Russo v. Stephens

Filing 25

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Patrick Anthony Russo. It is recommended that Petitioners application for a writ of habeas corpus be denied. Signed by Judge Andrew W. Austin. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
PATRICK ANTHONY RUSSO,
Petitioner,
V.
WILLIAM STEPHENS, Director,
Texas Dept. of Criminal Justice–
Correctional Institutions Division,
Respondent.

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A-14-CA-685-SS

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE SAM SPARKS
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.
Before the Court are Petitioner’s Application for Habeas Corpus Relief under 28 U.S.C.
§ 2254 (Document 1); Petitioner’s Memorandum in Support (Document 2) Respondent’s Answer
(Document 12); and Petitioner’s response thereto (Document 14). Petitioner, proceeding pro se, has
paid the filing fee for his application. For the reasons set forth below, the undersigned finds that
Petitioner’s application for writ of habeas corpus should be denied.
STATEMENT OF THE CASE
A.

Petitioner’s Criminal History
According to Respondent, the Director has lawful and valid custody of Petitioner pursuant

to a judgment and sentence of the 390th District Court of Travis Count, Texas, in cause number
9034220. A jury found Petitioner guilty of capital murder. The jury concluded Petitioner would be

a future danger to society but deadlocked on the mitigation special issue. Accordingly, the trial court
imposed a sentence of life imprisonment, to run consecutive to a previous conviction.
The Third Court of Appeals affirmed Petitioner’s conviction. Russo v. State, 228 S.W.3d 779
(Tex. App.–Austin 2007). The Texas Court of Criminal Appeals refused Petitioner’s petition for
discretionary review. Russo v. State, P.D.R. No. 0928-07 (Tex. Crim. App. Dec. 5, 2007).
Petitioner then filed an application for a writ of habeas corpus. The trial court entered
findings of fact and recommended that relief be denied. On May 7, 2014, the Court of Criminal
Appeals denied Petitioner’s application without a written order on the trial court’s findings.
Ex parte Russo, WR-80,818-01, at cover.
B.

Factual Background
Diane Holik was found dead in her Austin home on November 16, 2001. Russo, 228 S.W.3d

at 785. Holik was a supervisor at IBM and worked from home. Id. Holik’s coworkers had noted
her absence from work on November 16, 2001, and called Austin police asking them to check her
home for potential damage from recent inclement weather. Id. Officers who checked her home later
that day noticed dogs inside the home had defecated on the carpet, suggesting they had been locked
inside a long time. Id. Holik’s neighbor and realtor, who was working with Holik to sell Holik’s
house, saw the officers and opened the front door. Id.
The officers found Holik’s body face-down in an upstairs guest bedroom. Russo, 228 S.W.3d
at 785. Her body was fully clothed and showed no evidence of a sexual assault. Id. She had ligature
marks on her neck and wrist, apparently caused from a plastic zip-tie. Id. Holik’s necklace and
engagement ring were missing, as were several pieces of jewelry and a spare front-door key. Id. at

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785–86.

A medical examiner concluded the cause of death was homicide from ligature

strangulation. Id. at 786.
One of Holik’s coworkers testified she had spoken with Holik by telephone on
November 15, 2001. Russo, 228 S.W.3d at 786. Holik told her a man who had come to look at her
house had just left. Id. A neighbor testified he had seen a gold or brown van in Holik’s driveway
the same day and had assumed it belonged to a potential buyer of the house. Id. Other homeowners
from the same neighborhood who were selling their houses testified a man had approached them
about their houses. Id. He had given some a different name and claimed he would return with his
wife to see the house at a later day. Id. A composite was prepared from the neighbors’ descriptions,
and a homeowner from a different subdivision saw the composite and called the police; she had seen
the man and written down his van’s license-plate number. Id. Police tracked the license plate to
Petitioner. Id.
Police officers later executed a search warrant for Petitioner’s home. Russo, 228 S.W.3d at
786. Petitioner agreed to go with the officers to the police station. Id. Officers interviewed
Petitioner during the ride and again at the station. Id. at 786–87. Petitioner told the officers that on
November 15, he was driving to a radio station to discuss a web site for his Christian rock band,
when he got lost in a storm and stopped to ask directions. Id. He received directions from an older,
gray-haired man but did not enter any home. Id. The manager of the radio station denied Petitioner
had appeared at the station on November 15. Id. After the interview with police, Petitioner met with
his pastor and told him he worried the police would arrest him for killing a woman. Id. He told his
pastor jewelry had been taken from Holik, though it was later determined police had not told

