Lee Van Tollefson v. Stephens, Director TDCJ-CID et al

Filing 22

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 19 Report and Recommendations. The Court DENIESTollefsons Petition for Writ of Habeas Corpus (Dkt. # 1). The Court DENIES a certificate of appealability. Signed by Judge David A. Ezra. (rf)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
LEE VAN TOLLEFSON,

§
§
Petitioner,
§
§
vs.
§
§
WILLIAM STEPHENS, DIRECTOR, §
TEXAS DEPARTMENT OF
§
CRIMINAL JUSTICE,
§
CORRECTIONAL INSTITUTION
§
UNIT,
§
§
Respondent.
§

No. SA:14–CV–144–DAE
(consolidated with)
No. SA:14–CV–171–DAE

ORDER (1) ADOPTING MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION AND (2) DENYING PETTIONER’S PETITION FOR
WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254
Before the Court are Objections to the Magistrate Judge’s August 21,
2014 Report and Recommendation (Dkt. # 21) and a Petition for Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 (Dkt. # 1) filed by Petitioner Lee Van
Tollefson (“Tollefson.”) Pursuant to Local Rule 7(h), the Court finds this matter
suitable for disposition without a hearing. After careful consideration, and for the
reasons that follow, the Court ADOPTS the Magistrate Judge’s Report and
Recommendation (Dkt. # 19) and DENIES Tollefson’s Petition for Writ of Habeas
Corpus (Dkt. # 1).

1

BACKGROUND
I.

Factual Background
The Texas Fourth Court of Appeals summarized the facts in this case

as follows:
It is undisputed that Tollefson shot and killed Barbara [Coull].
Lee Tollefson was living in his travel trailer on David and Barbara
Coull’s property. The trailer was connected to the utilities and was
parked next to a vacant house. On the day of the incident, Tollefson
testified he received a hysterical call from Barbara, accusing him of
stealing a battery charger. After he hung up the phone, he fell asleep,
only to be awakened by Barbara, who was in his trailer. Tollefson
testified Barbara was yelling and cursing at him so he told her to get
out of his house. Tollefson testified Barbara told him she was going
to shoot him, and she left the trailer but started going through his
truck. Tollefson further stated he knew he had a gun in his truck and
believed Barbara was going for the gun. He claimed he leaned out the
trailer door and told Barbara to get out of his truck. As she was
standing on the running board of his truck, Tollefson testified Barbara
pointed something shiny at him and said, “You are a dead son of a
bitch.” He testified this was when he grabbed a gun from his trailer
and held it up so Barbara could see it while telling her to “get the hell
out of here.” He further testified Barbara kept coming at him until she
raised her right hand and allegedly pointed something shiny at him.
Tollefson stated he then shot Barbara because he believed she was
going to shoot him.
After the shooting, Tollefson called the Wilson County
Sheriff’s Office to tell them he had shot and killed Barbara. After
placing the call, Tollefson took all of the firearms out of his trailer,
including the gun used to shoot Barbara and the gun from his truck,
laid them out on the patio outside the vacant house, and waited for the
officers to arrive. When officers arrived, Tollefson was arrested.
After officers arrested Tollefson and took him to the Wilson
County jail, they searched his trailer without a warrant. Officers
found Tollefson’s personal papers, including a check to the Internal
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Revenue Service, a document purporting to transfer his possessions to
a friend in exchange for one dollar, a note documenting grievances
against the Coulls, prescription pill bottles that were mostly empty,
and a live .25 caliber round.
At trial, the medical examiner testified there was no way to
determine where Tollefson was standing when he shot Barbara, but
Crystina Vachon, a trace-evidence analyst, estimated the muzzle of
the weapon was six to nine inches from Barbara’s clothing when it
was fired. Vachon also testified the shots could not have been fired
from any farther away than three to three and a half feet.
Tollefson v. State, 352 S.W.3d 816, 818 (Tex. App.—San Antonio 2011, pet.
ref’d).
II.

Procedural Background
Tollefson was found guilty of murder by a jury in the 218th Judicial

District Court of Wilson County, Texas. (Dkt. # 2 at 6.) At the trial, Tollefson
was represented by Brandon Hudson (“Hudson”) and Douglas Daniel (“Daniel.”)
(Id.) On February 23, 2010, Tollefson was sentenced to a term of 50 years’
imprisonment. (Id.) On August 31, 2011, the Texas Fourth Court of Appeals
affirmed Tollefson’s conviction in a published opinion. Tollefson v. State, 352
S.W.3d 816, 818 (Tex. App.—San Antonio 2011, pet. ref’d). On January 11,
2012, the Texas Court of Criminal Appeals refused Tollefson’s petition for
discretionary review. Tollefson v. State, No. PD–1514–11 (Tex. Crim. App. Jan.
11, 2012).

