Brown v. Davis-Director TDCJ-CID

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

JIMMY LOYD BROWN, §

§

Petitioner, §

§

v. § No. 4:19-CV-547-Y

§

LORIE DAVIS, Director, §

Texas Department of Criminal §

Justice, Correctional §

Institutions Division, §

§

Respondent. §

OPINION AND ORDER

Before the Court is a petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254 filed by Petitioner, Jimmy Loyd Brown,

a state prisoner, against Lorie Davis, director of the Texas

Department of Criminal Justice, Correctional Institutions Division,

Respondent. After having considered the pleadings and relief sought

by Petitioner, the Court has concluded that the petition should be

denied.

I. FACTUAL AND PROCEDURAL HISTORY

Petitioner was indicted in Palo Pinto County, Texas, Case No.

15327, for delivery of a controlled substance, methamphetamine, to

a minor in an amount of less than one gram. (Clerk’s R. 27, doc.

19-13.) On May 7, 2015, a jury found Petitioner guilty of the

offense, Petitioner pleaded true to the sentence-enhancement

allegations in the indictment, and the trial court assessed his

punishment at 65 years’ imprisonment. (Id. at 110.) Petitioner

appealed his conviction, but the state appellate court affirmed the

trial court’s judgment and the Texas Court of Criminal Appeals

refused his petition for discretionary review. (Electronic R., doc.

19-11.) Petitioner also filed a post-conviction state habeas-corpus

application challenging his conviction, which was denied by the

Texas Court of Criminal Appeals without written order. (SHR 3-24 &

Action Taken, docs. 19-26 & 19-23, respectively.1)

The state appellate court summarized the facts of the case as

follows:

Wes Corzine is the principal of Graford Elementary

School. He testified that Graford Elementary School and

Graford High School share some of the same facilities,

including restrooms. On April 4, 2014, he saw a plastic

baggie lying in the hallway outside of the boys’

restroom. Corzine picked up the baggie and observed that

it contained clear “rocks” with some powdery residue.

Corzine was suspicious of the contents of the baggie. He

transported the baggie and its contents to his office,

and he contacted Constable Marc Moon to investigate the

matter further. While waiting on Constable Moon to arrive

at the school, Corzine reviewed surveillance video from

the hallway. Corzine was able to determine from the video

that the baggie fell out of the pocket of J.P., a high

school student.

Constable Moon suspected that the baggie contained

methamphetamine. He contacted Investigator Job Espinoza

of the City/County Narcotics Unit to bring a presumptive

drug test kit to the school to test the contents of the

baggie for methamphetamine. Constable Moon also confirmed

from the surveillance video that J.P. was the person that

dropped the baggie. After interviewing J.P. at the

1“SHR” refers to the record of Petitioner’s state habeas proceeding in WR-

86,727-01. Because the record is not paginated, the pagination in the ECF header

is used.

2

school, Constable Moon transported him to a magistrate so

that a formal statement could be taken from J.P. Based

upon the information obtained from J.P., Constable Moon

obtained an arrest warrant for [Petitioner].

Investigator Espinoza is the senior narcotics

officer for the City/County Narcotics Unit. He testified

that the presumptive test that he performed on the

contents of the baggie was positive for the presence of

methamphetamine. Subsequent testing of the contents of

the baggie at the DPS Crime Laboratory in Abilene

revealed that the substance weighed 0.45 grams and that

it contained methamphetamine.

J.P. was sixteen on April 4, 2014, and he was a

freshman at Graford High School at the time. J.P.

testified that he saw [Petitioner] on the previous day.

When asked what had caused J.P. to see [Petitioner] that

day, J.P. replied, “[I] [t]exted him and told him I had

money and to come pick me [up] to get some drugs. And he

came and picked me up and left me at a gas station.”