3

Petitioner that fact. Id. The pastor’s wife testified Petitioner said he received directions from
“a lady” who seemed “kind of bothered” about his being there. Id.
Thirteen homeowners who had been approached by Petitioner testified. Russo, 228 S.W.3d
at 787. Many of them identified Petitioner as the man who came to their home and recited many of
the same alleged details about his interest in purchasing their home. Id. at 788. Several of the
witnesses described Petitioner as driving a tan-colored van. Id. Twelve realtors also identified
Petitioner as the man who had contacted them about seeing vacant homes listed between $200,000
and $700,000. Id. at 789. The realtors testified they felt “uncomfortable” when showing the homes
to Petitioner. Id. Forensic evidence regarding Petitioner’s financial situation showed he and his wife
had only about $1,800 of available money at the time of Holik’s murder and had a $199,000
mortgage on their trailer home. Id.
DNA evidence also linked Petitioner to Holik’s home. Petitioner could not be excluded as
a match to biological evidence from Holik’s left hand or to hairs found on a green towel in Holik’s
home. Russo, 228 S.W.3d at 789–90. A DNA expert called by the State testified “the coincidental
chance of obtaining the same [DNA] profile in this case is one in 12.9 million people.” Id. at 790.
Electronic evidence taken from Petitioner’s computer related to the realtors who testified at trial.
Id. Investigators also found information relating to an “asphyxiation-type pornographic Web site”
and death by asphyxiation. Id. The State called a psychiatrist who opined regarding Petitioner’s
motive for the killing. Id. at 790–91. According to the psychiatrist, Petitioner likely was seeking
sexual gratification through ligature strangulation as a way of playing out his “fantasy life.” Id. at
791. The defense moved for a verdict of not guilty. Id. When that motion was denied, the defense
rested without offering any evidence. Id.
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C.

Petitioner’s Grounds for Relief
Petitioner raises the following grounds for relief:
1.

The state court of appeals made incorrect findings of fact, resulting in an
unreasonable conclusion that the evidence was sufficient to support his conviction.

2.

The trial court improperly admitted:
a.

images not taken from Petitioner’s computer,

b.

testimony regarding Petitioner’s alleged sexual motivation for the murder,

c.

hearsay evidence of a third party regarding a statement of the victim, and

d.

testimony of the realtors and homeowners regarding Petitioner’s demeanor,
in violation of his right to due process; and

e.

evidence beyond the scope of the search warrant, in violation of Petitioner’s
rights under the Fourth Amendment.

3.

The state suppressed exculpatory and impeachment evidence in violation of Brady
v. Maryland.

4.

Petitioner’s trial counsel was ineffective for:
a.

failing to conduct independent testing of DNA samples;

b.

failing to depose or subpoena a doctor whose DNA testing allegedly excluded
Petitioner from the crime scene;

c.

failing to depose or subpoena FBI agents regarding an investigation of the
state crime labs;

d.

failing to investigate the crime-scene videos showing vomit that was not
tested to exclude Petitioner;

e.

refusing to investigate or depose the State’s “surprise witness”;

f.

failing to object under Texas Rule of Evidence 404(b) to the introduction of
photos taken from a website;

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g.

h.

failing to call rebuttal witnesses in support of Petitioner; and

i.

D.

inadequately cross-examining the homeowners and realtors who testified
during trial;

failing to impeach the State’s DNA witness who denied the crime labs were
under investigation.

Exhaustion of State Court Remedies
Respondent asserts Petitioner failed to exhaust his second claim regarding admission of

extraneous acts evidence in violation of Petitioner’s right to due process. Respondent notes
Petitioner did not argue on direct appeal that his due-process rights were violated and, instead, first
raised the claim in his state application for habeas corpus relief. The trial court rejected this ground
for state habeas corpus relief because Petitioner did not raise his due-process challenges on direct
appeal. Doc. 23-12 at 59, 61, 63–64.1 Thus, the state court concluded, Petitioner’s due-process
claims were barred from consideration. Id. The Court of Criminal Appeals adopted those findings
when it denied Petitioner’s application. Respondent concludes that, because the state court rejected
Petitioner’s due-process claims based on a state procedural default, Petitioner’s claims likewise are
barred from this Court’s consideration.
To exhaust his claims in state court, Petitioner “must have fairly presented the substance of
his claim to the state courts.” Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001) (quoting Nobles
v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997)). It is not enough that Petitioner discussed the facts
that would support a federal claim in the state courts or that he raised a similar state-law challenge.
Id. (citing Anderson v. Harless, 459 U.S. 4, 6 (1982)). Instead, Petitioner must have raised in the