3

On February 7, 2013, Tollefson filed a pro se state habeas application
under Article 11.07 of the Texas Code of Criminal Procedure. (Dkt. # 2 at 6.)
Tollefson subsequently hired Randy Schaffer (“Schaffer”) to represent him in his
habeas proceedings; Schaffer filed a supplemental petition in April of 2013 and an
amended supplemental petition in May of 2013. (Id. at 6–7.) On January 15,
2014, the Texas Court of Criminal Appeals denied Tollefson’s petition without
written order based upon the findings of the trial court. (Dkt. # 10 at 2–3.)
On February 18, 2014, Tollefson filed the federal habeas petition
pursuant to 28 U.S.C. § 2254 that is now before this Court. (Dkt. # 1.) Tollefson
alleges that he received ineffective assistance of counsel at the guilt/innocence
phase of his trial when (1) counsel both made and failed to object to references to
the deceased as the “victim,” to the incident as a “murder” and a “crime,” and to
the scene of the incident as a “crime scene;” (2) counsel failed to object to
testimony that the deceased did not have a criminal record; (3) counsel elicited
testimony that Tollefson had a criminal record; and (4) counsel elicited testimony
that Tollefson requested a lawyer after he was arrested and questioned by a deputy.
(Dkt. # 1 at 5.) The same day, Tollefson filed a brief in support of his petition.
(Dkt. # 2.) On May 9, 2015, Respondent William Stephens filed a response to
Tollefson’s petition, (Dkt. # 10), and on May 14, 2014, Tollefson filed a reply
(Dkt. # 11). On August 21, 2014, United States Magistrate Judge John W.
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Primomo issued a Report and Recommendation recommending this Court deny
Tollefson’s petition. (Dkt. # 19.) On August 28, 2014, Tollefson filed objections
to the Report and Recommendation. (Dkt. # 21.)
LEGAL STANDARD
I.

Review of a Magistrate Judge’s Report and Recommendation
The Court must conduct a de novo review of any of the Magistrate

Judge’s conclusions to which a party has specifically objected. See 28 U.S.C.
§ 636(b)(1)(C) (“A judge of the court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which
objection is made.”). The objections must specifically identify those findings or
recommendations that the party wishes to have the district court consider. Thomas
v. Arn, 474 U.S. 140, 151 (1985). A district court need not consider “[f]rivolous,
conclusive, or general objections.” Battle v. U.S. Parole Comm’n, 834 F.2d 419,
421 (5th Cir. 1987). “A judge of the court may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1)(C).
Findings to which no specific objections are made do not require de
novo review; the Court need only determine whether the Report and
Recommendation is clearly erroneous or contrary to law. United States v. Wilson,
864 F.2d 1219, 1221 (5th Cir. 1989).
5

II.

Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254
Under the Anti-Terrorism and Effective Death Penalty Act of 1996

(“AEDPA”), a state prisoner may not obtain relief with respect to a claim
adjudicated on the merits in state court unless the adjudication (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, 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 proceedings. 28 U.S.C. § 2254(d).
A decision is contrary to clearly established federal law 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 on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S.
362, 405–06 (2000). Relief is available only if the state court applied clearly
established federal law unreasonably; a petitioner is not entitled to relief if the state
court merely did so erroneously or incorrectly. Id. at 144. The only way a state
prisoner may show that a state court unreasonably applied clearly established
federal law is by showing that there was no reasonable basis for the state court’s
decision. Cullen v. Pinholster, — U.S. —, 131 S. Ct. 1388, 1402 (2011).
A federal habeas court may overturn a state court’s application of
federal law only if it is so erroneous that “there is no possibility fairminded jurists
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could disagree that the state court’s decision conflicts with [Supreme Court]
precedent.” Nevada v. Jackson, — U.S. —, 133 S. Ct. 1990, 1992 (2013) (quoting
Harrington v. Richter, — U.S. —, 131 S. Ct. 770, 786 (2011)). Section 2254(d)
imposes a “highly deferential standard for evaluating state-court rulings, which
demands that state-court decisions be given the benefit of the doubt.” Pinholster,
131 S. Ct. at 1398 (quoting Woodford v. Viscotti, 537 U.S. 19, 24 (2002)).
Generally, a state court’s factual findings must be presumed to be correct and can
only be rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Review under § 2254(d) is limited to the record that was before the state court that
adjudicated the claim on the merits. Pinholster, 131 S. Ct. at 1398.
DISCUSSION
To obtain habeas relief on a claim of ineffective assistance of counsel,
a petitioner must demonstrate that his counsel was deficient and that the deficiency
prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). In
order to establish that his counsel’s performance was constitutionally deficient, the
petitioner carries the burden of proving that counsel’s representation fell below an
objective standard of reasonableness. Id. at 688. There is a strong presumption
that trial counsel’s conduct fell within the wide range of reasonable professional
assistance. Id. at 690. In reviewing counsel’s performance, the court makes every

7

effort to eliminate the distorting effects of hindsight, and attempts to adopt the
perspective of counsel at the time of the representation. Id. at 689.
Even if the petitioner is able to show that trial counsel’s errors were
professionally unreasonable, the petitioner must also be able to show that those
errors were prejudicial to the defense in order to constitute ineffective assistance
under the Constitution. Id. at 692. The 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. Id. at 694. Only a reasonable probability is
sufficient to undermine confidence in the proceeding’s outcome. Id.
Tollefson objects to the Magistrate Judge’s Report and
Recommendation on the following six grounds, each discussed in turn below.
I.

