McCray v. Polk et al

Filing 27

ORDER Denying Petitioner's Petition for Writ of Habeas Corpus 1 .. Signed by Judge Robert Pitman. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ENDICOTT MCCRAY,
TDCJ No. 02166048,
PETITIONER,
V.
BOBBY LUMPKIN, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
RESPONDENT.

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A-22-CV-796-RP

ORDER
Before the Court are Petitioner Endicott McCray’s (“Petitioner”) counseled Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1), Respondent Bobby Lumpkin’s
Answer (ECF No. 24), and Petitioner’s Reply (ECF No. 25). Having reviewed the record and
pleadings submitted by both parties, the Court denies Petitioner’s federal habeas corpus petition
under the standards prescribed by the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). See 28 U.S.C. § 2254(d).
I. Factual Background
In November 2016, Petitioner was charged by indictment with one count of murder; the
indictment included one enhancement paragraph listing Petitioner’s four convictions for burglary
of a habitation on June 7, 2010, in Travis County. (ECF No. 26-2 at 4-6.) On October 27, 2017, a
jury convicted Petitioner of the murder charge and he pleaded guilty to the enhancement
paragraph; the jury then sentenced Petitioner to sixty-five years imprisonment. State v. McCray,
No. D-1-DC-16-301466 (147th Dist. Ct., Travis Cnty., Tex. Oct. 27, 2017). (Id. at 7-8.) The
following is a summary of the factual allegations against Petitioner.
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In July 2016, Sabrina and Teqnika Moultrie visited family in Austin. At about 2:00
a.m. on July 31, they were walking away from Voodoo Doughnuts in the 6th Street
entertainment district when they heard gunshots. Five people, including Teqnika,
were shot. Teqnika died on the scene, and three people required hospital treatment
for their wounds.
Austin Police Officers Thomas Childress and Luke Werner testified that 6th Street
and Voodoo Doughnuts are usually crowded that time of night as patrons leave the
bars as they close. Werner remembered that the night of the shooting was
“extremely busy. Essentially it was sidewalk to sidewalk, shoulder to shoulder.”
Sabrina’s brother-in-law confirmed that both the donut shop and the street were
crowded with people, testifying that the group waited in line for “a tremendously
long time” at Voodoo Doughnuts and had just left to find their ride home when
Teqnika was shot. Childress testified that at about 2:00 a.m., he and his partner
were near Voodoo Doughnuts “breaking up a fight of about 15 people.” They were
pushing people away and telling them to leave the area when Childress heard four
gunshots “fairly close in proximity” to where he was standing, at which point
“everybody scattered” and started running away.
Christopher Walker is [Petitioner]’s brother-in-law. He testified that on the night in
question, he went to 6th Street with his then-girlfriend, Latoya Walker, and some
other friends. He saw [Petitioner] and walked over to ask why [Petitioner] had not
gone to [Petitioner]’s daughter’s birthday party, which had upset Shante,
[Petitioner]’s wife and Walker’s sister. Walker said that he “was upset” with
[Petitioner] but that he and [Petitioner] did not raise their voices or get
argumentative. Walker got nervous that [Petitioner] might have a weapon because
he saw [Petitioner] “fidgeting at his waistband” and shoved [Petitioner] out of fear
and to try “to get him further away.” Walker never saw [Petitioner] with a gun in
his hand, but when he was asked whether he “saw the print or kind of the outline of
gun in the pants” [Petitioner] was wearing, he said, “Yeah, I seen a print,”
explaining that the “print” was on the side of his waistband where [Petitioner] was
fidgeting. When Walker shoved [Petitioner], [Petitioner] fell backwards but did not
lose his footing. Walker backed up and ran, falling at one point, and explained that
he ran because he was scared “[o]f getting shot” and that he heard four or five
gunshots. Walker ran until the gunshots stopped, and when he stopped running, he
saw “a lot of people crying, yelling” and “some people laying down dead like they
had been shot.” Walker testified that he was wearing a red shirt and a red baseball
hat and that he did not remember what [Petitioner] was wearing, whether
[Petitioner]’s shoulder-length dreadlocks were down or pulled back into a ponytail,
or whether [Petitioner] was wearing a hat. Walker called the police to tell them
what had happened after the police contacted his family for information.
Latoya Walker testified that just before the shooting, she saw Walker and
[Petitioner] standing face to face talking. She was not close enough to hear their
words and said they were not yelling. Latoya had her back to them while she talked
to her friends until she heard something that made her turn around. Although she
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did not see Walker push or hit [Petitioner], she saw [Petitioner] “just kind of moved
back” and then saw [Petitioner] pull a gun from his waistband. Latoya said that the
gun appeared to get stuck on [Petitioner]’s pants or belt for a second “and that’s
when the first shot went off and hit the ground.” “Everybody started running” after
the first shot, and Latoya testified that she saw [Petitioner] raise the gun and aim it,
saying she saw the gun “the entire time it was up” and that “when [Petitioner] was
shooting, he was running kind of backwards with the gun.” However, she also
agreed when she was asked on cross-examination whether she “heard the shots ring
out as [she was] running” and whether she was “running away from that situation.”
Latoya testified that she heard four or five gunshots, and she did not remember
what [Petitioner] was wearing or whether he was wearing a hat.
Juliana Gibbs was out with Latoya and Christopher on the night of the shooting and
said that 6th Street that night “was chaos”--“[t]here was people everywhere. There
was fights everywhere. There were lots of drunk people around. There was a lot of
screaming, partying.” She testified that she found herself in a crowd surrounding a
fight, but she did not “see the actual fighting that was going on.” Gibbs heard a
commotion and remembered “being pushed really hard, and I remember feeling a
lot of pressure” as she was shot. She did not see the gun and only heard gunshots.
Gibbs testified that a police officer spoke to her at the hospital, showed her a
photograph, and said “this is the person who shot you.” She said she did not know
[Petitioner] and “had never seen him.”
Desiree Torres was also shot in the incident. She testified that she saw [Petitioner]
arguing with a man in a white shirt, who pushed [Petitioner]. [Petitioner] then
pulled a gun from his waistband using his right hand, and Torres said, “I just hear