1

When citing to specific portions of Document 23-12, the Court will use the electronic
document number at the top of the page of the document.
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state courts the same theory on which he seeks relief in his federal habeas corpus petition to alert the
state court that he is “asserting claims under the United States Constitution.” Canales v. Stephens,
765 F.3d 551, 577 (5th Cir. 2014) (quoting Duncan v. Henry, 513 U.S. 364, 365–66 (1995)).
The Court agrees with part of Respondent’s assertion. In his § 2254 petition, Petitioner seeks
to challenge introduction of images of nudity and strangulation not taken from Petitioner’s computer,
testimony depicting Petitioner’s alleged sexual motivation for the murder, hearsay evidence of a third
party relating a statement of the victim, and testimony from the twelve realtors regarding Petitioner’s
nervous demeanor. Though on direct appeal Petitioner challenged the admission of this evidence,
he did so only on grounds that the evidence was irrelevant under the Texas Rules of Evidence. He
did not argue that introduction of the evidence violated his right to due process, which is the federal
claim he raised in his state application for habeas corpus relief and raises now in his § 2254 petition.
Petitioner has, thus, failed to exhaust his due-process claims. But Petitioner did argue on direct
appeal that the court improperly allowed evidence that went beyond the scope of the search warrant,
the same claim he raises in his § 2254 petition. Accordingly, the Court agrees with Respondent that
Petitioner’s second ground for relief is procedurally barred with respect to his due-process claims.
His Fourth Amendment claim regarding admission of the evidence allegedly beyond the scope of
the search warrant, however, is properly exhausted. The Court will discuss that claim below.
DISCUSSION AND ANALYSIS
A.

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

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v. Richter, 562 U.S. 86, 97–100 (2011). The Court 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
the claim–
(1)

resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or

(2)

resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

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, 562 U.S. at 98.
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

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decision, because “§ 2254(d) applies when a ‘claim,’ not a component of one, has been adjudicated.”
Id.
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. Harrington, 562 U.S. at 100
(citing 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412 (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

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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.
B.

Unreasonable Determination of Fact
In his first ground for relief, Petitioner argues that the state court of appeals relied on

erroneous facts in affirming his conviction. Petitioner raised this same issue in his state application
for habeas corpus relief. The Court of Criminal Appeals rejected the merits of Petitioner’s claim.
As such, the AEDPA limits the scope of this Court’s review to determining whether the adjudication
of Petitioner’s claim by the state court 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.
As noted above, this court presumes the factual findings of the state court are correct. 28
U.S.C. § 2254(e)(1). If Petitioner can rebut that presumption by clear and convincing evidence,
however, relief may available on the ground that the state court’s conclusions were based on that
unreasonable determination of the facts. Id.; 28 U.S.C. § 2254(d)(2). Here, however, Petitioner is
not arguing the state court’s conclusions were unreasonable because those conclusions were based
on erroneous factual findings. He is saying only that because the state court allegedly made
erroneous factual findings, he is entitled to relief under § 2254. But relief under § 2254 is
appropriate only for violations of the Constitution or federal law. 28 U.S.C. § 2254(d)(1); Estelle
v. McGuire, 502 U.S. 62, 67–68 (1991). Relief is not available merely because there allegedly were
errors in the state-court proceedings. Swarthout v. Cooke, 562 U.S. 216, 219 (2011). The proper

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place to challenge the court of appeals’s findings was a petition for discretionary review, which the
Court of Criminal Appeals refused in this case.
Respondent suggests Petitioner actually challenges the sufficiency of the evidence. A federal
court reviewing the sufficiency of the evidence to support a state court conviction applies the federal
standard of review adopted in Jackson v. Virginia, 443 U.S. 307 (1979). This Court’s review is
limited to asking 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, 443 U.S. at 319; see Ramirez v. Dretke, 398 F.3d 691, 694–95 (5th Cir. 2005).
The state court of appeals reviewed the sufficiency of the evidence under Jackson. As the
state court noted, Petitioner’s DNA was found on Holik’s left hand, where her missing engagement
ring likely had been worn. His DNA also was found on a bath towel found in Holik’s living room.
The evidence showed Petitioner had twice been to Holik’s home before her murder and had been in
other homes in the same neighborhood. The afternoon of Holik’s murder, a van matching the
description of the Petitioner’s van was seen parked in front of Holik’s house. Evidence also showed
Petitioner’s interest in ligature strangulation, the same method by which Holik was killed, and expert
witness testimony suggested Petitioner would have received sexual gratification from performing
ligature strangulation on Holik. Though there were no witnesses to the crime and the missing
jewelry was not found, the state court noted, neither witnesses nor location of stolen property are
elements of the crimes that must be proven. The court concluded from all the evidence “that a
rational jury could have found beyond a reasonable doubt all the essential elements of capital
murder.” Russo, 228 S.W.3d at 795.