Denial of an Evidentiary Hearing
Tollefson first objects to the Report and Recommendation on the

grounds that the Magistrate Judge declined to conduct an evidentiary hearing.
(Dkt. # 21 at 1–2). Tollefson requested a hearing in order to question trial counsel
under oath concerning their claims regarding trial strategy. (Id.) The Magistrate
Judge denied Tollefson’s request for a hearing in federal court because review
under § 2254(d)(1) is limited to the record that was before the state court that
adjudicated the claim on the merits. (Dkt. # 19 at 6.) Tollefson argues that even
though a federal court need not conduct an evidentiary hearing, a hearing should
8

have been conducted in the interests of justice because it is virtually impossible for
a federal habeas petitioner to rebut the presumption of correctness where he is
denied the opportunity to challenge the assertions in trial counsels’ affidavits on
cross examination. (Dkt. # 21 at 2.)
In Cullen v. Pinholster, the Supreme Court held that it is inappropriate
for federal courts to conduct evidentiary hearings on § 2254(d) petitions because
federal habeas review under that section “is limited to the record that was before
the state court that adjudicated the claim on the merits.” 131 S. Ct. at 1398–1400.
It is true that AEDPA provides for evidentiary hearings in federal court under
narrow circumstances:
If the applicant has failed to develop the factual basis of a claim in State
court proceedings, the court shall not hold an evidentiary hearing on the
claim unless the applicant shows that—
(A) the claim relies on—
(i) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable; or
(ii) a factual predicate that could not have been previously discovered
through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear
and convincing evidence that but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying offense.
28 U.S.C. § 2254(e)(2). However, the Supreme Court explained that “[t]he focus
of that section is . . . on limiting the discretion of federal district courts to hold
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hearings.” Pinholster, 131 S. Ct. at 1401 n.8 (emphasis added). Section 2254(e)
applies to cases where habeas petitioners raise claims that were not “adjudicated on
the merits in State court”—in other words, claims to which § 2254(d) does not
apply. Id. at 1401; McCamey v. Epps, 658 F.3d 491, 497 (5th Cir. 2011). “The
high bar for introducing evidence in a § 2254(d) case accords with ‘the basic
structure of federal habeas jurisdiction,’ which acknowledges that ‘state courts are
the principal forum for asserting constitutional challenges to state convictions.’”
McCamey, 685 F.3d at 497 (quoting Harrington, 131 S. Ct. at 787)).
Under the Supreme Court’s holding in Pinholster, the Magistrate
Judge was correct to deny Tollefson’s request for an evidentiary hearing on his
§ 2254(d) petition. See id. at 498 (relying on Pinholster in declining to consider
evidence developed at federal court evidentiary hearing where the petition
concerned only claims under § 2254(d)). The Court therefore overrules
Tollefson’s first objection.
II.

Opinion Testimony
Second, Tollefson objects to the Magistrate Judge’s conclusion that

trial counsel’s failure to object to the use of the words “victim,” “crime,” and
“crime scene;” their own use of those terms; and their failure to obtain a ruling on
their amended motion in limine regarding the use of the word “victim” did not
constitute ineffective assistance of counsel. (Dkt. # 21 at 2–4.) According to
10

Tollefson, Chief Deputy Johnie Deagen referred to Barbara Coull as a “victim” 48
times, to the incident as a “murder” and a “crime” twice, and the scene of the
incident as a “crime scene” sixteen times without objection. He further states that
Sergeant Thomas Silva referred to Barbara as a “victim” twice without objection.
Finally, he states that defense counsel referred to Barbara as the “victim” twice, to
the incident as a “murder” once, and to the scene of the incident as a “crime scene”
four times. (Dkt. # 2 at 16–17.) Tollefson asserts that all of these errors
demonstrate that counsel performed deficiently and that if, as he argued at trial, he
shot Barbara in self-defense, Barbara was not a “victim” of a “murder” and the
location of the shooting was not a “crime scene.” (Id. at 2–3.)
In the Affidavit prepared at the state court’s request, Hudson stated
that in his experience as both a prosecutor and a criminal defense attorney in selfdefense homicide cases, “[i]t was quite common for lay witnesses to refer to
locations as crime scenes, deceased parties as victims and the investigation of the
death of an individual as a murder investigation.” He further stated his belief that
juries understand that “their role is to determine whether or not it was a self
defense shooting or a murder,” and that he chose not to object “for fear of drawing
attention to the use of those words.” (Supp. Rec. 2d at 13, Dkt. # 15-19 at 18.)
In its findings of fact and conclusions of law, the state court found:
“the use of each term was not excessive and did not draw unnecessary attention to
11

