Rowlett v. Stephens

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 14 Report and Recommendations. Petitioner Rickey Rea Rowletts application for Writ of Habeas Corpus (docket no. 1) is DENIED. A certificate of appealability is DENIED. The Clerks Office is instructed to close the case. Signed by Judge Xavier Rodriguez. (wg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
RICKEY REA ROWLETT,

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

Civil Action No. SA-15-CA-00978-XR

Respondent.
ORDER
On this date, the Court considered Petitioner Rickey Rea Rowlett’s application for Writ
of Habeas Corpus (document no. 1), Magistrate Judge John W. Primomo’s Memorandum and
Recommendation (docket no. 14), and Rowlett’s Response (docket no. 19). Rowlett filed an
application for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction
in state court for continuous sexual abuse of a child (docket no. 1). Rowlett alleges a violation of
his constitutional rights because (1) he was compelled to give incriminating statements in
violation of the Fifth Amendment; (2) the trial judge did not recuse himself from the case; (3) the
trial court abused its discretion in both admitting and refusing to admit key evidence; and (4) he
received ineffective assistance of counsel in violation of the Sixth Amendment (docket no. 2).
After careful consideration, the Court will accept the Magistrate Judge’s recommendation to
deny Rowlett’s Petition for Writ of Habeas Corpus (docket no. 1). Additionally, the Court will
deny a certificate of appealability in this case.

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BACKGROUND
Petitioner Rickey Rea Rowlett (“Rowlett”) was convicted by a jury for continuous sexual
abuse of child. Rowlett v. State, No. 03-12-00204-CR, 2014 WL 1910426 at *1 (Tex. App.—
Austin May 8, 2014, pet ref’d) (mem. op.). The Third Court of Appeals affirmed Rowlett’s
conviction on appeal. Id. at *5. Rowlett’s petition for discretionary review was refused by the
Texas Court of Criminal Appeals. CCA Electronic Record, no. 716-14. Rowlett filed a state
habeas application pursuant to Article 11.07 of the Texas Code of Criminal Procedure. The
Texas Court of Criminal Appeals denied the application on September 23, 2015 without a
written order based upon the findings of the trial court, cause no. WR-83,854-01. Rowlett
subsequently filed this federal habeas application pursuant to 28 U.S.C. § 2254.
The facts supporting Rowlett’s conviction were summarized by the court of appeals as
follows:
R.R. was born in October 2001 to F.R., who is [Rowlett’s] daughter. In
July 2007, R.R. and her younger brother moved with their mother into [Rowlett's]
home. By May 2008, [Rowlett] and his wife were the children's primary
caregivers because F.R. was having some personal issues. R.R. began therapy
with Tara Kvanvig–Garza in July 2009 for adjustment disorder, anxiety, and
sadness. After a while, R.R. stopped going to therapy, but then resumed in July
2011 when she began to feel unsafe and have nightmares. [Rowlett] and his wife
adopted R.R. in June 2010.
Evidence supporting the verdict came primarily from R.R., her therapist, a
sexual-assault nurse examiner, and a New Braunfels police officer.
• R.R. testified that [Rowlett] touched her private areas—her chest
and where she goes to the bathroom—with his fingers. She
testified that it happened more than once, beginning when she was
seven, eight, or nine—she was not sure exactly—and ending in
July 2011. She said he touched her with one hand and was
touching his own area—where he goes to the bathroom-inside his
underwear. R.R. said that no one other than [Rowlett] touched her
that way.
• Therapist Kvanvig–Garza testified that R.R. told her that
[Rowlett] began touching her when she was six years old and that
he did so more than once. R.R. told Kvanvig–Garza that [Rowlett]
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touched her vaginal area, breasts, and buttocks inside and outside
her clothing. R.R. told her that [Rowlett] used his fingers to go
inside her private parts and attempted penetration by putting his
penis between her legs. She testified that R.R. denied that
[Rowlett] engaged in oral sex, but did say that he kissed her on her
forehead and sometimes on her lips.
• Nurse examiner Moira Foley examined R.R. on July 23, 2011,
and testified that R.R. said her father ([Roweltt] had adopted R.R.
by that point) touched her in her “girl parts”—her breasts, vagina,
and buttocks. R.R. said he got into bed with her at 3:45 a.m. two
days before the exam wearing only underwear, while she had on a
t-shirt as a nightgown. She said he touched her with his hand, and
that this had happened before.
• New Braunfels police officer Darren Rutledge interviewed
[Rowlett]. (The jury watched the video of [Rowlett's] interview.)
[Rowlett] admitted having his hands in R.R.'s underwear, though
he did not admit penetration with his fingers or penis. [Rowlett]
said that his hands were far enough down that he could tell that she
had no pubic hair. He denied doing anything to arouse or gratify
anyone sexually. He said that R.R. was pushing his hands toward
her anus. Rutledge testified that Kvanvig–Garza said she had no
reports that R.R. had a tendency to pull [Rowlett's] hand toward
any part of her body. Rutledge said he did not investigate
[Rowlett's] suspicion that R.R. had been acting out with a neighbor
boy or others at daycare.
Kvanvig–Garza testified that R.R. lied on occasion. She mentioned R.R.
telling people at school that Kvanvig–Garza was her mother or lying about
classmates. Kvanvig–Garza testified that R.R.'s stories about appellant's abuse
were consistent enough that she believed they were true.
Rowlett, 2014 WL 1910426 at *2–3.
DISCUSSION
A. Review of a Memorandum and Recommendation
Where no party has objected to the Magistrate Judge’s Memorandum and
Recommendation, the Court need not conduct a de novo review of it. See 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.”). In such cases,