Specifically, J.P. testified that he had eighty dollars

and that he wanted [Petitioner] to get him

methamphetamine. The prosecutor asked J.P., “Now, how did

you know to call [Petitioner]?” J.P. replied, “Because I

dealt with him several times before.”

J.P. testified that [Petitioner] picked him up at

his house and transported him to a closed business in

Palo Pinto County. [Petitioner] returned fifteen minutes

later with a gram of methamphetamine that he delivered to

J.P. J.P. testified that he gave a “bump” of the

methamphetamine to [Petitioner] for [Petitioner]’s use.

[Petitioner] then transported J.P. back home. J.P. took

the remaining methamphetamine to school the next day.

J.P. and some of his friends snorted a portion of the

methamphetamine at school prior to J.P. dropping the

methamphetamine in the hallway.

(Mem. Op. 2-3, doc. 19-4.)

II. ISSUES

Petitioner asserts that his rights under the United States

Constitution were violated on the following grounds:

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(1) his trial counsel was ineffective by allowing the

prosecution to bolster witness testimony “with out

of evidence testimony”;

(2) the evidence was insufficient as to an element of the

charge;

(3) the trial court abused its discretion by allowing

an officer to present “expert witness” testimony

that was irrelevant to the charged offense;

(4) his trial counsel was ineffective by failing “to carry

objection to conclusion allowing ‘others’ to testify

without being present”; and

(5) his trial counsel “through numerous ineffective errors

abandons his client.”

(Pet. 6-8; doc. 1.2)

III. RULE 5 STATEMENT

Respondent believes that Petitioner has sufficiently exhausted

his state-court remedies as to the claims raised and asserts that

the petition is neither barred by limitations nor subject to the

successive-petition bar. (Resp’t’s Answer 5-6, doc. 17.)

IV. STANDARD OF REVIEW

A § 2254 habeas petition is governed by the heightened

standard of review provided for in the Anti-Terrorism and Effective

Death Penalty Act (AEDPA). 28 U.S.C. § 2254. Under the Act, a writ

of habeas corpus should be granted only if a state court arrives at

a decision that is contrary to or an unreasonable application of

2Because a page, which is not paginated, is inserted into the form

petition, the pagination in the ECF header is used.

4

clearly established federal law as established by the United States

Supreme Court or that is based on an unreasonable determination of

the facts in light of the record before the state court. Id. §

2254(d)(1)–(2); Harrington v. Richter, 562 U.S. 86, 100 (2011).

This standard is difficult to meet but “stops short of imposing a

complete bar on federal court relitigation of claims already

rejected in state proceedings.” Richter, 562 U.S. at 102.

Additionally, the statute requires that federal courts give

great deference to a state court’s factual findings. Hill v.

Johnson, 210 F.3d 481, 485 (5th Cir. 2000). Section 2254(e)(1)

provides that a determination of a factual issue made by a state

court shall be presumed to be correct. This presumption of

correctness applies to both express and implied findings of fact.

Valdez v. Cockrell, 274 F.3d 941, 948 (5th Cir. 2001). A petitioner

has the burden of rebutting the presumption of correctness by clear

and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v.

Cockrell, 537 U.S. 322, 340 (2003); Williams v. Taylor, 529 U.S.

362, 399 (2000).

Furthermore, when the Texas Court of Criminal Appeals, the

state’s highest criminal court, denies relief without written

order, typically it is an adjudication on the merits, which is

likewise entitled to this presumption. Richter, 562 U.S. at 100; Ex

parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997). In such

a situation, a federal court “should ‘look through’ the unexplained

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decision to the last related state-court decision providing”

particular reasons, both legal and factual, “presume that the

unexplained decision adopted the same reasoning,” and give

appropriate deference to that decision. Wilson v. Sellers, 138 S.

