause no. D-1-DC-08-904072 on two charges, to wit, burglary of a habitation
with intent to commit sexual assault and aggravated sexual assault and included a pair of
enhancement paragraphs alleging petitioner had previously been convicted of aggravated robbery
and robbery.3 On August 29, 2008, a Travis county grand jury re-indicted petitioner on charges of
Statement of Facts from petitioner’s trial (“S.F. Trial”), Volume 4, testimony of Penny
Scott, at pp. 35-58. Petitioner’s victim used the pseudonym “Penny Scott” throughout the
criminal proceedings against petitioner.
Transcript of pleadings. motions, and other documents filed in petitioner’s state trial
court proceeding (henceforth “Trial Transcript”), at pp. 9-11.
Trial Transcript, at pp. 82-84.
(1) aggravated sexual assault and (2) burglary of a habitation, and alleged in two enhancement
paragraphs petitioner had previously been convicted of aggravated robbery and robbery.4
Guilt-Innocence Phase of Trial
The guilt-innocence phase of petitioner’s trial commenced September 9, 2008. In addition
to the victim’s testimony summarized above, the jury heard testimony from (1) Penny Scott’s
neighbor who testified she was awakened on the morning of August 14, 2005 by a woman frantically
sobbing and stating she had just been raped,5 (2) the roommate of the petitioner’s victim who
testified the victim appeared to be distraught, upset, emotional, and shocked when she arrived at the
home they had leased shortly after the assault and inside the home there was broken furniture and
blood splatter on the walls of the front foyer,6 (3) the Austin Police Officer who encountered Penny
Trial Transcript, at pp. 167-69.
More specifically, the final indictment charged petitioner with (1) on or about August 14,
2005 intentionally and knowingly causing the penetration of Penny Scott’s sexual organ by
petitioner’s sexual organ without the consent of penny Scott by compelling Penny Scott to submit
or participate by the use of physical force or violence; and petitioner did then and there by acts
and words threaten to cause, or place Penny Scott in fear that serious bodily injury would be
imminently inflicted on Penny Scott and said acts and words occurred in the presence of Penny
Scott and (2) on or about August 14, 2005, petitioner intentionally and knowingly entered a
habitation without the effective consent of Penny Scott, the owner thereof, with the intent to
commit the offense of sexual assault. The two enhancement paragraphs alleged (1) petitioner
had been convicted January 30, 1988 of aggravated robbery in Travis County cause no. 80,762
and (2) petitioner has been convicted February 23, 1984 in Travis County cause no. 73561 of
S.F. Trial, Volume 4, testimony of Maribel Rivero, at pp. 148-56. Ms. Rivero also
testified (1) she let the young woman into her house, (2) the woman was wearing only a robe, (3)
the woman was crying a lot and said she had just moved into a nearby home, (4) the young
woman asked to use her phone and tried to call her boyfriend but got no answer, (5) the young
woman then left, and (6) when the police arrived about two hours later, she went out to speak
with them. Id.
S.F. Trial, Volume 4, testimony of Amanda Dean, at pp. 157-75. Mr. Dean also testified
the kitchen window was broken and the blood on the walls had not been there the night before
Scott the morning of the assault who testified it was apparent to him something traumatic had
happened to Penny Scott,7 (4) the sexual assault nurse examiner who conducted the examination of
petitioner’s victim who testified she observed numerous physical injuries, including bruises,
swelling, and scratches to the victim’s forehead, mouth, neck, arms, elbows, a bite mark on her right
wrist, and redness in the exterior lips of the victim’s vagina and urethra,8 (5) the Austin Police
Detective who headed the investigation into Penny Scott’s sexual assault who testified the crime
scene was bloodier than some homicide scenes he had visited as a patrol officer,9 (6) an Austin
when she had helped Penny Scott move into the house. Id.
S.F. Trial, Volume 4, testimony of Jeremy Compton, at pp. 176-208. Officer Compton
also testified (1) he drove Penny Scott back to the crime scene, (2) she had difficulty at times
recounting the events of earlier that morning, choking up with disgust at one point as she
“relived” the events she was recounting, (3) she described what she believed was a round tattoo
on her assailant’s forearm, (4) she recounted having been struck in the face and bitten on the arm
by her attacker, (5) she recounted her attacker offered to use a condom if she would stop fighting
him, and (6) when he later encountered Peny Scott again at the hospital where she was examined
by a sexual assault nurse, Penny Scott appeared more angry than sad. Id.
S.F. Trial, Volume 5, testimony of Mary Levy, at pp. 6-30. Nurse Levy also testified (1)
she collected head and pubic hair and drew blood from the victim, (2) she collected vaginal
swabs and labial swabs, and (3) it was not uncommon for sexual assault victims to display no
acute vaginal trauma. Id.
S.F. Trial, Volume 5, testimony of Christopher Dunn, at pp. 30-127. Detective Dunn
also testified (10 this was the first case he worked after being assigned to the Austin Police
Department’s sex crimes division in which the victim did not know the identity of her attacker,
(2) he had received no training in investigating sexual assault when he was assigned to the sex
crimes division and had received none at the time he initially investigated Penny Scott’s rape, (3)
the crime scene was unusually bloody, (4) he found the presence of glass on the cement outside
the broken kitchen window to be anomalous, (5) Penny Scott furnished information describing
her attacker from which a composite drawing was made and a BOLO issued, (6) shortly after the
assault, he showed Penny Scott a photo array which included a registered sex offender who
resided near the crime scene but Penny Scott did not identify anyone in the array as her attacker,
(7) he showed Penny Scott a second photo array a few days later which included an individual
about whom the police had received information from a Crime Stopper’s tip but Penny Scott
again did not identify anyone in the array as her attacker, (8) Detective Dunn and another Austin
Police crime scene specialist who testified he photographed the crime scene and collected evidence,10
(7) Penny Scott’s father who testified his daughter was hysterical when she called him immediately
Police Detective conducted a series of interviews of Penny Scott in which they attacked her
account of her assault, lied to her about the results of the DNA analysis of the crime scene, and
attempted to get her to change her account but she steadfastly refused to do so, (9) still later, he
e-mailed Penny Scott’s father a third photo array which included an individual named Kim Black
Detective Dunn believed to be a very promising suspect, (10) when Penny Scott once again failed
to identify anyone in the third array as her attacker, Detective Dunn insisted he needed her to
identify Kim Black so Black could be arrested and a DNA sample obtained from Black, (11) only
then did Penny Scott identify Kim Black as her attacker, (12) Kim Black was arrested but the
DNA sdample taken from him did not match the blood found at the crime scene, (13) at that
point, the investigation went cold until November, 2006 when the Texas Department of Criminal
Justrice sent Detective Dunn a notice of a “hit” on CODIS for petitioner’s DNA, (14) Detective
Dunn then showed Penny Scott a fourth photo array which included a photograph of petitioner
for the first time and Penny Scott identified petitioner as her attacker. Id. On cross-examination,
detective Dunn testified (1) there was blood on the walls on both sides of the foyer, (2) there was
more blood in the foyer and in the kitchen than in the bedroom, which he found suspicious, (3)
there was blood on the blinds next to the broken kitchen window, which he believed appeared to
have been broken from the inside, (4) DNA tests showed the blood found in the front foyer, the
kitchen window blinds, a leaf outside the kitchen window, a hand towel, the kitchen floor and
sink, and the victim’s clothing all came from the same individual, and (5) when he initially
interviewed her, Penny Scott said there was nothing distinctive about her assailant. Id., at pp. 88122. When recalled by the prosecution, Detective Dunn testified (1) petitioner had gained some
weight by the time of trial compared to the photograph in the photo array from which penny Scott
identified petitioner as her attacker, (2) he obtained buccal swabs from Kim Black, Penny Scott’s
former boyfriend Will Wright, and petitioner, and (3) when petitioner’s matched the DNA found
at the crime scene, the investigation ceased. S.F. Trial, Volume 6, testimony of Christopher,
Dunn, at pp. 6-15.