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the Court need only review the Memorandum and Recommendation and determine whether it is
either clearly erroneous or contrary to law. United States v. Wilson, 864 F.2d 1219, 1221 (5th
Cir. 1989).
On the other hand, any Memorandum and Recommendation that is objected to requires
de novo review. Such a review means that the Court will examine the entire record and will
make an independent assessment of the law. The Court need not, however, conduct a de novo
review when the objections are frivolous, conclusive, or general in nature. Battle v. U. S. Parole
Comm’n, 834 F.2d 419, 421 (5th Cir. 1987). In this case, Rowlett objected to the Magistrate
Judge’s recommendation, so the Court will conduct a de novo review. Docket no. 19.
B. Writ of Habeas Corpus Standard
Pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a
state prisoner may not obtain federal relief from a claim adjudicated on the merits in a state court
proceeding unless the adjudicated claim “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 resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d).
C. Analysis
Rowlett asserts the following grounds for reversal: (1) Rowlett’s incriminating statement
should have been suppressed, (2) the trial judge abused his discretion by excluding an adoption
order from the record and permitting the jury to hear testimony from an expert witness regarding
the victim’s outcry because the trial judge based the decision to allow the expert’s testimony in

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part on the expert’s assertion concerning the victim’s truthfulness, (3) the trial judge failed to
recuse himself because he was a “material witness”, and (4) Rowlett’s counsel was ineffective
because he (a) failed to move for the trial judge’s recusal, (b) elicited testimony from an expert
witness regarding the victim’s truthfulness, when no reasonable attorney would have do so, and
(c) failed to represent Rowlett at a bond hearing (docket no. 2).
Judge Primomo recommends the Court deny Rowlett’s § 2254 habeas petition and deny a
certificate of appealability (docket no. 14 at 15).

Rowlett has filed objections to Judge

Primomo’s Memorandum and Recommendation (docket no. 19).
1. Statement to the Police
In Miranda v. Arizona, the Supreme Court determined that the Fifth Amendment’s
protection against self-incrimination requires an accused to be “adequately and effectively
apprised of his rights.” 384 U.S. 436, 467 (1966). Custody under Miranda is determined by
ascertaining whether, in light of the “objective circumstances of the interrogation . . . a
reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and
leave.” Howes v. Fields, 132 S. Ct. 1181, 1189 (2012) (quoting Thompson v. Keohane, 516 U.S.
99, 112 (1995)) (internal quotation marks omitted). “Two discrete [inquiries] are essential to the
determination: first, what were the circumstances surrounding the interrogation; and second,
given those circumstances, would a reasonable person have felt he or she was at liberty to
terminate the interrogation and leave.” United States v. Cavazos, 668 F.3d 190, 193 (5th Cir.
2012) (quoting J.D.B. v. North Carolina, 564 U.S. 261, 270 (2011)). This is an objective inquiry
based upon the totality of the circumstances. United States v. Wright, 777 F.3d 769, 774 (5th
Cir. 2015). “Relevant factors include the location of the questioning, its duration, statements

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made during the interview, the presence or absence of physical restraints during the questioning,
and the release of the interviewee at the end of the questioning.” Howes, 132 S. Ct. at 1189
(citations omitted).
The Magistrate Judge determined that the interrogation did not rise to the level of a
custodial interrogation. Judge Primomo concluded that Rowlett failed to provide sufficient
information demonstrating a reasonable person would not have felt free to end the interrogation
and leave the premises (docket no. 14 at 7). Further, Rowlett failed to cite any authority
supporting his belief that the interrogation became custodial when he made his first incriminating
statement.

