Watson v. Stephens

Filing 20

MEMORANDUM OPINION AND ORDER. No Certificate of Appealability shall issue in this case. Signed by Chief Judge Orlando L. Garcia. (aej)

FILED

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

CLERK,

ROBERT JAMES WATSON,
TDCJ No. 547826,
Petitioner,

DISTRICT COURT
OFAEXAS
DISrR&

U.S.

WESTERN

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12017

AUG

C

DJTCLERK

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v.

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CIVIL NO. SA-16-CA-090-OLG

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LORIE DAVIS, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent.

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MEMORANDUM OPINION AND ORDER
Before the Court are Petitioner Robert James Watson's Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C.

§

Petitioner's Traverse (DE 16).

2254 (Docket Entry "DE" 1), Respondent's Answer (DE 9), and

Also before the Court are Petitioner's Motion for Expansion of

the Record (DE 17), Motion for Leave to Amend Petition (DE 18), and Motion for Evidentiary

Hearing (DE 19). Having reviewed the record and pleadings submitted by both parties, the
Court concludes Petitioner is not entitled to relief under the standards prescribed by the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

See

28 U.S.C.

§

2254(d).

Petitioner is also denied a certificate of appealability.

I. Back2round
In May 2012, Petitioner was found guilty by a Bexar County jury of delivery of a

controlled substance (enhanced) and was sentenced to ten years of imprisonment.
Watson, No.

State

11-1543-CR (274th Dist. Ct., Guadalupe Cnty., Tex. May 15, 2012). The facts of

Watson's offense were accurately summarized by the Fourth Court of Appeals on direct appeal:

1

v.

Petitioner has paid the applicable filing fee for this cause (DE 2) and is proceeding pro Se.

In April of 2011, the Guadalupe County Sheriff's Office Narcotics
Division entered into an agreement with a confidential informant, Melvin Bruns,
to help secure several drug cases for indictment. In exchange for Bruns' s help,
the District Attorney's Office agreed not to file an evading arrest charge pending
against Bruns. One of the individuals identified by Bruns was [Petitioner] Robert
Watson.

On April 12, 2011, Lieutenant John Flores fitted Bruns with an
audio/video recording device. Under surveillance by the sheriff's office, Bruns
drove to Watson's residence, parked the vehicle, and entered Watson's home.
During the transaction, Bruns allegedly purchased cocaine from Watson. Bruns
then drove to a predetermined location to meet Lieutenant Flores and Investigator
Kris Deslatte. Investigator Deslatte obtained the substance in question from
Bruns's vehicle. The entire proceedings, from shortly after Bruns was fitted with
the recording device until Investigator Deslatte removed the substance from
Bruns' s vehicle, were recorded. Later analysis proved the substance in question
was approximately 1.83 grams of cocaine.
On May 15, 2011, Watson was charged with one second-degree felony
countdelivery of a controlled substance, namely cocaine. Because Bruns's
whereabouts were unknown at the time of trial, Bruns did not testify. The jury
returned a guilty verdict, and after finding the State's enhancement allegation
true, assessed punishment at ten years confinement.
Watson

v.

State, 421 S.W.3d 186, 189 (Tex.

App.San

Antonio, Dec. 4, 2013, pet.

ref'd).

Watson's conviction and sentence were affirmed on direct appeal, and the Texas Court of
Criminal Appeals refused his petition for discretionary review on May 14, 2014. Id.; Watson

v.

State, No. 0294-14 (Tex. Crim. App.). On March 12, 2015, Watson filed a state habeas corpus
application challenging the constitutionality of this state court conviction and sentence, which

the Texas Court of Criminal Appeals later denied without written order on December 23, 2015.
DE 11-21 at 90; DE 11-16; Exparte Watson, No. 25,844-10 (Tex. Crim. App.).

The instant federal petition was filed a month later on January 20, 2016. DE

1

at 10. In

the petition, Watson argues: (1) the judgment is invalid because it incorrectly reflects the court
in which the case was tried; (2) the judgment is invalid because a visiting judge presided over his
trial; (3) his trial was a nullity because it was held at a time not authorized under Texas law; (4)
2

he was denied the effective assistance of counsel by counsel's cumulative failure to challenge the

above errors; (5) the State unlawfully obtained his conviction by securing an indictment without
probable cause and by illegally using a confidential informant; (6) the State committed
prosecutorial misconduct by soliciting false testimony, suppressing material evidence, and
making a misleading opening statement; (7) trial counsel failed to file a motion to suppress all
evidence related to the confidential informant; (8) trial counsel failed to raise Confrontation

Clause objections to the hearsay testimony of the confidential informant; (9) trial counsel failed
to raise an objection to scientific testimony under Rule 702 of the Texas Rules of Evidence; (10)

he received ineffective assistance on direct appeal by counsel's failure to adequately challenge

the trial court's rulings; and (11) he received ineffective assistance on direct appeal by counsel's
failure to challenge the sufficiency of the evidence, the trial court's ruling on the motion to

suppress, and the trial court's refusal to rule on his motion for new trial.

II. Petitioner's Motions
A.

Motion to Expand Record
Petitioner's first motion (DE 17) asks this Court to expand the record pursuant to Rule 7

of the Rules Governing Habeas Corpus Cases. Under Rule 7, "the judge may direct the parties to
expand the record by submitting additional materials relating to the petition." In discussing this
rule, the Fifth Circuit has observed that a federal habeas petitioner is "entitled to careful

consideration and plenary processing of [his claims], including full opportunity for presentation

of the relevant facts." Stewart

v.

Estelle, 634 F.2d 998, 1000 (5th Cir. 1981) (quoting Harris v.

Nelson, 394 U.S. 286, 298 (1969)).

Watson moves for expansion of the record to include "all exhibits and affidavits attached
to his

§

2254 petition and memorandum brief." He also requests that the record be expanded to

3

include all of the motions filed in state court in connection with his state habeas proceedings. No

exhibits or affidavits were attached to his

§

2254 petition, however, and the state court record

already includes the motions Watson filed during his state habeas proceedings. See DE 11.
Because an expansion of the record is unnecessary to afford Watson a "full opportunity" to

present relevant facts, Stewart, 634 F.2d at 1000, Watson's motion (DE 17) is denied.
B.

Motion to Amend
Watson next requests leave to amend his

§

2254 petition with a new claim challenging

the sufficiency of the evidence supporting his conviction.

DE 18. A petitioner's motion to

amend must be considered in the context of the rules that apply in

§

2254 cases. Mayle

v.

Felix,

545 U.S. 644, 654 (2005) (holding the Rules Governing Section 2254 Cases govern federal

habeas proceedings launched by state prisoners). Rule 12 provides that the "Federal Rules of
Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these
rules, may be applied to a proceeding under these rules." Rule 12, Rules Governing Section
2254 Cases. The applicable civil rule is Rule 1 5(a)(2), which provides that a "court should freely

grant leave [to amend] when justice so requires." Fed. R. Civ. P.

15(a)(2).2

Rule 15(a) evinces a liberal amendment policy and a motion to amend should not be

denied absent a substantial reason to do so. See Jacobsen

v.

Osborne, 133 F.3d 315, 318 (5th

Cir. 1998). In exercising its discretion, the Court may consider a variety of factors, including

"undue delay, bad faith or dilatory motive on the part of the movant, repeated failures to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing party[], and

futility of the amendment."
(quoting Jones

v.

United States

v.

