# Brantley v. Director, TDCJ-CID

> District Court, N.D. Texas · February 13, 2024

URL: https://www.frixlaw.com/law-library/cases/10671617

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** February 13, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10671617

## How later opinions describe it (automated extraction)

- rejecting ineffective assistance of counsel claim where petitioner did not present any evidence or allegations concerning what the expert would have stated, or what results the scientific tests would have yielded
- recognizing that under Texas law a claim regarding sufficiency of the evidence may be raised on direct appeal but not in a habeas corpus proceeding

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

ROSS THOMAS BRANTLEY, III,

Petitioner,

v. No. 4:23-CV-317-P

BOBBY LUMPKIN, Director,
TDCJ- CID,

Respondent.

MEMORANDUM OPINION & ORDER

Before the Court is a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 filed by petitioner, Ross Thomas Brantley, III
(“Brantley”), a state prisoner confined in the Wynne Unit of the
Correctional Institutions Division of the Texas Department of Criminal
Justice (TDCJ-CID), against Bobby Lumpkin, director of that division,
Respondent. After considering the pleadings and relief sought, the Court
concludes that the petition must be DENIED.

BACKGROUND

Brantley is in custody pursuant to judgments and sentences of the
Criminal District Court Number One of Tarrant County, Texas, in case
number 1609793R, styled The State of Texas v. Ross Thomas Brantley,
III. CR1 573–605 (judgments and sentences for ten counts of aggravated
sexual assault of a child and six counts of indecency with a child), ECF
No. 30-2. In that case, Brantley pleaded not guilty before a jury, but the
jury found him guilty and sentenced him to life imprisonment for each

1“CR” refers to the trial court Clerk’s Record followed by the applicable page
number found on this court’s docket at ECF No. 30-2.
1
of the counts of aggravated sexual assault and twenty years’
confinement for the counts of indecency with a child on September 13,
2019, with each count to be served concurrently, except Counts One and
Two, which are to run consecutively. Id.
Brantley appealed, but the appellate court affirmed his convictions
in August of 2021. Brantley v. State, No. 02-19-00349-CR, 2021 WL
3679239 (Tex. App.—2021, pet. ref’d). He then filed a petition for
discretionary review with the Texas Court of Criminal Appeals (TCCA),
but it was on December 15, 2021. Brantley v. State, No. PD-0645-21 (Tex.
Crim. App.—2021), ECF No. 30-23; see https://search.txcourts.gov/Case
.aspx?cn=PD-0645-21&coa=coscca.
Although Brantley has a long habeas history, only his two most
recent state habeas applications relate to the underlying conviction facts
made the basis of this § 2254 petition. Pet. 1, ECF No. 1. He filed his
first relevant state habeas application in March 2022, but the TCCA
dismissed his application without written order for non-compliance with
Rule 73.2 of the Texas Rules of Appellate Procedure on April 27, 2022.
SHCR-302 at 43-48, ECF No. 30-108; “Action Taken” sheet, ECF No. 30-
103. Brantley then filed a federal § 2254 petition, but the district court
dismissed that petition without prejudice on December 7, 2022. Brantley
v. Lumpkin, NO. 4:22-CV-415-O, 2022 WL 17489180 (N.D. Tex. Dec. 7,
2022).
Brantley filed his second relevant state habeas application no earlier
than May 5, 2022. SHCR-31 at 61-64, ECF No. 30-111.The TCCA
“denied” his application “without written order on findings of the trial
court without hearing and on the Court’s independent review of the
record” on December 21, 2022. SHCR-31 “Action Taken” sheet, ECF No.
30-109. Brantley then filed the instant petition under 28 U.S.C. § 2254