Id.

Rowlett objects, arguing that although the interrogation was not initially

custodial, it became so due to the officer’s tactics, the fact that an officer accompanied him on a
cigarette break, and Rowlett’s making incriminating statements. Rowlett specifically points to
the officer’s tactic of blaming the victim to elicit the incriminating statements, the duration of the
questioning, and Rowlett’s own belief that his freedom of movement was severely restricted
because he was accompanied by an officer during a cigarette break, as evidence of custodial
interrogation. Id.; (docket no. 19 at 2–3). Because Rowlett had no prior criminal experience or
dealings with law enforcement personnel, he claims these factors objectively demonstrate
custodial interrogation, and admitting his statements at trial was reversible error (docket no. 2;
docket no. 19 at 3).
The Court disagrees. Whether a person is in custody is determined by weighing the
factors objectively. “The subjective views harbored by either the interrogating officers or the
person being questioned are irrelevant.” United States v. Ortiz, 781 F.3d 221, 229 (5th Cir.
2015) (quoting United States v. Wright, 777 F.3d 769, 775 (5th Cir. 2015)). Rowlett concedes he

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was informed of his right to leave before questioning began (docket no. 2). Further, Rowlett left
the police station after the interrogation ended and was not arrested until almost one month later.
Nothing in the record supports the conclusion that a reasonable person would have believed he
was incapable of terminating the interrogation and leaving.

Although a police officer

accompanied Rowlett during a cigarette break, such conduct does not evidence the type of
restraint that would lead a reasonable person to conclude he was not permitted to cease the
interrogation. Accordingly, Rowlett’s constitutional privilege against self-incrimination was not
violated, and the state court’s dismissal of Rowlett’s complaint was not an unreasonable
application of clearly established federal law.
2. Trial Court’s Abuse of Discretion
Rowlett asserts that the trial judge abused his discretion on two grounds. He claims the
trial court erred in considering Kvanvig-Garza’s testimony that she believed R.R. was telling the
truth regarding the sexual abuse because an expert’s testimony on a witness’s credibility invades
the province of the jury (docket no. 2). Additionally, he claims the trial court erred by refusing
to admit the adoption order into evidence because the order was both relevant and necessary to
demonstrate that the timing of the sexual abuse was incongruent with the adoption proceeding.
Id.; (docket no. 19).
In reviewing errors committed by a state court, “the Supreme Court held that a federal
habeas court may not grant relief unless the petitioner demonstrates that the error ‘had a
substantial and injurious effect or influence in determining the jury’s verdict.’”

Billiot v.

Puckett, 135 F.3d 311, 318 (5th Cir. 1998) (quoting Brecht v. Abrahamson, 507 U.S. 619, 623
(1993)). This standard is identical to harmless error and permits a federal court to grant relief

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only when the petitioner can demonstrate actual prejudice. Brecht, 507 U.S. at 637-38. Further,
the prejudice must be “so extreme that it constitutes a denial of fundamental fairness under the
Due Process Clause.” Bridge v. Lynaugh, 838 F.2d 770, 772 (5th Cir. 1988) (quoting Bailey v.
Procunier, 744 F.2d 1166, 1168 (5th Cir. 1984)).
Rowlett alleges the state court committed error by admitting Kvanvig-Garza’s testimony
because the trial court considered her opinion regarding R.R.’s truthfulness when deciding the
issue of admissibility (document no. 2). The Magistrate Judge observed that Rowlett identified
specific testimony heard outside the presence of the jury when the trial court was considering the
admissibility of Kvanvig-Garza’s testimony (document no. 14 at 10). The Magistrate Judge
concludes that Kvanvig-Garza’s testimony concerning R.R.’s outcry was not harmful because
R.R. testified and was cross examined at trial. The Court agrees.
The error Rowlett complains of involves application of state substantive law (docket no.
2). At trial, Rowlett’s attorney was able to cross-examine R.R. directly and attempt to weaken
R.R.’s credibility by impeaching the testimony. Reporter’s Record, Vol. III pp. 116–24. It
cannot be said Kvanvig-Garza’s remarks concerning the outcry denied Rowlett a fundamentally
fair trial because the issue of R.R.’s credibility was presented to the jury. Thus, the state court’s
determination that the trial court did not abuse its discretion is not contrary to and is not an
unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d).
Rowlett further alleges the trial court abused its discretion in omitting the adoption order
from evidence (docket no. 2). He claims the court was in error because the adoption order was
relevant to the timing of the sexual abuse, and by omitting the order the jury was prevented from
fully considering the issue. Id. In reviewing Rowlett’s appeal, the court of appeals concluded