he’s got a gun, I see the gun, and I start running ... but that’s when I got shot.”
Torres said she was about fifteen feet from [Petitioner] and described his clothing
as “a red polo and jeans that were kind of saggy, also a black cap, and he had some
dreadlocks.” She could not remember if she had described [Petitioner]’s clothing
when she gave a statement to the police after the shooting.
Crystal Cordero testified that she was on 6th Street on the night of the shooting and
that her friend was shot in her ankle. Cordero testified that she panicked when she
heard gunshots. She started to run but saw “a person lying on the ground who
appeared lifeless” and thought, “[O]h, my God, I’m running the wrong direction.
I’m running in the direction of the gunshots. So I panicked for another second, and
when I looked up is when I saw the shooter.” Cordero testified that the man was
about five-foot, nine-inches tall, slender, African-American, and light skinned and
that he “appeared to have cornrows, hair about shoulder length or to the back of his
neck.” She explained that “[t]he only reason that he stood out to me was because
amidst the chaos and everybody running and trying to hide and getaway, he was
standing still and his face looked angry. It just didn’t match what everybody else
was doing.” Cordero testified that she saw the man “lowering a black handgun in
his right hand” and explained that she saw him “[a]fter the shots had been fired.”
She did not recall what the shooter was wearing and thought that his cornrows were
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down and not pulled into a ponytail. Cordero was not asked to identify [Petitioner]
at trial as the shooter.
Police investigators found five cartridge casings at the scene, four of which were
located in the middle of the street across from Voodoo Doughnuts, in close
proximity to a black baseball hat. The hat was not subjected to DNA or other testing
and the witnesses could not say with certainty that it was the hat [Petitioner] wore in
one of his social media photos; however, one witness testified that both hats have a
brand-name sticker and a rectangular price sticker and that the position of the
stickers on both hats are “consistent” with each other. The police also recovered a
cell phone and a red baseball hat belonging to Walker, apparently dropped as he
fled, on or near the sidewalk in front of Voodoo Doughnuts; found two bullet holes
in nearby structures; and recovered four “projectiles” from the scene or the victims.
A firearms examiner tested the casings and projectiles and testified that all four of
the projectiles were “consistent with a 40-caliber,” were “full metal jacket with a
flat point design,” and had “rifling characteristics consistent with a Glock type
firearm with polygonal riffling.” However, “because they were fired through a
polygonal rifle barrel,” the expert could not positively state that they were fired
from the same gun, although neither could he eliminate that possibility. As for the
casings, four of them were 40-caliber Smith & Wesson cartridges marketed by
Federal, and the firearms examiner testified that they were “positively identified as
having been fired in the same gun” and had characteristics “consistent with
Glock-type firearms,” although he could not say the particular type of gun. He
tested a fifth cartridge that was found at the scene and determined that it was a
different brand of ammunition fired by a different gun.
Finally, the State presented testimony that about thirty-five minutes after the
murder, a man matching [Petitioner]’s description, driving his vehicle, and using
his credit card bought gas about nine miles from the scene. A detective testified that
the security footage from the gas station shows that the man’s hair is in dreadlocks
that are darker at the top and lighter in color at their ends. Later that day, July 31,
[Petitioner]’s vehicle was “discovered abandoned” “fairly close” to his residence,
and [Petitioner]’s sister’s vehicle was seen in Shreveport, Louisiana at about 1:00
a.m. on August 1 and then found abandoned in Birmingham, Alabama. The
detective also testified that [Petitioner] started “turning his phone on and off in
what we believed to be an effort to avoid detection” and then “completely switched
to a different phone altogether, and the number we had been tracking went silent.”
[Petitioner] was ultimately arrested in Georgia on August 3, by which time
[Petitioner] “had drastically changed his appearance.” In a jail call between
[Petitioner] and his wife, Shante Walker, he tells Shante that he rode in a train
boxcar to Atlanta, Georgia, and Shante tells [Petitioner] that it took her thirty
minutes to explain to her mother “how you took your dreads out.”
McCray v. State, No. 03-17-00734-CR, 2021 WL 627537, at *1-3 (Tex. App.--Austin, Feb. 18,
2021, pet ref’d). On direct appeal, Petitioner challenged the sufficiency of the evidence supporting
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(1) his identity as the shooter and (2) the allegation that he had fired a gun into a crowd of people.
Id. at *3-4. On February 18, 2021, Petitioner’s conviction was affirmed on appeal. Id. Petitioner
raised these same issues in his Petition for Discretionary Review (PDR), which the Texas Court of
Criminal Appeals (TCCA) refused on May 19, 2021. McCray v. State, No. PD-0194-21 (Tex.
Crim. App. May 19, 2021). Petitioner did not file a petition for a writ of certiorari with the United
States Supreme Court. (ECF No. 1 at 28.)
On May 31, 2022, Petitioner filed his first counseled state habeas corpus application. (ECF
No. 9-3 at 3-19.) Before his state habeas application had been adjudicated, Petitioner filed his
federal petition for writ of habeas corpus on August 10, 2022. (ECF No. 1.) On September 14,
2022, the TCCA dismissed Petitioner’s state habeas application without written order as
non-compliant. Ex parte McCray, No. WR-94, 01-01. (ECF No. 9-1.) On November 14, 2022, this
Court ordered Petitioner’s federal petition stayed until he exhausted his claims in state court. (ECF
No. 14.)
On December 12, 2022, Petitioner filed his second state habeas corpus application, listing
the following three claims:
1. Petitioner’s trial counsel rendered ineffective assistance of counsel when counsel failed to
a. demonstrate that Juliana Gibb’s identification of Petitioner amounted to an
unconstitutional showup;
b. cross-examine and impeach Detective Fugitt1 regarding inconsistencies in suspect
descriptions;
c. retain, consult with, and adduce testimony from an eyewitness expert regarding the
unreliability of eyewitness testimony;
d. interview and call witnesses to testify on Petitioner’s behalf;
e. argue the eyewitness evidence amounted to prejudicial and improper false
evidence;
f. obtain DNA testing of the hat left at the crime scene.