Trevino, 554 F. App'x 289, 293 (5th Cir. 2014)

Robinson Prop. Group, L.P., 427 F.3d 987, 994 (5th Cir. 2005)). Leave to

2

In addition, 28 U.S.C. § 2242 specifically provides that habeas petitions "may be amended.
in the rules of procedure applicable to civil actions."
ru

. .

as provided

amend should be denied when doing so is required for fairness to the party opposing the motion
for leave to amend. Zenith Radio Corp.

v.

Hazeltime Research, Inc., 401 U.S. 321 (1971).

Here, Respondent has not opposed the motion for leave to amend, nor does there appear
to be an issue of undue delay, bad faith, dilatory motive, or repeated failures to cure deficiencies.

Watson's motion for leave to amend requests permission to present an issue bearing upon the
fundamental fairness of his state court trial. Moreover, Watson's proposed amendment of his

petition to include a stand-alone sufficiency-of-the-evidence claim does little more than expand
upon the allegation that his appellate counsel was ineffective for failing to raise such a claim on
direct appeal. The Court will permit Watson to amend his original petition to include his stand-

alone challenge to the sufficiency of the evidence.
C.

Motion for Evidentiary Hearing
Watson next requests an evidentiary hearing (DE 19) to challenge the state court's

resolution of his claims for relief. His request is denied, as habeas petitioners are not entitled to a
federal evidentiary hearing to develop new evidence to attack the state court's resolution of their
claims. See Cullen

v.

Pinhoister, 563 U.S. 170, 181-82 (2011) ("If a claim has been adjudicated

on the merits by a state court, a federal habeas petitioner must overcome the limitation of
§

2254(d)(1) on the record that was before that state court."). Under the AEDPA, the proper

place for development of the facts supporting a claim is the state court. See Hernandez

v.

Johnson, 108 F.3d 554, 558 n.4 (5th Cir. 1997) (holding the AEDPA clearly places the burden
on a petitioner to raise and litigate as fully as possible his federal claims in state court). Thus, as
in this case, when a petitioner's claims have been rejected on the merits by the state courts either

on direct appeal or during petitioner's state habeas corpus proceeding, further factual

development in federal court is effectively precluded. Pinhoister, 563 U.S. at 18 1-88 (2011)

5

(holding an evidentiary hearing is unnecessary when a state court has rejected a claim on the

merits and federal habeas review of that rejection is governed by §2254(d)(1)); Woodfox

v.

Cain,

772 F.3d 358, 368 (5th Cir. 2014) ("The Supreme Court has clarified that when a claim is

adjudicated on the merits, for the purposes of review under

§

2254(d)(1), the record is limited to

the one before the state court, even if the state court issued a summary affirmance.")
Likewise, where a federal habeas corpus petitioner's claims lack merit on their face,
further factual development is not necessitated. See Register

v.

Thaler, 681 F.3d 623, 627-30

(5th Cir. 2012) (recognizing the discretion inherent in district courts to allow factual

development, especially when confronted with claims foreclosed by applicable legal authority).
"In cases where an applicant for federal habeas relief is not barred from obtaining an evidentiary

hearing by 28 U.S.C.

§

2254(e)(2), the decision to grant such a hearing rests in the discretion of

the district court." Richards
v.

v.

Quarterman, 566 F.3d 553, 562 (5th Cir. 2009) (quoting Schriro

Landrigan, 550 U.S.465, 468 (2007)). "In determining whether to grant a hearing, under Rule

8(a) of the Habeas Court Rules 'the judge must review the answer [and any transcripts and

records of state-court proceedings

.

.

.

to determine whether an evidentiary hearing is

warranted." Richards, 566 F.3d at 562-63 (quoting Hall v. Quarterman, 534 F.3d 365, 368 (5th
Cir. 2008)). In making this determination, courts must consider whether an evidentiary hearing

could "enable an applicant to prove the petition's factual allegations, which,

if true, would entitle

the applicant to federal habeas relief." Richards, 566 F.3d at 563 (quoting Schriro, 550 U.S. at
474).
The only claim before the Court that was not adjudicated on the merits in state court is

Watson's new stand-alone challenge to the sufficiency of the evidence raised for the first time in
his motion to amend. As this is a purely record-based claim, however, no evidentiary hearing is

warranted. See Schriro, 550 U.S. at 474 (recognizing that "an evidentiary hearing is not required
on issues that can be resolved by reference to the state court record") (citation omitted).
Moreover, as discussed more thoroughly later in this opinion, Watson's allegation lacks merit on

its face. Further factual development is therefore unnecessary. Register, 681 F.3d at 627-30.

III. Standard of Review
Watson's federal petition is governed by the heightened standard of review provided by
the AEDPA. 28 U.S.C.A.

§

2254. Under

§

2254(d), a petitioner may not obtain federal habeas

corpus relief on any claim that was adjudicated on the merits in state court proceedings, unless
the adjudication of that claim either: (1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established federal law, as determined by the Supreme

Court of the United States, or (2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the state court proceeding. Brown
v.

Payton, 544 U.S. 133, 141 (2005). This intentionally difficult standard stops just short of

imposing a complete bar on federal court relitigation of claims already rejected in state
proceedings. Harrington

v.

Richter, 562 U.S. 86, 102 (2011) (citing Felker

v.

Turpin, 518 U.S.

651, 664 (1996)).
A federal habeas court's inquiry into unreasonableness should always be objective rather

than subjective, with a focus on whether the state court's application of clearly established
federal law was

"objectively unreasonable" and not whether it was incorrect or

erroneous. McDaniel

v.

Brown, 558 U.S. 120 (2010); Wiggins

v.

Smith, 539 U.S. 510, 520-21

(2003). Even a strong case for relief does not mean the state court's contrary conclusion was

unreasonable, regardless of whether the federal habeas court would have reached a different

conclusion itself Richter, 562 U.S. at 102. Instead, a petitioner must show that the decision was

7

objectively unreasonable, which is a "substantially higher threshold." Schriro, 550 U.S. at 473;
Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). So long as "fairminded jurists could disagree"
on the correctness of the state court's decision, a state court's determination that a claim lacks

merit precludes federal habeas relief. Richter, 562 U.S. at 101 (citing Yarborough

v.

Alvarado,

541 U.S. 652, 664 (2004)). In other words, to obtain federal habeas relief on a claim previously

adjudicated on the merits in state court, Watson must show that the state court's ruling "was so
lacking in justification that there was an error well understood and comprehended in existing law

beyond any possibility for fairminded disagreement." Id. at 103; see also Bobby

v.

Dixon, 565

U.S. 23, 24 (2011).

IV. Merits Analysis
A.

State Law Violations (Claims 1-3).
Watson's first three grounds for relief assert the judgment under which he is confined is

void under Texas law.

Specifically, Watson contends his judgment is invalid because (1) it

reflects that he was convicted in the 274th District Court despite the fact he was indicted in the
25th District Court and the case was never transferred; (2) his trial was presided over by a
visiting judge who had no jurisdiction over his proceedings; and (3) his trial occurred at an

unauthorized time. Each claim essentially argues that the state court incorrectly applied Texas
law when it rejected the claims during Watson's state habeas proceeding. Because such claims
do not raise cognizable federal constitutional issues, Watson fails to demonstrate the state court's

rejection of the claims was contrary to, or an unreasonable application of, Supreme Court
precedent.
It is well settled that claims challenging a state court's determination of state law are not
cognizable in a federal habeas corpus proceeding, and that federal courts must defer to the state-

8

court determination of Texas law. See Swarthout

v.

Cooke, 562 U.S. 216, 219 (2011) (stating

that the Court has repeatedly held that "federal habeas corpus relief does not lie for errors of state

law.")(citations omitted); Fuller

v.