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Having independently reviewed the state court record, this Court finds nothing unreasonable
in the state court’s application of clearly established federal law or in the state court’s determination
of facts in light of the evidence. Accordingly, the Court is of the opinion that 28 U.S.C. § 2254, as
amended by the AEDPA, bars habeas corpus relief on Petitioner’s claim that the state court affirmed
his conviction based on erroneous findings of fact or that the evidence was insufficient to support
his conviction.
C.

Fourth Amendment Violation
The only exhausted claim in Petitioner’s second ground for relief is that the trial court

improperly admitted evidence obtained beyond the scope of the search warrant and in violation of
the Fourth Amendment.
A federal court may not grant habeas relief based on a Fourth Amendment violation where
the state has provided an opportunity for full and fair litigation of the issue. Stone v. Powell, 428
U.S. 465, 493–95 (1976); Janecka v. Cockrell, 301 F.3d 316, 320 (5th Cir. 2002). This rule applies
to all claims arising under the Fourth Amendment. See, e.g., Janecka, 301 F.3d at 320 (search and
seizure); Jones v. Johnson, 171 F.3d 270, 277–78 (5th Cir. 1999) (arrest). A petitioner must plead
and prove the state court proceeding was inadequate in order to obtain post-conviction relief in
federal court. Davis v. Blackburn, 803 F.2d 1371, 1372 (5th Cir. 1986). Petitioner raised his Fourth
Amendment challenge on direct appeal. The court of appeals rejected Petitioner’s claim on the
merits.
It is apparent Petitioner was afforded a full and fair opportunity to litigate his Fourth
Amendment issue in state court. Petitioner is therefore barred from seeking federal habeas relief on
these grounds. See Caver v. Alabama, 577 F.2d 1188, 1192 (5th Cir. 1978) (“An ‘opportunity for
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full and fair litigation’ means just that: an opportunity. If a state provides the processes whereby a
defendant can obtain full and fair litigation of a Fourth Amendment claim, Stone v. Powell bars
federal habeas corpus consideration of that claim whether or not the defendant employs those
processes.”). Accordingly, Petitioner is not entitled to federal habeas corpus relief on this claim.
D.

Suppression of Evidence
Next, Petitioner asserts the prosecution suppressed exculpatory and impeachment evidence.

Specifically, he alleges the State failed to collect and test evidence of vomit found at the crime scene,
which he says constitutes withholding evidence. He also asserts the State withheld evidence
regarding what he calls “inadequate testing procedures within the DPS Crime Lab.” Doc. 1 at 7.
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held the suppression by the
prosecution of evidence favorable to an accused after a request violates due process where the
evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the
prosecution. To establish a Brady violation, Petitioner must prove (1) the prosecutor suppressed or
withheld evidence (2) which was favorable and (3) material to the defense. Id. at 87; Allridge v.
Scott, 41 F.3d 213, 217 (5th Cir. 1994). The 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 (1985). A “reasonable probability”
is a probability sufficient to undermine confidence in the outcome of the trial. Id. Brady
encompasses evidence that may be used to impeach a witness’s credibility. Id. at 676. There is no
Brady violation if the defendant, using due diligence, could have obtained the information. Williams
v. Scott, 35 F.3d 159, 163 (5th Cir. 1994) (citing United States v. Ramirez, 810 F.2d 1338, 1343 (5th
Cir. 1987)).
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The State’s decision not to collect a sample of the vomit was not a violation of Brady. First,
Petitioner’s characterization of the failure to collect a sample of the vomit2 as tantamount to the
suppression of evidence is flawed. The existence of the vomit, and the failure to test it, was not
suppressed, as it was a topic of defense cross-examination at trial. Dkt. No. 17-14 at 187-88. Thus,
Petitioner could have argued at trial that the failure to test the material created a reasonable doubt
regarding his guilt, and could also have raised objections to the failure to test the material. He did
neither, however.
Perhaps the reason he did not is reflected in the affidavit of Brady Mills, an assistant
laboratory director of the Texas Department of Public Safety Laboratory Service (DPS), explaining
that DPS did not conduct DNA analyses on samples of vomit and has no established protocol for
doing so. Doc. 23-12 at 22. Mills opined that, because of the high amount of fluid present in vomit,
only a low concentration of cellular material would be present in a sample. Id. That low
concentration of cellular material, Mills wrote, would negatively affect the viability of DNA analysis,
which is why DPS has no current protocol for testing these samples. Id. Petitioner has not submitted
any evidence to contradict this, nor does he offer evidence that there was an existing protocol for
testing vomit at the time of his trial.
Even assuming DNA testing of the material were possible at the time of the trial, there is no
evidence that the failure to collect or test the material prejudiced Petitioner. To show prejudice, he
would have to demonstrate that the there is some reason to think that DNA testing of the substance
2