1

Petitioner and Respondent misspell Detective Fugitt’s name as “Fugit.” The Court substitutes the correct spelling.

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2. Petitioner was prejudiced by police and prosecutorial misconduct through the showup
procedure, questionable witness practices, and because the Austin Police Department
(APD) withheld exculpatory/impeachment evidence.
3. Petitioner is entitled to relief because he is actually innocent and was only convicted due to
the false eyewitness evidence.
(ECF No. 26-2 at 11-27.) On July 26, 2023, the TCCA denied Petitioner’s application without
written order on the findings of the trial court without hearing and on the court’s independent
review of the record. Ex parte McCray, No. WR-94,081-02 (Tex. Crim. App. July 26, 2023.) (ECF
No. 26-1 at 1.)
On August 7, 2023, Petitioner moved to lift the stay, which the Court granted. (ECF No.
23.) Petitioner’s federal petition lists the same grounds for relief as his state habeas corpus
application,2 along with the two additional grounds he exhausted on direct appeal. (ECF No. 1.)
Respondent Lumpkin has answered the petition (ECF No. 24), to which Petitioner has replied
(ECF No. 25).
II. Standard of Review
Petitioner’s federal habeas petition is governed by the heightened standard of review
provided by AEDPA. See 28 U.S.C. § 2254. Under § 2254(d), a petitioner may not obtain federal
habeas corpus relief on 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 (2005). This demanding standard stops just short of imposing a

2

In his federal petition, Petitioner omits two bases of relief for his ineffective-assistance claim: (1) failure to interview
and call witnesses to testify on Petitioner’s behalf; and (2) failure to argue that eyewitness evidence was improper and
prejudicial. Accordingly, the Court will not review the denial of Petitioner’s state habeas application on these grounds.

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complete bar on federal court re-litigation of claims already rejected in state proceedings.
Harrington v. Richter, 562 U.S. 86, 102 (2011) (citing Felker v. Turpin, 518 U.S. 651, 664
(1996)).
A federal habeas court’s inquiry into unreasonableness should always be objective rather
than subjective, with a focus on whether the state court’s application of clearly established federal
law was “objectively unreasonable” and not whether it was incorrect or erroneous. McDaniel v.
Brown, 558 U.S. 120 (2010); Wiggins v. Smith, 539 U.S. 510, 520-21 (2003). A petitioner must
show that the state court’s decision was objectively unreasonable, not just incorrect, which is a
“substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer v.
Andrade, 538 U.S. 63, 75-76 (2003). Even a strong case for relief does not mean the state court’s
contrary conclusion was unreasonable. Richter, 562 U.S. at 102. “A state court’s determination
that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could
disagree’ on the correctness of the state court’s decision.” Id. at 101 (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). As a result, to obtain federal habeas relief on a claim
previously adjudicated on the merits in state court, Petitioner must show that the state court’s
ruling “was so lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Id. at 103. “‘If this standard is
difficult to meet—and it is—that is because it was meant to be.’” Mejia v. Davis, 906 F.3d 307,
314 (5th Cir. 2018) (quoting Burt v. Titlow, 571 U.S. 12, 20 (2013)).
III. Analysis
1. Evidentiary Hearing
Petitioner requests an evidentiary hearing to “satisfy the gateway showing of actual
innocence.” (ECF No. 1. at 53.) Habeas petitioners are not entitled to a federal evidentiary hearing

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to develop new evidence to attack the state court’s resolution of their claims. Cullen v. Pinholster,
563 U.S. 170, 181-82 (2011) (“If a claim has been adjudicated on the merits by a state court, a
federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was
before that state court.”). Under the AEDPA, the proper place for development of the facts
supporting a claim is the state court. See Hernandez v. Johnson, 108 F.3d 554, 558 n.4 (5th Cir.
1997) (holding the AEDPA clearly places the burden on a petitioner to raise and litigate as fully as
possible his federal claims in state court). When, as here, a petitioner’s claims have been rejected
on the merits by the state courts either on direct appeal or during a state habeas corpus proceeding,
further factual development in federal court is effectively precluded. See Pinholster, 563 U.S. at
181-88 (2011) (holding an evidentiary hearing is unnecessary when a state court has rejected a
claim on the merits and federal habeas review of that rejection is governed by § 2254(d)(1));
Woodfox v. Cain, 772 F.3d 358, 368 (5th Cir. 2014) (“The Supreme Court has clarified that when a
claim is adjudicated on the merits, for the purposes of review under § 2254(d)(1), the record is
limited to the one before the state court, even if the state court issued a summary affirmance.”).
Where a federal petitioner’s claims lack merit on their face, further factual development is
not necessary. See Register v. Thaler, 681 F.3d 623, 627-30 (5th Cir. 2012) (recognizing the
discretion inherent in district courts to allow factual development, especially when confronted
with claims foreclosed by applicable legal authority). “‘In cases where an applicant for federal
habeas relief is not barred from obtaining an evidentiary hearing by 28 U.S.C. § 2254(e)(2), the
decision to grant such a hearing rests in the discretion of the district court.’” Richards v.
Quarterman, 566 F.3d 553, 562 (5th Cir. 2009) (quoting Schriro, 550 U.S.465, 468 (2007)). As
discussed below, Petitioner’s allegations lack merit and further factual development is
unwarranted. Petitioner’s request for an evidentiary hearing is denied.