itself. While an objection and instruction to disregard could have been obtained,
defense counsels’ decision that an objection might draw unnecessary scrutiny to
the matter or alienate the jury is . . . an acceptable trial tactic.” (Supp. Rec. 2d at
45, Dkt. # 15-19 at 50.)
Tollefson argues that it is improper to refer to the complainant as a
“victim” where there is a dispute as to whether a crime was committed. (Dkt. # 2
at 17.) In support of his position, he cites Talkington v. State, 682 S.W.2d 674
(Tex. App.—Eastland 1984, pet. ref’d). In that case, the appellant had been
convicted of rape in a jury trial. 682 S.W.2d at 674. The trial court referred to the
complainant as the “victim” in its charge to the jury. Id. at 674–75. The Texas
Court of Appeals held that referring to the complainant as a “victim” when the sole
issue was whether she had consented to the sexual intercourse was reversible error.
Id. at 675. Tollefson acknowledges the distinction between Talkington and this
case—in Talkington, the court referred to the complainant as a victim, whereas
here Tollefson complains about references made by witnesses and counsel—but
nonetheless argues that such references are equally improper because they lack
probative value and are unduly prejudicial. (Dkt. # 2 at 17–18.)
In support of this position, Tollefson cites Ex parte Skelton, 434
S.W.3d 709 (Tex. App.—San Antonio 2014, pet. ref’d). (Dkt. # 18.) There, the
State asked a law enforcement witness whether, in his opinion, the defendant “filed
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a forged document.” 434 S.W.3d at 726. The court stated that the natural
interpretation of this question is that the State asked the witness point-blank
whether the defendant was guilty of forgery. Id. at 726–27. Because no witness is
competent to voice an opinion as to guilt or innocence, the court found that defense
counsel’s failure to object supported the defendant’s claim that counsel’s
performance fell below a reasonable standard. Id. at 727. In this case, however,
Tollefson does not allege that any witness voiced a conclusive opinion as to his
guilt, and the Court finds no such statement or inquiry in the record. Thus, Skelton
is distinguishable and inapplicable to the facts of this case.
Tollefson also cites State v. Wigg, 889 A.2d 233 (Vt. 2005) in support
of his position that trial counsel performed deficiently by failing to object to the
testimony. (Dkt. # 2 at 18.) In that case, the Vermont Supreme Court found that
the probative value of a detective’s reference to a complainant as a “victim” was
outweighed by the danger of unfair prejudice; however, the Court also concluded
that the error was harmless under the circumstances. 889 A.2d at 68–71. The
Court found that the detective’s testimony indicated he was using a term he viewed
as synonymous with complainant. Id. at 70. The Court therefore concluded
“beyond a reasonable doubt that the jury would not have returned a different
verdict had the detective used different and more neutral terminology.” Id.

13

Here, the state habeas court ultimately concluded that while errors
may have occurred, the jury’s verdict would not have been any different but for
those instances. (Supp. Rec. 2d at 47, Dkt. # 15-19 at 52.) This Court agrees.
Terms like “victim,” “murder,” “crime,” and “crime scene” are frequently used in
homicide trials, and in the greater context of the testimony in this case the Court
finds that these terms carried no specific implication of guilt. See Cueva v. State,
339 S.W.3d 839, 864 (Tex. App.—Corpus Christi 2011, no pet.) (holding that
defense counsel’s use of the word “victim” was not deficient “in light of the fact
that such terms are commonly used at trial in a neutral manner to describe the
events in question and, in context, carry no implication that the person using such
terms has an opinion one way or the other about the guilt of the defendant.”). For
these same reasons, trial counsels’ failure to obtain a ruling on a motion in limine
regarding the use of these terms does not constitute deficient performance.
Tollefson has not presented clear and convincing evidence to rebut the
state court’s findings. The Court finds that the state court’s conclusion is not
contrary to or an unreasonable application of clearly established federal law, and
the Court further finds that the state court’s decision was not based on an
unreasonable determination of the facts in light of the evidence presented. The
Court therefore overrules Tollefson’s second objection.

14

III.

Deceased’s Lack of Criminal Record
Third, Tollefson objects to the Magistrate Judge’s determination that

trial counsel’s failure to object to testimony that Barbara Coull had no criminal
history did not constitute ineffective assistance of counsel. (Dkt. # 21 at 4–5.)
During re-direct examination of Deagen, the State asked whether Barbara had any
criminal history; Deagen responded that she did not, and Tollefson’s counsel did
not object. (3 R.R. at 177, Dkt. # 15-10 at 55.)
In his Affidavit, Daniel explained that a central part of their defense
strategy was to portray Barbara as a “volatile, irrational, spiteful and unpredictable
woman.” (Supp. Rec. 2d at 8, Dkt. # 15-19 at 13.) This strategy involved putting
Barbara’s character at issue. (Id.) Daniel recognized that this testimony might
have been objectionable at the time, but he and Hudson anticipated that it would
become admissible during Tollefson’s case in chief. (Id.) As Hudson stated in his
Affidavit, “I believed it would be proper for the State to rebut our evidence that she
was confrontational, hostile and aggressive with evidence that she had no previous
arrests or convictions for any violent offenses or a criminal record.” (Supp. Rec.
2d at 15, Dkt. # 15-19 at 20.) Hudson further stated that they did not object to the
testimony because they “did not want to appear to be hiding evidence early in the
trial which would be admissible at the State’s request later in the trial.” (Id.)