Johnson, 158 F.3d 903, 908 (5th Cir. 1998) (failure to follow

Texas law is not reviewable). Federal habeas corpus relief may be granted only to remedy

violations of the Constitution and laws of the United States; mere violations of state law will not
suffice. 28 U.S.C.

§

2254; Engle

v.

Isaac, 456 U.S. 107, 119 (1983). "[I]t is not the province of

a federal habeas court to reexamine state-court determinations on state-law questions." Trevino
v.

Johnson, 168 F.3d 173, 184 (5th Cir. 1999) (quoting Estelle

(1991)); Dickerson

v.

v.

McGuire, 502 U.S. 62, 67-68

Guste, 932 F.2d 1142, 1145 (5th Cir. 1991) ("We will not review a state

court's interpretation of its own law in a federal habeas corpus proceeding. We do not sit as a

'super' state supreme court in such a proceeding to review errors under state law.") (internal
citation and quotation marks omitted). Consequently, even if the state courts misapplied state
law as Watson now suggests, it would have no impact on this proceeding. Relief is therefore
denied.
B.

Prosecutorial Misconduct Claims (Claims 5, 6).
Watson next accuses the State of using unlawful methods calculated to produce a

wrongful conviction.

In his fifth ground for relief, he asserts the prosecution secured his

indictment without probable cause and through the "illegal" use of Melvin Bruns as an
informant. In his sixth allegation, he contends the prosecution (1) solicited false testimony to
secure his conviction; (2) suppressed material evidence regarding Bruns that could have been

used to suppress evidence and impeach State witnesses; and (3) knowingly made false and
misleading statements in their opening statement.

As discussed below, Watson fails to

demonstrate the state court's rejection of the claims was contrary to, or an unreasonable

application of, Supreme Court precedent.
Challenges to the Indictment

Watson first contends that his indictment was secured without probable cause because no
testimony was presented to the grand jury from a witness who actually saw Watson commit the
offense for which he was charged. This contention appears to be more related to Watson's new
assertion, raised for the first time in his motion to amend, that the evidence was insufficient to
support the conviction, and will be addressed separately. Watson also alleges the indictment was

unlawfully obtained through the use of an informant, Melvin Bruns, who had an outstanding

warrant for his arrest in another county. Because the Sheriff's Department policy prohibited the
use of confidential informants with outstanding warrants, Watson argues the use of Bruns as an

informant was illegal and thus his indictment was obtained without probable cause. However,

Watson offers no legal basis for his contention that a law enforcement agency's failure to follow

internal policy concerning confidential informants somehow renders their investigation illegal or
invalidates a subsequent indictment.
In any event, the sufficiency of a state indictment is not a matter for federal habeas relief

unless it can be shown that the indictment is so defective that it deprives the state court of

jurisdiction. Evans v. Cain, 577 F.3d 620, 624 (5th Cir. 2009). State law dictates whether a state
indictment is sufficient to confer a court with jurisdiction. McKay

v.

Collins, 12 F.3d 66, 68 (5th

Cir. 1994). As such, this Court is "required to accord due deference to the state's interpretation

of its own law that a defect of substance in an indictment does not deprive a state trial court of
jurisdiction." Id. at 69 (citations omitted). The issue is foreclosed from consideration on federal
habeas review if "the sufficiency of the [indictment] was squarely presented to the highest court

10

of the state on appeal, and that court held that the trial court had jurisdiction over the case."
Wood v. Quarterman, 503 F.3d 408, 412 (5th Cir. 2007) (citation omitted).

Here, Watson's claims concerning the sufficiency of the indictment were presented to the

Texas Court of Criminal Appeals during Watson's state habeas proceedings. DE 11-21 at 15-16
(ground

1

of Petitioner's state habeas application). The Texas Court of Criminal Appeals

subsequently denied the application without written order. DE 11-16. Because the sufficiency

of the indictment was squarely presented to the highest state court and that court held that the
trial court had jurisdiction over this case, this claim is foreclosed to federal habeas review. Wood,
503 F.3d at 412.
2.

Soliciting False Testimony

Next, Watson alleges that the State knowingly solicited false testimony from Investigator
Deslatte that State's Exhibit 6 was contraband evidence obtained by the confidential informant at
the controlled buy. According to Watson, Investigator Deslatte must have testified falsely about

the evidence he recovered being "crack cocaine" because (1) the forensic analyst testified the
substance was a powdery substance, and (2) the photograph taken of the substance admitted as

State's Exhibit

3

shows a powdery substance.

Watson also alleges that Lieutenant Flores

testified falsely by exaggerating the reasons he was able to obtain a search warrant. Watson
believes he testified falsely in order to authenticate the recording of the controlled buy and have

it admitted as evidence. Neither of these allegations warrant federal habeas relief.
In Napue

v.

Illinois, 360 U.S. 264 (1959), the Supreme Court held that a criminal

defendant is denied due process when the State knowingly uses perjured testimony or allows
false testimony to go uncorrected at trial. See also Giglio

v.

United States, 405 U.S. 150 (1972).

A petitioner seeking to obtain relief on such a claim must show that (1) the testimony is false, (2)

11

the State knew that the testimony was false, and (3) the testimony was material. Kutzner

Johnson, 242 F.3d 605, 609 (5th Cir. 2001); Pyles

v.

v.

Johnson, 136 F.3d 986, 996 (5th Cir. 1998).

Despite pointing out some discrepancies regarding the appearance of the contraband and the

content of the search warrant affidavit, Watson has not shown the testimony of either
Investigator Deslatte or Lieutenant Flores to be false, much less that the State knowingly
presented the false testimony.

Moreover, false testimony is only material if there was a

reasonable likelihood that it affected the jury's verdict. Giglio, 405 U.S. at 153-54; Barrientes v.

Johnson, 221 F.3d 741, 753 (5th Cir. 2000). Despite Watson's claims to the contrary, no such
likelihood exists in this case. Consequently, federal habeas relief is denied, as Watson has not

demonstrated the state court's rejection of his claim was either contrary to, or an unreasonable
application of, clearly established federal law.
3.

The Suppression of Evidence

Watson alleges the prosecution failed to disclose the fact that the confidential informant,
Melvin Bruns, (1) made a written statement after the transaction in question, and (2) had an
outstanding felony warrant on the day he recorded the controlled buy. "[S]uppression by the

prosecution of evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of
the prosecution." Brady

v.

Maryland, 373 U.S. 83, 87 (1963). In order to establish a Brady

violation, a petitioner must demonstrate that (1) the prosecution suppressed evidence, (2) that
evidence was favorable to the defense, and (3) the evidence was material to either guilt or

punishment. Banks

v.

Dretke, 540 U.S. 668, 691 (2004); Graves v. Cockrell, 351 F.3d 143, 153-

54 (5th Cir. 2003).

12

Initially, Watson fails to establish evidence was suppressed. Watson cites to testimony
from Lieutenant John Flores3 that Bruns "provided a statement" to Investigator Deslatte while

Lieutenant Flores was retrieving the video equipment and narcotics Bruns had just purchased
from Watson, but it is unclear from the record whether Lieutenant Flores was referring to a

written statement (as suggested by Watson) or an oral statement Bruns may have given. See
DE 10-8 at 88. Either way, Watson

admitsand the record confirmsthat he was made aware

of the statement during his trial and not afterward. The same is true for Bruns's outstanding
felony warrant, although it is unclear why Bruns's criminal history could not have been
discovered earlier by defense counsel. See Kutzner

v.

Cockrell, 303 F.3d 333 (5th Cir. 2002)

(holding Brady does not obligate the State to supply the defense with exculpatory evidence that
is fully available through the exercise

of reasonable diligence).