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2. Insufficient Evidence (claims 1-2)
In Petitioner’s first two claims, he argues the state court erred in determining there was
sufficient evidence to support his conviction. Specifically, Petitioner argues there was insufficient
evidence identifying him as the shooter and showing he fired a gun into a crowd of people.
The standard for testing the sufficiency of evidence in a federal review of a state court
conviction 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. 307, 319 (1979). The evidence need not exclude every
reasonable hypothesis of innocence or be completely inconsistent with every conclusion except
guilt so long as a reasonable trier of fact could find that the evidence established guilt beyond a
reasonable doubt. United States v. Leahy, 82 F.3d 624, 633 (5th Cir. 1996). The AEDPA further
imposes a “twice-deferential standard” when a federal court reviews a state prisoner’s claim
challenging the sufficiency of the evidence. Parker v. Matthews, 567 U.S. 37, 43 (2012). As the
Supreme Court explained:
The opinion of the Court in Jackson v. Virginia . . . makes clear that it is the
responsibility of the jury—not the court—to decide what conclusions should be
drawn from evidence admitted at trial. A reviewing court may set aside the jury’s
verdict on the ground of insufficient evidence only if no rational trier of fact could
have agreed with the jury. What is more, a federal court may not overturn a state
court decision rejecting a sufficiency of the evidence challenge simply because the
federal court disagrees with the state court. The federal court instead may do so
only if the state court decision was “objectively unreasonable.”
Cavazos v. Smith, 565 U.S. 1, 2 (2011) (citing Renico v. Lett, 559 U.S. 766, 773 (2010)).
Petitioner raised these claims in his direct appeal and in his PDR, which the TCCA refused.
He did not raise them in his state habeas application. Accordingly, the Texas Third Court of
Appeals has the last reasoned state court judgment for these claims. See Ylst v. Nunnemaker, 501
U.S. 797, 803 (1991) (“[w]here there has been one reasoned state judgment rejecting a federal
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claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the
same ground.”) Regarding Petitioner’s insufficiency claim as to his identity, the Third Court of
Appeals reasoned as follows:
In his first issue, appellant argues that the evidence is insufficient to prove he was
the shooter that night. He insists that “[a]ny number of guns” could have fired the
fatal shot, noting that the firearms examiner could not conclusively state that all of
the spent bullets were fired by the same gun, that a fifth cartridge found at the scene
was determined to have come from a different gun, and that there was testimony
that “shots are fired frequently in that part of town.” He further notes that Torres
only saw him holding a gun and did not see him actually fire the gun and argues
that, at best, the State proved that he pointed a gun at Walker, and then “only if
Latoya Walker’s testimony is believed.”
Appellant asserts that the State did not present a witness who could testify that they
actually watched appellant fire his gun toward Teqnika. However, several
witnesses provided testimony linking appellant to a gun. Walker testified that he
pushed appellant because he was nervous about appellant “fidgeting” with his
waistband, where Walker saw a “print” of a gun. Cordero testified that immediately
after the shooting, she saw a man who matched appellant’s appearance standing
still—in contrast to the chaos around him—lowering a handgun, and looking angry,
and Torres testified that she saw appellant with a gun just before the shooting
started. Further, Latoya testified that she saw appellant pull a gun from his
waistband, fire one shot down toward the ground; that he raised and aimed the gun,
“shooting” as he moved backwards; and that she heard four or five shots as she ran
away. In addition, there was expert testimony that four of the five cartridges found
at the scene were 40-caliber cartridges fired from the same gun, “consistent with
Glock-type firearms,” and that the four projectiles retrieved from the victims and
the scene were “consistent with a 40-caliber” and had “rifling characteristics
consistent with a Glock type firearm.” A police officer testified that various
witnesses gave differing descriptions of the shooter’s clothing but that
inconsistency in such details is not concerning because in such a chaotic scenario,
“it’s typical that [witnesses] may confuse the clothing articles that are being worn
by one person as opposed to another. It’s not that concerning.” Finally, the Court of
Criminal Appeals has explained that “a factfinder may draw an inference of guilt
from the circumstance of flight,” Clayton v. State, 235 S.W.3d 772, 780 (Tex.
Crim. App. 2007), and the State presented evidence that appellant fled Austin after
the shooting, abandoning his car in Austin and driving his sister’s car through
Louisiana and Alabama before abandoning it and getting onto a train to Georgia,
and changed his appearance by removing his distinctive dreadlocks.

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McCray, 2021 WL 627537 at *3. Regarding Petitioner’s claim that there was insufficient evidence
supporting the jury’s conclusion that he fired a gun into a crowd, the Third Court of Appeals held
as follows:
In his second issue, appellant argues that there was no evidence that he fired a gun
in the direction of a crowd of people. He contends that there were many people in
the area and that discharging a firearm in a crowded area “is not the same as firing
into or in the direction of a crowd.” Because the jury charge allowed the jury to find
him guilty if it found one of several manner and means of committing the offense,
including several that required a finding that he fired into a crowd, appellant argues,
some of the jurors might have convicted him based on a manner and means for
which there was insufficient evidence.
Appellant asserts that “[d]ischarging a firearm while in a place where there are
many people is not the same as firing into or in the direction of a crowd of people”
but cites to no authority for that proposition. Further, the evidence shows that 6th
Street in general was crowded and that specifically there was a large number of
people at or near Voodoo Doughnuts, with Werner testifying that the people were
“shoulder to shoulder,” from “sidewalk to sidewalk,” and with Sabrina’s
brother-in-law testifying that he, Teqnika, and their friends waited for their donuts
for “a tremendously long time.” “Crowd,” in normal usage, is defined as “a large
number of persons especially when collected together” or “a large number of things
close together,” Crowd, Merriam-Webster.com, https://www.merriam-webster.
com/dictionary/crowd (last visited Jan. 29, 2021), or as a “large number of people
gathered together in a disorganized or unruly way,” Crowd, Lexico.com,
https://www.lexico.com/en/definition/crowd (last visited Jan. 29, 2021). And
several people in the crowded area were struck by bullets, thus supporting a finding
that appellant fired “into” or “in the direction of” the crowd. We hold that the
evidence is thus sufficient to support a conclusion that appellant fired his firearm in
the direction of a crowd. The Court of Criminal Appeals has held that “when a jury
returns a guilty verdict on an indictment charging several acts in the conjunctive, ...
the verdict stands if the evidence is sufficient with respect to any of the acts
charged.” Kitchens v. State, 823 S.W.2d 256, 259 (Tex. Crim. App. 1991) (quoting
Turner v. United States, 396 U.S. 398, 420 (1970)).
Id. at *4.
In his federal habeas petition, Petitioner argues that the Court of Appeals holding was
erroneous because there were contradictory accounts of what the shooter was wearing in a chaotic
crime scene; that the Chicago Bulls hat found at the crime scene was not DNA-tested and therefore
was not necessarily Petitioner’s; and that the ballistic evidence could not be clearly tied to
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Petitioner’s gun. As stated above, the initial reviewing court may only set aside a jury’s verdict
based on insufficient evidence if no rational trier of fact could have agreed with the jury. Here, in
overruling Petitioner’s claims on direct appeal, the state appeals court found there was sufficient
evidence to support both Petitioner’s identity and his action of firing a gun into a crowd. On federal
review, the Court is limited to determining if the state court’s decision was objectively
unreasonable. Given the breadth of evidence supporting Petitioner’s conviction, as summarized by
the Third Court of Appeals, the Court concludes the state court’s decision denying these claims
was not objectively unreasonable. Accordingly, these claims are denied.
3. Ineffective Assistance of Counsel (claim 3)
In Petitioner’s third claim, he argues he received ineffective assistance of counsel when his
trial counsel failed to (1) argue Juliana Gibb’s identification of Petitioner amounted to an
unconstitutional showup; (2) cross-examine and impeach Detective Fugitt regarding
inconsistencies in suspect descriptions; (3) retain, consult with, and adduce testimony from an
eyewitness expert regarding the unreliability of eyewitness testimony; and (4) obtain DNA testing
of the Chicago Bulls hat left at the crime scene.
The Sixth Amendment to the United States Constitution guarantees citizens the assistance
of counsel in defending against criminal prosecutions. U.S. CONST. amend VI. Sixth Amendment
claims based on ineffective assistance of counsel are reviewed under the familiar two-prong test
established in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a petitioner
cannot establish a violation of his Sixth Amendment right to counsel unless he demonstrates (1)
counsel’s performance was deficient and (2) this deficiency prejudiced the petitioner’s defense. Id.
at 687-88, 690. The Supreme Court has emphasized that “[s]urmounting Strickland’s high bar is
never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).