Ct. 1188, 1191-92 (2018). If there is no related state-court

decision providing the courts’ reasoning, a federal court may imply

fact findings consistent with the courts’ disposition of the

claims, assume that the state courts applied the proper clearly

established federal law to the facts of the case, and then

determines whether its decision was contrary to or an objectively

unreasonable application of that law. 28 U.S.C.A. § 2254(d)(1);

Virgil v. Dretke, 446 F.3d 598, 604 (5th Cir. 2006); Valdez v.

Cockrell, 274 F.3d 914, 948 n.11 (5th Cir. 2001). A federal court

defers to and accepts a state court’s interpretation of its own

law, unless that interpretation violates the United States

Constitution. Creel v. Johnson, 162 F.3d 385, 391 (5th Cir. 1998).

V. DISCUSSION

A. Ineffective Assistance of Counsel

Under his first, fourth, and fifth grounds, Petitioner claims

that he received ineffective assistance of trial counsel. (Pet. 6-

8, doc. 1.) A criminal defendant has a constitutional right to the

effective assistance of counsel at trial. U.S. CONST. amend. VI,

XIV; Evitts v. Lucey, 469 U.S. 387, 396 (1985); Strickland v.

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Washington, 466 U.S. 668, 688 (1984). To establish ineffective

assistance of counsel a petitioner must show (1) that counsel’s

performance fell below an objective standard of reasonableness and

(2) that but for counsel’s deficient performance the result of the

proceeding would have been different. Strickland, 466 U.S. at 688.

Both prongs of the Strickland test must be met to demonstrate

ineffective assistance. Id. at 687, 697.

In applying this test, a court must indulge a strong

presumption that counsel’s conduct fell within the wide range of

reasonable professional assistance or sound trial strategy. Id. at

668, 688-89. Judicial scrutiny of counsel’s performance must be

highly deferential and every effort must be made to eliminate the

distorting effects of hindsight. Id. at 689. Where a petitioner’s

ineffective-assistance claims have been reviewed on their merits

and denied by the state courts, federal habeas relief will be

granted only if the state courts’ decision was contrary to or

involved an unreasonable application of the Strickland standard in

light of the state-court record. Richter, 562 U.S. at 100-01

(quoting Williams v. Taylor, 529 U.S. 362, 410 (2000)); Bell v.

Cone, 535 U.S. 685, 698-99 (2002). Thus, a federal court’s review

of state-court decisions regarding ineffective assistance of

counsel must be “doubly deferential” so as to afford “both the

state court and the defense attorney the benefit of the doubt.”

Burt v. Titlow, 571 U.S. 12, 15 (2013) (quoting Cullen v.

Pinholster, 563 U.S. 170, 190 (2011)).

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Petitioner claims his trial counsel, Tim Ford, was

ineffective—

÷ by allowing the prosecution to bolster witness

testimony “with out of evidence testimony”;

÷ by failing “to carry objection to conclusion allowing

‘others’ to testify without being present”; and

÷ “through numerous ineffective errors” abandoning him.

(Pet. 6-8, doc. 1.)

As to the first two claims, Petitioner asserts that the

prosecution bolstered J.P.’s testimony by eliciting the following

hearsay testimony from the school principal, Wes Corzine, and using

the testimony during closing argument:

Q. -- you were asked if you were familiar with the

defendant here, and your response was you’d heard his

name. In what context had you heard his name?

A. I heard his name from other parents at my

school. Just -- you know, bad guy, you know, just

provides -- has been rumored to provide drugs to others

and just not looked upon favorable.

Q. Had you ever received any complaints from

parents about the defendant?

[Counsel]: I’m going to object at this point.

I think we’re getting into some extraneous stuff that’s

not admissible.

[Prosecutor]: The door is wide open. They

opened the door on -- asked him if he knew him and --

[Counsel]: I asked him if he knew [Petitioner]

and is connected to this case.

[Prosecutor]: Well, I’ll have no further

questions.

[The Court]: It’s also hearsay, what somebody

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else said.