S.F. Trial, Volume 5, testimony of James Bixler, at pp. 128-75. Mr. Bixler also
testified (1) he photographed blood splatter on walls, kitchen cabinets, the front foyer of the
house, clothing in the bedroom, in the living room and on a green towel, (2) it appeared that
blood had been wiped off the kitchen floor, (3) he recovered no latent fingerprints at the crime
scene, (4) he collected finger nail scrapings from Penny Scott at the hospital, (5) he also
photographed the bite mark on Penny Scott’s forearm, (6) he unsuccessfully attempted to lift a
fingerprint off a condom wrapper and a fast-food restaurant receipt found at the crime scene, (7)
there was glass found both inside and outside the house near the broken kitchen window, (8) he
had received training in blood splatter analysis, (9) blood outside the kitchen window on concrete
appeared to have dropped straight down at 90 degrees, and (10) blood found in the front foyer
appeared to have been cast off hands as the hands moved at about a 45 degree angle. Id.
after her assault,11 (8) a Travis County District Attorney’s Office investigator who testified he
personally received and photographed evidence, including the victim’s bloody clothing, which had
been erroneously released to the victim’s family by Detective Dunn when the family returned same
shortly before trial still sealed in the same containers in which it had been released,12 (9) the head
of the Austin Police Department’s laboratory who testified about the DNA recovered from the crime
scene and the comparative testing done on same, including the fact a pair of semen samples found
on a pillow in the bedroom did not match petitioner’s DNA,13 (10) Penny Scott’s mother who
S.F. Trial, Volume 5, testimony of Ben Hackett, at pp. 197-217. Mr. Hackett also
testified (1) he is an attorney and former police officer, (2) Detective Dunn e-mailed him a photo
array via computer, (3) when he handed his phone to his daughter she informed Detective Dunn
“He’s not here,” (4) when Detective Dunn called his daughter’s attention to Kim Black’s
photograph, she replied Black’s shoulders or neck were wrong, (5) Detective Dunn then
informed his daughter they needed to get the bad guy off the streets and only then did his
daughter identify any of the men in the e-mailed photo array her attacker, and (6) Penny Scott’s
room mate Amanda Dean found a condom wrapper in the bedding on the floor of the bedroom
where the sexual assault occurred which he took to Detective Dunn. Id.
S.F. Trial, Volume 6, testimony of Michael Henderson, at pp. 15-26. Mr. Henderson
also testified (1) petitioner’s trial counsel was present when he opened and photographed the
sealed evidence containers returned to Austin by the victim’s family and (2) he took photographs
of all of the petitioner’s many tattoos. Id.
S.F. Trial, Volume 6, testimony of Cassie Carradine, at pp. 27-90. Ms. Carradine also
testified (1) initially the only DNA references her lab was given were Penny Scott and Kim
Black, (2) Kim Black’s DNA was not a match for any of the crime scene materials, (3) her lab
was unable to get a good DNA profile off the green hand towel, which she attributed to the
possible presence of bleach and other cleaning agents which can break down DNA and prevent
its recovery, (4) initially the same unknown male was found to be the source of the blood found
on the front foyer walls, the victim’s tank top and jeans, and the kitchen blinds, (5) all of the
foregoing DNA samples later matched petitioner’s DNA with an extremely high degree of
certainty, (6) it is not possible to determine the ethnicity or race of an individual from their DNA
alone, (7) the pillow case found in the bedroom tested positive for both semen and blood, (8) the
blood found on the bedroom pillow case matched petitioner’s DNA but the semen did not match
petitioner’s DNA, and (9) the results from Penny Scoot’s fingernail scrapings both showed
mixtures of DNA and Penny Scott could not be excluded as a contributor to the scrapings taken
from her right hand while petitioner could not be excluded as a possible contributor to the
testified there was blood smeared on the walls and floor of the house and it took three days to clean
up all the blood,14 and (11) Penny Scott’s former boyfriend who testified he helped her move into
the crime scene the night before the rape and found her face contorted and her hair matted when he
arrived at the crime scene the following morning.15
After the prosecution rested, the defense rested without calling any witnesses.16 After
deliberating less than three hours, the jury returned its verdict, finding petitioner guilty beyond a
reasonable doubt on both charges against him.17
scrapings taken from Penny Scott’s left hand. Id., at pp. 27-65. On cross-examination, Ms.
Carradine again testified that, while petitioner could be excluded as a possible source of the
semen on the pillow case, petitioner could not be excluded as a possible source of the blood
found on the same pillow case. Id., at pp. 66-90.
S.F. Trial, Volume 5, testimony of Irene Hackett, at pp. 176-97. Mrs. Hackett also
testified (1) her daughter was sad, quiet, and appeared to be in pain when they met her at the
hospital in Austin, (2) her daughter stayed with them in a hotel in the days immediately after the
assault, (3) she spent three days packing her daughter’s things and cleaning up the house, (4)
there was a film of blood all over the kitchen floor, and on the hallway floor and hallway walls,
(5) she also observed and cleaned blood on the baseboards in the hallway, the dog’s bowl, on
dishes, and in the bedroom on the comforter and on a book on a bed side table, and (6) when the
Austin Police released her daughter’s clothing and other evidence to the family, she kept the
items in their sealed evidence containers in a closet at her home, never opened those containers,
and later returned them to Austin still sealed. Id.
S.F. Trial, Volume 6, testimony of Michael Layne, at pp. 90-106. Mr. Layne also
testified he believed both of the blue pillow found in the bedroom at the crime scene were his and
he had never been asked to furnish a DNA sample in connection with the case. Id., at pp. 10002.
S.F. Trial, Volume 6, at pp. 106-08, 113.