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When determining whether counsel performed deficiently, courts “must be highly
deferential” to counsel’s conduct and a petitioner must show that counsel’s performance fell
beyond the bounds of prevailing objective professional standards. Strickland, 466 U.S. at 687-89.
Counsel is “‘strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.’” Burt, 571 U.S. at 22 (quoting
Strickland, 466 U.S. at 690). To demonstrate prejudice, a petitioner “must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. Under this prong, the “likelihood of a
different result must be substantial, not just conceivable.” Richter, 562 U.S. at 112 (citing
Strickland, 466 U.S. at 693). A habeas petitioner has the burden of proving both prongs of the
Strickland test. Wong v. Belmontes, 558 U.S. 15, 27 (2009).
Ineffective assistance of counsel claims are considered mixed questions of law and fact and
are analyzed under the “unreasonable application” standard of 28 U.S.C. § 2254(d)(1). See
Gregory v. Thaler, 601 F.3d 347, 351 (5th Cir. 2010). When the state court has adjudicated the
claims on the merits, a federal court must review a petitioner’s claims under the “doubly
deferential” standards of both Strickland and Section 2254(d). See Woods v. Etherton, 136 S. Ct.
1149, 1151 (2016) (citing Cullen, 563 U.S. at 190). In such cases, the “pivotal question” is not
“whether defense counsel’s performance fell below Strickland’s standard,” but whether “the state
court’s application of the Strickland standard was unreasonable.” Richter, 562 U.S at 101.
a. Unconstitutional showup
Petitioner first argues that his trial counsel—Russell Hunt, Jr., and Margaret
Kercher—provided ineffective assistance of counsel when they failed to argue that the Juliana
Gibbs’s identification of Petitioner was produced via an unreliable and highly prejudicial showup

13

procedure. As stated in the state court of appeals’s opinion, “Gibbs testified that a police officer
spoke to her at the hospital, showed her a photograph, and said ‘this is the person who shot you.’
She said she did not know [Petitioner] and ‘had never seen him.’” McCray, 2021 WL 627537 at
*2.
Petitioner’s counsel, Mr. Russell Hunt, responded to this allegation as follows:
3. In preparing the defense of the case, I reviewed the voluminous discovery in the
case, engaged a private investigator and co-counsel, and met with [Petitioner] on
multiple occasions. [Petitioner] was fully apprised of the defense approach and
strategy, as well as his ability to testify in his own defense. [Petitioner] was aware
of the long odds against victory at trial and chose to try the case rather than accept a
long penitentiary sentence in a plea bargain for the offense charged. Development
of trial strategy was rather straightforward, and [Petitioner] understood and was
agreeable to our goal of raising reasonable doubt wherever the evidence presented
it.
....
6. Trial Strategy: Attorneys Hunt and Kercher pursued two primary defensive
strategies in trial: first to show that the Austin Police Department had “rushed to
judgment” of [Petitioner] without fully investigating the case; and second, that the
identification of [Petitioner] as the shooter was questionable due either to
confusion, tainted perception, or negative motivation of the witnesses.
7. Failure to challenge Juliana Gibbs’ identification of [Petitioner]: First, Ms. Gibbs
did not identify [Petitioner] in trial. On the contrary, Ms. Gibbs’ testimony at trial
reflected that when she was in the hospital following the shooting, an officer
showed her a single picture of [Petitioner], and told her that [Petitioner] was the
shooter rather than her telling that to the officer. Detective Fugitt was
cross-examined thoroughly regarding this questionable police procedure in an
effort to reinforce the “rush to judgment” defense argument.
(ECF No. 26-4 at 191-92.) The state habeas court made the following findings in recommending
the denial of this claim:
15. To prepare a defense for this case, Mr. Hunt reviewed discovery provided by
the State, engaged a private investigator, and met with [Petitioner] on “multiple
occasions.”
16. Mr. Hunt describes [Petitioner] as “fully apprised of the defense approach and
strategy, as well as his ability to testify in his own defense” and states the
14

development of a trial strategy was “rather straightforward” with a goal of “raising
reasonable doubt wherever the evidence presented it” and that [Petitioner]
understood and was agreeable to this goal.
17. Mr. Hunt further recalls that [Petitioner] was “aware of the long odds against
victory” in a jury trial but opted for a trial instead of accepting an offer from the
State involving a long prison sentence.
18. Mr. Hunt describes the defense’s approach as twofold, to advocate that: 1) the
Austin Police Department (APD) had “rushed to judgment” without “fully
investigating the case;” and 2) that the identification of [Petitioner] as the shooter
was questionable.
19. Mr. Hunt’s defense theory of the case is evident in voir dire, where he directed
his questions of the panel to topics such as jumping to conclusions, credibility of
witnesses, and the reliability of eyewitness identification.
....
22. At trial, State’s witness Juliana Gibbs testified that Sixth Street (where the
murder occurred) on that particular night was “chaos,” with people and fights
“everywhere” and “lots of drunk people around” and “a lot of screaming, partying.”
23. Ms. Gibbs went on to testify that she was shot during this incident but never saw
the gun and only heard the shots.
24. Contrary to [Petitioner]’s claim, Ms. Gibbs did not identify [Petitioner] as the
shooter at trial.
25. Ms. Kercher established on cross-examination that, while Ms. Gibbs was in the
hospital receiving medical treatment, she was shown a photo of [Petitioner] by
APD and was told that he was the person who had shot her.
26. Mr. Hunt argued to the jury in closing argument that it was improper and
suggestive for APD to have shown Ms. Gibbs a photo of [Petitioner] and that the
officers might have done that with other witnesses.
(Id. at 183-84) (record citations omitted).
The state habeas court concluded that Ms. Gibbs did not identify Petitioner as the shooter
during trial and further concluded that trial counsel argued in closing that the APD’s actions
regarding Ms. Gibbs were improper and could have been their approach with other witnesses.
Petitioner fails to address these findings in his federal petition, instead restating his arguments
15

from his state habeas application. As a result, Petitioner fails to rebut, with clear and convincing
evidence, the presumption of correctness the Court affords the state court’s factual findings. 28
U.S.C. § 2254(e)(1). Further, Petitioner also fails to show that the state habeas court’s conclusion
that he did not suffer prejudice is an unreasonable application of clearly established federal law: as
Respondent