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that the timing of the sexual abuse was before the jury because of the testimony by R.R. and
Kvanvig-Garza.

Rowlett, 2014 WL 1910426 at *4–5.

The court subsequently found that

excluding the adoption order did not contribute to the verdict and, thus, Rowlett was not
prejudiced by the trial court’s decision.

Id. at *5.

Rowlett fails to demonstrate that this

conclusion was incorrect and that his constitutional rights were harmed. The fact that the jury
did not have the adoption order itself did not preclude the jury from considering Rowlett’s
defense position that the timing of the adoption and related investigation demonstrate that he did
not commit the assault. Under the circumstances, the adoption order itself was not material and
its exclusion not harmful. Therefore, the state court’s determination is not contrary to and is not
an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d).
3. Trial Judge’s Recusal
Rowlett argues the trial judge erred by failing to recuse himself because the judge was a
material witness to R.R.’s adoption proceeding (docket no. 2). Rowlett contends the judge’s
personal knowledge prejudiced the case and harmed his right to a fair and impartial trial. Id. He
further asserts the judge’s failure to recuse himself caused the court to omit the adoption order
Rowlett sought to introduce as evidence to rebut the allegation of sexual abuse. Id.
On appeal, the Third Court of Appeals held the recusal issue to be waived because
Rowlett’s counsel did not raise the question at trial. Rowlett, 2014 WL 1910426 at *5. The
court explained that Tex. R. Civ. P. 18(a) applies to criminal cases and bars review of judge
recusal when the issue is not timely raised at trial. See id. (citations omitted). This constitutes a
procedural default under the applicable Texas rules. See Tex. R. App. P. 33.1.

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As Respondent points out, a federal court reviewing state convictions under § 2254(a)
cannot overturn a conviction on a procedural default except in limited circumstances (docket no.
13); see 28 U.S.C. § 2254(a). Where a state court has explicitly relied upon a procedural bar,
federal relief is foreclosed absent a showing of cause for the default and actual prejudice
resulting from the default or a miscarriage of justice if the federal court fails to consider the
issue. Coleman v. Thompson, 501 U.S. 722, 750 (1991). The state court “must explicitly rely on
a state procedural rule to dismiss the petitioner’s claims.” Moore v. Roberts, 83 F.3d 699, 702
(5th Cir. 1996) (citation omitted).
The court of appeals denied relief on Rowlett’s recusal claim without reaching the merits
of the issue. Rowlett, 2014 WL 1910426 at *5. The court explained various grounds that may
warrant a judge’s recusal from a case yet ultimately determined Rowlett preserved no issue on
appeal when he failed to object at trial. See id. This is clear reliance upon a procedural bar.
Further, Rowlett offers no argument or evidence refuting the court’s reliance upon a procedural
bar.

Neither does Rowlett attempt to show cause for the default nor present evidence

demonstrating he suffered actual prejudice resulting from the default. In fact, the court of
appeals concluded Rowlett did not suffer harm because the ultimate issue, that the timing of the
offense was incongruent with R.R.’s adoption, was before the jury. Id. Thus, no habeas relief is
warranted on this issue.
4. Ineffective Assistance of Counsel
A criminal defendant may obtain habeas relief in federal court by demonstrating that
counsel’s assistance was so defective the Sixth Amendment requires reversal of the conviction.
Strickland v. Washington, 466 U.S. 668, 687 (1984). To succeed, a petitioner must show that his

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counsel’s performance was deficient and that, because of the deficient performance, petitioner
suffered prejudice. Id. Deficient performance requires finding that “counsel’s representation fell
below an objective standard of reasonableness . . . under prevailing professional norms.” Id. at
688.

Counsel is “strongly presumed to have rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment.” Id. at 690.

