Fletcher v. Livingston

Filing 22

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 15 Report and Recommendations; the Respondents motion to dismiss is GRANTED, and the petition is DENIED; this Court DENIES Petitioner a certificate of appealability. Signed by Judge Xavier Rodriguez. (rg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
TERRANCE FLETCHER,

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§
Petitioner,
§
§
v.
§
§
WILLIAM STEPHENS, Director, Texas
§
Department of Criminal Justice, Correctional §
Institutions Division,
§
§
Respondent.
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§

Civil Action No. SA-5-14-CV-00983-XR

ORDER
On this date, the Court considered Petitioner Terrance Fletcher’s federal habeas corpus
petition pursuant to 28 U.S.C. § 2254 (docket no. 1), Respondent William Stephens’ Response
and motion to dismiss (docket no. 13), and the Magistrate Judge’s Report and Recommendations
(docket no. 15). For the reasons set forth below, the Court ADOPTS the Magistrate Judge’s
Report and Recommendations, GRANTS the motion to dismiss, and DENIES the petition.
I.

BACKGROUND

Fletcher is an inmate serving a life sentence under the custody of the Texas Department
of Criminal Justice (TDCJ) in Beeville, Texas. Docket no. 1 at 2. In 2011, Fletcher was
convicted of murder in the 227th Judicial District, Bexar County, Texas. Id. He was found
guilty of murdering Rosalinda Vega outside of her son Robert Coronado’s home. Docket no. 11,
Ex. 2 at 3. That day, Coronado got into an argument with the mother of his children, who was in
a relationship with Fletcher at the time. Id. Hearing about it, Fletcher drove to Coronado’s
home, where the family was gathered on the street. Id. He slowed his vehicle, moved so that he

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was driving on the wrong side of the street, and “tossed” a brick out of the vehicle’s window,
striking Vega. Id. Vega eventually died from her injuries. Docket no. 11, Ex. 2 at 3-4.
A. State Direct Appeal
Fletcher appealed his conviction to the Texas Fourth Court of Appeals, arguing that: (1)
the evidence was insufficient to support the jury’s verdict; (2) the trial court erred in denying his
request to include criminally negligent homicide as a lesser included offense; (3) the trial court
abused its discretion by admitting evidence of an extraneous offense; and (4) the trial court
abused its discretion in denying his motion for a mistrial after jurors were observed on the phone
and in the restroom separated from other jurors. Docket no. 11, Ex. 2 at 1. The Fourth Court of
Appeals affirmed Fletcher’s conviction on May 2, 2012. Fletcher v. State, No. 04-11-435-CR,
2012 WL 1549816 (Tex. App.—San Antonio May 2, 2012, pet. ref’d). Fletcher then filed a
petition for discretionary review to the Texas Court of Criminal Appeals (“CCA”) reasserting
these four claims. The CCA refused discretionary review on September 12, 2012. Docket no. 1
at 3.
B. State Habeas Petition
Fletcher filed his first state habeas petition on October 18, 2013. Docket no. 12, Ex. 13 at
1. In this petition, Fletcher raised eight claims of ineffective assistance of counsel by his trial
counsel, Cornelius N. Cox, for failing to: (1) “move to dismiss the defective indictment because
of the improper transference of the mental element”; (2) “move for a judgment of acquittal based
on the actual evidence of cause of death”; (3) call a medical expert who could present a defense
that the victim’s death was “due to medical neglect”; (4) raise a Batson challenge and “move to
strike the jury panel and the prosecutions [sic] peremptory challenge concerning a black juror”;
(5) present a “misidentification and suggestive photograph lineup defense” and a related jury

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instruction over a prosecution witness’s failure to identify Fletcher in a photograph lineup; (6)
present a defense of “police fabrication”; (7) “move for exploration of the jury to determine
whether the jury considered prejudicial, and outside information”; and (8) “present a strong Alibi
[sic] defense.” Docket no. 12, Ex. 13 at 1-18. Fletcher’s first state habeas corpus application
was dismissed by the CCA pursuant to Texas Rule of Appellate Procedure (TRAP) 73.1 for
failure to adhere to formatting rules on September 24, 2014. See Docket no. 12, Ex. 11 at 1.
Fletcher filed his second habeas petition on October 30, 2014. Docket no. 12, Ex. 14 at
1. Fletcher’s second petition raised the same eight grounds as his first petition and added a ninth
ground of ineffective assistance of counsel for failing to “retain or consult with an expert
pathologist” who could rebut the testimony provided by the Bexar County Medical Examiner’s
Office. Id. at 25, 51. The CCA denied Fletcher’s petition without written order on December
10, 2014. Docket no. 12, Ex. 15 at 1.
C. Proceedings in Federal Court
Fletcher filed his petition for habeas corpus with this Court on November 6, 2014,1 listing
ten grounds for relief. Docket no. 1. Four of the claims are for ineffective assistance of trial
counsel, and three allege trial court error.

Id.

Fletcher also advances single claims of

prosecutorial misconduct, arrest lacking probable cause, and an inherently suggestive
identification in court by a witness. Id. Respondent TDCJ Director of Correctional Institutions
Division William Stephens filed his response to Fletcher’s petition on February 5, 2015, and