Regardless, even if this Court were to assume the evidence in question was suppressed,

Watson's Brady claim must fail because he has not demonstrated the evidence was material.
Evidence is material only if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different. United States

v.

Bagley, 473 U.S. 667, 684 (1985). Watson contends that Bruns's statement could have been

used to impeach the testimonies of Investigator Deslatte and Lieutenant Flores. Besides being
completely speculative, however, the record reflects that trial counsel thoroughly cross-examined
the officers about their use of Bruns as an informant, including Bruns' s prior criminal history, his

reliability, and any favorable treatment he may have received as a result of his agreement to
work as a confidential informant.

Similarly, Watson provides nothing but speculation that

knowledge of Bruns's outstanding warrant would have somehow led to the suppression of all the
evidence obtained through his employment as an informant. See Murphy
Watson mistakenly states the testimony was from Investigator Kris Deslatte. DE
13

v.

1

Johnson, 205 F.3d

at 15, DE 16 at 37.

809, 814 (5th Cir. 2000) ("Allegations that are merely 'conclusionary' or are purely speculative

cannot support a Brady claim."). Accordingly, Watson has not established a Brady violation,
and thus fails to demonstrate that the state court's rejection of his claim was either contrary to, or
an unreasonable application of, clearly established federal law.
4.

Improper Jury Argument

In his final allegation of prosecutorial misconduct, Watson alleges the prosecution

knowingly made false and misleading statements in its opening argument regarding Bruns, the
confidential informant.

In order to make Bruns appear more credible, Watson argues, the

prosecution stated Bruns had completed several cases as a confidential informant and was
responsible for multiple arrests, when in fact he had only been involved in one drug buy which

resulted in the arrest of two individuals prior to the instant case. Like his other claims of
misconduct, Watson unsuccessfully raised this issue during his state habeas proceedings. Again,
he fails to demonstrate that the state court's rejection of his claim was either contrary, or an

unreasonable application of, clearly established federal law.

Allegations of prosecutorial misconduct are analyzed in two steps. Trottie
720 F.3d 231, 253 (5th Cir. 2013) (citation omitted).

prosecutor made an improper remark. United States
(citation omitted).

v.

v.

Stephens,

The first is to evaluate whether the

Fields, 483 F.3d 313, 358 (5th Cir. 2007)

If so, the second step is to determine whether the defendant suffered

prejudice. Id. This second inquiry sets a high bar: "Improper prosecutorial conmients constitute

reversible error only where the defendant's right to a fair trial is substantially affected." United
States

v.

Ebron, 683 F.3d 105, 140 (5th Cir. 2012) (quoting United States

v.

Holmes, 406 F.3d

337, 355-56 (5th Cir. 2005)). A criminal conviction should not be "lightly overturned on the

basis of a prosecutor's comments standing alone," but rather only when "the prosecutor's

14

remarks cast serious doubt on the correctness of the jury's verdict." Id. Thus, in deciding
whether serious doubt infects the verdict, the Court considers three factors: "(1) the magnitude of

the prejudicial effect of the prosecutor's remarks, (2) the efficacy of any cautionary instruction
by the judge, and (3) the strength of the evidence supporting the conviction." Id. (quoting United

States v. Mares, 402 F.3d 511, 515 (5th Cir. 2005)) (internal quotation marks omitted).
There was nothing improper about the prosecution's statements regarding Bruns's

reliability as a confidential informant. To start, the prosecution's assertion that Bruns completed

"several" successful cases and was responsible for "multiple" arrests, while arguably misleading,
appears to technically be

trueas

Watson admits, Bruns was involved in more than one drug

buy and responsible for the arrests of at least three individuals, including himself Moreover,

testimony was given at trial regarding Bruns's successful work as an informant for law
enforcement.

Generally speaking, the four proper areas for prosecutorial jury argument are

summation of the evidence, reasonable inference from the evidence, answers to opposing

counsel's argument, and pleas for law enforcement. See, e.g., Norris v. Davis, 826 F.3d 821, 832
n. 10 (5th Cir. 2016) (recognizing these four areas as permissible subjects for

jury

argument

under Texas law). As the prosecution's remarks about Bruns clearly fell within either of the first
two categories, they were not improper.

Even if they were improper, this Court finds nothing prejudicial about the prosecution's

remarks during opening argument.

The outcome of Petitioner's trial turned largely on the

relative credibility of the testimony of Investigator Deslatte and Lieutenant Flores, and not on the

credibility of the informant they employed (who did not testify). More importantly, Bruns's
reliability as a confidential informant was the subject of trial counsel's thorough crossexamination of both Investigator Deslatte and Lieutenant Flores.

15

Thus, the prosecution's

statement likely had very little prejudicial effect, and certainly did not cast "serious doubt on the

correctness of the jury's verdict." Ebron, 683 F.3d at 140. Federal habeas relief is therefore
unwarranted.
C.

Trial Counsel Claims (Claims 4, 7-9).
Watson raises several ineffective-assistance-of-trial-counsel (IATC) claims concerning

counsel's performance at the guilt-innocence phase of his trial. In his fourth claim for relief,
Watson argues counsel was ineffective for failing to file motions objecting to: (1) a visiting

judge presiding over his trial; (2) his trial occurring at a time not authorized by law; and (3) the

court's lack of jurisdiction over his case. In claims 7 through 9, Watson contends counsel was
ineffective in failing to: (1) file a motion to suppress all evidence relating to the confidential
informant; (2) object to the hearsay testimony of the confidential informant as violating the

Confrontation Clause; and (3) object to the testimony of the State's forensic chemist, Jeffrey
Keverline, under Texas Rule of Evidence 702. Watson also argues that the cumulative effect of
all of the foregoing instances of ineffective assistance by his trial counsel prejudiced him. As

discussed below, however, Watson fails to demonstrate the state court's rejection of the claims

was contrary to, or an unreasonable application of, Supreme Court precedent. Federal habeas

relief is therefore denied on each claim.
1.

The Strickland Standard of Review

Sixth Amendment claims concerning the alleged ineffective assistance of trial counsel are
reviewed under the familiar two-prong test established in Strickland v. Washington, 466 U.S. 668
(1984). Under Strickland, a petitioner cannot establish a violation of his Sixth Amendment right
to counsel unless he demonstrates (1) counsel's performance was deficient and (2) this

deficiency prejudiced his defense. 466 U.S. at 687-88, 690. According to the Supreme Court,

16

"[s]urmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. 356,
371 (2010).

In determining whether counsel performed deficiently, courts "must be highly

deferential" to counsel's conduct, and a petitioner must show that counsel's performance fell
beyond the bounds of prevailing objective professional standards. Strickland, 466 U.S. at 68789. Counsel is "strongly presumed to have rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment." Burt v. Titlow, 134 S. Ct. 10, 17
(2013) (quoting. Strickland, 466 U.S. at 690). "A conscious and informed decision on trial tactics

and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is
so ill chosen that it permeates the entire trial with obvious unfairness." Cotton

F.3d 746, 752-53 (5th Cir. 2003).

v.

Cockrell, 343

As the Supreme Court explained, "[j]ust as there is no

expectation that competent counsel will be a flawless strategist or tactician, an attorney may not
be faulted for a reasonable miscalculation or lack of foresight or for failing to prepare for what

appear to be remote possibilities." Richter, 562 U.S. at 110. For this reason, every effort must
be made to eliminate the "distorting effects of hindsight."

Strickland, 466 U.S. at 689;

Yarborough v. Gentry, 540 U.S. 1, 6 (2003) ("The Sixth Amendment guarantees reasonable

competence, not perfect advocacy judged with the benefit of hindsight.") (citations omitted).
Accordingly, there is a strong presumption that an alleged deficiency "falls within the wide range

of reasonable professional assistance." Feldman

v.