2“SHCR-30” refers to the Clerk’s Record of pleadings and documents filed with the
state court during Petitioner’s first state habeas corpus proceedings relating to his
current claims. See generally, Ex parte Brantley, Application No. 77,234-30, ECF Nos.
30-103 through 30-108. “SHCR-31” refers to the Clerk’s Record of pleadings and
documents filed with the state court during Petitioner’s second state habeas corpus
proceedings relating to his current claims. See generally, Ex parte Brantley,
Application No. 77,234-31, ECF Nos. 30-109 through 30-111.
2
no earlier than March 15, 2023. Pet. 15 (signature date), ECF No. 1. The
State summarized the facts of this case in its appellate brief as follows:
[Appellant] was convicted by a Tarrant County jury of
sixteen sex offenses committed against JT1, the daughter
of his girlfriend, TT. CR. at 538–553; 573–604. Following
three days of testimony, during which fourteen witnesses
testified for the State, Appellant was convicted and
sentenced by the jury to confinement for life and a fine of
$10,000 in each of the first ten counts, and twenty years’
confinement and a fine of $10,000 in each of the remaining
six counts. CR. at 557–572; 573–604. The trial court
ordered the sentences on counts one and two run
consecutive (“stacked”), with the sentences on the
remaining counts ordered to run concurrent. CR. at 573–
605; RR. Vol. VII at 100.
Summarized, the testimony showed JT endured a
much-repeated pattern of sexual abuse at Appellant’s
hands beginning in 2005, when she was “probably around
8 or 9” years old. RR. Vol. 5 at 19.
JT told the jurors she was a twenty-year-old student
attending Sam Houston State University in Huntsville.
RR. Vol. 5 at 7–8. She was TT’s only daughter, the oldest
of three siblings. RR. Vol. 4 at 36–37. Her biological father
died shortly before she turned four, and during the course
of her mother’s subsequent relationship with Appellant, JT
was often alone with him. RR. Vol. 5 at 20–26. Most of the
abuse occurred after her mother and Appellant moved the
family into an apartment in Southwest Fort Worth, then
following a subsequent move to a home in the
Meadowbrook area. RR. Vol. 5 at 20–22, 43–36 [sic]. The
abuse was repeated (“it happened a lot” RR. Vol. 5 at 25),
and consisted of all forms of sex: organ to organ contact,
including penetration; oral sex by Appellant on JT, as well
as his insistence that she perform oral acts on him; anal
sex; and forced contact during foreplay. RR. Vol. 5 at 22–
27, 30, 32, 37–38. Appellant also required that JT watch
graphic pornographic films in order to educate her on sex,
and threatened her into remaining silent. RR. Vol. 5 at 25,
28. Her sexual abuse outcry occurred after she was
discovered to have contracted genital herpes, a condition
Appellant had earlier confided to TT that he had. RR. Vol.
4 at 65-69; Vol. 5 at 48–49.
3
This and other aspects of JTs outcry were corroborated
by other witnesses, including a nurse who examined her
when she testified positive for herpes, the detective whose
testimony forms the basis of Appellant’s complaint on
appeal, and JT’s mother, TT. RR. Vol. 4 at 35–84; 108–154;
164–197.
State’s Brief at 6–7, Brantley v. State, No. 02-19-00349-CR, ECF No. 30-
13. Brantley alleges as follows:
I. The State violated his right to a speedy trial by waiting
over two years to bring him to trial;
II. He received ineffective assistance of trial counsel
because trial counsel failed to investigate, object to
bolstering, move for a directed verdict, impeach the
victim’s mother, obtain “a specialist” to testify for the
defense, ask for mistrial based on an alleged juror outburst,
object to the indictment, obtain his medical records, or
move for a speedy trial;
III. The State violated the Double Jeopardy clause by
reindicting him with a new cause number or new counts;
IV. He is actually innocent because DNA evidence did not
match him; and,
V. A juror was biased, depriving him of an impartial jury
and a fair trial.
Pet. 5-10, ECF No. 1; Supp. Pet. 2-3; Am. Pet 5, ECF No. 22;
Reply/Traverse.3

LEGAL STANDARD

Section 2254(d) reflects the view that habeas corpus is a guard
against extreme malfunctions in state criminal justice systems, not a
substitute for ordinary error correction through appeal. For claims that