(Reporter’s R., vol. 7, 40-41, doc. 19-20 (emphasis added).) During

closing argument, the prosecutor stated:

And it boils down to do you believe [T.P.] or not?

If you don’t, then find [Petitioner] not guilty. But I

submit to you folks, this kid was -- came across about as

sincere as they could -- as he could be.

And what else tends to show that he might be telling

the truth? Mr. Corzine said they’d been getting

complaints from parents about this defendant, same kind

of conduct. Kind of lends a little ring of truth to what

[T.P] was saying here.

(Id. at 134 (emphasis added).) Petitioner asserts that counsel was

ineffective by failing to “make the proper objection or carry such

objection to a conclusion,” move for a mistrial, move to strike the

testimony from the record, or request a curative jury instruction.

(Pet’r’s Mem. 4-5, 8-10, doc. 3.)

The state habeas judge, who also presided at trial, conducted

a hearing by affidavit, and, to the extent raised in Petitioner’s

state habeas application, trial counsel responded to the

allegations in an affidavit as follows:

[O]bjections were made throughout the trial and ruled

upon immediately by the Court. In the Court’s charge to

the jury, the jury was instructed that what the attorneys

say during closing arguments is not evidence.

[T]he jury charge for guilt innocence and the jury charge

for punishment informed the jury that what the lawyers

say during opening statements and closing arguments is

not evidence. Affiant is not sure what is meant by

[Petitioner]’s statement saying that the District

Attorney bolstered the testimony of State’s witnesses.

The record indicates that the District Attorney informed

the jury during opening statements what he thought the

9

evidence would show and informed the jury what was

testified to during the trial by the State’s witnesses

and reasonable deductions from the evidence presented

during closing arguments.

(SHR 43-44, doc. 19-27.)

Based on counsel’s affidavit, the documentary record, and his

own recollection of the trial proceedings, the state habeas judge

expressly found that trial counsel was not ineffective and the

Texas Court of Criminal Appeals denied relief without written

order. (Id. at 42.) To the extent more particularized findings were

not made by the trial court, this Court may imply factual findings

consistent with the state courts’ disposition and, absent any

evidence that incorrect standards were applied, assume that the

state courts applied the Strickland standard when considering the

claims.

Relying on the presumptive correctness of the state courts’

express and implied factual findings, and having independently

reviewed Petitioner’s claim in conjunction with the state-court

records, the state courts’ application of Strickland is not

objectively unreasonable under the doubly-deferential standard

applied to such claims. Even if Petitioner could establish

deficient performance, which he has not, the jury accepted the

testimony of J.P. regarding the identity of the person who

delivered the methamphetamine to him and rejected the defensive

theory that Petitioner was not involved. Under these circumstances,

Petitioner cannot establish prejudice—i.e., that Corzine’s

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testimony had a substantial and injurious effect or influence in

determining the jury’s verdict. See Taylor v. Cain, 545 F.3d 327,

307 (5th Cir. 2003); Hughes v. Quarterman, 530 F.3d 336, 345 (5th

Cir. 2008). For the same reason, Petitioner cannot show any

prejudice attendant to counsel’s failure to “make the proper

objection or carry such objection to a conclusion,” move for a

mistrial or to strike the testimony from the record, or request a

curative jury instruction. See Galvan v. Cockrell, 293 F.3d 760,

766 (5th Cir. 2002); Harris v. Warden, Louisiana State

Penitentiary, 152 F.3d 430, 439, 440 n.11 (5th Cir. 1998).

Further, juries are presumed to follow the instructions of the

presiding judge, and Petitioner presents no evidence in an effort

to show that the jury did not follow instructions in this case. See

Zafiro v. United States, 506 U.S. 534, 540 (1993) (noting that a

potential risk of prejudice can be cured with proper instructions,

and that “juries are presumed to follow their instructions”

(internal quotation marks and citation omitted)). Therefore, he has

not established that the prosecutor’s complained-of closing

argument was considered by the jury to be evidence and therefore

crucial to the jury’s decision-making process.