points

out,

at

least

two

other witnesses—Latoya

Walker

and

Chris

Walker—personally knew Petitioner and identified him as the shooter. Accordingly, the state
habeas court’s application of Strickland to this claim was not unreasonable and it is denied.
b. Failure to cross-examine and impeach Detective Fugitt
In Petitioner’s next claim, he argues his trial counsel provided ineffective assistance when
they failed to adequately investigate the contradictory witness descriptions of the shooter and then
use this information to impeach Detective Fugitt’s testimony. Specifically, Petitioner argues that,
although APD gathered eleven witness statements on the night of the shooting, only two witnesses
testified, with the remainder of the witnesses making contradictory statements about the shooter’s
clothing. Petitioner further argues trial counsel could have impeached the witnesses’ testimony
based on the chaotic circumstances during the shooting. He finally argues that trial counsel failed
to thoroughly cross-examine Detective Fugitt regarding his “hasty” decision to pinpoint Petitioner
as the shooter.
Mr. Hunt addressed these allegations as follows:
8. Failure to cross examine Detective Fugitt regarding inconsistent witness
descriptions of the shooter: Attorney Hunt thoroughly cross-examined Detective
Fugitt regarding the multiplicity of eyewitness descriptions of the shooter, and on
the impropriety of strongly suggesting the identity of [Petitioner] as the shooter to
an eyewitness. Attorney Hunt also questioned Detective Fugitt about his early
focus on [Petitioner] as the shooter and his resulting failure to fully develop the
investigation, in furtherance of our “rush to judgment” argument.

16

(ECF No. 26-4 at 192). In recommending the denial of this claim, the state habeas court made the
following findings:
27. Mr. Hunt attempted to raise reasonable doubt through his cross examination of
Det. Fugitt by establishing that it is important to double-check identification of a
known assailant because of the possibility of a deliberate misidentification and
further questioned him about the possibility of an honest mistake regarding
identification.
28. Mr. Hunt addressed with Det. Fugitt the range of descriptions of the shooter’s
clothing provided to law enforcement, the chaotic and crowded environment in
which the murder took place, statements about straight vs. ricocheted shots, and the
witnesses that he did not reach during his investigation.
29. Mr. Hunt spent a good portion of closing argument alleging Det. Fugitt and
APD’s “rush to judgment.”
30. The record supports Mr. Hunt’s and Ms. Kercher’s assertions that Mr. Hunt
“questioned detective Fugitt about his early focus on [Petitioner] as the shooter and
his resulting failure to fully develop the investigation” in order to further their “rush
to judgment” theory of the case.
(Id. at 184-85) (record citations omitted).
Under Strickland, a reasonable investigation requires, at minimum, that trial counsel
interviews potential witnesses and makes an independent investigation of the facts and
circumstances of the case. Kately v. Cain, 704 F.3d 356, 361 (5th Cir. 2013). In assessing the
reasonableness of counsel’s investigation, a heavy measure of deference is applied to counsel’s
judgments and is weighed along with the defendant’s own statements and actions. Strickland, 466
U.S. at 691. Trial counsel also has wide latitude in determining trial strategy. See Ward v.
Stephens, 777 F.3d 250, 264 (5th Cir. 2015). In fact, “[d]efense counsel’s ‘strategic choices made
after thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable.’” Mejia, 906 F.3d at 316 (quoting Rhoades v. Davis, 852 F.3d 422, 434 (5th Cir.
2017)). Further, “Strickland does not allow second guessing of trial strategy and must be applied
with keen awareness that this is an after-the-fact inquiry.” Granados v. Quarterman, 455 F.3d 529,
17

534 (5th Cir. 2006). As a result, an unsuccessful trial strategy does not mean that counsel’s
performance was deficient. Avila v. Quarterman, 560 F.3d 299, 314 (5th Cir. 2009).
Here, the state habeas court credited trial counsels’ attestations that their strategy involved
showing that (1) APD and Detective Fugitt had “rushed to judgment” in singling out Petitioner as
the shooter early in their investigation and (2) the identification of Petitioner as the shooter was
questionable due to chaos at the crime scene and inconsistent witness descriptions. Petitioner now
claims his trial counsel was ineffective because he believes they should have further investigated
the inconsistent witness descriptions and used this evidence to rigorously cross-examine Detective
Fugitt regarding his “hasty” decision in settling on Petitioner as the suspect. But this is essentially
what the state habeas court found that trial counsel did; simply because it was not effective does
not mean it was deficient performance. See id. Accordingly, the state habeas court’s application of
Strickland to this claim was not unreasonable, and it is denied.
c. Failure to call an eyewitness expert
Petitioner next argues trial counsel provided ineffective assistance when they failed to
retain, consult, and adduce testimony from an eyewitness expert to show the unreliability
eyewitness testimony. Trial counsel responded to this claim as follows:
9. Failure to retain an eyewitness identification expert: Retaining and consulting an
expert witness was considered by defense counsel, who decided that an expert
regarding reliability of eyewitness testimony would not have provided substantially
more information beneficial to [Petitioner]’s case, because we knew that we would
be able to point out the evidence of multiple conflicting nontestifying eyewitness
descriptions of the shooter. We could then use these conflicts to cast doubt on the
actual eyewitness testimony in the case without needing to use an expert witness.
10. An eyewitness expert would have exposed [Petitioner] to additional risk. After
consulting with the defense investigator and reviewing the evidence, it was clear
that the most damning State’s witnesses were personally acquainted with
[Petitioner] and knew him by sight. The State could have used their cross
examination of an expert to reinforce the fact that these witnesses’ identification
testimony of a known individual with whom they were personally acquainted bore
18