S.F. Trial, Volume 6, at pp. 156-57; Trial Transcript, at pp. 192-201. The trial record
indicates petitioner’s jury commenced its deliberations at approximately 2:25 PM and returned
its verdict at approximately 5:15 PM on September 11, 2008. Trial Transcript, at pp. 192-201.
Petitioner chose to have the state trial court sentence him.18 The trial court then heard
testimony from a fingerprint examiner who testified petitioner’s fingerprints matched those on
official courts documents showing petitioner had been convicted previously of forgery, robbery with
bodily injury, and aggravated robbery with a deadly weapon.19 Penny Scott testified (1) she suffered
tremendous emotional and psychological injury as a result of the petitioner’s sexual assault upon her,
(2) she received a lot of counseling, and (3) although she had married since the events of August 14,
2008, she continued to have issues with intimacy and often experienced high levels of anxiety.20 The
trial judge found both of the enhancement paragraphs of the indictment against petitioner to be “true”
and imposed concurrent sentences of sixty and seventy years on the burglary and aggravated sexual
assault counts, respectively.21
Petitioner appealed his conviction and sentence, filing his appellate brief on October 30,
2009. As his point of error, petitioner argued his DNA had been seized in violation of his
constitutional rights. In an unpublished opinion issued June 23, 2010, the Texas Third Court of
Appeals affirmed petitioner’s conviction. Medearis v. State, 03-08-00609-CR, 2010 WL 2540596
(Tex. App. – Austin June 23, 2010, pet. ref’d). The Texas Court of Criminal Appeals refused
petitioner’s petition for discretionary review on December 15, 2010.
S.F. Trial, Volume 4, at p. 5.
S.F. Trial, Volume 6, testimony of Roger Dean, at pp. 160-76.
S.F. Trial, Volume 6, testimony of Penny Scott, at pp. 176-84.
S.F. Trial, Volume 6, at pp. 188-90.
State Habeas Corpus Proceeding
Petitioner filed an application for state habeas corpus relief on September 26, 2011, asserting
several claims for relief.22 The state trial court issued its findings of fact and conclusions of law
addressing petitioner’s state habeas corpus claims on July 18, 2012 in an order recommending
petitioner’s state habeas corpus application be denied.23 On August 8, 2012, the Texas Court of
Criminal Appeals summarily dismissed petitioner’s state habeas corpus application as
“NONCOMPLIANT WITH TEX. R. APP. P. 73.1.” Ex parte Roni Lewis Medearis aka Roni
Medearis, WR-77,985-01 (Tex. Crim. App. August 8, 2012).
Transcript of pleadings, motions, and other documents filed in petitioner’s state habeas
corpus proceeding (henceforth “State Habeas Transcript”), at pp. 28-39. Petitioner’s state habeas
corpus application did not contain an original signature and was not verified or accompanied by
an unsworn declaration as required Rule 73.1(d)(2) of the Texas Rules of Appellate Procedure.
While petitioner’s state habeas corpus application was prepared on a standardized form, it was
missing page 13 of 13 from that form.
Petitioner also filed a pro se memorandum of law in support of his state habeas corpus
application. Id., at pp. 40-70. As grounds for relief, petitioner argued in his state habeas corpus
application and memorandum of law in support that his conviction should be vacated because (1)
the semen stains on the pillow case did not match petitioner’s DNA, (2) Detective Dunn
manufactured evidence against petitioner by placing petitioner’s photograph in the same position
as Kim Black’s photograph had been located in a prior photo array, (3) there was insufficient
evidence to support to support petitioner’s convictions, (4) the trial court erroneously refused to
submit an instruction on the lesser-included offense of criminal trespass, (5) petitioner’s rights
under Brady v. Maryland when the prosecution withheld from the defense evidence showing
petitioner’s DNA did not match the semen found on the pillow case, (6) petitioner’s blood was
seized in violation of Articles 18.01 and 18.02 of the Texas Code of Criminal Procedure, and (7)
petitioner’s rights under Article 37.09 of the Texas Code of criminal procedure were violated by
the admission of false evidence regarding the glass at the window break-in. Id.
The state trial court’s order of July 18, 2012 appears as a separate document from
petitioner’s state habeas corpus transcript among the documents relating to petitioner’s state
II. Proceedings in this Court
Petitioner filed his pro se federal habeas corpus petition and memorandum in support of
petition in this Court on November 8, 2012 (docket entry nos. 1 and 2), asserting his convictions
should be set aside because (1) semen stains recovered from a pillow case in the bedroom did not
match his DNA, (2) the prosecution introduced unspecified false evidence to secure his conviction,
(3) the police employed an impermissibly suggestive show up procedure to secure his conviction,
(4) the prosecution withheld exculpatory evidence (i.e., evidence the semen stains on the pillow case
did not match petitioner’s DNA) from the defense prior to trial, (5) there was insufficient evidence
to support petitioner’s convictions, (6) petitioner’s blood was illegally seized while he was in state
custody, and (7) petitioner’s due process rights were violated by the improper joinder of his burglary
and aggravated sexual assault charges in a single trial.
Respondent filed an answer on March 20, 2013 (docket entry no. 15) in which he argued
petitioner has failed to exhaust available state remedies on petitioner’s claims for federal habeas
relief because petitioner’s state habeas corpus application was dismissed on purely procedural
On April 1, 2013 and May 28, 2013 (docket entry nos. 16 and 19), petitioner filed pleadings
in which he argued he had exhausted available state habeas remedies with regard to his claims in this
federal habeas corpus proceeding and urged this Court to address the merits of his claims.
III. Standard of Review
Because petitioner filed his federal habeas corpus action after the effective date of the
AEDPA, this Court’s review of petitioner’s claims for federal habeas corpus relief is governed by
the AEDPA. Penry v. Johnson, 532 U.S. 782, 792, 121 S. Ct. 1910, 1918, 150 L. Ed. 2d 9 (2001).
Under the AEDPA standard of review, this Court cannot grant petitioner federal habeas corpus relief
in this cause in connection with any claim that was adjudicated on the merits in state court
proceedings, unless the adjudication of that claim either: (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. Brown v.
Payton, 544 U.S. 133, 141, 125 S. Ct. 1432, 1438, 161 L. Ed. 2d 334 (2005); Williams v. Taylor, 529
U.S. 362, 404-05, 120 S. Ct. 1495, 1519, 146 L. Ed. 2d 389 (2000); 28 U.S.C. § 2254(d). Petitioner
did exhaust available state remedies on direct appeal with regard to his complaint about the
admission of DNA obtained through a blood sample from petitioner. This claim is properly subject
to review under the deferential standard set forth in the AEDPA.