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Fletcher filed his federal habeas petition before his state habeas petition was ultimately denied on December 10,
2014. The Court notes that this fact arguably means that Fletcher filed his federal petition prior to the exhaustion of
his state claims. The Supreme Court has held that a federal habeas petition that is filed after an initial federal
petition was dismissed for procedural reasons rather than decided on the merits is not a second or successive petition
and thus the second petition relates back to the date the first petition was filed for exhaustion purposes. Slack v.
McDaniel, 529 U.S. 473, 485-86 (2000). While this Court has not located any similar authority on state petitions
relating back, out of caution the Court will treat the second petition as though it was filed the day the first petition
was filed, such that the claims in the first and second petition could be exhausted by the time the federal petition was
filed if the other requirements for exhaustion are met. See Section III, infra.
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moved to dismiss. Docket no. 13. Stephens argues that five of the issues raised by Fletcher were
not included in either his direct state appeal or his subsequent state habeas petition, meaning they
are unexhausted. Stephens notes those unexhausted claims would be procedurally barred on the
state level if Fletcher were to file them now under the Texas abuse of writ doctrine, which
precludes a Texas state court from granting a habeas petition from a prisoner if that prisoner has
already had a habeas petition denied by the state courts, absent specifically enumerated
exceptions. Id. at 8; TEX. CODE CRIM. PROC. ANN. art. 11.07 § 4. Stephens also argues that the
state court’s denial of Fletcher’s four ineffective assistance of counsel claims presented in the
federal petition was reasonable. Docket no. 13 at 12. Last, Stephens argues that relief for
Fletcher’s claim of error regarding an instruction on the lesser included offense is meritless
because the Fifth Circuit has held that the failure to give lesser included offense instructions does
not raise a federal constitutional issue in non-capital cases. Id. at 20.
Fletcher responded to Stephens’s motion to dismiss on February 19, 2015, arguing that
the claims Stephens argues are unexhausted should be treated as exhausted because the CCA
“refused to hold an evidentiary hearing” due to an alleged violation of the TRAP that Fletcher
claims was retroactively applied to him. Docket no. 14 at 3. Specifically, Fletcher argues that
TRAP 72.1’s “‘more than one ground on one page’” rule only became effective on January 1,
2014, but he had filed his petition on September 4, 2013, so the clerk’s office should have
“immediately send [sic] the application back to the applicant.”2 Id. Because his CCA appeal
was “dismissed with an [sic] fraudulent error,” Fletcher argues that his “unexhausted” claims
should be examined on the merits in federal court because he “gave the [CCA] two chances to
address the issues through an evidentiary hearing,” which was refused in “blatant[] disregard of

2

This court believes Fletcher is actually referring to T.R.A.P. 73.1: Form for Application Filed Under Article 11.07
of the Code of Criminal Procedure.
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his constitutional rights.”

Id.

Fletcher thus argues that all of his claims were “properly

exhausted.” Id. at 4. Alternatively, construing his arguments and objections liberally, he appears
to argue that treating some of his claims as unexhausted is unfair because he cannot bring them
in state court because they are barred by the abuse of writ doctrine, so he could never properly
exhaust them. Id.
Magistrate Judge Mathy entered her Report and Recommendations on March 19, 2015.
She recommended that the Court grant Stephens’ motion to dismiss and deny Fletcher’s petition
for writ of habeas corpus and his implicit request that a certificate of appealability be issued.
Docket no. 15 at 25.
Stephens objected to the Magistrate Judge’s recommendation for “failure to find that
Fletcher’s claim that the trial court erred in denying his request for a jury instruction on the
lesser-included offense fails to state a basis upon which habeas relief may be granted.” Docket
no. 18 at 1.

Fletcher entered his objections to the Magistrate Judge’s Report and

Recommendations on April 14, 2015. Docket no. 20 at 1. Fletcher objected, arguing (1) that he
was prejudiced by a rule change in TRAP, (2) that his counsel had performed deficiently at trial
and been sanctioned, and (3) that Fifth Circuit precedent suggested that the throwing of a brick
constituted the lesser-included offense of criminally negligent homicide. Id. at 3.
II.

STANDARD OF REVIEW

A. Review of a magistrate judge’s report and recommendations
Where no party has objected to a magistrate judge’s report and recommendations, a court
need not conduct a de novo review. See 28 U.S.C. § 636(b)(1). In such cases, the court only
reviews the recommendation to determine whether it is clearly erroneous or contrary to law.
United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989). Similarly, when a party makes no

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specific objection to a portion of a report, a court only reviews that portion for clear error. See
id. Additionally, failure to file timely written objections to a magistrate judge’s report bars the
aggrieved party, except upon grounds of plain error, from attacking the proposed findings and
legal conclusions accepted by a district court on appeal. Acuna v. Brown & Root Inc., 200 F.3d
335, 340 (5th Cir. 2000); Douglass v. United Serv. Auto, Ass’n., 79 F.3d 1415, 1428 (5th Cir.
1996).
Where a magistrate judge’s report has been objected to, the district court reviews the
recommendation de novo pursuant to Federal Rule of Civil Procedure 72. See also 28 U.S.C
§ 636(b)(1) (“A judge of the court shall make a de novo determination of those portions of the
report or specified proposed findings and recommendations to which objection is made.”).
During a de novo review a court examines the entire record and makes an independent
assessment of the law. However, the court should not conduct a de novo review when the
objections are frivolous, conclusive, or too general. Battle v. United States Parole Commission,
834 F.2d 419, 421 (5th Cir. 1987).
B. AEDPA Standard of Review
This Court's review of Fletcher's claims for federal habeas corpus relief is governed by
the Antiterrorism Effective Death Penalty Act of 1996 (“AEDPA”). Penry v. Johnson, 532 U.S.
782, 792 (2001). Under the AEDPA standard of review, this Court cannot grant Fletcher federal
habeas corpus relief in this cause in connection with any claim that was adjudicated on the merits
in state court proceedings, unless the adjudication of that claim either: (1) resulted in a decision
that was contrary to, or involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States, or (2) resulted in a decision that was
based on an unreasonable determination of the facts in light of the evidence presented in the state

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court proceeding. Brown v. Payton, 544 U.S. 133, 141 (2005); Williams v. Taylor, 529 U.S. 362
(2000); 28 U.S.C. § 2254(d). State law errors that do not implicate federal constitutional rights
cannot be the basis for habeas corpus relief under the AEDPA. Estelle v. Mcguire, 502 U.S. 62,
63 (1991). Conclusory and speculative allegations are not sufficient to entitle a petitioner to
relief under the AEDPA. West v. Johnson, 92 F.3d 1385, 1398-99 (5th Cir. 1996), cert. denied,
520 U.S. (1997).
As the Supreme Court has explained:
Under the [AEDPA], a state prisoner seeking a writ of habeas corpus from
a federal court ‘must show that the state court's ruling on the claim being
presented in federal court was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.’
Bobby v. Dixon, 132 S. Ct. 26, 27 (2011) (quoting Harrington v. Richter, 562 U.S. 86, 103
(2011)).
The AEDPA also significantly restricts the scope of federal habeas review of state court
fact findings. Section 2254(d) provides federal habeas relief may not be granted on any claim
that was adjudicated on the merits in a state court unless the state court's adjudication of the
claim resulted in a decision based on an unreasonable determination of the facts in light of the
evidence presented in the state court proceeding. Wood v. Allen, 558 U.S. 290, 300-301 (2011)
(“[A] state-court factual determination is not unreasonable merely because the federal habeas
court would have reached a different conclusion in the first instance.”); Williams, 529 U.S. at
410 (“[A]n unreasonable application of federal law is different from an incorrect application of
federal law.”). Even if reasonable minds reviewing the record might disagree about the factual
finding in question (or the implicit credibility determination underlying the factual finding) on

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habeas review, this does not suffice to supersede the trial court's factual determination. Wood,
558 U.S. at 301; Rice v. Collins, 546 U.S. 333, 341–42 (2006).
III.