Under his final claim, Petitioner asserts that counsel

“abandoned” him “through various ineffective grounds,” presented no

no evidence in rebuttal to the state’s evidence, and advised the

jury to find him guilty. (Pet. 8-12, doc. 1, Pet’r’s Mem. 10-14.)

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Petitioner asserts a laundry list of alleged “instances” of

deficient performance by counsel “making up one whole within the

ineffective assistance clause” of Strickland, without demonstrating

how the alleged errors were constitutionally deficient or any

specific prejudice. Therefore, the claims are conclusory and do not

raise a constitutional issue in a federal habeas proceeding. Miller

v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000); Ross v. Estelle, 694

F.2d 1008, 1012 (5th Cir. 1983).

Petitioner asserts that counsel failed to present evidence of

“not-guilty” and, instead, attempted “to use evidence ‘not

presented or in the record’ as some type of proof that his client

isn’t guilty.” (Pet’r’s Mem. 13, doc. 3.) According to Petitioner,

once the state met its burden of proof,

the burden then transfers to defense, and counsel had no

evidence to present, no mitigating evidence, no physical

evidence and no trial strategy that would allow him to

argue in the defensive.

(Pet’r’s Mem. 13, doc. 3.)

However, Petitioner fails to point to any favorable evidence

that was known or could have become known to counsel at the time of

his trial. “Absent evidence in the record, a court cannot consider

a habeas petitioner’s bald assertions on a critical issue in his

pro se petition (in state and federal court), unsupported and

unsupportable by anything else contained in the record, to be of

probative evidentiary value.” Ross, 694 F.2d at 1011.

Lastly, Petitioner asserts counsel advised the jury to find

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him guilty. (Pet. 8, doc. 1; Pet’r’s Mem. 14, 3.) Counsel responded

to this claim in his affidavit as follows:

[D]uring closing argument from defense counsel, after

defense counsel had informed the jury as to what evidence

was not there and not believe the testimony of [J.P.] and

he didn’t obtain the methamphetamine from [Petitioner],

counsel requested the jury find [Petitioner] guilty and

immediately realized what he had said and informed the

jury “I mean not guilty, sorry, you know what I mean.

None of the argument from defense counsel was for a

guilty verdict. All of the argument and all of the

evidence presented by defense counsel was for not

guilty.”

(SHR 44, doc. 19-27.)

Clearly, counsel’s misstatement was an oral lapse and promptly

corrected. Petitioner presents nothing to suggest that the jury was

in any way confused as to the salient details of counsel’s

argument. The Court reemphasizes that such bald assertions do not

raise a constitutional issue in a federal habeas proceeding.

In summary, Petitioner has not demonstrated deficient

performance or shown any reasonable probability that the outcome of

his trial would have been different but for counsel’s alleged

deficiencies. He is not entitled to relief under grounds one, four,

or five.

B. Sufficiency of the Evidence

Under his second ground, Petitioner claims that the evidence

was insufficient to prove the element of delivery because there was

no evidence connecting him to the methamphetamine other than J.P.’s

uncorroborated testimony and the lab report naming Petitioner as

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the “possessor of the substance.” (Pet. 6, 11-13, doc. 1; Pet’r’s

Mem. 5-6, doc. 3.)

Federal habeas review of a legal sufficiency claim is

extremely limited. The inquiry in a legal-sufficiency analysis

requires only that a reviewing court determine whether, after

viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319 (1979). In conducting a Jackson

review, a federal habeas court may not substitute its view of the

evidence for that of the fact finder, but must consider all of the

evidence in the light most favorable to the prosecution, with all

reasonable inferences to be made in support of the jury’s verdict.

United States v. Moser, 123 F.3d 813, 819 (5th Cir. 1997); Weeks v.