The record does not reflect the exact nature of the substance. Defense counsel characterized
it in his question as something that “looked like vomit.” Dkt. No. 17-14 at 187. The detective’s
response stated that it also “could have been diarrhea, for all I know.” Id. There is testimony
throughout the state court record reflecting that the victim’s dogs had defecated and urinated
throughout the house before her body was located.
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would have identified it as coming from a human—not canine—source, would have attributed it to
someone other than him or the victim, and further that those hypothetical results would have led the
jury to discount all of the other, compelling evidence of Petitioner’s guilt (including the DNA
evidence from the victim’s left hand), and acquitted him. Such speculation fails to demonstrate
prejudice. Indeed, the state trial court concluded this claim was speculative, as Petitioner has no
evidence that, had the substance been vomit, and had it been tested, there is any likelihood that DNA
testing would have shown the source of the substance to be someone other than Petitioner or the
victim, or that the jury would have concluded it cast sufficient doubt on Petitoner’s guilt so as to lead
to a different trial outcome. That conclusion is not unreasonable.
Petitioner’s claim regarding DPS being under investigation similarly lacks merit. As the state
court noted, Mills explains in his affidavit that the DPS Austin Laboratory, where the DNA samples
from Petitioner’s case were tested, was not under any type of investigation or FBI inquiry when
Petitioner’s case was being prepared. Doc. 23-12 at 22. The documents Petitioner attached to his
§ 2254 petition discuss “non-critical” problems found in the McAllen, Texas, DPS crime lab.
Doc. 2-5 at 3. Nothing in those documents reference an issue specifically regarding the Austin
DPS lab. And even if the Austin lab had problems in the past, Petitioner only vaguely asserts those
problems existed before or around the time of his trial. There is no evidence that the DNA samples
related to his case were affected or that anyone tampered with the samples. Thus, there is no
evidence the State withheld material, exculpatory evidence regarding the Austin DPS crime lab or
any of the DNA samples used in Petitioner’s case.
Having independently reviewed the state court record, this Court finds nothing unreasonable
in the state court’s application of clearly established federal law or in the state court’s determination
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of facts in light of the evidence. Accordingly, the Court is of the opinion that 28 U.S.C. § 2254, as
amended by the AEDPA, bars habeas corpus relief on Petitioner’s claim that the State suppressed
exculpatory evidence.
E.

Ineffective Assistance of Counsel
In his final ground for relief, Petitioner argues that he was denied effective assistance of

counsel. Petitioner raised this same issue in his state application for habeas corpus relief. The Court
of Criminal Appeals rejected the merits of Petitioner’s claim. Thus, the AEDPA limits the scope
of this Court’s review to determining whether the adjudication of Petitioner’s claim by the state court
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.
Ineffective assistance of counsel claims are analyzed under the well-settled standard set forth
in Strickland v. Washington, 466 U.S. 668 (1984):
First, the defendant must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. Unless a defendant can make
both showings, it cannot be said that the conviction or death sentence resulted from
a breakdown in the adversary process that renders the result unreliable.
Id. at 687. In deciding whether counsel’s performance was deficient, the Court applies a standard
of objective reasonableness, keeping in mind that judicial scrutiny of counsel’s performance must
be highly deferential. Id. at 686–89. “A fair assessment of attorney performance requires that every

16

effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”
Id. at 689. “Because of the difficulties inherent in making the evaluation, a court must indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.” Id. (citation omitted). Ultimately, the
focus of inquiry must be on the fundamental fairness of the proceedings whose result is being
challenged. Id. at 695–97. Accordingly, in order to prevail on a claim of ineffective assistance of
counsel, a convicted defendant must show that (1) counsel’s representation fell below an objective
standard of reasonableness, and (2) there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. Id. at 687.
1.

Failure to Test DNA Samples

Petitioner first asserts counsel failed to test the DNA samples taken from Holik’s left hand
and from the green towel found in her home. Petitioner recounts the evidence showing he could not
be excluded as the source of one of the samples taken from Holik’s hand, yet the second sample
revealed no male DNA. Had counsel independently tested this evidence, Petitioner alleges,
Petitioner would have been excluded as the source of either DNA sample.
Counsel in criminal cases “has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.” Strickland v. Washington,
466 U.S. 668, 691 (1984). To establish his counsels’ investigation was deficient, Petitioner must
specify what more counsel would have uncovered had the investigation been proper and how it