15

Upon reviewing this evidence, the state court found:
The applicant and his attorneys pursued a self defense trial strategy of
showing Mrs. Coull, the deceased, to be irrational, out of control and
volatile. They believed this or similar evidence would become
admissible during their case so they did not object. Considering that
an objection might tend to emphasize the point, the attorneys’
decision not to object is considered by the court to fall within the
realm of acceptable trial tactics and strategy.
(Supp. Rec. 2d at 45, Dkt. # 15-19 at 50.)
Tollefson argues that under Texas Rule of Evidence 404(a)(2),
“evidence of a person’s character or character trait is not admissible for the
purpose of proving action and conformity therewith on a particular occasion except
evidence of the peaceable character of the deceased offered by the prosecution in a
homicide case to rebut evidence that she was the first aggressor.” Tex. R. Evid.
404(a)(2). (Dkt. # 2 at 21.) Tollefson states that Deagen’s testimony was not
offered to rebut testimony that Barbara was the aggressor, because Deagen was the
trial’s first witness. (Id.) As trial counsel noted in their Affidavits, the testimony
regarding Barbara Coull’s lack of criminal history may have been objectionable at
the time it was first offered. However, it would have likely become admissible
after Tollefson’s testimony that Barbara was the aggressor. In light of the fact that
this evidence likely would have later been properly heard by the jury, trial
counsel’s failure to object was sound trial strategy and did not constitute
ineffective assistance. As a general matter, courts are “highly deferential of
16

counsel’s conduct and maintain a strong presumption that counsel’s trial strategy
fell within the wide range of reasonable professional assistance.” Pape v. Thaler,
645 F.3d 281, 291 (5th Cir. 2011). The Fifth Circuit has “consistently found
counsel’s decisions regarding examination and presentation of witnesses and
testimony to fall within this category of trial strategy which enjoys a strong
presumption of effectiveness.” Id.
Tollefson has not presented clear and convincing evidence to rebut the
state court’s findings. The Court finds that the state court’s conclusion is not
contrary to or an unreasonable application of clearly established federal law. The
Court further finds that the state court’s decision was not based on an unreasonable
determination of the facts in light of the evidence presented. The Court therefore
overrules Tollefson’s third objection.
IV.

Petitioner’s Convictions
Fourth, Tollefson objects to the Magistrate Judge’s conclusion that he

was not denied effective assistance of counsel when trial counsel elicited testimony
about Tollefson’s criminal record. (Dkt. # 21 at 5–7.) At a bench conference
outside the presence of the jury, the trial court granted Tollefson’s motion in limine
requesting a bench conference before eliciting any testimony about Tollefson’s
prior offenses or misconduct. (5 R.R. at 9, Dkt. # 15-13 at 9.) Daniel subsequently
elicited testimony from Tollefson on direct examination that he was convicted of
17

assaulting his ex-wife in 1999, placed on probation and successfully completed it
in 2000; and that he was convicted of disorderly conduct and public indecency,
placed on probation in 2003, and successfully completed it in 2004. (5 R.R. at 37–
38, Dkt. # 15-13 at 37–38.)
In his Affidavit, Daniel stated that before the State closed its case in
chief, the trial judge held another bench conference regarding certain acts of
misconduct allegedly committed by Tollefson. (Supp. Rec. 2d at 8, Dkt. # 15-19 at
13.) At the conclusion of that conference, based on comments made by the trial
judge, Daniel and Hudson felt that evidence regarding Tollefson’s prior
convictions would be admitted in the State’s cross-examination. (Id.) They
therefore decided to ask Tollefson about those matters on direct examination “in an
effort to preclude the State from reaping any benefit as a result of it being able to
initiate such questioning.” (Id.)
In its findings of fact and conclusions of law, the state court stated that
because his goal was to paint himself as the “sympathetic victim of an irrational,
volatile, shrewish woman,” Tollefson wanted the jury “to consider him to be
completely transparent.” (Supp. Rec. 2d at 45, Dkt. # 15-19 at 50.) The state court
concluded that counsel’s “decision to be proactive and admit [the convictions]
rather than having the state bring it up on cross examination or rebuttal is an
acceptable and common trial tactic . . . . By bringing this evidence to the jury’s
18

attention in this manner, the attorneys did the least damage to their case.” (Supp.
Rec. 2d at 46, Dkt. # 15-19 at 51.) Finally, the court stated, “[w]hile the disorderly
conduct conviction could have been excluded, its admission was not of such a
nature that ‘but for’ its introduction the jury would have reached a contrary result.”
(Id.)
Tollefson argues that none of the convictions would have been
admissible on cross-examination. (Dkt. # 2 at 25; Dkt. # 21 at 6.) Tollefson
asserts that under Texas Rule of Evidence 609(a) 1, the State could not have
properly impeached him with two successfully completed misdemeanor probations
or a final misdemeanor conviction that did not involve moral turpitude. (Dkt. # 2
at 24.) However, whether or not the convictions were actually admissible is
largely a moot point. Contrary to Tollefson’s assertion, the trial court did in fact
indicate during the bench conference that it would permit testimony about the prior
convictions. The court informed Tollefson’s counsel, “if it is there I’m going to let
it in. If it’s not there I’m not going to let it in. If [Tollefson] takes the stand he’s
subject to cross-examination depending on what doors are opened or not opened.
1