Scott, 55 F.3d 1059, 1061 (5th Cir. 1995). Where a state appellate

court has conducted a thoughtful review of the evidence, its

determination is entitled to great deference. Callins v. Collins,

998 F.2d 269, 276 (5th Cir. 1993).

In Texas, it is an offense if a person knowingly delivers a

controlled substance by actual transfer or constructive transfer to

a person who is a child. See TEX. HEALTH & SAFETY CODE ANN. § 481.122

(West 2017). Based on the evidence adduced at trial, the state

appellate court, applying the Jackson standard, addressed the claim

as follows:

[Petitioner] focuses his third issue on his

challenge to the sufficiency of the evidence that was

asserted in his motion for directed verdict. [Petitioner]

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essentially contends that J.P.’s testimony identifying

[Petitioner] as the source of the methamphetamine was too

weak to support [Petitioner]’s conviction. He argues that

J.P. had a “troubled life,” used drugs, and was a poor

student at school. He also asserts that there was no

other evidence other than J.P.’s testimony identifying

[Petitioner] as the source of the methamphetamine that

J.P. dropped in the school hallway.

As noted previously, [Petitioner] also asserted a

contention in support of his motion for directed verdict

that J.P. was an accomplice and that his testimony was

not sufficiently corroborated. This appeared to be a

reference to the corroboration requirement of TEX. CODE

CRIM. PROC. ANN. art. 38.14 . . . . As correctly noted by

the trial court, J.P. was not an accomplice because the

“recipient” in a drug delivery offense is not an

accomplice as a matter of law under Rodriguez v. State,

104 S.W.3d 87, 91–92 (Tex. Crim. App. 2003), a case that

also involved the offense of delivery of a controlled

substance to a minor. While [Petitioner] asserts on

appeal that “[t]here was no corroboration of [J.P.’s]

identification from any other source,” he has not

presented a claim on appeal under Article 38.14. J.P.

testified that [Petitioner] delivered the methamphetamine

to him that he dropped in the school hallway. J.P.

detailed the specifics of the transaction that occurred

on the previous day, including how he contacted

[Petitioner], the amount that he paid for the

methamphetamine, the amount of the drug that he

purchased, and the location where the delivery occurred.

This transaction was not an isolated incident because

J.P. testified that he had dealt with [Petitioner]

several times before. J.P.’s testimony concerning the

source of the methamphetamine was inherently a matter of

credibility that the jury was required to resolve. Under

the applicable standard of review, the jury was the sole

judge of J.P.’s credibility, and we defer to that

determination. . . . Viewing the evidence in the light

most favorable to the jury’s verdict, we conclude that a

rational trier of fact could have found the elements of

the alleged offense beyond a reasonable doubt.

(Mem. Op. 4-5, doc. 19-4.)

The state court’s application of Jackson was not objectively

unreasonable. The jury retains the sole authority to judge the

15

credibility of the witnesses and decide how much weight should be

given to their testimony. United States v. Layne, 43 F.3d 127, 130

(5th Cir. 1995). Deferring to the state courts’ conclusion that

J.P. was not an accomplice to the offense as defined by state law,

no corroboration of his testimony was necessary. Therefore, even if

J.P.’s testimony was the only evidence against Petitioner, the

claim is meritless. It is clear that J.P. may not have been the

most pristine witness, however the jury chose to believe his

testimony and to convict Petitioner. Petitioner is not entitled to

relief under ground two.

C. Abuse of Discretion

Under his third ground, Petitioner claims that the trial court

abused its discretion by allowing “an officer to present ‘expert

witness’ testimony that was not relevant to the charged offense.”

(Pet. 7, doc. 1.) Specifically, Petitioner objects to Constable

Moon’s testimony regarding the effects of methamphetamine on a 5-

year-old. (Pet’r’s Mem. 7-8, doc. 3.)