significant indicia of reliability. An expert witness would also have had to admit
that these acquainted eyewitness observations supported and reinforced the
testimony of the State’s witnesses who were not personally acquainted with
[Petitioner], and whose descriptions of the shooter’s actions were consistent with
the descriptions given by the personally acquainted witnesses. This lessened the
prospective positive impact of an eyewitness identification expert, and raised the
risk that what little such a witness might contribute to the trial could well be
negated by the State’s cross-examination. ln pursuing the strategy chosen, defense
counsel was able to elicit through cross examination the fact that there was a range
of inconsistent eyewitness descriptions, in an effort to suggest to the jury that a
positive, reliable identification of the shooter was clearly difficult. No expert was
needed to point this fact out to the jury, and an eyewitness expert would not have
contributed significantly to this strategy which was also communicated to the jury
in closing argument.
(ECF No. 26-4 at 192). The state habeas court found the following:
31. Mr. Hunt considered the use of an eyewitness-identification expert but
determined that an expert “would not have provided substantially more information
beneficial to [Petitioner]’s case” and that they could use conflicting witness
accounts to “cast doubt” on the testimony of [the] State’s witnesses.
32. Mr. Hunt believed that using an eyewitness expert “would have exposed
[Petitioner] to additional risk” because “it was clear that the most damning State’s
witnesses were personally acquainted with [Petitioner] and knew him by sight.” An
expert would have had to admit on cross examination with the State that
identification of a known individual from people who are “personally acquainted
bore significant indicia of reliability.”
33. Mr. Hunt observes an expert would have had to admit that witnesses who know
the [Petitioner] would substantiate the testimony of those who had not met him
prior to the murder.
34. [Petitioner] has not identified an expert witness that would have assisted with
his defense theory of the case involving misidentification or what testimony such
an expert would have offered that would have changed the outcome of
[Petitioner]’s trial.
....
51. Generally, the failure to call an expert witness does not constitute ineffective
assistance of counsel without a showing that the witness was available to testify and
that the testimony would have benefited the defendant. See King v. State, 649
S.W.2d 42, 44 (Tex. Crim. App. 1983) (“Counsel’s failure to call Witnesses at the
guilt-innocence and punishment stages is irrelevant absent a showing that such
witnesses were available and appellant would benefit from their testimony”).
19

52. “We defer to the trial court’s determination of trial strategy and his choice of
witnesses so long as any conceivable strategy can be imagined for the actions taken
or not taken.” Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003).
53. Because [Petitioner] has neither suggested that there is an expert witness who
would have assisted his defense nor alleged facts that go beyond speculation that an
expert may have offered some benefit, [Petitioner] has failed to make the required
showing for ineffective assistance of counsel on this ground.
54. Because [Petitioner] has not demonstrated that engaging an
eyewitness-identification expert would have overcome the significant evidence of
[Petitioner]’s guilt at trial, [Petitioner] has failed to meet his burden of proof to
show he was prejudiced by the allegedly deficient performance of trial counsel.
(Id. at 185, 187) (record citations omitted).
To prevail on an ineffective assistance claim based on counsel’s failure to call a witness,
the petitioner must name the witness, demonstrate the witness was available to testify, delineate
the content of the witness’s proposed testimony, and show the testimony would have been
favorable to the defense. Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009). Petitioner fails to
provide any of this information in his petition. Further, the Fifth Circuit has “repeatedly held that
complaints of uncalled witnesses are not favored in federal habeas corpus review because the
presentation of testimonial evidence is a matter of trial strategy and because allegation of what a
witness would have stated are largely speculative.” Id. (citation omitted). The state habeas court
credited trial counsels’ reasons for not calling an eyewitness expert, and Petitioner has failed to
rebut these factual findings with clear and convincing evidence or show that the state habeas
court’s application of Strickland to this claim involved an unreasonable application of clearly
established federal law. Accordingly, this claim is denied.
d. Failure to obtain DNA testing of Chicago Bulls hat
Finally, Petitioner argues trial counsel provided ineffective assistance when they failed to
obtain DNA testing of a Chicago Bulls hat found at the crime scene. Because the State argued that

20

the hat belonged to Petitioner, Petitioner argues it was crucial for the hat to be DNA-tested to prove
it wasn’t his. Trial counsel responded as follows:
12. Failure to test the Chicago Bulls ball cap for DNA: Defense counsel made a
strategic decision to not seek DNA testing on the Chicago Bulls ball cap, both
because the link between the ball cap and [Petitioner] was weak, and because DNA
testing carried substantial risk with very little potential reward to [Petitioner]. If
DNA testing had been done and [Petitioner]’s DNA had been excluded, the State
could still have argued that [Petitioner] was wearing a similar ball cap during the
shooting. If DNA testing had been completed, even under seal, and showed that the
cap contained DNA consistent with [Petitioner], the State would have been able to
point out to the jury that the cap had been sent by the defense to a DNA testing lab,
which would suggest that the Defense was hiding inculpatory DNA test results
from the jury.
13. Rather than exposing [Petitioner] to the potential downside of a positive DNA
test, the Defense chose to employ a lower risk strategy to question the ball cap’s
relevancy and to show that the State’s failure to test the cap furthered the defense
“rush to judgment” argument. Attorney Kercher brought out two important points
regarding the ball cap in her cross-examination of the only witness to identify it:
that the witness had not initially identified any items of clothing when she spoke to
the detective, and that she had viewed news coverage regarding the incident
including in the days immediately prior to her trial testimony. This news coverage
included photographs of [Petitioner] wearing a similar Chicago Bulls ball cap on a
different occasion than the shooting.
14. Attorney Hunt further questioned detective Fugitt about the ball cap, and
pointed out that the two pictured ball caps have both similarities and differences,
suggesting that the caps may not have been identical, and additionally pointed out
that Chicago Bulls ball caps of the type depicted in the photographs are not
uncommon. Attorney Hunt also questioned detective Fugitt about the fact that the
State did no DNA testing on the ball cap, which further supported the defense’s
“rush to judgment” argument. Moreover, the State did not rely heavily on the ball
cap in its case or during their argument. This chosen strategy enabled the defense to
question the State’s lack of investigation without running the risk of potentially
creating inculpatory evidence.
(ECF No. 26-4 at 192-93.) The state habeas court found the following:
55. Absent any factual assertions or evidence indicating what DNA testing would
have shown, [Petitioner]’s claim is mere “after-the-fact speculation” about how
DNA testing would have furthered the defense theory of the case, which cannot
form the basis for a claim of ineffective assistance of counsel. Flemming v. State,
949 S.W.2d 876 (Tex. App.--Houston [14th Dist.] 1997, no writ).