Texas Rule of Evidence 609(a) provides:
For the purpose of attacking the credibility of a witness, evidence that
the witness has been convicted of a crime shall be admitted if elicited
from the witness or established by public record but only if the crime
was a felony or involved moral turpitude, regardless of punishment,
and the court determines that the probative value of admitting this
evidence outweighs its prejudicial effect to a party.
Tex. R. Evid. 609(a).
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So that’s just a decision you’ll have to make.” Based on the representations made
by the trial court, Tollefson’s counsel had to proceed under the assumption that the
convictions would be admitted, and they had to alter their trial strategy
accordingly.
Tollefson, however, claims that “[n]o sound strategy could justify this
conduct.” (Dkt. # 2 at 25; Dkt. # 21 at 6.) Tollefson states that because his selfdefense claim relied heavily on his own credibility, eliciting such testimony was
unsound trial strategy. (Dkt. # 2 at 24.) In support of his position, Tollefson cites
Greene v. State, 928 S.W.2d 119 (Tex. App.—San Antonio 1996, no pet.). In that
case, the Texas Court of Appeals found that Greene’s counsel had “needlessly
impeach[ed] its own witness” by asking her if she had gotten “in trouble” for
writing bad checks. 928 S.W.2d at 122, 126. The court found that this error, in
conjunction with six others, undermined the court’s confidence in the result of the
trial. Id. at 126. However, the court also noted that each mistake standing alone
did not constitute ineffective assistance of counsel. Id. The Court finds that
Greene does not establish a blanket rule that asking a witness about prior
convictions constitutes ineffective assistance of counsel. As discussed above, trial
counsel’s decisions regarding trial strategy are entitled to great deference. See
Pape, 645 F.3d at 291. Furthermore, even if eliciting testimony about the prior

20

convictions was error, Tollefson has not shown that there is a reasonable
probability the outcome of the trial would have been different but for this error.
Again, Tollefson has not presented clear and convincing evidence to
rebut the state court’s findings. The Court finds that the state court’s conclusion is
not contrary to or an unreasonable application of clearly established federal law,
and the Court further finds that the state court’s decision was not based on an
unreasonable determination of the facts in light of the evidence presented. The
Court therefore overrules Tollefson’s fourth objection.
V.

Petitioner’s Post-Arrest Request for Counsel
Fifth, Tollefson objects to the Magistrate Judge’s conclusion that trial

counsel did not perform deficiently when they elicited testimony that, after his
arrest, Tollefson invoked his right to counsel. (Dkt. # 21 at 7.) During crossexamination of Sergeant Thomas Silva, a Wilson County patrol sergeant, Daniel
elicited testimony that Tollefson indicated he wanted to speak with a lawyer at the
scene of the incident. (3 R.R. at 222, Dkt. # 15-10 at 100.) Daniel then asked,
“Now, normally wouldn’t that be an indication that you are not to continue to
question somebody? When they tell you that they want to speak with a lawyer
isn’t that an indication to you that you don’t have any business questioning that
person?” (Id.) Daniel then elicited testimony that Silva had continued to question
Tollefson after Tollefson indicated that he wanted to speak with a lawyer. (3 R.R.
21

at 223, Dkt. # 15-10 at 101.) Additionally, in response to questioning from Daniel
on direct examination, Tollefson confirmed that he repeated his request several
times post-arrest. 2 (5 R.R. at 35–36, Dkt. # 15-13 at 35–36.)

2

The relevant portion of Daniel’s direct examination of Tollefson is reproduced
below:
Q.
Okay. All right. And without going into anything that was said, Lee, did
you talk to the sheriff’s people while you were in jail?
A.
Well, immediately as I got into the sheriff’s car they wanted me to say—
well, they asked me, well, what happened. I said, I’d like to have a lawyer,
please.
Q.
Okay. All right.
A.
So and then that—he tried to get me to talk on the way back to town too.
Q.
Okay.
A.
But I just kept on telling him, you know, I want a lawyer.
Q.
Okay. Now, when you—were you in jail for several days?
A.
Yeah.
Q.
Okay. While you were in jail did you talk to the sheriff’s—did you talk to
the sheriff’s department people?
A.
Well, I talked to the jailers and I kept on asking them—
Q.
Okay. Don’t talk about what you said.
A.
Okay.
Q.
All right. Did you have the occasion to meet with Johnie Deagen and Gary
Laughlin from the sheriff’s department?
A.
Yes, sir, I did.
Q.
Okay. And did you take the occasion to tell them what it was that happened
out there on the property?
A.
Well, yes, I did, but—
Q.
Okay. That’s all I want to know. You talked to them and you told them.
Who was it that initiated that meeting? Did they come to you or did you ask
to see them?
A.
I didn’t ask to see them, but I was whining about a lawyer for—since the
20th. And then they finally came to see me on the 26th.
Q.
Okay.
(5 R.R. at 35–36; Dkt. # 15-13 at 35–36.)
22