AEDPA: EXHAUSTION

Fletcher appears to object to the Magistrate Judge’s determination that some of his claims
are barred because they are not exhausted. Docket no. 20 at 1 (“Fletcher . . . files this motion
due to the unreasonable determinations and recommendations made . . . .”). The Court therefore
reviews the exhaustion issue de novo. After careful review, five claims wil be denied because
they are unexhausted.
Before seeking federal habeas corpus relief, a state prisoner must exhaust available state
remedies, thereby giving the state the opportunity to pass upon and correct alleged violations of
its prisoners' federal rights. Baldwin v. Reese, 541 U.S. 27, 29 (2004); O'Sullivan v. Boerckel,
526 U.S. 838, 842 (1999). To provide the state with this necessary “opportunity,” the prisoner
must “fairly present” his claim to the appropriate state court in a manner that alerts that court to
the federal nature of the claim. See Baldwin, 541 U.S. at 29–32 (rejecting the argument that a
petitioner “fairly presents” a federal claim, despite failing to give any indication in his appellate
brief of the federal nature of the claim through reference to any federal source of law, when the
state appellate court could have discerned the federal nature of the claim through review of the
lower state court opinion).
Under the AEDPA, federal courts lack the power to grant habeas corpus relief on
unexhausted claims.

Kunkle v. Dretke, 352 F.3d 980, 988 (5th Cir. 2003) (“28 U.S.C. §

2254(b)(1) requires that federal habeas petitioners fully exhaust remedies available in state court
before proceeding in federal court.”), cert. denied, 543 U.S. 835 (2004). The exhaustion of all
federal claims in state court is a fundamental prerequisite to requesting federal collateral relief

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under § 2254. Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001); 28 U.S.C. § 2254(b)(1)(A).
A federal court may, however, reach the merits of an exhausted claim. § 2254(b)(2); Pondexter
v. Quarterman, 537 F.3d 511, 527 (5th Cir. 2008), cert. denied, 555 U.S. 1219 (2009).
In order to “exhaust” available state remedies, a petitioner must “fairly present” all of his
claims to the state courts, including the highest state court. Duncan v. Henry, 513 U.S. 364, 365
(1995); Shute v. State of Tex., 117 F.3d 233, 237 (5th Cir. 1997) (“A habeas petitioner ‘must
fairly apprize the highest court of his state of the federal rights which were allegedly violated.’”).
In Texas, the highest state court with jurisdiction to review the validity of a state criminal
conviction is the CCA. Richardson v. Procunier, 762 F.2d 429, 431–32 (5th Cir. 1985).
More simply, the exhaustion doctrine requires that the petitioner present his federal claim
in a manner reasonably designed to afford the state courts a meaningful opportunity to address it.
The exhaustion requirement is satisfied when the substance of the federal habeas claim has been
“fairly presented” to the highest state court, i.e., the petitioner presents his claims before the state
courts in a procedurally proper manner according to the rules of the state courts. Baldwin, 541
U.S. at 29–32 (holding a petitioner failed to “fairly present” a claim of ineffective assistance by
his state appellate counsel merely by labeling the performance of said counsel “ineffective,”
without accompanying that label with either a reference to federal law or a citation to an opinion
applying federal law to such a claim); Moore v. Cain, 298 F.3d 361, 364 (5th Cir. 2002), cert.
denied, 537 U.S. 1236 (2003).
Exhaustion thus requires a petitioner “to present the state courts with the same claim he
urges upon the federal courts.” Pickard v. Connor, 404 U.S. 270. 276 (1971) (emphasis added).
It is insufficient that “all the facts necessary to support the federal claim were before the state
courts or that a somewhat similar state-law claim was made.” Anderson v. Harless, 459 U.S. 4, 6

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(1982) (internal citation omitted). Claims are not exhausted “if a petitioner presents new legal
theories or entirely new factual claims in his petition to the federal court.” Wilder, 274 F.3d at
259; Riley, 339 F.3d at 318 (“It is not enough that the facts applicable to the federal claims were
all before the State court, or that the petitioner made a similar state-law based claim. The federal
claim must be the ‘substantial equivalent’ of the claim brought before the State court.”).
However, the petitioner need not spell out each syllable of the claim before the state court for the
claim to have been “fairly presented” and thereby fulfill the exhaustion requirement. Riley v.
Cockrell, 339 F.3d 308, 318 (5th Cir. 2003); Fisher v. Texas, 169 F.3d 295, 303 (5th Cir. 1999).
The presentation of claims for the first time on discretionary review to the state's highest court
does not constitute “fair presentation” for exhaustion purposes. Castille v. Peoples, 489 U.S.
346, 351 (1989). Full exhaustion of a claim presented is required before federal habeas corpus
relief is available. Rose v. Lundy, 455 U.S. 509, 518–22 (1982).
Petitions, like potentially Fletcher’s, that contain both exhausted and unexhausted claims
are called mixed petitions. Rose v. Lundy, 455 U.S. 509, 510 (1982). Prior to the AEDPA,
courts were required to dismiss mixed petitions. Id. at 522. Under the AEDPA, federal district
courts have the discretion to review the exhausted claims in a mixed petition on their merits
despite the petitioner failing to exhaust the remedies available in state courts on some of the
other claims presented in the petition. 28 U.S.C. § 2254(b)(2). Federal district courts may still
dismiss “mixed” petitions under certain circumstances. See Coleman v. Thompson, 501 U.S.
722, 750 (1991), superseded by the AEDPA on other grounds, (providing two tests for when
courts should continue to the merits of unexhausted claims if those claims would be procedurally
barred if brought in state court); Rhines v. Weber, 544 U.S. 269, 277–78 (2005) (a mixed petition
should be stayed and not dismissed if (1) the petitioner had good cause for his failure to exhaust,