17

would have altered the outcome of his trial. See Trottie v. Stephens, 720 F.3d 231, 243 (5th Cir.
2013); Gregory v. Thaler, 601 F.3d 347, 352 (5th Cir. 2010).
Petitioner has failed to establish counsels’ decision not to test the DNA samples
independently of the State’s testing constitutes ineffective assistance. Petitioner’s defense attorneys
submitted an affidavit in response to Petitioner’s state application for habeas corpus relief. In that
affidavit, the attorneys explain that the absence of male DNA in the second sample does not diminish
the results from the first sample; rather, the absence of male DNA in the second samples merely
suggests the second swab “lacked a sufficient amount of DNA to produce an interpretable profile.”
Doc. 23-12 at 15. The state court accepted the attorneys’ explanation in its findings of fact
recommending denying Petitioner’s state application for habeas corpus relief, and the Court of
Criminal Appeals adopted those factual findings.
Petitioner has not contradicted the state court’s factual findings, which this Court must
therefore assume are correct. And even if counsel should have independently tested the DNA
samples, Petitioner has not even suggested how the result would have been different with those
independent tests. His assertion that the evidence would have excluded him as the source of the
second sample is not enough to warrant habeas corpus relief. See Ross v. Estelle, 694 F.2d 1008,
1012 (5th Cir. 1983).
2.

Failure to Subpoena and/or Depose DNA Expert

Similar to his first claim, Petitioner next asserts counsel should have deposed DNA expert
Dr. Mechthilo Prinz. Petitioner ties this claim to his first claim of ineffective assistance, insisting
the discrepancy in the DNA test results warranted a deposition from Dr. Prinz.To prevail on a claim
regarding an uncalled witness, Petitioner must name the witness or witnesses that should have been
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called, demonstrate the witness’s ability and willingness to testify, provide the contents of the
proposed testimony, and show the testimony would have aided his theory that he was not present in
Holik’s home. Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009). These requirements apply
to expert witnesses and lay witnesses. See id.; Evans v. Cockrell, 285 F.3d 370, 377–78 (5th Cir.
2002).
Though Petitioner has named the witness and the testimony he believes Dr. Prinz would have
given, he fails to show how that testimony would have aided his defense. As noted above, the lack
of an identifiable amount of male DNA in the second sample did not exclude Petitioner as the source
of the male DNA found in the first sample taken from Holik’s hand. Nor did the absence of male
DNA in the second sample suggest the State’s testing method was sloppy or unreliable, as Petitioner
asserts. Because there is no exculpatory purpose the second DNA sample would have served,
counsel had no reason to subpoena or depose Dr. Prinz to question him about the sample. Petitioner
again has not shown how he was prejudiced by counsels’ decision not to depose or subpoena
Dr. Prinz, and this claim for relief fails.
3.

Failure to Depose FBI Witnesses Regarding Crime Lab Investigation

Petitioner next asserts counsel should have deposed FBI witnesses regarding the alleged
investigation of the Austin crime lab. But as this Court noted above, there is no evidence that the
Austin crime lab was under investigation during the time it was processing the DNA samples from
Petitioner’s case. Moreover, as with his claim regarding counsels’ failure to depose Dr. Prinz,
Petitioner does not name the witnesses he believes counsel should have deposed, demonstrate their
ability or willingness to testify, explain what those witnesses would have said, or show how that

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testimony would have aided his defense. See Day, 566 F.3d at 538. The ground for relief is without
any elaboration or explanation and, therefore, is also without merit.
4.

Failure to Investigate Crime Scene Videos

Petitioner turns next to the video of the crime scene. He contends the pool of vomit seen in
the video contains DNA evidence counsel should have tested. He believes the vomit is from the
“actual murderer.”
The Court already addressed Petitioner’s claim regarding the vomit. As noted above,
assuming the substance was vomit and not dog excrement, DPS had no established protocol for
testing samples of vomit for DNA. As Brady Mills explained, the high level of liquid in samples of
vomit made collecting a viable DNA sample difficult, if not impossible, at least at the time of the
trial. Because there was no available method for testing vomit at the time of the investigation in this
case, counsel did not perform deficiently by failing to obtain a sample of the vomit or to have a
sample tested for DNA. Indeed, the record suggests that investigators never collected a sample of
the vomit, Dkt. No. 17-14 at 187, and counsel could not have been deficient for not testing a sample
that did not exist.
5.

Refusal to Investigate “Surprise Witness”