Thaler, 695 F.3d 372, 378 (5th Cir. 2012)

(quoting Strickland, 466 U.S. at 689)).
To demonstrate prejudice, a petitioner "must show that there is a reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in the

17

outcome." Strickland, 466 U.S. at 694. Because this showing of prejudice must be "rather
appreciable," a mere allegation of prejudice or the possibility of a different outcome is not

sufficient to satisfy the prejudice prong of Strickland. Crane
Cir. 1999); Armstead

v.

v.

Johnson, 178 F.3d 309, 312 (5th

Scott, 37 F.3d 202, 206 (5th Cir. 1994).

As the Supreme Court

explained: "[T]he question in conducting Strickland's prejudice analysis is not whether a court
can be certain counsel's performance had no effect on the outcome or whether it is possible a

reasonable doubt might have been established if counsel [had] acted differently." Richter, 562
U.S. at

ill

(emphasis added) (citing Wong v. Belmontes, 558 U.S. 15, 27 (2009)). Rather, the

"likelihood of a different result must be substantial, not just conceivable." Id. at 112.
Finally, IATC claims are considered mixed questions of law and fact and are analyzed

under the "unreasonable application" standard of 28 U.S.C.

§

2254(d)(1). See Gregory v. Thaler,

601 F.3d 347, 351 (5th Cir. 2010). Where, as here, the state court adjudicated the IATC claims

on the merits, this Court must review a petitioner's claims under the "doubly deferential"
standards of both Strickland and Section 2254(d). Woods
(2016) (citing Pinhoister, 563 U.S. at 190); Knowles

v.

v.

Etherton, 136 5. Ct. 1149, 1151

Mirzayance, 556 U.S. 111, 112 (2009)

(same). In such cases, the "pivotal question" is not "whether defense counsel's performance fell

below Strickland's standards, but whether "the state court's application of the Strickland
standard was unreasonable." Richter, 562 U.S at 101. That is to say, the question to be asked in
this case is not whether counsel's actions were reasonable, but whether "there is any reasonable

argument that counsel satisfied Strickland's deferential standard." Id. at 105.
2.

The Trial Court's Jurisdiction

Watson's fourth claim for relief essentially faults counsel for not objecting to the trial
court's alleged lack of jurisdiction over his case. According to Watson, the 274th District Court

18

of Guadalupe County (the convicting court), as well as the visiting judge who presided over his
trial, lacked jurisdiction over his case because he was indicted in the 25th District Court and the
case was never transferred. However, the Texas statute establishing the 274th District

Texas Government Code

§

Court

24.45 1clearly states the court has "concurrent jurisdiction with the

25th and Second 25th district courts in Guadalupe County." Additionally, the statute provides a

district judge of a county may "hear and determine any case or proceeding pending in another
district court in the county without having the case transferred" or "sit for another district court
in the county and hear and determine any case or proceeding pending in that court." Tex. Gov't

Code

§

24.003(b)(2) and (3). Thus, any objection by counsel on the grounds that the court or the

judge lacked jurisdiction would have been frivolous.
Similarly, Watson's curious assertion that his trial took place at a time not authorized by
law is meritless. Citing Texas Government Code

§

24.126(c), Watson contends his February

trial was unauthorized because the "terms" of the 25th District Court do not begin until the first
Mondays in either March or October. But Watson is incorrect in believing that a trial can only

take place when a district court's term commences.

Even if he were correct, the statute

governing the terms of Texas courts states that "the terms of each district

continuous." Tex. Gov't Code

§

.

.

.

court are

24.0 12(b). Either way, counsel cannot be considered deficient

for failing to pursue such a futile or frivolous objection. Sones

v.

Hargett, 61 F.3d 410, 415 n.5

(5th Cir. 1995) (counsel cannot be deficient for failing to press a frivolous point); Koch

v.

Puckett, 907 F.2d 524, 527 (5th Cir. 1990) (holding that "counsel is not required to make futile

motions or objections[}").
Because neither the trial court nor judge lacked jurisdiction to hear the case, any

objection made by counsel on such grounds would have been futile. But "counsel is not required

19

to make futile motions or objections." Koch, 907 F.2d at 527. The Fifth Circuit has explained

that "failure to raise meritless objections is not ineffective lawyering; it is the very opposite."

Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994) (where petitioner complained of trial counsel's
failure to object to the admission of extraneous offenses even though unadjudicated extraneous

offenses generally are admissible at penalty phase of capital murder trial); see also Green

v.

Johnson, 160 F.3d 1029, 1037 (5th Cir. 1998) (failure to make frivolous objection does not cause

counsel's performance to fall below an objective level of reasonableness). Because Watson has
not demonstrated counsel's performance was deficient or that he was prejudiced in any way by

counsel's failure to object, relief is denied.
3.

Motion to Suppress

Watson next faults counsel for failing to file a motion to suppress all of the evidence
connected with the confidential informant, Melvin Bruns, when it was revealed Bruns had been

used "illegally" as a confidential informant. The testimony of Lieutenant Flores revealed that it
was the policy of the sheriff's office not to use informants with outstanding warrants for

probation violations without the permission of the court that placed them on violation. DE 10-9
at 74. Referring to this testimony, Watson correctly notes that, unbeknownst to the sheriff's

office, Bruns was wanted on a probation-revocation warrant at the time he was used as a

confidential warrant. However, Watson fails to provide any evidence or authority supporting his

argument that Bruns's warrant made his use as a confidential informant "illegal" in the eyes of
the law when it only violated a policy of the sheriff's office.
conclusory.

See Ross

v.

Watson's claim is therefore

Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983) (noting that "mere

conclusory allegations do not raise a constitutional issue in a habeas proceeding").

20

Regardless, Watson cannot demonstrate that he was prejudiced as a result of counsel's
failure to file a motion to suppress on this basis. Watson seems to argue such a motion would

have been successful because probable cause could not be established to initiate a drug

transaction if Bruns's work as an informant was illegal. But again, Watson provides no legal
support for the concept that probable cause was necessary for an informant to buy drugs from

Watson. Even if it were, in denying counsel's motion to suppress Bruns's recording on different
grounds, the trial court determined Bruns was "invited into the house" and was therefore "there
by consent." DE1O-8 at 37. Thus, there is no reasonable probability that the results of counsel's

motion to dismiss would have been any different had counsel raised the instant objection.
Strickland,

4.

466 U.S. at 694. Relief is denied.

Confrontation Clause

Watson's eighth allegation challenges trial counsel's failure to raise a Confrontation
Clause objection concerning alleged hearsay, testimonial statements Bruns made to Investigator

Deslatte and Lieutenant Flores. Specifically, Watson contends counsel should have objected to
the following testimony by the officers: (1) the case was initiated after receiving information
from Bruns; (2) the operational plan to make a controlled purchase came from Bruns's
information; (3) following the controlled buy, Bruns provided a statement to the officers about

what transpired; (4) Bruns went inside Watson's house to purchase crack cocaine; and (5) a
search warrant was obtained as a result of information obtained by Bruns. As discussed below,

any objection by counsel on this basis would have been futile.

Sones, 61

F.3d at 415 n.5

(counsel cannot be deficient for failing to press a frivolous point).

The Confrontation Clause of the Sixth Amendment provides that, "[i]n all criminal

prosecutions, the accused shall enjoy the right

.