The state habeas court found that, save for Petitioner’s

ineffective-assistance-of-counsel claims, all grounds raised in his

state habeas application either were or could have been raised on

direct appeal. (SHR 42, doc. 19-27.) This claim was not raised on

direct appeal. The Texas Court of Criminal Appeals has repeatedly

held that claims that could have been raised on direct appeal, but

were not, may not be raised for the first time in a state habeas

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petition. See Ex parte Gardner, 959 S.W.2d 189, 199-200 (Tex. Crim.

App. 1998). Under the procedural default doctrine, a federal court

may not consider a state prisoner’s federal habeas claim when the

last state court to consider the claim expressly and unambiguously

based its denial of relief on an independent and adequate state

procedural default. See Ylst v. Nunnemaker, 501 U.S. 797, 802-04

(1991); Coleman v. Thompson, 501 U.S. 722, 729 (1991); Fisher v.

Texas, 169 F.3d 295, 300 (5th Cir. 1999). “This doctrine ensures

that federal courts give proper respect to state procedural rules.”

Glover v. Cain, 128 F.3d 900, 902 (5th Cir. 1997).

The state habeas court clearly relied upon a firmly

established and regularly followed state procedural rule to

recommend denial of this claim. See Aguilar v. Dretke, 428 F.3d

526, 535 (5th Cir. 2005); Ex parte Banks, 769 S.W.2d 539, 540 (Tex.

Crim. App. 1989) (holding “the Great Writ should not be used to

litigate matters which should have been raised on appeal”).

Therefore, absent a showing of cause and prejudice or a miscarriage

of justice, such showing not having been demonstrated, the claim is

procedurally barred from this court’s review. See Coleman, 501 U.S.

at 750.

VI. Conclusion

For the reasons discussed, the Court DENIES Petitioner’s

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Further, Federal Rule of Appellate Procedure 22 provides that

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an appeal may not proceed unless a certificate of appealability is

issued under 28 U.S.C. § 2253. A certificate of appealability may

issue “only if the [Petitioner] has made a substantial showing of

the denial of a constitutional right.” Miller-El v. Cockrell, 537

U.S. 322, 336 (2003). “Under this standard, when a district court

denies habeas relief by rejecting constitutional claims on their

merits, ‘the petitioner must demonstrate that reasonable jurists

would find the district court’s assessment of the constitutional

claims debatable or wrong.’” McGowen v. Thaler, 675 F.3d 482, 498

(5th Cir. 2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484

(2000)). When the district court denies the petition on procedural

grounds without reaching the merits, the petitioner must show “that

jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right and

that jurists of reason would find it debatable whether the district

court was correct in its procedural ruling.” Id. (quoting Slack,

529 U.S. at 484). Petitioner has not made a showing that reasonable

jurists would question this Court’s resolution of Petitioner’s

18

constitutional claims and/or procedural rulings. Therefore, a

certificate of appealability should not issue.

SIGNED June 4, 2020.

ee

fey R. Ia

UNITED STATES DISTRICT JUDGE

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Counsel stated during voir dire by stating:

We’ve made reference to this, but I want to take it

just a little bit further. You understand, and Mr. Burns

told you, that the State has the absolute burden of

proving this case, all right?

What that means on the flip side is I don’t have to

do anything. I don’t have to cross-examine any witnesses.

I don’t have to make any statements. I don’t have to make

any objections. I don’t have to call any witnesses. I

don’t have to do anything. The burden is absolutely

completely on the State.

The last time I was up here, the lady in the back,

she stood up and she said: Mr. Ford, I think if you were

sitting by me and I was in trouble, I’d want you to say

a few things.

Well, I’m probably going to do that. But

understanding the law states I don’t have to do anything.

Not a thing. The burden is completely on them.

So anybody -- show of hands or numbers. Anybody

would require us, Mr. Brown or myself, to do something

during this trial other than just sit there and sit on

our hands?

Because that’s all we have to do. If you can follow

that, that’s what we’re asking. If you can’t, it’s okay.