As respondent correctly points out, however, petitioner’s remaining claims for federal habeas
corpus relief were either included in petitioner’s state habeas corpus application (which the Texas
Court of Criminal Appeals summarily dismissed on purely state procedural grounds) or, as in the
case of petitioner’s “misjoinder” claim, never presented to any state court. These claims are
currently unexhausted and, for that reason, petitioner’s federal habeas corpus petition is properly
subject to dismissal. See Rose v. Lundy, 455 U.S. 509, 510, 102 S. Ct. 1198 1199, 71 L. Ed. 2d 379
(1982) (“Because a rule requiring exhaustion of all claims furthers the purposes underlying the
habeas statute, we hold that a district court must dismiss such ‘mixed petitions,’ leaving the prisoner
with the choice of returning to state court to exhaust his claims or of amending or resubmitting the
habeas petition to present only exhausted claims to the district court.”). Subsequent to the Supreme
Court’s opinion in Rose v. Lundy, the Supreme Court held there are circumstances in which a federal
court may address the merits of an unexhausted federal habeas corpus petition if the interests of
comity and federalism will be better served by addressing the merits forthwith than by requiring a
series of additional state and district court proceedings before reviewing the merits of the petitioner’s
claim. Granberry v. Greer, 481 U.S. 129, 134, 107 S. Ct. 1671, 1675, 95 L. Ed. 2d 119 (1987). For
example, “if it is perfectly clear that the applicant does not raise even a colorable federal claim, the
interests of the petitioner, the warden, the state attorney general, the state courts, and the federal
courts will all be well served even if the State fails to raise the exhaustion defense, the district court
denies the habeas petition, and the court of appeals affirms the judgment of the district court
forthwith.” Granberry v. Greer, 481 U.S. at 135, 107 S. Ct. at 1675.
Consistent with the policy underlying the Supreme Court’s opinion in Granberry v. Greer,
when Congress enacted the AEDPA it which expressly authorized federal courts to deny relief on
unexhausted claims. Duncan v. Walker, 533 U.S. 167, 183, 121 S. Ct. 2120, 2130, (2001)
(recognizing the AEDPA gives a federal district court the alternative of simply denying a petition
containing unexhausted but non-meritorious claims); 28 U.S.C. §2254(b)(2). Thus, this Court has
the option of addressing the merits of petitioner’s unexhausted claims if those claims appear to be
non-meritorious. In such circumstances, this Court’s review of the unexhausted claims is necessarily
de novo. See Porter v. McCollum, 558 U.S. 30, 39, 130 S. Ct. 447, 452, 175 L. Ed. 2d 398 (2009)
(holding de novo review of the allegedly deficient performance of petitioner’s trial counsel was
necessary because the state courts had failed to address this prong of Strickland analysis); Rompilla
v. Beard, 545 U.S. 374, 390, 125 S. Ct. 2456, 2467, 162 L. Ed. 2d 360 (2005) (holding de novo
review of the prejudice prong of Strickland required where the state courts rested their rejection of
an ineffective assistance claim on the deficient performance prong and never addressed the issue of
prejudice); Wiggins v. Smith, 539 U.S. 510, 534, 123 S. Ct. 2527, 2542, 156 L. Ed. 2d 471 (2003)
(holding the same). For the reasons set forth below, this Court believes addressing the merits of
petitioner’s unexhausted claims in this cause is consistent with the policies expressed by the
Supreme Court in Granberry v. Greer and by Congress when it enacted the AEDPA.
IV. Insufficient Evidence
In his memorandum in support of his federal habeas corpus petition, petitioner argues his
conviction should be set aside because there was insufficient evidence to support the jury’s verdicts,
particularly in view of (1) the evidence showing the semen strains found on a bedroom pillow case
did not match petitioner’s DNA and (2) petitioner’s argument that the presence of his blood smeared
on the walls and floor of the residence where the crime occurred and in droplets outside the residence
does not establish petitioner committed the charged offenses. The United States Supreme Court has
consistently applied a single standard for evaluating the sufficiency of the evidence to support a state
criminal jury verdict. “In Jackson v. Virginia, 443 U.S. 307, , 99 S. Ct. 2781, [2791-92], 61
I. Ed. 2d 560 (1979), we held that a state prisoner is entitled to habeas corpus relief if a federal judge
finds that ‘upon the record evidence adduced at the trial no rational trier of fact could have found
proof of guilt beyond a reasonable doubt.’ ” McDaniel v. Brown, 558 U.S. 120, 121, 130 S. Ct. 665,
666, 175 L. Ed. 2d 582 (2010) (citation omitted). “[T]he relevant question is whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. at 319,
99 S. Ct. at 2789; Perez v. Cain, 529 F.3d 588, 594 (5th Cir.), cert. denied, 555 U.S. 995, 129 S. Ct.
496, 172 I. Ed. 2d 358 (2008). To determine whether the evidence is sufficient to support a state
criminal conviction, the Court must look to state law for the substantive elements of the relevant
criminal offense. Jackson v. Virginia, 443 U.S. at 324 n.16, 99 S. Ct. at 2792 n.16.
Applicable Texas law defines the offense of aggravated sexual assault as follows: A person
commits an offense if the person intentionally or knowingly causes the penetration of the anus or
sexual organ of another person by any means, without that person’s consent. Section
22.021(a)(1)A)(i), TEX. PEN. CODE ANN. (Vernon 2011). Penny Scott testified she fought violently
with petitioner, who slammed her head against the floor and bit her during their struggle until she
realized she could not overpower or escape from petitioner and submitted to his demand for sexual
intercourse.24 The crime scene showed tangible evidence of a violent altercation, including bloody
walls in the front foyer and hallway, blood on the floor outside the bedroom where the sexual assault
occurred, and blood in many locations in the kitchen.25 Viewed in the light most favorable to the
jury’s verdict, the uncontradicted testimony of Ms. Scott was sufficient to permit a rational juror to
conclude the prosecution had proved the essential elements of the offense of aggravated sexual
assault beyond a reasonable doubt.26
S.F. Trial, Volume 4, testimony of Penny Scott, at pp. 45-53, 108, 115, 117-18. Penny
Scott also testifi4ed she remained fearful for her life even after petitioner finished raping her and
so she did her best to convince petitioner she would clean up the crime scene and not contact the
police once he left. Id., at pp. 53-56, 91-92, 122,
S.F. Trial, Volume 4, testimony of Penny Scott, at pp. 73-82; Volume 4, testimony of
Amanda Dean, at p. 161; Volume 5, testimony of James Bixler, at pp. 131-51, 171-74; Volume
5, testimony of Irene Hackett, at pp. 180-83, 191, 193-95. Detective Dunn described the crime
scne as bloodier than many murder scenes he had visited as a patrol officer. S.F. Trial, Volume 5,
testimony of Christopher Dunn, at pp. 40-41, 91-100. Crime scene specialist Bixler also testified
it appears to him that blood had been cleaned or wiped from the kitchen floor. S.F. trial, Volume
5, testimony of James Bixler, at p. 131.