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(2) his unexhausted claims are potentially meritorious, and (3) there is no indication that the
petitioner engaged in intentionally dilatory litigation tactics.).
If a state prisoner cannot bring his claims in state court pursuant to an independent and
adequate state procedural rule, federal habeas review of the claims is still barred unless the
prisoner can demonstrate cause for the default and actual prejudice, or demonstrate that failure to
consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at
750.
A. Exhaustion Analysis
The threshold issue is whether any of Fletcher’s claims are unexhausted. If any claims
are unexhausted, the Court will use the Coleman test to determine if it must analyze the merits of
those claims despite being unexhausted, as those claims would now be procedurally barred in
state court by Texas’ abuse of writ doctrine. 501 U.S. 722.3 The Court will deny five claims as
unexhausted and not reach their merits because Fletcher does not meet the Coleman test.
Fletcher states the following claims in his petition:
1. [Trial] counsel was constitutionally ineffective for failure to move to dismiss
defective indictment because of improper transference of mental element
establishing criminal responsibility;
2. [Trial] counsel was constitutionally ineffective for failure to present a defense
based on the evidence of cause of death . . . and move for a judgment of
acquittal based on the actual evidence of cause of death;
3. [Trial] counsel failed to present [a] defense that death was caused by medical
neglect and call a medical expert [in] support [which] constitutes ineffective
assistance of counsel;

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Exceptions to the abuse of writ doctrine arise when: (1) new claims could not have been presented in a
prior petition “because the factual or legal basis for the claim was unavailable on the date the applicant filed the
previous application,” or (2) “but for a violation of the United States Constitution no rational juror could have found
the applicant guilty beyond a reasonable doubt.” TEX. CODE CRIM. PROC. ANN. art. 11.07 § 4(1)(2). This case does
not meet the limited exception to the abuse of writ doctrine. Thus claims that are unexhausted and do not present
grounds for relief under Coleman will be dismissed, while those that require a full merits analysis due to Coleman
will be analyzed along with the exhausted claims.
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4. [Trial] counsel was ineffective for failure to raise a Batson objection and
move to strike the jury panel and the prosecutor’s peremptory challenge
concerning a black juror;
5. [Fletcher’s] arrest was without probable cause violating his constitutional
rights . . . ;
6. The [prosecutor] withheld all exculpatory evidence from [Fletcher] and his
defense counsel in violation of his constitutional rights;
7. The in court identification of [Fletcher] by the state’s main eyewitness was
inherently suggestive, therefore violating [Fletcher’s] due process . . . ;
8. The trial court erred when it denied [Fletcher’s] motion for a directed verdict
because the evidence was legally insufficient to prove . . . Fletcher possessed
the requisite intent to commit murder;
9. The trial court erred in denying [Fletcher’s] requested jury charge on the
lesser-included offense of criminally negligent homicide . . . ;
10. The trial court erred when it denied motion [Fletcher’s] motion for mistrial
after it was shown that, without authorization by the court, the jury separated,
and one juror made a phone call, after the court instructed the jury to retire to
the jury room and deliberate for the punishment phase.
Docket no. 1 at 6-9.
The court of last resort for exhaustion in Texas is the CCA, and exhaustion can occur
either through direct appeal or through a post-conviction writ application. Richardson, 762 F.2d
at 431. Stephens argues, and the Magistrate Judge concluded, that claims 5, 6, 7, 8, and 10 are
unexhausted because they were not raised on direct appeal to the Fourth Court of Appeals or to
the CCA on state habeas review. Docket no. 15 at 16.4
In his response to the Magistrate Judge’s recommendation, Fletcher objected that his
“claims should not be procedurally barred for new grounds . . . because when the petition was
filed on 9/4/13, the new rules that were adopted on 12/12/13 effective 1/1/14 were not retroactive
. . . .” Docket no. 20 at 3. This Court construes this as an argument that Fletcher ought to be
able to proceed with his unexhausted claims, or that his claims are exhausted, since a rule change
prevented him from exhausting these claims on the state level.

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The Court has renumbered the claims. As such, the numbers do not match the report and recommendations.
Claims 5, 6, 7, 8, and 10 here match the Magistrate Judge’s claims 2, 3, 4, 5, and 7.
12

Stephens argues that Fletcher did not exhaust his state remedies on claims 5, 6, 7, 8, and
10 because these were not raised on direct appeal or in his state habeas petition. Docket no. 13 at
8-12. It is clear from the record that claims 5, 6, and 8 were not fairly presented in the state
courts and are therefore unexhausted. see docket no. 12 at Ex. 11 (never mentioning anything
related to claim 5, arrest without probable cause; claim 6, withholding exculpatory evidence in
violation of Brady; or claim 8, trial court’s error in denying a directed verdict for insufficient
evidence on the mens rea element); see also Baldwin, 541 U.S. at 29–32 (holding a petitioner
failed to “fairly present” a claim to the state court’s highest court thus not exhausting the claim);
Riley, 339 F.3d at 318 (“It is not enough that the facts applicable to the federal claims were all
before the State court, or that the petitioner made a similar state-law based claim. The federal
claim must be the ‘substantial equivalent’ of the claim brought before the State court.”).
The Court notes that Fletcher touched upon the issues of suggestive eyewitness
identification (7) and jury separation (10) in his state habeas application, but presented them as
ineffective assistance of counsel claims rather than trial court errors. Docket no. 12, Ex. 13 at
14-15. While two of Fletcher’s state claims share a factual nexus with federal claims 7 and 10,
they are supported by different legal theories: the former are ineffective assistance of counsel
claims while the latter are trial court error claims. Id. This difference means claims 7 and 10
were not properly exhausted.
Courts in the Fifth Circuit have repeatedly held that subtle changes to legal theories or
additional detail that highlights a claim that was merely referenced in the state court petition are
not exhausted. See, e.g., Wilder, 274 F.3d at 259 (“[W]here petitioner advances in federal court
an argument based on a legal theory distinct from that relied upon in the state court, he fails to
satisfy the exhaustion requirement.”); Puckett v. Epps, 615 F. Supp. 2d 494, 540 (S.D. Miss.