Both Daniel and Hudson address these pieces of testimony in their
Affidavits. Regarding Silva’s testimony, Hudson stated that part of the defense
was to “draw the attention of the jurors to the improper investigation techniques
employed by the Wilson County Sheriff’s Department. (Supp. Rec. 2d at 15, Dkt.
# 15-19 at 20.) Daniel and Hudson also explained that after Tollefson requested an
attorney, he voluntarily made a statement to officers which the State had decided
not to offer into evidence. (Supp. Rec. 2d at 10, Dkt. # 15-19 at 13; Supp. Rec. 2d
at 15, Dkt. # 15-19 at 15.) They believed that the statement was favorable to his
defense, because making a statement without an attorney present supported
Tollefson’s defense that he had nothing to hide. (Supp. Rec. 2d at 10, Dkt. # 15-19
at 13; Supp. Rec. 2d at 15, Dkt. # 15-19 at 15.) Finally, Daniel stated that they
discussed the goal of showing the jury that the State had not offered Tollefson’s
post-arrest statement into evidence; as part of that discussion, and in furtherance of
that goal, he and Hudson advised Tollefson not to mention requesting a lawyer.
(Supp. Rec. 2d at 10, Dkt. # 15-19 at 15.)
In its findings of fact and conclusions of law, the state court found:
While the State could not have elicited this testimony, the fact that
Defense counsel chose to do so is not prejudicial. The testimony was
elicited to show the investigation in the case was improper and that
Applicant’s rights were violated. The court does not find the
testimony prejudiced Applicant. As to the testimony of the Applicant
regarding his requests for counsel . . . it appears that, in spite of his
attorneys’ instruction, he was determined to interject his repeated
requests for counsel into the record . . . . This court cannot find the
23

trial attorneys ineffective for pursuing a trial strategy dictated by their
client.
(Supp. Rec. 2d at 46–47, Dkt. # 15-19 at 51–52.)
Tollefson argues that trial counsel performed deficiently by eliciting
this testimony because evidence of a defendant’s post-arrest silence violates his
right against self-incrimination, and its prejudicial impact far outweighs its
probative value. (Dkt. # 2 at 27.) He also asserts that Daniel never counseled him
not to volunteer the fact that he had requested an attorney, and that Daniel’s
Affidavit does not address why he elicited the testimony from Silva. (Id.)
Tollefson first cites Doyle v. Ohio, 426 U.S. 610, 619 (1976) for the
proposition that evidence of a defendant’s post-arrest silence violates his right
against self-incrimination. (Id.) It is true that using for impeachment purposes a
defendant’s silence at the time of arrest and after receiving Miranda warnings
violates the Due Process Clause of the Fourteenth Amendment. Doyle, 426 U.S. at
619; Perez v. Stephens, 745 F.3d 174, 191 (5th Cir. 2014). In both Doyle and
Perez, prosecutors asked the defendants on cross-examination why they had not
presented their sides of the story at the time of arrest. Doyle, 426 U.S. at 614;
Perez, 745 F.3d at 191. Here, Tollefson does not complain of conduct by the State,
but rather argues that his own counsel were ineffective in allowing the jury to hear
testimony that he asked for a lawyer after being arrested. Defense counsel is not
prohibited from introducing such evidence, but because the same dangers apply—
24

i.e., the jury will believe that the “probable collateral implication of a defendant’s
invocation of [his] rights is that [he] is guilty”—courts must examine whether trial
counsel “had a strategic basis for eliciting the testimony.” Skelton, 434 S.W.3d at
719, 723–24. Here, as the state court noted, trial counsel had a sound strategic
basis for eliciting Silva’s testimony: they wanted the jury to understand that the
deputies had violated Tollefson’s constitutional rights by continuing to question
him after he invoked his right to counsel.
Tollefson also cites White v. Thaler, 610 F.3d 890 (5th Cir. 2010) in
support of his position that Daniel performed deficiently in eliciting testimony that
Tollefson invoked his right to counsel. (Dkt. # 2 at 27.) In that case, the habeas
petitioner argued that his trial counsel should not have questioned him about his
post-arrest silence on direct examination because it opened the door for the State to
cross-examine him about his failure to explain his side of the story immediately
after his arrest. White, 610 F.3d at 899. During closing arguments, the State
argued that the petitioner should not be believed because he did not tell police his
version of events. Id. In a later affidavit, defense counsel admitted questioning
petitioner about his post-arrest silence was not party of any trial strategy. Id. at
899–900. The Fifth Circuit held that defense counsel performed deficiently by
opening the door to the State’s questioning. Id. at 900. Again, this case is
distinguishable because Tollefson does not complain about the State’s conduct at
25