See note 1, supra, and accompanying text.
Applicable Texas law defines the offense of burglary of a habitation as follows: A person
commits an offense if, without the effective consent of the owner, the person enters a habitation then
not open to the public with intent to commit a felony, theft or an assault. Section 30.02(a)(1), TEX.
PEN. CODE ANN. (Vernon 2011). A rational juror could have concluded the uncontradicted
testimony of Ms. Scott established beyond a reasonable doubt petitioner entered Penny Scott’s rental
home without her consent and petitioner did so with the intent to commit sexual assault. As
explained above, Penny Scott testified she unlocked her front door to enter her new rental home and
entered, only to find the petitioner standing naked, with his body hair shaven off, behind her.27
Petitioner immediately locked the front door behind her and fought violently with her when she
resisted.28 Penny Scott testified without contradiction she did not have a condom.29 Petitioner
produced a condom and thereafter forced her to have sexual intercourse.30 It was undisputed the
kitchen window in the home was broken and blood was found on the blinds precisely where the
window was broken, both on the blinds inside the window and on the cement just outside the
window. A rational jury could have rationally inferred from the foregoing uncontradicted testimony
petitioner intended to commit sexual assault when he entered Penny Scott’s home and had prepared
to do so by shaving off his body hair, obtaining a condom, and taking off his clothing upon entering
the home to lie in wait for her return. Thus, a rational juror could have concluded (1) petitioner
S.F. Trial, Volume 4, testimony of Penny Scott, at pp. 39-40, 45-46. Penny Scott also
testified her rapist’s body hair was shaven off. Id., at p. 62.
Id., at pp. 40, 45-50, 110, 115. Penny Scott also testified the petitioner told her he had
seen her before and he enjoyed having the police chase him. Id., at pp. 91, 125.
Id., at p. 80.
Id., at pp. 49-52.
entered the home of Penny Scott when it was locked with the specific intention of committing sexual
assault upon her and (2) the prosecution proved all the essential elements of the offense of burglary
of a habitation beyond a reasonable doubt.
Petitioner’s argument that semen stains found on a pillow in the bedroom did not match his
DNA does not change the Court’s insufficient evidence analysis. As the state trial court noted in its
factual findings in the course of petitioner’s state habeas corpus proceeding, there was no evidence
showing the semen in question could not have come from anyone other than the rapist. In fact,
Penny Scott’s former boyfriend testified without contradiction the pillow in question probably was
one he brought over to her former apartment and he often slept on his side with a pillow between his
legs.31 Thus, the fact DNA from an unidentified third party also appeared at the crime scene was not
exculpatory with regard to petitioner’s offense. What petitioner fails to note is that a pair of blood
stains found on the same pillow did match petitioner’s DNA.32
Viewed under the Jackson v. Virginia standard, there was ample evidence from which a
rational jury could have concluded beyond a reasonable doubt petitioner was guilty of both
aggravated sexual assault and burglary of a habitation with intent to commit sexual assault. Even
under de novo review, petitioner’s insufficient evidence claims lack merit and are frivolous.
S.F. Trial, Volume 6, testimony of Michael Layne, at pp. 99-102.
S.F. Trial, Volume 6, testimony of Cassie Carradine, at pp. 56-58, 64.
V. Brady Claim
Petitioner argues his rights under the Supreme Court’s holding in Brady v. Maryland, 373
U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), were violated when the prosecution withheld from
defense counsel evidence showing the semen stains found on a bedroom pillow case did not match
petitioner’s DNA. The Supreme Court has noted that few constitutional principles are more firmly
established by Supreme Court precedent than the rule “‘the suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.’” Banks
v. Dretke, 540 U.S. 668, 691, 124 S. Ct. 1256, 1272, 157 L. Ed. 2d 1166 (2004); Brady v. Maryland,
373 U.S. at 87, 83 S.Ct. at 1196-97. In this regard, the Supreme Court has consistently held the
prosecution’s duty to disclose evidence material to either guilt or punishment, i.e., the rule
announced in Brady v. Maryland, applies even when there has been no request by the accused.
Banks v. Dretke, 540 U.S. at 690, 124 S. Ct. at 1272; Strickler v. Greene, 527 U.S. 263, 280, 119 S.
Ct. 1936, 1948, 144 L. Ed. 2d 286 (1999); United States v. Agurs, 427 U.S. 97, 107, 96 S. Ct. 2392,
2399, 49 L. Ed. 2d 342 (1976). This duty also applies to impeachment evidence. Strickler v.
Greene, 527 U.S. at 280, 119 S. Ct. at 1948; United States v. Bagley, 473 U.S. 667, 676, 685, 105
S. Ct. 3375, 3380 & 3385, 87 L. Ed. 2d 481 (1985).
The rule in Brady encompasses evidence known only to police investigators and not
personally known by the prosecutor. Strickler v. Greene, 527 U.S. at 280-81, 119 S. Ct. at 1948;
Kyles v. Whitley, 514 U.S. 419, 438, 115 S. Ct. 1555, 1568, 131 L. Ed. 2d 490 (1995). “[T]he
individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the
government’s behalf in this case, including the police.” Strickler v. Greene, 527 U.S. at 281, 119
S. Ct. at 1948 (emphasis added); Kyles v. Whitley, 514 U.S. at 437, 115 S. Ct. at 1567. Moreover,
under clearly established Supreme Court precedent, there are three elements to a Brady claim: (1)
the evidence must be favorable to the accused, either because it is exculpatory or because it is
impeaching; (2) the evidence must have been suppressed by the State, either willfully or
inadvertently; and (3) the evidence must be “material,” i.e., prejudice must have ensued from its nondisclosure. Banks v. Dretke, 540 U.S. at 691, 124 S. Ct. at 1272; Strickler v. Greene, 527 U.S. at
281-82, 119 S. Ct. at 1948. Evidence is “material” under Brady where there exists a “reasonable
probability” that had the evidence been disclosed the result at trial would have been different. Banks
v. Dretke, 540 U.S. at 698-99, 124 S. Ct. at 1276. The Supreme Court has further emphasized four
aspects of the Brady materiality inquiry.
First, a showing of materiality does not require
demonstration by a preponderance that disclosure of the suppressed evidence would have resulted
in the defendant’s acquittal. See United States v. Bagley, 473 U.S. at 682, 105 S. Ct. at 3383
(expressly adopting the “prejudice” prong of the Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984), analysis of ineffective assistance claims as the appropriate standard
for determining “materiality” under Brady). Second, the materiality standard is not a sufficiency of
the evidence test. Kyles v. Whitley, 514 U.S. at 434-35, 115 S. Ct. at 1566. Third, once materiality
is established, harmless error analysis has no application. Kyles v. Whitley, 514 U.S. at 435-36, 115
S. Ct. at 1566-67. Finally, materiality must be assessed collectively, not item by item. Kyles v.
Whitley, 514 U.S. at 436-37, 115 S. Ct. at 1567.