21

. .

to be confronted with the witnesses against

him." U.S. Const. amend. VI. Under the Confrontation Clause, the admission of "testimonial
statements" of a witness who did not appear at trial is barred unless the witness "was unavailable
to testify, and the defendant had [] a prior opportunity for cross-examination." United States

v.

Duron-Caldera, 737 F.3d 988, 992 (5th Cir. 2013) (quoting Crawford v. Washington, 541 U.S.
36, 53-54 (2004)).

In Crawford, the Supreme Court defined "testimony" as "[a} solemn

declaration or affirmation made for the purpose of establishing or proving some fact." 541 U.S.
at 51. Testimonial statements are not barred, however, if they are admitted for purposes other

than establishing the truth of the matter asserted. Id. at 59 n.9.
In this case, Bruns was unavailable to testify and Watson did not have a prior opportunity

for cross-examination. Accordingly, Watson's Confrontation Clause challenge turns on whether
any of the above testimony constitutes a "testimonial statement" and, if it does, whether the

testimony was offered for purposes of establishing the truth of the matter asserted. Watson fails
on both accounts. To start, arguably none of the above testimony, aside from Lieutenant Flores's

admission that Bruns provided a statement after the buy, even concern a statement by the

confidential

informant.4

Indeed, testimony that Bruns went inside Watson's house to purchase

crack cocaine was based solely on the officer's personal observations, not on anything allegedly
stated by Bruns. Regardless, even assuming the testimony included testimonial statements from

the confidential informant, the Court finds no Confrontation Clause issue because Bruns's
statements were not offered for the truth of the matter asserted. Crawford, 541 U.S. at 59 n.9.;
see also United States

v.

Durhan, 176 F.3d 478 (5th Cir. 1999) (unpublished) (finding the trial

court did not err in admitting testimony regarding a confidential informant's statements when the
statements were offered only to show why law enforcement officers took certain actions).

Although he testified that Bruns provided a statement, the record reflects Lieutenant Flores never attempted
to testiti regarding the contents of this statement. DE 10-8 at 88.

22

Watson therefore fails to demonstrate counsel's performance was either deficient or that he was
prejudiced in any way by counsel's failure to object, and relief is denied.
5.

Admission of Scientific Evidence

In his ninth allegation, Watson challenges trial counsel's failure to raise an objection

under Texas Rule of Evidence 702 to the testimony of Jeffrey Keverline, the State's forensic
chemist. Keverline testified that he works at the Texas Department of Public Safety Crime Lab

examining evidence for the presence of controlled substances. DE 10-9 at 112-22. Keverline
explained his specialized training has qualified him in the past as an expert in Texas courts, and
testified about how he tests an unknown substance to determine its composition. In this case,
Keverline conducted a full chemical analysis on the substance at issue and concluded the
substance contained cocaine. Watson claims trial counsel should have objected on the grounds

that the State failed to establish the reliability of Keverline' s testimony. However, Watson fails
to demonstrate that counsel's failure to object constituted ineffective assistance.
The current legal standard governing the admission of scientific expert testimony was set
forth by the Supreme Court's decision in Daubert

v.

Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579 (1993). In Daubert, the Court held that before a party can present expert testimony

based on "scientific knowledge," the proponent must demonstrate to the trial court that the
proposed expert testimony is sufficiently reliable and relevant. 509 U.S. at 591, 595-99. In
Texas, admission of scientific evidence is governed by Rule 702 of the Texas Rules of Evidence,

which follows an evidentiary standard that is nearly identical to the one in Daubert.5 See Kelly v.
State, 824 S.W.2d 568 (Tex. Crim. App. 1992). Under Rule 702, the proponent of scientific

evidence must show, by "clear and convincing" proof and outside the presence of the jury, that
Specifically, Rule 702 provides "[i]f scientific, technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

23

the proffered evidence is sufficiently relevant and reliable to assist the jury in accurately

understanding other evidence or in determining a fact issue. Kelly, 824 S .W.2d at 572-73.
In this case, there is no question Keverline's testimony was relevant, as it established the
substance recovered from Bruns following the controlled buy from Watson was, in fact, cocaine.
Watson wisely does not challenge its relevance; instead, he believes counsel should have

challenged the reliability of Keverline's technique in analyzing the substance in question. To
establish the reliability of evidence derived from scientific testing, three criteria must be
satisfied: (1) the field of expertise involved is a legitimate one, (2) the subject matter of the

expert's testimony is within the scope of that field, and (3) the expert's testimony properly relies
upon or utilizes the principles involved in that field. Weatherred
(Tex. Crim. App. 2000) (citation omitted).

Keverlinea recognized expert
unreliable testimony.

v.

State, 15 S.W.3d 540, 542

Watson provides no evidence or argument that

in the well-established field of chemical analysisprovided

The Court therefore denies Watson relief, as he fails to demonstrate

counsel's refusal to require a Daubert/Kelly hearing was either deficient or that he was
prejudiced in any way by counsel's decision.
6.

Cumulative Error

Finally, Watson argues the cumulative effect of his trial counsel's acts and omissions of

deficient performance discussed above caused the performance of said counsel to fall below an
objective level of reasonableness and prejudiced him within the meaning of Strickland. For the

reasons discussed at length above, however, none of Petitioner's complaints about the

performance of his trial counsel satisfy either prong of Strickland analysis.

"[T]here is no

precedent supporting the idea that a series of 'errors' that fail to meet the standard of objectively
unreasonable can somehow cumulate to meet the high burden set forth in Strickland." United

States

v.

Thomas, 724 F.3d 632, 648 (5th Cir. 2013).

"Our clear precedent indicates that

ineffective assistance of counsel cannot be created from the accumulation of acceptable decisions
and actions." United States

v.

Hall, 455 F.3d 508, 520 (5th Cir. 2006). Absent a showing of

deficient performance by counsel, there is nothing to cumulate. Miller

v.

Johnson, 200 F.3d 274,

286 n.6 (5th Cir. 2000) ("Miller has not demonstrated error by trial counsel; thus, by definition,

Miller has not demonstrated that cumulative error of counsel deprived him of a fair trial.").

Watson's cumulative-error claim therefore does not warrant federal habeas corpus relief.
D.

Appellate Counsel Claims (Claims 10, 11).
In his tenth and eleventh claims for relief, Watson alleges that his direct appeal attorney

was ineffective because he failed to challenge: (1) the trial court's bias; (2) the sufficiency of the

evidence; (3) the trial court's ruling on the motion to suppress; and (4) the trial court's refusal to
rule on his motion for new trial. Similar to his IATC claims, these allegations concerning his

appellate counsel were rejected by the state court during Watson's state habeas proceedings.

Because Watson has not shown this rejection on the merits to be contrary to, or an unreasonable

application of, the Strickland standard, federal habeas relief is denied. Richter, 562 U.S. at 101.
1.

The Strickland Standard Governs

The same two-pronged standard set out in Strickland to prove that counsel rendered

unconstitutionally ineffective assistance applies equally to both trial and appellate attorneys.
Smith

v.

Robbins, 528 U.S. 259, 285 (2000); Dorsey

v.

Stephens, 720 F.3d 309, 319 (5th Cir.

2013). Thus, the standard for evaluating the performance of counsel on appeal requires inquiry
into (1) whether appellate counsel's conduct was objectively unreasonable under then-current

legal standards, and (2) whether there is a reasonable probability that, but for appellate counsel's

deficient performance, the outcome of Petitioner's appeal would have been different. Robbins,

25

528 U.S. at 285; Higgins

v.

Cain, 720 F.3d 255, 260-61 (5th Cir. 2015). Appellate counsel who

files a merits brief need not, and should not, raise every non-frivolous claim. Robbins, 528 U.s.
at 288; Jones

v.