We just need to know about it.

(Reporter’s R., vol. 6, doc. 19-19.)

Counsel responded to the allegations in an affidavit, in which

he stated:

When this case went to trial, Thomas Zinn Brown

(TZB) was appointed to represent [Petitioner] (no

relation). TZB worked at this office at the time and

requested my help with the jury trial.

I have read through [Petitioner]’s ineffective

assistance of counsel allegations and will respond to

them in the chronological order they appear.

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Pertaining to Ground #2, [Petitioner] instructed

affiant that the drugs that Joseph Potts possessed were

not given to Joseph Potts by [Petitioner] so anything the

lab report indicated did not matter to the defense. The

strategy was determined with TZB and [Petitioner] to not

object to anything about the substance because

[Petitioner] never handled the substance and it did not

matter if an expert testified as to its substance.

Pertaining to Ground #3, does not make any sense to

affiant from the standpoint that TZB nor affiant did not

represent Joseph Potts. From a legal standpoint, that

issue does not pertain to [Petitioner].

Pertaining to Ground #4, [Petitioner] indicates in

his document that he believes that it was adequately

proven that Joseph Potts was an accomplice to the crime.

During the trial, the defense never admitted that Joseph

Potts was an accomplice to possessing the

methamphetamine. Had the defense admitted that Joseph

Potts was an accomplice, that would have had [Petitioner]

admitting to possessing and delivering the

methamphetamine. The fact that [Petitioner] said he

didn’t possess or deliver any methamphetamine to Joseph

Potts was the theory of the defense along with

[Petitioner].

Pertaining to Ground #5, the evidence presented by

the State at trial was a security tape from Graford ISD

showing a baggie containing a controlled substance ,

containing methamphetamine drop from the front pant

pocket of Joseph Potts. Joseph Potts testified that he

received the methamphetamine from [Petitioner] prior to

taking it to school. Obviously the jury believed Joseph

Potts was a credible witness.

Pertaining to Ground #6, the jury charge for guilt

innocence and the jury charge for punishment informed the

jury that what the lawyers say during opening statements

and closing arguments is not evidence. Affiant is not

sure what is meant by [Petitioner]’s statement saying

that the District Attorney bolstered the testimony of

State’s witnesses. The record indicates that the District

Attorney informed the jury during opening statements what

he thought the evidence would show and informed the jury

what was testified to during the trial by the State’s

witnesses and reasonable deductions from the evidence

presented during closing arguments.

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Pertaining to Ground #7, Constable Moon testified

that through his training and experience of years of law

enforcement and working many cases involving

methamphetamine, the effects that methamphetamine has on

a person. The Court determined that he was qualified to

testify to that information. Further, [Petitioner] and

the defense stated that the methamphetamine that Joseph

Potts dropped at Graford School was not obtained from

[Petitioner].

Pertaining to Ground #8, during closing argument

from defense counsel, after defense counsel had informed

the jury as to what evidence was not there and not

believe the testimony of Joseph Potts and he didn’t

obtain the methamphetamine from [Petitioner], counsel

requested the jury find [Petitioner] guilty and

immediately realized what he had said and informed the

jury “I mean not guilty, sorry, you know what I mean.

None of the argument from defense counsel was for a

guilty verdict. All of the argument and all of the

evidence presented by defense counsel was for not guilty.

(SHR 43-44, doc. 19-27.)

Applying the Jackson standard, the appellate court addressed the

Petitioner raised this claim on appeal, however the Texas Court of

Criminal Appeals refused Petitioner’s petition for discretionary

review without written order. Thus, this Court “should ‘look

through’ the unexplained decision to the last related state-court

decision providing” particular reasons, both legal and factual,

“presume that the unexplained decision adopted the same reasoning,”

and give appropriate deference to that decision. Wilson v. Sellers,

--- U.S. ---, 138 S. Ct. 1188, 1191-92 (2018).

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