Petitioner’s complaint fails to satisfy any of the three prongs of Brady analysis outlined
above. First, petitioner alleges no specific facts showing the DNA evidence showing two semen
stains found on the bedroom pillow did not match petitioner’s DNA was withheld from petitioner’s
trial counsel. On the contrary, the prosecution’s DNA testified at trial the two semen stains in
question were found not to match petitioner’s DNA.33 She also testified, however, two blood stains
found on the same pillow did match petitioner’s DNA.34 At no point did petitioner’s trial counsel
voice any surprise or take exception to this testimony. On the contrary, petitioner’s trial counsel
emphasized this exact point during his cross-examination of the prosecution;’s DNA expert.35
Second, petitioner fails to allege any facts showing the evidence indicating petitioner was not the
source of the semen found on the pillow was favorable to petitioner. As noted by the state habeas
trial court, there was no evidence showing only the rapid has access to the pillow prior to the rape.
Third, because there was blood on the pillow which did match the petitioner’s DNA, the fact the
semen found on the pillow did not match petitioner’s DNA was not “material” within the meaning
of Brady. In point of fact, petitioner’s jury was well aware the semen stains on the pillow did not
match petitioner’s DNA. Given the undisputed fact the blood on the same pillow did match
petitioner’s DNA, and the fact the jury was informed the semen on the same pillow did not match
petitioner’s DNA, petitioner’s complaint fails to satisfy the materiality prong of Brady analysis.
VI. Impermissibly Suggestive Identification Procedures
Petitioner argues the identification procedures which resulted in Penny Scott identifying
petitioner as her attacker were impermissibly suggestive because Detective Dunn placed petitioner’s
photograph in the fourth photo array shown to Ms. Scott in the same position as the photograph of
Kim Black had been placed a year before when Detective Dunn cajoled a reluctant Ms. Scott into
S.F. Trial, Volume 6, testimony of Cassie Carradine, at pp. 55-56.
Id., at pp. 56-59, 64.
Id., at pp. 82.
identifying Kim Black as her attacker. When a witness identifies the defendant in a police-organized
photo lineup, the identification should be suppressed only where the photographic identification
procedure was so unnecessarily suggestive as to give rise to a very substantial likelihood of
irreparable misidentification. Perry v. New Hampshire, ___ U.S. ___, ___, 132 S. Ct. 716, 724, 181
L. Ed. 2d 694 (2012); Simmons v. United States, 390 U.S. 377, 384-85, 88 S. Ct. 967, 971-72, 19 L.
Ed. 2d 1247 (1968). The Supreme Court has emphasized the Due Process test for the suppression
of an eyewitness identification is implicated only when law enforcement officers use an
identification procedure that is both suggestive and unnecessary. Perry v. New Hampshire, ___ U.S.
at ___, 132 S. Ct. at 724; Manson v. Braithwaite, 432 U.S. 98, 107, 97 S. Ct. 2243, 2249, 53 L. Ed.
2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 198, 93 S. Ct. 375, 381-82, 34 L. Ed. 2d 401 (1972).
Even if this threshold requirement is satisfied, exclusion of a resulting identification is not
necessarily mandatory. Perry v. New Hampshire, ___ U.S. at ___, 132 S. Ct. at 724. Rather, the
second part of the Supreme Court test requires analysis on a case-by-case basis of whether improper
police conduct created a “substantial likelihood of misidentification.” Perry v. New Hampshire, ___
U.S. at ___, 132 S. Ct. at 724; Neil v. Biggers, 409 U.S. at 199-201, 93 S. Ct. at 382-83. Factors
the Supreme Court has instructed courts to employ in making this evaluation include (1) the witness’
opportunity to view the criminal at the time of the crime, (2) the witness’ degree of attention, (3) the
accuracy of the witness’ prior description of the criminal, (4) the level of certainty demonstrated at
the confrontation, and (5) the time between the crime and the confrontation. Perry v. New
Hampshire, ___ U.S. at ___, 132 S. Ct. at 725 n.5; Manson v. Braithwaite, 432 U.S. at 114, 97 S.
Ct. at 2253; Neil v. Biggers, 409 U.S. at 199-200, 93 S. Ct. at 382-83.
In petitioner’s case, Penny Scott (1) encountered a naked petitioner during daylight hours
inside her home, (2) fought violently with petitioner for several minutes, (3) later submitted to rape
by petitioner, (4) conversed with petitioner, (5) got a Band Aid for a cut on petitioner’s palm, (6)
smoked a cigarette, and (7) cleaned up some of the petitioner’s blood, all before petitioner left the
crime scene. Thus, she had an exceptionally good opportunity to view petitioner.
Like the rape victim in Neil v. Biggers, Penny Scott gave an accurate description of
petitioner’s approximate age, height, overall physical appearance, including noticing a small round
tattoo on one of petitioner’s forearms. Penny Scott testified, without contradiction, when she was
shown the fourth photo array, she immediately recognized petitioner as her attacker and was one
hundred percent certain of her identification.36 The fourth photo array was shown to Penny Scott in
November, 2006 a little more than a year after the August, 2005 assault upon her and more than a
year after she viewed an e-mailed photo array containing the photo of Kim Black, whom she initially
refused to identify as her attacker.
Presuming for purposes of argument the placement of petitioner’s photograph in the exact
same position within a six-frame photo array as the photograph of Kim Black had appeared in a very
different photo array a year before was “suggestive,” this Court concludes, under the circumstances
of the petitioner’s case, there was no substantial likelihood of misidentification. Petitioner’s
photograph was only shown to Penny Scott after petitioner’s DNA was found to match the extensive
blood spatter found at the crime scene. The admission at petitioner’s trial of Penny Scott’s in-court
identification of petitioner as her attacker did not violate petitioner’s Due Process rights.
S.F. Trial, Volume 4, testimony of Penny Scott, at p. 71.
VII. “False Evidence” Claim
Petitioner also complains in cryptic terms the prosecution employed “false evidence” to
secure petitioner’s conviction. Petitioner does not, however, offer any clear indication of precisely
what false evidence was presented at his trial. Nor does petitioner allege any specific facts showing
the prosecution knowingly utilized false testimony or any other false evidence during petitioner’s
A state denies a criminal defendant due process when it knowingly uses perjured testimony
at trial or allows untrue testimony to go uncorrected. Giglio v. United States, 405 U.S. 150, 153-54,
92 S. Ct. 763, 766, 31 L. Ed. 2d 104 (1972); Napue v. Illinois, 360 U.S. 264, 269-70, 79 S. Ct. 1173,
1177, 3 L. Ed. 2d 1217 (1959). To succeed in showing a due process violation from the use of
allegedly perjured testimony, a defendant has the burden of establishing that (1) the witness in
question actually gave false testimony, (2) the falsity was material in that there was a reasonable
likelihood that it affected the judgment of the jury, and (3) the prosecution used the testimony in
question knowing that it was false. Giglio v. United States, 405 U.S. at 153-54, 92 S. Ct. at 766; Reed
v. Quarterman, 504 F.3d 465, 473 (5th Cir. 2007). Petitioner’s conclusory assertion the prosecution
employed unspecified false evidence to secure petitioner’s conviction does not establish that
petitioner can (1) identify specific false evidence, (2) demonstrate the evidence in question was
factually inaccurate, (3) show there was a reasonable probability admission of the evidence in
question affected the jury’s verdict, or (4) demonstrate the prosecution knowingly utilized the false
testimony or other false evidence during petitioner’s trial.