Barnes, 463 U.S. 745, 751 (1983). Only solid, meritorious arguments based on

directly controlling precedent should be raised on direct appeal. Schaetzle

v.

Cockrell, 343 F.3d

440, 445 (5th Cir. 2003). Nonetheless, appellate counsel is obligated to research relevant facts

and law or to make an informed decision that certain avenues will not prove fruitful. See Busby
v.

Dretke, 359 F.3d 708, 714 (5th Cir. 2004); United States

v.

Reinhart, 357 F.3d 521, 525 (5th

Cir. 2004). The process of winnowing out weaker arguments on appeal and focusing on those

more likely to prevail is the hallmark of effective appellate advocacy. Smith

v.

Murray, 477 U.S.

527, 536 (1986); Barnes, 463 U.S. at 75 1-52.
2.

The Trial Court's Alleged Bias

Watson first asserts the trial court was not an impartial fact finder and that his appellate
counsel should have raised a claim of trial court bias. The Due Process Clause guarantees the

right to a fair trial, "before a judge with no actual bias against the defendant or interest in the
outcome of his particular case." Richardson
(quoting Bracy

v.

v.

Quarterman, 537 F.3d 466, 474 (5th Cir. 2008)

Gramley, 520 U.S. 899, 905 (1997)).

Bias is not "lightly established,"

however, and "general allegations of bias or prejudice are insufficient to establish a

constitutional violation." Id. (citations omitted). Although bias is not presumed, due process
requires recusal if a judge is shown to have an actual bias. Bracy, 520 U.S. at 909. Similarly,
recusal is required if there is an appearance of bias such that "the probability of actual

too high to be constitutionally tolerable." Buntion

v.

bias..

.

is

Quarterman, 524 F.3d 664, 672 (5th Cir.

2008). The Supreme Court has only identified three conflict-of-interest type situations where a

judge's failure to recuse constitutes this presumptive bias: (1) when the judge "has a direct

26

personal, substantial and pecuniary interest in the outcome of the case," (2) when he "has been
the target of personal abuse or criticism from the party before him," and (3) when he "has the
dual role of investigating and adjudicating disputes and complaints."

Id. (quoting Bigby

v.

Dretke, 402 F.3d 551, 559 (5th Cir. 2005)).
Watson fails to establish an actual bias on the part of the trial court, nor has he pointed to
any evidence which would lead this Court to believe a presumptive bias existed under the three

criteria listed above.

Instead, Watson simply lists rulings by the trial court with which he

disagreed and baldly asserts the court "abandoned" its neutrality. Disagreeing with a judge's

rulings is not the same as establishing bias, however, and Watson points to no evidence of the
trial court displaying "a deep-seated favoritism or antagonism that would make fair judgment

impossible." Liteky

v.

United States, 510 U.S. 540, 555 (1994). As a consequence, appellate

counsel cannot be faulted for failing to raise what would amount to a frivolous allegation. See

Barnes, 463 U.S. at 751-53 (holding appellate counsel is only constitutionally obligated to raise
and brief those issues that are believed to have the best chance of success).
3.

Sufficiency of the Evidence

In his next allegation, Watson faults his appellate counsel for not raising a challenge to

the sufficiency of the evidence under Jackson

v.

Virginia, 443 U.S. 307 (1979).6 According to

Watson, the State's circumstantial evidence failed to prove beyond a reasonable doubt that a
drug transaction occurred between himself and the confidential informant.

6

Again, to obtain

In Jackson, the Supreme Court enunciated the standard of review for challenges to the sufficiency of the
evidence by state prisoners: "whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. In
applying this standard, the Court went on to say that "[t]his familiar standard gives full play to the responsibility of
the trier of fact fairly to resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts." Id.

relief, Watson must demonstrate that his appellate counsel's performance was deficient and that
such deficiency prejudiced his defense. Strickland, 466 U.S. at 687. He does neither.
To start, a petitioner must convince the court that the issues ignored were sufficiently

meritorious such that counsel should have asserted them on appeal in order to establish deficient
performance. United States

v.

Phillips, 210 F.3d 345, 348 (5th Cir. 2000). But even assuming a

Jackson-type challenge to the sufficiency of the evidence had some merit, counsel is not required
to raise every non-frivolous ground that might be pressed on appeal. Ellis

v.

Lynaugh, 873 F.2d

830, 840 (5th Cir. 1989). The Supreme Court has indicated a petitioner is able to satisfy this first

prong of Strickland by showing that a particular non-frivolous issue neglected by counsel was
"clearly stronger" than those issues actually presented. See Robbins, 528 U.S. at 288.
Although Watson faults his counsel for not challenging the evidence, the record

demonstrates counsel did raise a claim that "there was insufficient evidence of corroboration and

the trial court erred in failing to provide an instruction regarding such." Watson
S.W.3d at 187.

v.

State, 421

Specifically, counsel argued the trial court should have applied Texas's

accomplice-witness rule codified in Texas Code of Criminal Procedure Art. 38.141 requiring
corroborating evidence where, as here, the State's case is based on accomplice-witness
testimony. Such a claim generally involves setting aside informant-related evidence to allow a

court to determine whether a jury instruction was needed under Art. 38.141 by reviewing the

remaining

evidence.7

Watson has not demonstrated that the ignored point of error was clearly

stronger in posture than the insufficient evidence claim counsel actually brought on direct appeal.
Regardless, Watson fails to establish he was prejudiced as a result of appellate counsel's
failure to adequately challenge the sufficiency of the evidence on direct appeal. In the context of

In contrast, a claim under Jackson requires "all of the evidence" to be considered in determining an
insufficient evidence claim. 443 U.s. at 319.

28

appellate counsel, a petitioner must demonstrate a reasonable probability that he would have

prevailed on appeal in order to establish prejudice. Robbins, 528 U.S. at 285-86. Contrary to

Watsons' s assertions, however, the evidence was clearly sufficient to support his conviction.
The jury heard testimony from both Investigator Deslatte and Lieutenant Flores about their

arrangement with their confidential informant, Bruns, to buy narcotics from Watson.

The

officers made sure Bruns had no drugs on him the day of the buy, then gave him money and
instructions to purchase drugs from Watson in his home. The officers placed a recording device
on Bruns, surveilled him as he entered Watson's house and later exited, then followed him to a

predetermined meeting point where they recovered the purchased narcotics.

The entire

transaction was recorded and played without sound for the jury. The jury then heard testimony
from a forensic scientist that the substance recovered from Bruns was cocaine.

In light of this

evidence, there is no reasonable probability Watson would have prevailed on appeal had

appellate counsel included a Jackwn-type challenge to the sufficiency of the evidence. Robbins,
528 U.S. at 285-86.
4.

Trial Court Rulings

In his final two allegations concerning appellate counsel, Watson argues counsel was
ineffective for failing to challenge (1) the trial court's ruling on the motion to suppress the video
exhibit, and (2) the trial court's refusal to rule on his motion for new trial. But other than making

these bald assertions, Watson provides zero argument in support of his claims. Under Rule 2(c)

of the Rules Governing Section 2254 Cases, a petitioner is required to plead facts in support of
his claims. Conclusory allegations do not state a claim for federal habeas corpus relief and are
subject to summary dismissal. Ross, 694 F.2d at 1012 (holding "mere conclusory allegations do

not raise a constitutional issue in a habeas proceeding"); Koch, 907 F.2d at 530 (same).

29

Watson's unsubstantiated and conclusory allegations concerning the trial court's ruling (or lack
thereof) are wholly insufficient to prove that counsel acted deficiently. See Barnard

v.