3Brantley asserted claims in his § 2254 petition (ECF No. 1), in a supplemental
petition (entitled “Motion for Leave to File a Motion of Immunity”) (ECF No. 18), and
in an amended petition (entitled “Motion for Leave to Amend”) (ECF No. 22). The Court
has considered the claims in all three pleadings. As such, the motion for leave to amend
(ECF No. 22) is GRANTED only to the extent the Court has considered the grounds
raised therein. Brantley also filed a document entitled “Motion for Leave to File
Traverse”) which the Court has construed as a reply/traverse raising the additional
ground of juror bias. ECF No. 33. That motion is also GRANTED only to the extent
the Court has reviewed and considered a new juror bias claim.
4
were adjudicated in state court, § 2254(d) imposes a highly deferential
standard that demands a federal court grant habeas relief only where
one of two conditions are present in the state court judgment. A federal
court may grant relief if the state court adjudicated a constitutional
claim contrary to, or unreasonably applied clearly established federal
law as determined by the Supreme Court. Harrington v. Richter, 562
U.S. 86, 100–01 (2011) (citing (Terry) Williams v. Taylor, 529 U.S. 362,
412 (2002)). Or the court may grant relief if the state court decision was
based on an unreasonable determination of facts in light of the record.
Id. Section 2254(d)’s standard is necessarily difficult to meet because it
was so designed.
A state court decision can be “contrary” to established federal law in
two ways. (Terry) Williams, 529 U.S. at 405–06. First, if the state court
applies a rule that contradicts Supreme Court precedent. Id. at 405.
Second, if the state court confronts facts that are “materially
indistinguishable” from relevant Supreme Court precedent but reaches
an opposite result. Id. at 406.
A state court decision applying the correct Supreme Court rule to the
facts of a particular case is to be reviewed under the “unreasonable
application” clause. (Terry) Williams, 529 U.S. at 406. A state court
unreasonably applies Supreme Court precedent only if it correctly
identifies the governing precedent but unreasonably applies it to the
facts of a particular case. Id. at 407–09. The focus of this test is not on
the state court’s method of reasoning, but rather on its ultimate legal
conclusion. Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc)
(“It seems clear to us that a federal habeas court is authorized by Section
2254(d) to review only a state court’s ‘decision,’ and not the written
opinion explaining that decision.”).
To determine if the state court made an unreasonable application, a
federal court “must determine what arguments or theories supported or
. . . could have supported, the state court’s decision; and then it must ask
whether it is possible fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a prior
5
decision of this Court.” Harrington, 562 U.S. at 87. Thus, “a state court’s
determination that a claim lacks merit precludes federal habeas relief
so long as ‘fairminded jurists could disagree’” on the correctness of the
state court’s decision. Id. (quoting Yarborough v. Alvarado, 541 U.S. 652,
664 (2004)). Further, in reviewing a state court’s merits adjudication for
reasonableness, a federal court is limited to the record that was before
the state court. § 2254(d)(2); Cullen v. Pinholster, 563 U.S. 170, 181
(2011).
The question for federal review is not whether the state court
decision was incorrect, but whether it was unreasonable, which is a
substantially higher threshold. Schriro v. Landrigan, 550 U.S. 465, 473
(2007). Federal courts look to the “last reasoned opinion” as the state
court’s “decision.” Salts v. Epps, 676 F.3d 468, 479 (5th Cir. 2012). If a
higher state court offered different grounds for its ruling than a lower
court, then only the higher court’s decision is reviewed. Id. “Where a
state court’s decision is unaccompanied by an explanation, the habeas
petitioner’s burden still must be met by showing there was no
reasonable basis for the state court to deny relief.” Harrington, 526 U.S.
at 98; see Johnson v. Williams, 568 U.S. 289, 293 (2013) (holding there
is a rebuttable presumption that the federal claim was adjudicated on
the merits when the state court addresses some claims, but not others,
in its opinion).
This Court must accept as correct any factual determinations made
by the state courts unless Petitioner rebuts the presumption of
correctness by clear and convincing evidence. 28 U.S.C. § 2254(e); see
Ford v. Davis, 910 F.3d 232, 234 (5th Cir. 2018) (“a state court’s factual
findings are presumed to be correct, and the applicant bears the burden
of rebutting that presumption by clear and convincing evidence.”). The
presumption of correctness applies to both implicit and explicit factual
findings. Young v. Dretke, 356 F.3d 616, 629 (5th Cir. 2004); Valdez v.
Cockrell, 274 F.3d 941, 948 n.11 (5th Cir. 2001) (“The presumption of
correctness not only applies to explicit findings of fact, but it also applies
to those unarticulated findings which are necessary to the state court’s
6
conclusions of mixed law and fact.”); see also Sumner v. Mata, 449 U.S.
539, 546-47 (1981) (holding that state appellate courts’ findings are
entitled to the same respect that trial judges’ findings receive).
Deference to the factual findings of a state court is not dependent upon
the quality of the state court’s evidentiary hearing. See Valdez, 274 F.3d
at 951 (holding that “a full and fair hearing is not a precondition to
according § 2254(e)(1)’s presumption of correctness to state habeas court
findings of fact nor to applying § 2254(d)’s standards of review.”).
Further, the district court can “infer the state court’s factual findings”
so long as “some indication of the legal basis for the state court’s denial
of relief” exists. Ford, 910 F.3d at 235 (citing Goodwin v. Johnson, 132
F.3d 162, 184 (5th Cir. 1997)).
Moreover, where the state’s highest court’s decision lacks any
reasoning, “the federal court should ‘look through’ the unexplained
decision to the last related state-court decision that does provide a
relevant rationale. It should then presume that the unexplained
decision adopted the same reasoning.” Wilson v. Sellers, 138 S.Ct. 1188,
1192 (2018).
Furthermore, an evidentiary hearing is precluded unless: (1) a
petitioner’s claims rely on a new rule of constitutional law or a factual
predicate previously undiscoverable through the exercise of due
diligence; and (2) the petitioner establishes by clear and convincing
evidence that, but for constitutional error, no reasonable factfinder
would have found him guilty. 28 U.S.C. § 2254(e)(2). A failure to meet
this standard of “diligence” will bar a federal evidentiary hearing in the
absence of a convincing claim of actual innocence that can only be
established by newly discovered evidence. (Michael) Williams v. Taylor,
529 U.S. 420, 436 (2000). For example, a petitioner’s failure to present
controverted, previously unresolved factual issues to the state court can
qualify as a “failure” under the plain meaning of § 2254(e)(2). Id. at 433.
However, Section 2254(e)(2) has “force [only] where § 2254(d)(1) does not
bar federal habeas relief.” Pinholster, 563 U.S. at 185. Accordingly, even
if a petitioner can leap the § 2254(e)(2) hurdle, “evidence introduced in
7
federal court has no bearing on § 2254(d)(1) review.” Id. And whatever
discretion remains after Pinholster to hold an evidentiary hearing, it is
still appropriate to deny such a hearing if sufficient facts exist to make
an informed decision on the merits. Schriro v. Landrigan, 550 U.S. 465,
474–75 (2007). Petitioner has not met this standard for a hearing.
Also, pre-AEDPA precedent forecloses habeas relief if a claim (1) is
procedurally barred as a consequence of a failure to comply with state
procedural rules, Coleman v. Thompson, 501 U.S. 722, 735 (1991); (2)
seeks retroactive application of a new rule of law to a conviction that
was final before the rule was announced, Teague v. Lane, 489 U.S. 288
(1989); or (3) asserts trial error that, although of constitutional
magnitude, did not have a “substantial and injurious effect or influence
in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619,
637 (1993) (citation omitted).