VIII. Misjoinder Complaint
Petitioner also challenges the fact that he was tried for both aggravated sexual assault and
burglary of a habitation in the same trial court proceeding. Petitioner does not identify any legal
authority, under either state or federal law, making it improper for a criminal defendant to be tried
for multiple offenses which arise out of the same nexus of operative facts. Here, petitioner was tried
for burglary of a habitation with intent to commit sexual assault and the ensuing aggravated sexual
assault which resulted from the burglary in question, i.e., for two offenses arising out of the same
Texas Penal Code Section 3.02(a) provides a defendant may be prosecuted in a single
criminal action for all offenses arising out of the same criminal episode. Texas Penal Code Section
3.03 provides a defendant convicted of multiple offenses arising out of the same criminal episode
prosecuted in a single criminal action shall be sentenced for each offenses but, except for a few
statutory exceptions, the sentences must run concurrently. Halliburton v. State, 578 S.W. 2d 726,
739 (Tex. Crim. App. 1979) (the benefit afforded a criminal defendant by Section 3.03 is the trial
court must treat separate offenses tried jointly as a single offense for sentencing purposes). Texas
Penal Code Section 3.04(a) provides whenever two or more offenses have been consolidated or
joined for trial under Section 3.02, the defendant shall have a right to a severance of the offenses.
Texas Penal Code Section 3.04(b) provides further, however, a criminal defendant who invokes
Section 3.04(a) to demand separate trials loses the benefit of Section 3.03 of the Texas Penal Code
and may be subjected to consecutive sentences for the separate offenses tried separately. Werner v.
State, 412 S.W.3d 543, 547 (Tex. Crim. App. 2013) (“Although Section 3.04 was enacted for the
defendant's benefit, the risk he runs in requesting a severance is that the trial judge then has
discretion to require consecutive sentences if the defendant is convicted in separate trials.”).
Petitioner does not allege that he requested his trial counsel seek separate trials for the two
felony charges brought against petitioner arising out of the events of August 14, 2005. Had
petitioner’s trial counsel done so, under Section 3.04(a), petitioner would have been entitled to
separate trials on those charges although petitioner would have faced the very real prospect he would
receive consecutive, rather than concurrent, sentences if convicted of both offenses. Under such
circumstances, petitioner has failed to allege any facts showing he was prejudiced by being tried
jointly for both his offenses. Moreover, petitioner’s argument that he was tried without his objection
for two separate offenses arising from the same criminal episode does not raise above the level of
harmless error. See Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 1722, 123 L. Ed.
2d 353 (1993) (holding the test for harmless error in a federal habeas corpus action brought by a state
prisoner is "whether the error had substantial and injurious effect or influence in determining the
jury's verdict"); Simmons v. Epps, 654 F.3d 526, 539 (5th Cir. 2011) (error is harmless under Brecht
if the sentence would have been the same but for the constitutional error), cert. denied, ___ U.S. ___,
132 S. Ct. 2374, 182 L. Ed. 2d 1025 (2012). Given the forensic evidence and eyewitness testimony
establishing petitioner’s guilt, there is no reasonable possibility petitioner’s sentence would have
been any less had he insisted upon separate trials on the two charges against him.
Petitioner does not identify any particular federal constitutional provisions guaranteeing him
a right to retroactively demand separate trials after he failed to request same prior to the conclusion
of his joint state trial. Even presuming petitioner’s rights under the Texas Penal Code were
somehow violated by his joint trial on both burglary and aggravated sexual assault charges (which
petitioner has failed to establish), any violation of petitioner’s state procedural rights, standing alone,
would not entitle petitioner to federal habeas corpus relief. Federal habeas corpus furnishes relief
for violations of federal constitutional rights and federal statutory rights, not for violations of state
procedural or evidentiary rules. Federal habeas corpus relief will not issue to correct errors of state
constitutional, statutory, or procedural law, unless a federal issue is also presented. See Estelle v.
McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 480, 116 L. Ed. 2d 385 (1991) (holding complaints
regarding the admission of evidence under California law did not present grounds for federal habeas
relief absent a showing that admission of the evidence in question violated due process); Lewis v.
Jeffers, 497 U.S. 764, 780, 110 S. Ct. 3092, 3102, 111 L. Ed. 2d 606 (1990) (recognizing federal
habeas relief will not issue for errors of state law); Pulley v. Harris, 465 U.S. 37, 41, 104 S. Ct. 871,
874, 79 L. Ed. 2d 29 (1984) (holding a federal court may not issue the writ on the basis of a
perceived error of state law). In the course of reviewing state criminal convictions in federal habeas
corpus proceedings, a federal court does not sit as a super-state appellate court. Estelle v. McGuire,
502 U.S. at 67-68, 112 S. Ct. at 480; Lewis v. Jeffers, 497 U.S. at 780, 110 S. Ct. at 3102; Pulley v.
Harris, 465 U.S. at 41, 104 S. Ct. at 874.
IX. Illegal Search and Seizure Claim
Petitioner argues the state appellate courts erroneously rejected his point of error on direct
appeal arguing his blood was obtained as a result of an illegal search and seizure. Under well-settled
Supreme Court precedent, this Court may not grant federal habeas corpus relief premised upon an
alleged violation of a state criminal defendant’s Fourth Amendment right to remain free from
unreasonable searches. See Stone v. Powell, 428 U.S. 465, 494-95, 96 S. Ct. 3037, 3052 -53, 49 L.
Ed. 2d 1067 (1976) (“where the State has provided an opportunity for full and fair litigation of a
Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the
ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.”)
(Footnote omitted); Cobb v. Thaler, 682 F.3d 364, 375 (5th Cir. 2012) (“Supreme Court precedent
similarly forecloses federal habeas relief for state prisoners convicted on the basis of evidence
obtained in an unconstitutional search and seizure.”), cert. denied, ___ U.S. ___, 133 S. Ct. 933, 184
L. Ed. 2d 730 (2013). Petitioner was afforded a full and fair opportunity during the course of his
direct appeal to fully litigate his complaints about the allegedly illegal seizure of his blood. Under
the Supreme Court’s holding in Stone v. Powell, petitioner’s Fourth Amendment claim does not
furnish a basis for federal habeas corpus relief.