Collins,

958 F.2d 634, 643 n.1 1 (5th Cir. 1992) (holding that "conclusory allegations" of ineffective

assistance are without merit "{i]n the absence of a specific showing of how these alleged errors
and omissions were constitutionally deficient, and how they prejudiced his right to a fair trial").

Furthermore, Watson's allegations are frivolous. With regard to the trial court's ruling
on the motion to suppress the video, the record indicates counsel indeed challenged the

admission of this evidence by arguing its admission violated the Confrontation Clause. See DE
10-2 at 40-54. And with regard to the motion for new trial, Texas law indicates such a motion

would be overruled by operation of law if the trial court had not ruled on it within seventy-five
days. See Tex. R. App. P. 21.8(a). Thus, raising such an allegation would be pointless, and

appellate counsel is only constitutionally obligated to raise and brief those issues that are
believed to have the best chance of success. Barnes, 463 U.S. at 751-53
Again, the burden of proving the instant claim lies solely on Watson. Strickland, 466
U.S. at 687. The question of whether appellate counsel was deficient for failing to raise these

issues is inextricably linked to the merits of the issues allegedly neglected. Because it has been
shown that the claims lacks merit, Watson cannot now show that appellate counsel was deficient.
He is likewise precluded from demonstrating prejudice arising from the absence

of the claim on

direct appeal. Accordingly, Watson has not shown the state court's rejection of these claims was
either contrary to, nor an unreasonable application of, clearly established Supreme Court
precedent. Richter, 562 U.S. at 101. Federal habeas relief is therefore denied.

E.

Sufficiency of the Evidence Claim (DE 18).
In his last allegation, Watson raises a challenge to the sufficiency of the evidence to

support his conviction. Although Watson raised a similar challenge in the context of an IATC
claim in his request for state habeas relief, this is the first time he has raised a stand-alone

challenge to the sufficiency of the evidence. By failing to present the claim to the Court of
Criminal Appeals for review either on direct appeal or his state habeas application, Watson has
failed to exhaust state court remedies as required by 28 U.S.C.

§

2254(b)(2) and has presented

this Court with a new claim which the state court never had the opportunity to review.

Watson's new claim is also subject to denial by this Court as procedurally defaulted.
Gray v. Netherland, 518 U.S. 152, 161 (1996) (finding the exhaustion requirement to be satisfied

"if it is clear that [the habeas petitioner's] claims are now procedurally barred under [state]
law."); Castille

v.

Peoples, 489 U.S. 346, 351 (1989). Procedural default occurs where (1) a

state court clearly and expressly bases its dismissal of a claim on a state procedural rule, and that

procedural rule provides an independent and adequate ground for the dismissal, or (2) the
petitioner fails to exhaust all available state remedies, and the state court to which he would be
required to petition would now find the claims procedurally barred. Coleman
U.S. 722, 735 n.1 (1991); Norman

v.

v.

Thompson, 501

Stephens, 817 F.3d 226, 231 n.1 (5th Cir. 2016). In either

instance, the petitioner is deemed to have forfeited his federal habeas claim.

O'Sullivan

v.

Boerckel, 526 U.S. 838, 848 (.1999).

Watson failed to exhaust state court remedies with regard to the instant claim raised in his
motion to amend. Should this Court require him to return to state court to satisfy the exhaustion

requirement with the Texas Court of Criminal Appeals, however, that court would find the
claims procedurally barred under the abuse of the writ doctrine found in Article 11.07

31

§

4 of the

Texas Code of Criminal Procedure.

The Fifth Circuit has consistently held that where a

petitioner raises claims in federal court that have not previously been presented to the state
courts, and Article 11.07

§

4 would apply to foreclose review of the claims if presented in a

successive state habeas application, such is an adequate state procedural bar foreclosing federal

habeas review of the claims. See, e.g., Bagwell v. Dretke, 372 F.3d 748, 755-56 (5th Cir. 2004)
(holding a petitioner procedurally defaulted by failing to "fairly present" a claim to the state
courts in his state habeas corpus application); Smith

v.

Cockrell, 311 F.3d 661, 684 (5th Cir.

2002) (holding unexhausted claims were procedurally barred); Jones

v.

Johnson, 171 F.3d 270,

276-77 (5th Cir. 1999) (same). Thus, this claim is unexhausted and procedurally defaulted.

Consequently, Watson is precluded from federal habeas review unless he can show cause
for the default and resulting prejudice, or demonstrate that the court's failure to consider his
claim will result in a "fundamental miscarriage of justice."

Coleman, 501 U.S. at 750-51;

Barrientes, 221 F. 3d at 758. Watson has made no attempt to demonstrate cause and prejudice
for his failure to raisd these claims in state court. Nor has he made any attempt to demonstrate

that the Court's denial of the claim will result in a "fundamental miscarriage of justice." Thus,
circuit precedent compels the denial of the claim as procedurally defaulted.

Regardless, after a thorough review of the record, this Court finds that relief would still
be denied under de novo review. As discussed previously in Section D(3), supra, the evidence
was clearly sufficient to support his conviction. As such, even

if Watson were not procedurally

barred from federal habeas relief on his new claim, relief would be denied on the merits of the
claim.

32

V. Certificate of Appealability

The Court must now determine whether to issue a certificate of appealability (COA). See
Rule 11(a) of the Rules Governing
335-36 (2003) (citing 28 U.S.C.

§

§

2254 Proceedings; MillerEl

Cockrell, 537 U.S. 322,

v.

2253(c)(1)). A COA may issue only if a petitioner makes "a

substantial showing of the denial of a constitutional right." 28 U.S.C.

§

2253(c)(2). If a district

court rejects a petitioner's constitutional claims on the merits, the petitioner must demonstrate

"that reasonable jurists would find the district court's assessment of the constitutional claims
debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). This requires a petitioner to
show "that reasonable jurists could debate whether the petition should have been resolved in a
different manner or that the issues presented were 'adequate to deserve encouragement to

proceed further." MillerEl, 537 U.S. at 336 (citation omitted).

A district court may deny a COA sua sponte without requiring further briefing or
argument. See Alexander

v.

Johnson, 211 F.3d 895, 898 (5th Cir. 2000). For the reasons set

forth above, the Court concludes that jurists of reason would not debate the conclusion that

Watson was not entitled to federal habeas relief. As such, a COA will not issue.

VI. Conclusion and Order
Petitioner has failed to establish that the state court's rejection of the aforementioned
claims on the merits during his state habeas corpus proceedings was either (1) contrary to, or
involved an unreasonable application of, clearly established federal law, as determined by the
Supreme Court of the United States, or (2) based on an unreasonable determination of the facts

in light of the evidence presented in the petitioner's state trial, appellate, and habeas corpus
proceedings.

As a result, Watson's federal habeas corpus petition does not warrant federal

habeas corpus relief.

33

Accordingly, based on the foregoing reasons, IT IS HEREBY ORDERED that:
1.

Petitioner's Motion for Expansion of the Record (DE 17) is DENIED;

2. Petitioner's Motion for Leave to Amend (DE 18) is
3.

4.

GRANTED;

Petitioner's Motion for Evidentiary Hearing (DE 19) is DENIED;
Federal habeas corpus relief is DENIED and Petitioner Robert James Watson's

Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.

§

2254 (DE 1) is DISMISSED WITH

PREJUDICE;
5. No Certificate

of Appealability shall issue in this case; and

6. All other remaining motions,

if any, are DENIED, and this case is now CLOSED.

It is so ORDERED.

SIGNED this the

day of August, 2017.

ORLANDO L. GARCIA
Chief United States District Judge

34