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2009) aff'd, 641 F.3d 657 (5th Cir. 2011) (“In his post-conviction petition, [Petitioner] cited the
Eighth Amendment as a basis for precluding use of the aggravator where there was insufficient
evidence to support it. Here, he argues that the Eighth Amendment supports his contention that
the statutory aggravator is unconstitutionally overbroad as it is written and construed by the state
courts. This is a separate claim, and it was never presented to the state court for review.
Therefore, [Petitioner]'s claim is barred from habeas review to the extent that it attacks the
aggravating circumstance generally.”); Moore v. Quarterman, 526 F. Supp. 2d 654, 686 (W.D.
Tex. 2007) (“Petitioner’s cryptic reference to the Fourteenth Amendment in his second state
habeas corpus application did not “fairly present” the Texas Court of Criminal Appeals with the
same federal due process arguments petitioner presents to this Court”). Fletcher’s shift from an
ineffective assistance theory to a trial court error theory is a far more significant than many cases
in the Fifth Circuit where the courts held claims were not exhausted.
In Vela v. Estelle, a petitioner used different instances of counsel’s conduct to claim
ineffective assistance in his state and federal petitions. 708 F.2d 954, 959 (5th Cir. 1983) (Both
state and federal petitions alleged that petitioner's sixth amendment rights were violated by
ineffective assistance, but the federal petition included "instances of alleged substandard conduct
cited in this appeal which were not explicitly enumerated in Vela's state habeas petition.”). His
claims were nevertheless found to be fairly presented, as his state and federal claims were based
on the same underlying legal theory, even if some different facts were used to support his claims
in each. Id. at 958-59. Fletcher, by contrast, has used similar facts to support claims based on
two distinct legal theories. Claims 7 and 10 in the federal petition have thus not been fairly
presented to the state court, as the state courts were unable to evaluate the facts surrounding
eyewitness identification and jury separation at his trial under the theory of trial court error.

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The state courts only had the opportunity to analyze those facts and argument under a
different legal theory, ineffective assistance of counsel, meaning that claims 7 and 10 are
unexhausted because they were not “fairly presented” to the state courts. See Wilder, 274 F.3d at
259. Claims 5, 6, 7, 8, and 10 are thus all unexhausted.
B. Reaching the Merits of Unexhausted Claims
Fletcher could not bring his unexhausted claims in state court now because they would be
procedurally barred by Texas’s abuse of writ doctrine, which precludes a Texas state court from
granting a habeas petition from a prisoner if that petitioner has already had a habeas petition
denied by the state courts. See docket no. 12, Ex. 13 at 1-18; TEX. CODE CRIM. PROC. ANN. art.
11.07 § 4. Because his claims would be procedurally barred in state court, this Court may review
some or all of the unexhausted claims on their merits if Fletcher can (1) demonstrate cause for
the default and actual prejudice as a result of the court not reaching the claims’ merits, or (2)
demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.
Coleman, 501 U.S. at 750;5 Canales v. Stephens, 765 F.3d 551, 562 (5th Cir. 2014) (“A federal
court may consider the merits of a procedurally defaulted claim if the petitioner shows ‘cause for
the default and prejudice from a violation of federal law.’”). To “demonstrate cause” a petitioner
must show “something external to the petitioner, something that cannot fairly be attributed to
him . . . impeded [his] efforts to comply with the State's procedural rule,” that would prevent the
petitioner from now properly bringing his claims. Coleman, 501 U.S. at 753. The fundamental
miscarriage of justice test is limited to cases where a petitioner demonstrates that a constitutional
violation has “‘probably resulted’ in the conviction of one who is ‘actually innocent’ of the
5

The Coleman test only applies when claims would actually be procedurally barred pursuant to an independent and
adequate state procedural rule, and, as such, could not be brought at the state level. 501 U.S at 750. The Fifth
Circuit has stated that “the Texas abuse of the writ doctrine has been consistently applied as a procedural bar, and
that it is an independent and adequate state ground for the purpose of imposing a procedural bar.” See, e.g., Kunkle
v. Dretke, 352 F.3d 980, 988-89 (5th Cir. 2003). Fletcher nor the State not dispute that it is an adequate procedural
bar.
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substantive offense.” Dretke v. Haley, 541 U.S. 386, 393 (2004) (quoting Murray, 477 U.S. at
496).
Fletcher’s unexhausted claims are procedurally barred at the state level, but Fletcher has
not shown an actual cause for his default when he failed to present his unexhausted claims, and
failing to review the merits of the unexhausted claims would not result in a fundamental
miscarriage of justice, so the Court will not review the merits of claims 5, 6, 7, 8, and 10.
When analyzing the “demonstrate cause” prong, the Supreme Court in Maples v. Thomas
found an Alabama death row inmate failed to file his habeas appeal because his lawyers had left
the firm representing him and his efforts to reach the firm were in vain. 132 S. Ct. 912, 919-20
(2012). The Court reasoned that this was not a mere case of attorney negligence; rather, it was
an instance where the “attorney abandon[ed] his client without notice, and thereby occasion[ed]
the default” and the Supreme Court held it was sufficient to show external cause for his failure.
Id. at 922. In Maples, something external to the petitioner that could not be fairly attributed to
him stopped him from complying with the state’s procedural rule, thereby establishing an
external cause. Id.; see also Hughes v. Keith, No. CIV.A. 12-2841, 2014 WL 67587, at *8 (E.D.
La. Jan. 8, 2014) (“Review of the record does not support a finding that any factor external to the
defense prevented [the petitioner] from raising his claim in a procedurally proper manner. The
record also does not reflect any action or inaction on the part of the State that prevented him
from doing so.”).
Fletcher, conversely, has not pointed to any external factors that prevented him from
filing these unexhausted claims, as he properly filed multiple petitions on appeal within the
statutory period that included other claims, just not these unexhausted ones. Therefore, the Court
finds Fletcher has not shown an “external cause” that could “demonstrate cause.” See Coleman,

16

501 U.S. at 753. Fletcher has also presented no new evidence or any other argument for “actual
innocence,” or shown any other fundamental miscarriage of justice that will transpire if the Court
does not analyze the merits of these claims. The Court therefore does not reach the merits of his
unexhausted claims: 5, 6, 7, 8, and 10. Canales v. Stephens, 765 F.3d at 562.
IV.

INEFFECTIVE ASSISTANCE CLAIMS

Fletcher claims that his trial counsel was constitutionally ineffective for failure to: (1)
“move to dismiss defective indictment because of improper transference of mental element
establishing criminal responsibility; (2) present a defense based on the evidence of cause of death
. . . and move for a judgment of acquittal based on the actual evidence of cause of death; (3) to
present [a] defense that death was caused by medical neglect and call a medical expert [in]
support [which] constitutes ineffective assistance of counsel; and (4) raise a Baston [sic]
objection and move to strike the jury panel and the prosecutor’s peremptory challenge
concerning a black juror.” Docket no. 1 at 6-7.6
For an ineffective assistance of counsel claim to succeed, a habeas petitioner must show
(1) that counsel’s performance was deficient, and (2) that the deficient performance prejudiced
the defense. Strickland v. Washington, 466 U.S. 668, 697 (1984). To show that counsel’s
performance was deficient, a criminal defendant must show that counsel’s representation fell
below an objective standard of reasonableness. Id. at 708; Williams v. Taylor, 529 U.S. 362,
390-91 (2000). Courts are deferential when reviewing the performance of counsel, who enjoys a
strong presumption that his or her conduct was reasonable, and try to eliminate the distorting
effects of hindsight. Strickland, 466 U.S. at 689; see Wiggins v. Smith, 539 U.S. 510, 523
(2003).