ANALYSIS

Applying the above referenced standards, the Court finds that it
must defer to the state court determinations and deny habeas relief. The
appellate court first considered one of Brantley’s claims and affirmed his
conviction, and this decision was left standing by the Texas Court of
Criminal Appeals. Brantley, 2021 WL 3679239; Brantley, No. PD-0645-
21. Then the Court of Criminal Appeals denied Brantley’s state habeas
application on findings of the trial court “without written order on
findings of the trial court without hearing and on the Court’s
independent review of the record.” SHCR-31 at 163–92, 196 (habeas trial
court findings of fact and conclusions of law), ECF No. 30-111; SHCR-31
“Action Taken” cover sheet, ECF No. 30-109. Hence, this was an
adjudication on the merits. Singleton v. Johnson, 178 F.3d 381, 384 (5th
Cir. 1999); see Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997); Ex
parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997) (“In our writ
jurisprudence, a ‘denial’ signifies that we addressed and rejected the
merits of a particular claim while a ‘dismissal’ means that we declined
to consider the claim for reasons unrelated to the claim’s merits.”).
8
There has been no showing that the state court resolution of
Brantley’s allegations 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 result
in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceedings.
28 U.S.C. § 2254(d) (West 2014). Therefore, Brantley is not entitled to
relief in this § 2254 proceeding. The Court also engages Brantley’s
claims in detail and rejects them for the particular reasons discussed
below.