trial. He does not allege that Daniel’s questioning about his post-arrest request for
a lawyer resulted in any advantage to the State, or even that the State questioned
him about his silence on cross-examination. Tollefson does not explain how this
testimony prejudiced him, and the Court agrees with the state court, which found
that it did not.
Finally, Tollefson argues that trial counsel never instructed him to
avoid mentioning his invocation of his right to counsel, and that Daniel’s Affidavit
does not explain why he questioned Silva about it. (Dkt. # 2 at 27.) Whether or
not trial counsel instructed Tollefson not to mention his invocation of his right to
counsel is neither here nor there. As the state court noted, the transcript clearly
shows that Tollefson was determined to tell the jury about his request, and
Tollefson cannot argue that the testimony he himself insisted on offering
constitutes ineffective assistance of counsel. See Druery v. Thaler, 647 F.3d 535,
545 (5th Cir. 2011) (explaining that under the invited error doctrine, “a defendant
cannot complain on appeal of alleged errors which he invited or induced,
especially where [he] may not have been prejudiced by the error . . . . This doctrine
applies to habeas review as well.”) (quotations omitted). Furthermore, Daniel’s
Affidavit very clearly explains why he questioned Silva about Tollefson’s request
for a lawyer—he wanted the jury to understand that Silva abused Tollefson’s

26

constitutional rights by continuing to question him after he asked for an attorney.
Tollefson cannot argue that this point was detrimental to his defense.
Tollefson has not presented clear and convincing evidence to rebut the
state court’s findings. The Court finds that the state court’s conclusion is not
contrary to or an unreasonable application of clearly established federal law, and
the Court further finds that the state court’s decision was not based on an
unreasonable determination of the facts in light of the evidence presented. The
Court therefore overrules Tollefson’s fifth objection.
VI.

Prejudice
Lastly, Tollefson objects to the Magistrate Judge’s conclusion that

trial counsels’ “minor errors” did not adversely affect the verdict in his trial. (Dkt.
# 21 at 8.) Tollefson argues that the jury heard testimony that Barbara Coull was
“verbally abusive, profane, confrontational, and a ‘hard woman.’” (Dkt. # 2 at 28–
29.) According to Tollefson, the jury had a plausible basis to acquit him on the
basis of self-defense. Tollefson further argues that due to the errors discussed in
the preceding sections, the jury heard inadmissible, prejudicial testimony that
destroyed his credibility and any realistic opportunity for acquittal. (Id. at 29.) He
states that “[b]ut for counsels’ errors in eliciting and failing to object to this
testimony, there is a reasonable probability that the jury would have acquitted
[him] or deadlocked.” (Id.)
27

Tollefson has the burden of demonstrating that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of [his trial]
would have been different.” Strickland, 466 U.S. at 694. “This is a heavy burden
which requires a ‘substantial,’ and not just a ‘conceivable,’ likelihood of a different
result.” United States v. Wines, 691 F.3d 599, 604 (5th Cir. 2012) (citing
Harrington, 131 S. Ct. at 787). In determining whether there was prejudice, a court
looks at the totality of the evidence that was before the jury. Strickland, 466 U.S.
at 695.
The state court concluded that after “[c]onsidering the entirety of the
case, the performance of the attorneys . . . and the active participation of
[Tollefson] in his trial, the trial court finds that [Tollefson] received a fair trial . . . .
Where error may exist, the court does not find that ‘but for’ those instances, the
jury’s verdict would have been any different.” (Supp. Rec. 2d at 47, Dkt. # 15-19
at 52.) This Court agrees. For the reasons stated above, trial counsels’
performance did not fall below an objective standard of reasonableness.
Furthermore, the record is replete with evidence supporting the jury’s
determination. Tollefson’s cross-examination revealed that his relationship with
Barbara Coull was under significant strain at the time of the incident. (5 R.R. at
40–45, Dkt. # 15-13 at 40–45.) Tollefson testified that he was afraid Barbara
would locate the gun in his truck and shoot him, and initially chose to retreat into
28

his trailer, but then came back outside to confront her with his own weapon. (5
R.R. at 26–30, Dkt. # 15-13 at 26–30.)
Tollefson also testified that he believed she was holding a gun when
he shot her from five or six feet away. (Id.) However, as the Texas Court of
Appeals noted in affirming his conviction, the forensic evidence established that he
was only six to nine inches away from Barbara when he shot her. Tollefson, 352
S.W.3d at 823; (4 R.R. at 177; Dkt. # 15-12 at 38.) Tollefson testified that Barbara
was facing him when he fired and that he only shot her once, (5 R.R. at 81, Dkt. #
15-13 at 81), but the autopsy showed that she was shot three times—once under the
right ear and twice in the back of her head from behind. (3 R.R. at 190–94, Dkt. #
15-10 at 68–72.) Based on this evidence, it is apparent that the jury rejected
Tollefson’s theory of self-defense: the evidence showed that Tollefson sought
confrontation with Barbara before the shooting, and shot her three times in the side
and back of the head at a distance of only six to nine inches. Tollefson has not
presented sufficient evidence to indicate to this Court that the result of his trial
would have been different but for trial counsels’ errors.
CONCLUSION
For the reasons stated above, the Court hereby ADOPTS the
Magistrate Judge’s Report and Recommendation (Dkt. # 19) and DENIES

29

Tollefson’s Petition for Writ of Habeas Corpus (Dkt. # 1). The Court DENIES a
certificate of appealability in this case.
IT IS SO ORDERED.
DATED: San Antonio, Texas, December 23, 2014.

_____________________________________
David Alan Ezra
Senior United States Distict Judge

30