6

These are claims 1-4 as listed above at page 13.
17

Counsel is not required to make every plausible argument on behalf of his client; counsel
is only required by the Constitution to provide “reasonably effective assistance.” Strickland, 466
U.S. at 687. In addition, under Strickland, a petitioner must establish that he was prejudiced by
counsel’s mistake. This requires a showing “that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at
694.
Fletcher asserts four grounds of ineffective assistance of counsel. The Magistrate Judge
found that Fletcher did not rebut the deference federal courts give to trial counsel’s performance
and to the CCA’s determination on the matter, recommending that all of his claims of ineffective
assistance should thus be denied. Docket no. 15 at 21.
In his response to the Report and Recommendations, Fletcher objected to the Magistrate
Judge’s recommendation to dismiss his claim that trial counsel rendered ineffective assistance
when he did not call a medical expert to assert that medical neglect caused the victim’s death.
Docket no. 20 at 3. The Court will thus review Fletcher’s ineffective assistance claim for failure
to call a medical expert de novo. Fletcher also seems to be making a general objection to
counsel’s performance, writing that he “has shown with due diligence that . . . trial counsel was
ineffective,” and that trial counsel “was sanctioned by the State Bar of Texas for not giving
petitioner his attorney client file so petitioner Fletcher could file a better accurate [sic] postconviction writ . . . .” Docket no. 20 at 3. Thus, out of caution, the Court will conduct a de novo
review of Fletcher’s other three ineffective assistance claims as well.
Fletcher asserts in claim 3 of his federal petition that trial counsel rendered ineffective
assistance when he did not call a medical expert to assert that medical neglect caused the

18

victim’s death. Docket no. 1 at 7. Fletcher specifically objected to the Magistrate Judge’s
Report and Recommendations because trial counsel admitted “not hiring a medical expert when
he knew there was an issue with the cause of death” and that failure to hire a medical expert was
“deficient performance.” Docket no. 20 at 3.
To show that counsel rendered ineffective assistance by neglecting to call a witness,
petitioner must provide the name of that particular witness and demonstrate that the witness
would have been able to provide proof favorable to a particular defense. Day v. Quarterman,
566 F.3d 527, 538 (5th Cir. 2009) (“This Court 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 allegations of what a witness would have stated
are largely speculative. Thus, to prevail on an ineffective assistance claim based on counsel's
failure to call a witness, the petitioner must name the witness, demonstrate that the witness was
available to testify and would have done so, set out the content of the witness's proposed
testimony, and show that the testimony would have been favorable to a particular defense.”)
(citing Bray v. Quarterman, 265 F. App’x. 296, 298 (5th Cir. 2008)). Fletcher failed to provide
any affidavit to establish what a medical expert witness would testify that is favorable to his
defense at any point in his habeas proceedings, including here. This continued failure dooms
Fletcher’s objections and claim. See, e.g., Evans v. Cockrell, 285 F.3d 370, 377-78 (5th Cir.
2002) (denying an “uncalled expert witness claim” where habeas petitioner failed to present
evidence of what a scientific expert would have stated if called).
Further, trial counsel is not required to make every plausible argument on behalf of his
client, and is instead only required by the Constitution to provide “reasonably effective
assistance.” Strickland, 466 U.S. at 687. Trial counsel stated that he did not hire a medical

19

expert because he believed the medical examiner to be an impartial witness who could testify as
to medical neglect and could be used to advance an argument about the cause of death without
the testimony of a second medical expert. Docket 12, Ex. 13 at 83. In an affidavit relating to the
state habeas petition, trial counsel stated that he extensively cross-examined witnesses on
medical neglect and argued that it was the major cause of victim’s death. Id. at 78. The trial
record confirms trial counsel’s statement. See Court Record (CR) Volume 4 at 212-15. That
trial counsel extensively focused on the cause of death weighs against a determination that his
performance was deficient. Counsel was not required to call an independent medical expert; he
provided reasonably effective assistance as it relates to calling and examining medical experts.
See Day, 566 F.3d at 538; Ex parte Jimenez, 364 S.W.3d 866, 888 (the United State Constitution
“does not require the appointment of a defense expert to match every State expert”) (Tex. Crim.
App. 2012).
Second, Fletcher asserts that trial counsel rendered ineffective assistance when he did not
“move for a judgment of acquittal based on the actual evidence of cause of death” in claim 2 of
the federal petition. Docket no. 1 at 6. Fletcher argues the pathologist testified that the victim’s
death was caused by a “sepsis infection,” which means Fletcher did not cause the death. Id. In
an affidavit presented in the state habeas proceedings, trial counsel said that he “extensively
focused his cross examination of witnesses on that very point” and argued that “medical neglect
was the major cause of the victim’s death” because it led to the sepsis infection. Docket 12, Ex.
13 at 83. Examining the trial record, trial counsel indeed focused on the cause of the victim’s
death with multiple witnesses. CR Volume 4 at 212-15 (medical examiner); CR Volume 3 at
214-16 (victim’s son). Trial counsel also moved for a directed verdict “for an acquittal on the
charge of murder,” at the bench at the close of the prosecution’s case. CR Volume 4 at 216. The

20

court denied it. The CCA found trial counsel to be reasonably effective. Reviewing the trial
record and affidavits the Court finds trial counsel was reasonable in his actions. Trial counsel
moved for a directed verdict, and had presented this exact issue at trial. And Fletcher was not
prejudiced by trial counsel’s actions in this area if counsel somehow failed to make thorough
argument on the cause of death issue, as the jury was presented with the medical neglect
argument and rejected it when it found Fletcher guilty of murder; deciding Fletcher’s actions to
be the ultimate cause of the sepsis infection. United States v. Pringler, 765 F.3d 445, 450 (5th
Cir. 2014) cert. denied, 135 S. Ct. 1000 (2015) (“To establish prejudice, the defendant usually
‘must show that there is a reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.’”) (quoting United States v. Anderson, 987
F.2d 251, 261 (5th Cir. 1993)). Fletcher has thus not shown that the CCA’s rejection of claim 2
was objectively unreasonable; claim 2 is denied as trial counsel was not ineffective and his
actions were not objectively unreasonable.
Next, in claim 1 in his federal petition, Fletcher asserts that trial counsel provided
ineffective assistance when he did not move to dismiss the indictment “because of improper
transference of mental element establishing criminal responsibility.”