I. Speedy Trial Claim-Procedurally Defaulted

Brantley complains in each pleading that the State denied his right
to a speedy trial. Pet. 5, ECF No. 1; Supp. Pet 1, ECF No. 18; Am. Pet 4,
ECF No. 22. Since Brantley did not raise this claim on direct appeal as
required under Texas law, and the state habeas court refused to consider
this claim because he failed to raise this claim on direct appeal, it is
procedurally defaulted.
The state district court during state habeas proceedings concluded
that it could not review this claim due to Brantley’s failure to preserve
and raise the claim for direct appeal purposes. SHCR-31 at 190-91, ECF
No. 30-111. 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 “clearly and expressly” based its denial of
relief on an independent and adequate state procedural default. See
Coleman v. Thompson, 501 U.S. 722, 729-735 (1991); Busby v. Dretke,
359 F.3d 708, 718 (5th Cir. 2004). Indeed, the last state court to consider
the claim was the Texas Court of Criminal Appeals, which “denied”
Brantley’s application “without written order on findings of the trial
court without hearing and on the Court’s independent review of the
record.” SHCR-31 at “Action Taken” sheet, ECF No. 30-109 (emphasis
added). The state habeas court determined the following:
113. Generally, a failure to object will preclude habeas
9
review of a claim just as it would on direct appeal. See Ex
parte Crispen, 777 S.W.2d 103, 105 (Tex. Crim. App. 1989).
114. To preserve error for appeal, there must be a
timely, specific objection and an adverse ruling by the trial
court. Tex. R. App. P. 33.1(a).
115. Because Applicant never received an adverse
ruling on his motion for speedy trial, he failed to preserve
the error for appeal.
116. Because Applicant could have raised his speedy
trial claim at the trial and failed to preserve error, he
cannot raise it on habeas review.
117. “It is well-settled ‘that the writ of habeas corpus
should not be used to litigate matters which should have
been raised on direct appeal.’” Ex parte Gardner, 959
S.W.2d 189, 199 (Tex. Crim. App. 1996), on reh’g (Feb. 4,
1998) (quoting Ex parte Goodman, 816 S.W.2d 383, 385
(Tex. Crim. App. 1991)).
118. To the extent Applicant’s speedy trial claim was
preserved for appeal, he has forfeited the claim because
Applicant failed to raise it on appeal.
119. This Court recommends that Applicant’s sixth
ground for relief be DENIED.

SHCR-31 at 190–91, ECF No. 30-111. By adopting these findings, the
TCCA clearly and expressly based its denial of relief on an independent
and adequate state procedural default, so Brantley’s claim of the denial
of a speedy trial is procedurally defaulted in this Court as well.
In order to overcome this procedural default, Brantley would have to
show “cause and prejudice.” See Engle v. Isaac, 456 U.S. 107, 129 (1982)
(“when a procedural default bars state litigation of a constitutional
claim, a state prisoner may not obtain federal habeas corpus relief
absent a showing of cause and actual prejudice”). Brantley has offered
no showing of cause or prejudice, therefore the Court must apply the
procedural default and dismiss the claim with prejudice.

II. Claims of Ineffective Assistance of Counsel

Brantley claims he received ineffective assistance of trial counsel
(IAC) because his attorney failed to investigate, object to bolstering,
10
move for a directed verdict, impeach the victim’s mother, obtain “a
specialist” to testify for the defense, ask for mistrial based on an alleged
juror outburst, object to the indictment, obtain his medical records, or
move for a speedy trial. Pet. 5-10, ECF No. 1; Supp. Pet. 2-3, ECF No.
18; Am. Pet. 2-3, ECF No. 18. For the reasons explained below, these
claims are conclusory, without merit, and/or procedurally barred.

A. Law applicable to ineffective assistance claims

The familiar two-prong standard by which a claim of ineffective
assistance of counsel is weighed is set forth in Strickland v. Washington,
466 U.S. 668 (1984). In order to establish that counsel’s performance
was constitutionally deficient, a convicted defendant must show that
counsel’s representation “fell below an objective standard of
reasonableness.” Strickland, at 687–88. In so doing, a convicted
defendant must overcome a strong presumption that the conduct of his
trial counsel fell within a wide range of reasonable professional
assistance, and every effort must be made to eliminate the “distorting
effect of hindsight.” Strickland, 466 U.S. at 689. “[T]he proper measure
of attorney performance remains simply reasonableness under
prevailing professional norms.” Wiggins v. Smith, 539 U.S. 510, 521
(2003) (quoting Strickland, at 688.)
Next, “any deficiencies in counsel’s performance must be prejudicial
to the defense in order to constitute ineffective assistance under the
Constitution.” Strickland, 466 U.S. at 692. In order to establish that he
has sustained prejudice, the convicted defendant “must show that there
is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. Id. at 694. A
reasonable probability is a probability sufficient to undermine the
confidence in the outcome.” Id. A mere allegation of prejudice is not
sufficient to satisfy the prejudice prong of Strickland; rather, the
petitioner must “affirmatively prove” prejudice. Id. at 693.
Because a convicted defendant must satisfy both prongs of the
Strickland test, a failure to establish either deficient performance or
11
prejudice makes it unnecessary to examine the other prong. Strickland,
466 U.S. at 697. The Court turns to review of each specific ineffective
assistance claim.