Petitioner next challenges counsels’ alleged failure to investigate and prepare for the
testimony of the State’s “surprise witness,” Robert Hebner. Petitioner accuses counsel of failing to
depose Hebner or prepare for his testimony, which consisted of his recollection that he had seen a
van similar in color to Petitioner’s parked in Holik’s driveway at the time of the murder two years
earlier. Hebner, however, had not told the police he had seen the van until the trial already had
begun. Petitioner insists that, had counsel prepared for this testimony, counsel could have
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impeached Hebner and led support to the defense theory that Holik’s fiancé had committed the
murder.
Counsel for Petitioner related in their affidavit that the State sought to introduce Hebner’s
testimony only after both sides had concluded their opening statements. The trial judge, however,
allowed defense counsel to interview Hebner before deciding whether Hebner would be allowed to
testify. After questioning Hebner, defense counsel concluded he was truthful, though reluctant to
testify. Counsel did not believe the defense would have benefitted from additional time to interview
Hebner. Counsel objected to his testimony based on the “surprise aspect of his testimony” and
thoroughly cross-examined him. Doc. 23-12 at 6. The trial court in Petitioner’s state habeas corpus
proceedings credited counsels’ statements from their affidavit and concluded counsel was not
ineffective regarding their handling of Hebner. The Court of Criminal Appeals adopted that
reasoning when it denied Petitioner’s state application for habeas corpus relief.
Hebner testified that he originally believed Holik had been murdered at night, between 8:00
and 10:00 pm. Doc. 18-4 at 32–33. He learned for the first time while the trial was proceeding that
Holik actually had been murdered between 4:00 and 6:00 pm. Id. at 32. Hebner remembered seeing
a van parked in front of Holik’s house as he was returning from work, around 5:15 pm. Id. at 34.
He said he did not tell the police sooner because he had been under the assumption the murder took
place later in the night. Id. at 40. He added that he had tried not to follow media coverage of the
trial and became aware of the time of Holik’s murder only after his wife sent him an email regarding
a newspaper article she had read about the trial. Id.
Petitioner has again failed to show counsel were ineffective on this ground. Petitioner offers
no support for his assertion that additional time with Hebner would have uncovered his belief that
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Holik’s fiancé was the true murderer. As counsel explained in their affidavit, there was no additional
information Hebner could offer to assist the defense. Petitioner has not shown what more counsel
could have discovered or how that other evidence would have assisted the defense. See Trottie, 720
F.3d at 243; Gregory, 601 F.3d at 352. This ground for relief fails.
6.

Failure to Object under Rule 404(b)

Petitioner next faults counsel for failing to object under Texas Rule of Evidence 404(b) to
the introduction of evidence from a website. At trial the State sought to introduce pictures taken
from the website “necrobabes.com,” of which Petitioner was a member. Counsel objected under
Rules of Evidence 401 and 403, citing the irrelevant and unfairly prejudicial nature of the pictures.
Some of those objections were sustained, but the court allowed in pictures depicting a woman being
strangled in her own home. Petitioner now argues counsel also should have objected under
Rule 404(b), which prohibits introduction of evidence regarding extraneous evidence.
When reviewing counsel’s strategic decisions, the Supreme Court has instructed courts to
apply a heavy presumption of reasonableness. See Virgil v. Dretke, 446 F.3d 598, 608 (5th Cir.
2006) (citing Strickland, 466 U.S. at 689). “‘[S]trategic choices made after thorough investigation
of law and facts relevant to plausible options are virtually unchallengeable[.]’” Wiggins v. Smith,
539 U.S. 510, 521 (2003) (quoting Strickland, 466 U.S. at 690). Counsel’s choice of strategy may
constitute ineffective assistance only when “it is so ill chosen that it permeates the entire trial with
obvious unfairness.” Virgil, 446 F.3d at 608 (quoting Johnson v. Dretke, 394 F.3d 332, 337 (5th Cir.
2004)).
Counsel for Petitioner explain in their affidavit that they objected under Rules 401 and 403
only because the images were not pornographic, and Petitioner’s viewing of the images did not
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constitute an extraneous offense under Rule 404(b). Doc. 23-12 at 16. Counsel decided not to object
under Rule 404(b) because they were concerned that objecting under that rule would allow in more
evidence regarding Petitioner’s scheme and design in this case and evidence of his prior conduct.
The state court reviewing Petitioner’s state application for habeas corpus relief concluded counsels’
decision not to object under Rule 404(b) was reasonable. The state court also concluded that,
assuming counsel had performed deficiently, Petitioner failed to show how he was prejudiced by
counsels’ performance. The Court of Criminal Appeals adopted the trial court’s reasoning when it
denied Petitioner’s application.
Petitioner has not shown the state court’s decision was unreasonable. Petitioner offers
nothing to suggest his attorneys’ decision not to object under Rule 404(b) was an unreasonable one.
Though Petitioner takes issue with his counsels’ strategy, he has not shown that an objection under
Rule 404(b) would have excluded evidence not excluded by counsels’ objections under Rules 401
and 403. Thus, even if counsels’ decision were not reasonable, Petitioner has not shown that he
suffered prejudice as a result of their strategic choice. This ground for relief fails.
7.

Inadequate Cross Examination

Petitioner next asserts trial counsel failed to subject the realtor and homeowner witnesses to
vigorous cross-examination. He lauds counsels’ efforts at a pretrial hearing to examine those same
witnesses, noting counsels’ discussion of Petitioner’s struggle with Tourette Syndrome. Yet,
Petitioner alleges, counsel did not examine the same witnesses as vigorously during the trial and did
not ask them about Petitioner’s Tourette Syndrome. He contends counsels’ effort at trial was
deficient and prejudiced him.