X. Certificate of Appealability
The AEDPA converted the “certificate of probable cause” previously required as a
prerequisite to an appeal from the denial of a petition for federal habeas corpus relief into a
“Certificate of Appealability” (“CoA”). See Hill v. Johnson, 114 F.3d 78, 80 (5th Cir. 1997)
(recognizing the “substantial showing” requirement for a CoA under the AEDPA is merely a change
in nomenclature from the CPC standard); Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997) (holding
the standard for obtaining a CoA is the same as for a CPC). The CoA requirement supersedes the
previous requirement for a certificate of probable cause to appeal for federal habeas corpus petitions
filed after the effective date of the AEDPA. Robison v. Johnson, 151 F.3d 256, 259 n.2 (5th Cir.
1998), cert. denied, 526 U.S. 1100 (1999); Hallmark v. Johnson, 118 F.3d 1073, 1076 (5th Cir.
1997), cert. denied sub nom. Monroe v. Johnson, 523 U.S. 1041 (1998). Effective December 1,
2009, Rule 11(a) of the Rules Governing Section 2254 Cases in United States District Courts
requires this Court to issue or deny a CoA when it enters an order adverse to a federal habeas corpus
Under the AEDPA, before a petitioner may appeal the denial of a habeas corpus petition filed
under Section 2254, the petitioner must obtain a CoA. Miller-El v. Johnson, 537 U.S. 322, 335-36,
123 S. Ct. 1029, 1039, 154 L. Ed. 2d 931 (2003); 28 U.S.C. §2253(c)(2). Likewise, under the
AEDPA, appellate review of a habeas petition is limited to the issues on which a CoA is granted.
See Crutcher v. Cockrell, 301 F.3d 656, 658 n.10 (5th Cir. 2002) (holding a CoA is granted on an
issue-by-issue basis, thereby limiting appellate review to those issues); Jones v. Cain, 227 F.3d 228,
230 n.2 (5th Cir. 2000) (holding the same); Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997)
(holding the scope of appellate review of denial of a habeas petition limited to the issues on which
CoA has been granted). In other words, a CoA is granted or denied on an issue-by-issue basis,
thereby limiting appellate review to those issues on which CoA is granted alone. Crutcher v.
Cockrell, 301 F.3d at 658 n.10; Lackey v. Johnson, 116 F.3d at 151; Hill v. Johnson, 114 F.3d at 80;
Muniz v. Johnson, 114 F.3d at 45; Murphy v. Johnson, 110 F.3d 10, 11 n.1 (5th Cir. 1997); 28 U.S.C.
A CoA will not be granted unless the petitioner makes a substantial showing of the denial
of a constitutional right. Tennard v. Dretke, 542 U.S. 274, 282, 124 S. Ct. 2562, 2569, 159 L. Ed.
2d 384 (2004); Miller-El v. Johnson, 537 U.S. at 336, 123 S. Ct. at 1039; Slack v. McDaniel, 529
U.S. 473, 483, 120 S. Ct. 1595, 1603, 146 L. Ed. 2d 542 (2000); Barefoot v. Estelle, 463 U.S. 880,
893, 103 S. Ct. 3383, 3394, 77 L. Ed. 2d 1090 (1983). To make such a showing, the petitioner need
not show he will prevail on the merits but, rather, must demonstrate that reasonable jurists could
debate whether (or, for that matter, agree) the petition should have been resolved in a different
manner or that the issues presented are adequate to deserve encouragement to proceed further.
Tennard v. Dretke, 542 U.S. at 282, 124 S. Ct. at 2569; Miller-El v. Johnson, 537 U.S. at 336, 123
S. Ct. at 1039; Slack v. McDaniel, 529 U.S. at 484, 120 S. Ct. at 1604; Barefoot v. Estelle, 463 U.S.
at 893 n.4, 103 S. Ct. at 3394 n.4. This Court is required to issue or deny a CoA when it enters a
final Order such as this one adverse to a federal habeas petitioner. Rule 11(a), Rules Governing
Section 2254 Cases in the United States District Courts.
The showing necessary to obtain a CoA on a particular claim is dependent upon the manner
in which the District Court has disposed of a claim. “[W]here a district court has rejected the
constitutional claims on the merits, the showing required to satisfy §2253(c) is straightforward: The
petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Miller-El v. Johnson, 537 U.S. at 338, 123 S. Ct. at 1040
(quoting Slack v. McDaniel, 529 U.S. at 484, 120 S. Ct. at 1604); Tennard v. Dretke, 542 U.S. at
282, 124 S. Ct. at 2569. In a case in which the petitioner wishes to challenge on appeal this Court’s
dismissal of a claim for a reason not of constitutional dimension, such as procedural default,
limitations, or lack of exhaustion, the petitioner must show jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right and whether this Court
was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. at 484, 120 S. Ct. at 1604 (holding
when a district court denies a habeas claim on procedural grounds, without reaching the underlying
constitutional claim, a CoA may issue only when the petitioner shows that reasonable jurists would
find it debatable whether (1) the claim is a valid assertion of the denial of a constitutional right and
(2) the district court’s procedural ruling was correct).
Reasonable minds could not disagree over this Court’s conclusions in Sections IV through
IX above. Petitioner’s conclusory false evidence and misjoinder claims fail to furnish an arguable
basis for federal habeas corpus relief. Petitioner’s Brady claim addressed evidence introduced by
both parties at trial and is frivolous. Petitioner’s claims of insufficient evidence are also frivolous.
Petitioner’s argument about his in-court identification by Penny Scott fails to acknowledge it was
forensic (DNA) evidence tying petitioner to the crime scene which led to petitioner’s conviction, not
Ms. Scott’s “one hundred percent” certainty as to petitioner’s identity when she first saw the fourth
photo array. Petitioner’s illegal search and seizure claim is foreclosed by the Supreme Court’s
holding in Stone v. Powell. Petitioner’s remaining claims are without merit or fail to rise above the
level of harmless error. For these reasons, this Court finds that reasonable jurists could not disagree
with this Court’s conclusions on these issues.
IT IS THEREFORE ORDERED that all relief requested in petitioner’s federal habeas corpus
petition, filed November 8, 2012, docket entry no. 1, as supplemented by petitioner’s memorandum
in support of petition, filed November 8, 2012, docket entry no. 2, is DENIED.
IT IS FURTHER ORDERED that petitioner is DENIED a Certificate of Appealability on all
IT IS FINALLY ORDERED that motions pending with the Court, if any, are DISMISSED
as MOOT and this case is CLOSED.
It is so ORDERED.
SIGNED this 16th day of June, 2014.
CHIEF UNITED STATES DISTRICT JUDGE
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