Docket no. 1 at 6.

Reviewing the record de novo, the Court finds trial counsel was not ineffective in this regard,
either.
Trial counsel submitted an affidavit on this issue to the state habeas proceeding, which
stated that “[t]he request was made for a lesser [included] offense of Aggravated Assault but was
denied by the Trial Court.” Docket 12, Ex. 13 at 83. It appears Fletcher was first charged with
aggravated assault before the victim’s death, docket no. 1-1, but prosecutors dropped that charge
and the grand jury eventually indicted Fletcher for murder upon the victim’s death, see docket

21

no. 11-5 at 9. Trial counsel argued at trial that Fletcher lacked the mental element, or mens rea,
for murder, but this argument was rejected by the trial court, which denied the lesser included
offense instruction for aggravated assault and negligent homicide, while approving one for
manslaughter. The jury also found that Fletcher possessed the mens rea for murder, rather than
the lesser offense manslaughter. Docket no. 11, CR Volume 5 at 231-32; Docket no 11 CR
Volume 5 at 45.
The CCA found that trial counsel was reasonably effective in providing evidence
regarding Fletcher’s mens rea at the time of the crime, and Fletcher has presented no evidence to
rebut the strong presumption that trial counsel acted reasonably. The Court finds trial counsel
provided reasonably effective assistance in terms of Fletcher’s complaint regarding the
“improper transference of mental element establishing criminal responsibility.” Id.; Docket no. 1
at 6.
Lastly, Fletcher asserts in federal claim 4 that trial counsel rendered ineffective assistance
in “failing to raise a Batson objection and move to strike the jury” after the sole black juror on
the jury panel was peremptorily struck by the prosecutor.7 Docket no. 1 at 7. Fletcher has failed
to provide specific information concerning a Batson objection except his argument that trial
counsel had denied that there was a basis for one, and the fact that the sole black juror was
stricken. Docket 12, Ex. 13 at 83. Trial counsel asserted in an affidavit that he felt the jury was
properly selected and that he would have raised a Batson challenge had there in fact been
grounds for it. Id. Fletcher presents no evidence that a Batson challenge should have been
raised beyond mere legal conclusions. Examining the record, trial counsel acted reasonably and

7

Fletcher attempted to quash his indictment at trial on the grounds that he was prejudiced by the lack of blacks on
the grand jury. Docket no. 11, Ex. 5 at 101. He also argues he was discriminated against because he was tried by a
jury of Hispanics, as the victim of the crime was Hispanic, and he is black, so the jury would sympathize with the
victim based on her race. Docket no. 14 at 8.
22

there was no real basis for a Batson challenge. The state courts agreed with that assessment.
Fletcher’s claim for ineffective assistance for failure to present a Batson challenge is therefore
denied. Id.
As for Fletcher’s general argument that trial counsel was sanctioned regarding his
handling of his client files, that finding cannot be used to infer that he provided ineffective
assistance to Fletcher at his trial sufficient to support a federal constitutional claim since the
discipline was unrelated to performance at Fletcher’s trial. Counsel’s discipline was about the
maintenance of records, and Fletcher does not argue that trial counsel’s handling of client
records affected his assistance at Fletcher’s trial. The Court therefore finds Fletcher has not met
his burden that trial counsel’s performance was objectively unreasonable in any way, or his
burden that the performance prejudiced him even if counsel was objectively unreasonable in his
representation.
Federal district courts cannot grant a habeas petition unless the “state court was wrong as
a matter of law or unreasonable in its application of law in a given case.” Williams, 529 U.S. at
385. There is no basis for such a finding on any of Fletcher’s four ineffective assistance claims as
trial counsel’s performance was not objectively unreasonable and Fletcher failed to demonstrate
prejudice. Fletcher’s claims of ineffective assistance, Claims 1, 2, 3, and 4, are all denied. Id.
V.

JURY INSTRUCTION ON LESSER INCLUDED OFFENSE OF
CRIMINALLY NEGLIGENT HOMICIDE

In federal claim 9, Fletcher states that “the trial court erred in denying [Fletcher’s]
requested jury charge on the lesser-included offense of criminally negligent homicide . . . .”
Docket no. 1 at 9. To be a basis for relief, a trial court’s error in instructing the jury must do
more than merely affect the verdict, it must render the trial, as a whole, fundamentally unfair.
Bailey v. Procunier, 744 F.2d 1166, 1168 (5th Cir. 1984); Nelson v. Estelle, 642 F.2d 903, 907
23

(5th Cir. 1981). The test applied to determine whether the trial court error rendered the trial, as a
whole, fundamentally unfair is whether there is “a reasonable probability that the verdict might
have been different had the trial been properly conducted.” U.S. v. Sanchez, 432 F. App’x. 371,
374 (5th Cir. 2011) (quoting Rogers v. Lynaugh, 848 F.2d 606, 609 (5th Cir. 1988)). In addition,
a federal harmless error standard applies on federal habeas review of state court convictions. See
Brecht v. Abrahamson, 507 U.S. 619, 637–38 (1993); Billiot v. Puckett, 135 F.3d 311, 318 (5th
Cir. 1998). Therefore, to be actionable, the trial court error on a jury instruction must have “had
[a] substantial and injurious effect of influence in determining the jury's verdict.” Brecht, 507
U.S. at 637 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)); see Billiot, 135 F.3d
at 318; Shaw v. Collins, 5 F.3d 128, 132 (5th Cir. 1993). Thus, to obtain relief, a petitioner must
establish that the trial error resulted in actual prejudice. Basso v. Thaler, 359 F. App’x. 504, 509
(5th Cir. 2010) (citing United States v. Lane, 474 U.S. 438, 449 (1986)).
Fletcher claims that the trial court erred in denying his requested jury instruction on the
lesser included offense of criminally negligent homicide since “there was at least a scintilla of
evidence to show” that he was guilty of only criminally negligent homicide, meaning he was
entitled to his requested instruction. Docket no. 1 at 9. The Magistrate Judge found that Fletcher
failed to provide argument and evidence to show that criminally negligent homicide was a valid,
rational alternative to the charge of murder, citing Guzman v. Texas, 188 S.W.3d 185, 188 (Tex.
Crim. App. 2006). Docket no. 15 at 21.