21

56. Contrary to [Petitioner]’s claim that “there can be no strategic nor tactical
reason” for opting not to test [Petitioner]’s hat for the presence of his DNA, trial
counsels’ strategy behind this decision was reasonable.
57. [Petitioner] has not demonstrated that the decision to not conduct DNA testing
on the hat was objectively unreasonable or that there is a reasonable probability
that, had testing been conducted and [Petitioner]’s DNA was not found on that hat,
the result of the trial would have been different.
(Id. at 187-88.)
As previously noted, “[d]efense counsel’s ‘strategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually unchallengeable.’” Mejia,
906 F.3d at 316) (citation omitted). Here, trial counsel reasoned that the benefits of DNA
testing—potentially excluding the hat as belonging to Petitioner—were outweighed by the risks,
which included the DNA inculpating Petitioner, as well as the jury believing the defense was
hiding inculpating evidence. In his federal petition, Petitioner restates his state-court arguments
and does not explain how the state habeas court’s decision to deny this claim was an unreasonable
application of clearly established federal law. As a result, the Court concludes that that state habeas
court’s application of Strickland was not unreasonable, and this claim is denied.
4. Withholding of exculpatory evidence (claim 4)
Petitioner next argues that the police and prosecution withheld exculpatory/impeachment
evidence, specifically the entire audio recording of Latoya Walker’s interview with police.
Petitioner argues that the “interview summary” he received did not include audio showing that
Walker only identified Petitioner as the shooter so she could be released from custody; further,
Petitioner argues the entire police interview with Ms. Walker was leading.
The state habeas court recommended denying this claim based on the following:
61. [Petitioner] claims that Brady was violated when the police did not turn over the
audio recording of their interview with Latoya Walker, a witness who identified

22

[Petitioner] as the shooter. He also alleges that “the showup procedure and other
questionable witness practices” constituted further misconduct that prejudiced him.
62. A prosecutor has an affirmative duty to disclose favorable evidence that is
material either to guilt or punishment. See Brady v. Maryland, 373 U.S. 83, 86
(I983); McFarland v. State, 928 S.W.2d 482, 511 (Tex. Crim. App. I996).
63. To succeed in showing a Brady violation, an individual must show that (1) the
evidence is favorable to the accused; (2) the evidence was suppressed by the State
either inadvertently or willfully; and (3) the suppression of the evidence resulted in
prejudice (i.e., materiality). Ex parte Reed, 271 S.W.3d 698, 726-27 (Tex. Crim.
App. 2008).
64. The Discovery Compliance Statement in this case, which documents each item
of discovery that was disclosed by the State to the defense, was signed by the
prosecutor, Mr. Hunt, and [Petitioner].
65. Contrary to [Petitioner]’s claim, the Discovery Compliance Statement affirms
that the State disclosed a .wav and .mp3 format recording of Ms. Walker’s
interview on February 8, 2017[,] and a digital mobile audio video (DMAV) format
of the recording on March 30, 2017.
66. Because [Petitioner] has failed to show that the State suppressed the recording
of the police interview of Ms. Walker, he has not demonstrated that a Brady
violation occurred.
67. The Court assumes that [Petitioner]’s claim that “the showup procedure”
amounted to police misconduct refers to the officers’ interactions with Ms. Gibbs.
68. As discussed above, Ms. Gibbs did not testify that she identified [Petitioner].
69. [Petitioner] fails to identify what “other questionable practices” by police or
prosecutors form the basis of this claim.
70. Because [Petitioner] has not proven that the State failed to disclose recordings
of interviews with Ms. Walker, he has not met his burden to demonstrate police or
prosecutorial misconduct. Ex parte Reed, 271 S.W.3d 698, 726-27 (Tex. Crim.
App. 2008) (requiring a showing that evidence was suppressed by the government
to sustain a Brady claim).
71. [Petitioner] has failed to prove that the State violated [Petitioner]’s right to due
process.
(ECF No. 26-4 at 188-89) (record citations omitted).

23

“[S]uppression 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.” Brady v. Maryland, 373 U.S. 83, 87 (1963). In order
to establish a Brady violation, a petitioner must demonstrate that (1) the prosecution suppressed
evidence, (2) the evidence was favorable to the defense, and (3) the evidence was material to either
guilt or punishment. Banks v. Dretke, 540 U.S. 668, 691 (2004); Graves v. Cockrell, 351 F.3d 143,
153-54 (5th Cir. 2003).
Here, the state habeas court concluded the State provided Petitioner with audio recordings
of Ms. Walker’s custodial interviews on February 8 and March 30, 2017. Petitioner does not
address these findings in his federal petition, and therefore fails to rebut their presumption of
correctness with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Accordingly, because
Petitioner does not show that the prosecution suppressed material evidence, he cannot establish a
Brady violation. This claim is denied.
5. Actual innocence (claim 5)
In Petitioner’s final claim, he argues he is actually innocent and that he was convicted
based on the prejudicial and false eyewitness testimony. Respondent argues that Petitioner’s claim
is not cognizable in a federal habeas corpus petition.
Freestanding claims of actual innocence based on newly discovered evidence do not
provide a basis for federal habeas relief. Dowthitt v. Johnson, 230 F.3d 733, 741 (5th Cir. 2000)
(citing Herrera v. Collins, 506 U.S. 390, 417 (1993)). “This rule is grounded in the principle that
federal habeas courts sit to ensure that individuals are not imprisoned in violation of the
Constitution—not to correct errors of fact.” Herrera, 506 U.S. at 399. Although the Herrera court
left open the question of whether, in a capital case, “a truly persuasive demonstration of ‘actual

24

innocence’ made after trial would . . . warrant habeas relief if there were no state avenue open to
process such a claim,” 506 U.S. at 417, the Fifth Circuit has consistently rejected this theory. See
Cantu v. Thaler, 632 F.3d 157, 167 (5th Cir. 2011); In re Swearingen, 556 F.3d 344, 348 (5th Cir.
2009); Graves v. Cockrell, 351 F.3d 143, 151 (5th Cir. 2003) (collecting cases). Accordingly, this
claim is denied.
IV. Certificate of Appealability
A petitioner may not appeal 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(a) of the Rules Governing Section 2254 Cases, the district court must issue or deny a certificate
of appealability (COA) when it enters a final order adverse to the applicant. See Miller-El v.
Cockrell, 537 U.S. 322, 335-36 (2003) (citing 28 U.S.C. § 2253(c)(1)).
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). In cases where a district court rejects
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.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000). When a district court rejects a habeas petition on
procedural grounds without reaching the constitutional claims, “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
§ 2254 petition on substantive or procedural grounds, nor find that the issues presented are

25

adequate to deserve encouragement to proceed. Miller-El, 537 U.S. at 327 (citing Slack, 529 U.S.
at 484). Accordingly, the Court will not issue a certificate of appealability.
It is therefore ORDERED that Petitioner’s petition for writ of habeas corpus (ECF No. 1)
is DENIED.
It is further ORDERED that a certificate of appealability shall not issue.
SIGNED this 5th day of February, 2024.

ROBERT PITMAN
UNITED STATES DISTRICT JUDGE

26