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Decisions regarding cross-examination are strategic in nature and “usually ‘will not support
an ineffective assistance claim.’” United States v. Bernard, 762 F.3d 467, 472 (5th Cir. 2014)
(quoting Dunham v. Travis, 313 F.3d 724, 732 (2d Cir. 2002)). In their affidavit, counsel for
Petitioner aver they objected in writing to the witnesses’ testimony as irrelevant and prejudicial.
They decided that at trial, however, it would not be “a fruitful strategy for the Defense” to vigorously
cross-examine the women’s testimony regarding Petitioner’s “conduct that upset and frightened
them.” Doc. 23-12 at 17. Once again, the trial court concluded counsels’ decision was a reasonable
strategic decision, and the Court of Criminal Appeals adopted the trial court’s findings.
Petitioner takes issue with this strategy. But he again fails to explain why counsels’ decision
was an unreasonable one or how the state court’s finding that counsel performed reasonably was
itself an unreasonable conclusion. Nor does Petitioner show what the defense had to gain by
following a different strategy that involved vigorously cross-examining the realtors and homeowners.
Petitioner thus fails to establish his counsels’ performance was deficient or that it prejudiced his
defense not to apply a vigorous cross-examination of these witnesses.
8.

Failure to Call Rebuttal Witnesses

Petitioner next contends counsel were ineffective because they did not call various rebuttal
witnesses at trial. He says witnesses were available to (1) explain why Petitioner had viewed the
homes, (2) testify that the zip-ties found at his home did not belong to him, and (3) describe to the
jury why it was “natural” for the women to feel uncomfortable around Petitioner because of his
Tourette Syndrome. Doc. 2 at 23.
As with Petitioner’s earlier claims regarding uncalled witnesses, this claim fails. Petitioner
names a few of the witnesses who, he says, could have testified about his purpose for viewing the
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homes and his reason for having the zip-ties. But he does not suggest those witnesses were
available and willing to testify, specify what each witness would have said, or demonstrate why that
testimony would have been favorable to his defense. See Day, 566 F.3d at 538. He does not even
name a witness who could have testified regarding the “natural” feeling of awkwardness for a person
not familiar with Tourette Syndrome sufferers. This claim, like all of Petitioner’s claims regarding
an unutilized witness, falls short of establishing counsels’ ineffectiveness.
9.

Failure to Impeach Witness Mills

Last, Petitioner faults counsel for not impeaching assistant laboratory director Brady Mills.
Petitioner again alleges the Austin DPS lab was under investigation and insists Mills’s testimony
regarding the DNA samples used in Petitioner’s case could have been impeached by asking Mills
about the investigation. But, as the Court has noted multiple times, there is no evidence the Austin
DPS lab was under any sort of investigation during the time Petitioner’s case was being investigated.
Petitioner’s attachments reference the lab in McAllen, Texas, and do not specifically reference
problems in the Austin lab. Because there is no evidence of an investigation at the Austin lab,
counsel had no foundation to attempt to impeach Mills by bringing up the investigation taking place
at other labs. This claim is without merit.
10.

Conclusion

Having independently reviewed the state court record, neither the state court’s application
of clearly established federal law nor its determination of the facts in light of the evidence, was
unreasonable.

Accordingly, Petitioner’s ineffective assistance of counsel claim fails.
RECOMMENDATION

It is recommended that Petitioner’s application for a writ of habeas corpus be denied.
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CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the court of appeals from a final order in a habeas corpus
proceeding “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C.
§ 2253(c) (1)(A). Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, effective
December 1, 2009, the district court must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.
A certificate of appealability may issue only if a petitioner has made a substantial showing
of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained
the requirement associated with a “substantial showing of the denial of a constitutional right” in
Slack v. McDaniel, 529 U.S. 473, 484 (2000). In cases where a district court rejected a petitioner’s
constitutional claims on the merits, “the petitioner must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or wrong.” Id. “When a
district court denies a habeas petition on procedural grounds without reaching the petitioner’s
underlying constitutional claim, a COA should issue when the petitioner 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 the Petitioner’s
section 2254 petition on substantive or procedural grounds, nor find that the issues presented are
adequate to deserve encouragement to proceed. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)
(citing Slack, 529 U.S. at 484). Accordingly, it is respectfully recommended that the Court shall not
issue a certificate of appealability.
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OBJECTIONS
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections.
Battles v. United States 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 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 (1985);
Douglass v. United Servs. Auto. Assoc., 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
receipt requested.
SIGNED this 1st day of October, 2015.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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