Fletcher objected to the Magistrate Judge’s

recommendation, arguing that he should have received the criminally negligent homicide charge
because in “Corker v. State . . . the Fifth Court of Appeals stated that the throwing of an [sic]
brick at an individual clearly constitutes gross negligence.” Docket no. 20 at 3. Stephens also
objected to the Magistrate Judge’s recommendation in this portion of the report, stating the

24

Report and Recommendation’s “failure to find that Fletcher’s claim that the trial court erred in
denying his request for a jury instruction on the lesser-included offense fails to state a basis upon
which habeas relief may be granted.” Docket no. 18 at 1.8 Given the objections, the Court will
review this section of the report de novo.
Fifth Circuit precedent is clear that Fletcher’s argument for a lesser included offense as
the basis for habeas relief has no merit since his is a non-capital case. “In a non-capital murder
case, the failure to give an instruction on a lesser included offense does not raise a federal
constitutional issue.” Creel v. Johnson, 162 F.3d 385, 390 (5th Cir. 1998) (quoting Valles v.
Lynaugh, 835 F.2d 126, 127 (5th Cir. 1988)). Fletcher has thus failed to state a claim upon
which relief can be granted in his federal habeas petition, and the Court defers to the CCA’s
“interpretation of its law for whether a lesser-included-offense instruction is warranted.” Id.
Claim 9 is without merit and denied.
Even if failure to provide a lesser included offense could pose a constitutional issue that
the Court might analyze on its merits, the Court would still deny Fletcher’s claim regarding the
instruction. In Texas, a defendant is not entitled to lesser included offense instruction simply
because the jury could disbelieve some crucial piece of evidence relating to the charged offense.
See Hampton v. Texas, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003) abrogated on other
grounds by Grey v. Texas, 298 S.W.3d 644, 650-51 (Tex. Crim. App. 2009). A lesser included
offense instruction is required under Texas law when (1) a less serious offense is encompassed
within the elements needed to prove the charged offense, and (2) there is some evidence in the

8

Stephens argues, “It is well settled in non-capital cases, as here, [that] ‘the failure to give an instruction on a lesser
included offense does not raise a federal constitution issue.’” Creel v. Johnson, 162 F.3d 385, 390 (5th Cir. 1998);
Valles v. Lynaugh, 835 F.2d 126, 127 (5th Cir. 1988); Alexander v. McCotter, 775 F.2d 595, 601 (5th Cir. 1985).
Relief would accordingly be barred by this precedent.
25

record that the defendant may be guilty of the lesser included offense. Id. at 440.9 Criminally
negligent homicide is a lesser included offense of murder under Texas law, as criminally
negligent homicide is encompassed within the elements needed to prove murder. See Thomas v.
State, 699 S.W.2d 845, 847 (Tex. Crim. App. 1985). Murder entails intentionally and knowingly
causing the death of an individual, while criminally negligent homicide entails the lower mens
rea of negligently causing death. Tex. Penal Code Ann. § 19.03(b)(1) (West 2014); Tex. Penal
Code Ann. § 19.05(a) (West 2014). The type of deadly weapon a defendant used is immaterial
in determining the mental state under which the defendant acted.
In support of his argument that the trial court erred by not including the lesser included
offense Fletcher cites Corker v. State, where a Texas defendant’s conviction for criminally
negligent homicide for throwing a brick at a woman holding a baby was affirmed. 691 S.W.2d
744 (Tex. App.—Dallas 1985, no pet.). Fletcher argues that because both he and the defendant
in Corker tossed a brick at the victim, he should only have been charged with criminally
negligent homicide, the crime the defendant was convicted of in Corker, or at least the jury
should have been provided an instruction on the offense. Docket no. 20 at 3; 691 S.W.2d at 744.
In Corker, the court found only that the defendant possessed the requisite mens rea for criminally
negligent homicide; the decision does not, however, require that trial courts give negligent
homicide instructions in all murder cases where a defendant threw a brick at his victim. 691
S.W.2d at 746. That Fletcher and the defendant in Corker both used a brick is not the end of the
inquiry to determine whether a lesser-included offense instruction was required.
As noted by the Texas Fourth Court of Appeals, the fact that Fletcher slowed his truck
and changed lanes to better position himself for aiming the brick does not comport with the

9

Grey abrogated the second prong outlined in Hampton when the lesser included offense is requested by the state.
Grey, 298 S.W.3d at 645.
26

failure to perceive a risk necessary for negligence. Docket no. 11, Ex. 2 at 5. Fletcher perceived
and assumed a risk by throwing the brick. Fletcher does not suggest that any evidence contained
in the record demonstrates that he is only guilty of criminally negligent homicide, so the trial
court was within its discretion to deny him this instruction and did not err.
Further, the jury rejected a charge of involuntary manslaughter, which is a more serious
lesser-included offense of murder than criminally negligent homicide, and thus even if the trial
judge’s exclusion of criminally negligent homicide instruction was error, that error was harmless
as it did not have “a substantial or injurious effect or influence in determining the jury’s verdict.”
Id.; Docket no 11, Ex. 10, 45; see Lara v. State 800 S.W.2d 387, 390 (Tex. App.—Corpus
Christi 1990, pet. ref'd) (“The difference between the two offenses as defined in the Texas Penal
Code is the culpable mental state required to establish each offense—criminal negligence for the
former and recklessness for the latter.”); Brecht, 507 U.S. at 637 (quoting Kotteakos, 328 U.S. at
776) (Reversal is required where it is highly probable that trial court committed a plain error that
had “a substantial or injurious effect or influence in determining the jury’s verdict.”).
Claim 9 is denied for all of these reasons. As such, all claims in Fletcher’s habeas
petition have been denied.
VI.

CONCLUSION

For the reasons set forth above, the Court ADOPTS the Magistrate Judge’s report and
recommendation, the Respondent’s motion to dismiss is GRANTED, and the petition is
DENIED. Petitioner failed to make "a substantial showing of the denial of a federal right" and
cannot make a substantial showing this Court’s procedural rulings are incorrect as required by
Fed. R. App. P. 22 for a certificate of appealability, see Slack v. McDaniel, 529 U.S. 473, 483-84

27

(2000), and therefore this Court DENIES Petitioner a certificate of appealability. See Rule 11(a)
of the Rules Governing § 2254 Proceedings.
It is so Ordered.
SIGNED this 17th day of July, 2015.

XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

28