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reviewing court must resist the benefit of hindsight and judge the reasonableness of an attorney’s
conduct based on the facts of the case at the time of the representation. Id. at 689.
However, the question of deficient performance need not be reached if a petitioner cannot
demonstrate prejudice as a result of the attorney’s conduct. See id. at 687. While actual
prejudice is not required, a petitioner must show a reasonable probability that, absent the
deficient performance, the outcome of the case would have been different. Id. at 694. “A
reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
Thus, a criminal defendant may only obtain habeas relief if the reviewing court is convinced the
attorney’s performance likely resulted in the defendant’s conviction. See id.
Rowlett asserts his trial counsel’s performance was deficient in three ways. First, he
claims his counsel was ineffective because his attorney asked Kvanvig-Garza, the expert witness,
her opinion regarding the truthfulness of the minor’s outcry. Docket no. 2. Rowlett argues no
reasonable attorney would have asked such a question because doing so amounts to bolstering an
opposing witness. Id. Further, Rowlett argues the questioning of a licensed professional on a
minor’s truthfulness invades the province of the jury and no attorney can offer sound reasoning
in doing so as part of the trial strategy (docket no. 19 at 4). When a challenge to an attorney’s
performance is made, “[w]e must strongly presume . . . that the challenged conduct was the

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product of reasoned trial strategy.” West v. Johnson, 92 F.3d 1385, 1400 (5th Cir. 1996)
(quoting Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir. 1992)). Rowlett’s trial counsel did
not ask Kvanvig-Garza whether she believed the victim’s testimony to be truthful in order to
bolster the victim’s statements. Rather, his questioning attempted to do the opposite, to show
that Kvanvig-Garza was unable to assess the victim’s credibility and to undermine the victim’s
credibility. The Court agrees with the Magistrate Judge that Rowlett’s assertion inaccurately
reflects the record.
Additionally, even if Rowlett could demonstrate his counsel’s cross-examination
constituted deficient performance, he has not produced evidence to undermine confidence in the
trial’s outcome. Rowlett’s counsel cross-examined R.R. at trial. Reporter’s Record, Vol. III pp.
116–24. The question of R.R.’s credibility was before the jury and any questions asked of
Kvanvig-Garza regarding R.R.’s credibility were not dispositive to the outcome. Therefore,
Rowlett has not proved he suffered prejudice because of his counsel’s conduct.
Second, Rowlett claims his counsel was ineffective because his attorney failed to seek the
trial judge’s recusal from the case (docket no. 2). Rowlett asserts that the trial judge’s prior
involvement with Rowlett’s adoption of R.R. caused the judge to be a material witness in the
case such that his counsel should have sought the judge’s recusal. Id. Rowlett argues the timing
of the sexual offense was the “crucial element” of the case and, because the judge was not
recused, Rowlett was denied the opportunity to prove the timing of the offense was incongruent
with the adoption process. Id. The Third Court of Appeals held the issue to be waived and, thus,
did not determine whether the failure to seek the trial judge’s recusal qualified as defective
conduct. Rowlett, 2014 WL 1910426 at *5. Despite this, the court concluded that Rowlett

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suffered no prejudice because Rowlett still presented his argument to the jury through testimony.
Id. The court stated the issue did not contribute to the verdict or harm Rowlett’s case. Id.
Rowlett has not offered any evidence disputing the conclusion. Therefore, even if Rowlett’s
counsel committed error by failing to move to recuse the trial judge, Rowlett suffered no
prejudice and is not entitled to relief under the Sixth Amendment.
Third, Rowlett claims his counsel was ineffective because his attorney failed to represent
him at a bond hearing. Id. Rowlett cites no federal authority explaining that an attorney’s failure
to make an appearance at a bond proceeding warrants habeas relief. The Magistrate Judge
concluded that this issue is moot because, regardless of any error related to the bond hearing,
Rowlett is now in custody pursuant to his conviction. Rowlett filed no objections to this
conclusion and the Court finds it is not clearly erroneous.
CONCLUSION
The Court ACCEPTS the Magistrate Judge’s recommendation (docket no. 14). Petitioner
Rickey Rea Rowlett’s application for Writ of Habeas Corpus (docket no. 1) is DENIED. A
certificate of appealability is DENIED.
The Clerk’s Office is instructed to close the case.
It is so ORDERED.
SIGNED this 15th day of August, 2016.

XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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