B. Failure to investigate

In his first IAC claim, Brantley complains that his attorney, Roy
Keith McKay, failed “to investigate [the] case fully [claiming] he had
three whole years to do it.” Pet. 7, ECF No. 1. Brantley provides no
details in support of this allegation before moving on to his next IAC
allegation. Id. This claim is without merit because he provides no
evidence in support of his claim and it is rebutted by the record.
“[C]ounsel has a duty to make a reasonable investigation of
defendant’s case or to make a reasonable decision that a particular
investigation is unnecessary.” Ransom v. Johnson, 126 F.3d 716, 723
(5th Cir. 1997) (citing Strickland, 466 U.S. at 691). Whether counsel’s
investigation was reasonable depends in part on the information
supplied by the defendant. Ransom, 126 F.3d at 723 (citing McCoy v.
Lynaugh, 874 F.2d 954, 964 (5th Cir.1989)). And a petitioner alleging
inadequate investigation must show what such investigation would
have uncovered and how his defense would have thereby benefitted.
Nelson v. Hargett, 989 F.2d 847, 850 (5th Cir. 1993); Lockhart v.
McCotter, 782 F.2d 1275, 1282 (5th Cir. 1986).
Brantley provides no evidence of the extent of McKay’s investigation
or what the investigation would have uncovered. McKay explained in
state habeas proceedings that he “reviewed all of the discovery provided
by the state and issues brought forth by defendant.” SHCR-31 at 154
(counsel McKay’s affidavit), ECF No. 30-111. Given Brantley’s cursory
argument and lack of any evidentiary support of this claim, he fails to
show that McKay’s investigation was deficient and prejudicial to his
case. This claim of inadequate investigation is DENIED as without
merit. See Ross v. Estelle, 694 F. 2d 1008, 1011 (5th Cir. 1983) (“Absent
evidence in the record, a court cannot consider a habeas petitioner’s bald
assertions on a critical issue in his pro se petition, unsupported and
12
unsupportable by anything else contained in the record, to be of
probative evidentiary value.”).

C. Failure to object to bolstering.

Brantley also complains that McKay “failed to object during trial to
detective bolerstering [sic].” Supp. Pet. 2, ECF No. 18. He does not
elaborate on this claim further and does not bother explaining how the
state court acted unreasonably in rejecting this claim as necessary for
him to obtain federal habeas relief. Id.; see 28 U.S.C. § 2254(d). Brantley
raised this claim on direct appeal and it was thoroughly rejected by the
state appellate court, which “conclude[ed] that the record shows a
plausible reason for trial counsel’s not objecting to the complained-of
testimony.” Brantley, 2021 WL 3679239 at *4 (citation omitted).
Brantley provides no basis for believing the state appellate court
concluded incorrectly, so this claim is also without merit.

D. Failure to move for directed verdict

Brantley next complains that McKay “failed to move for an direct
[sic] verdict once [minor victim JT] claim on the stand that Brantley had
not sexually assaulted her.” Supp. Pet. 2, ECF No. 18; see also Pet. 7,
ECF No. 1 (“[McKay] did not file for a dismissal or even object.”).
Brantley’s factual assertion behind this claim is refuted by the
record. JT testified that Brantley sexually abused her “a lot,” including
“educating” her with pornographic movies, vaginally and anally
penetrating her, and forcing her to perform and receive oral sex.
Reporter’s Record (“RR”) Vol. 5 at 22–32, 37–38, ECF No. 30-7. Even if
JT made a conflicting or disputed statement, it provides no basis for a
directed verdict, which invokes a question of whether the State
presented “a prima facie case of the offense alleged in the complaint.”
See Tex. C. Crim. Proc. art 45.032 (codifying a directed verdict); Metzger
v. Sebek, 892 S.W.2d 20, 40 (Tex. App.—Houston [1st Dist] 1994) (“The
trial court should not weigh the credibility of the witnesses in
determining whether a directed verdict is warranted.”). Indeed, McKay
13
explained as much in his affidavit, stating “[JT’s previous denial of
sexual abuse to CPS] is an evidentiary issue for the jury to weigh,
therefore, defense counsel did not ask for a dismissal based on this.”
SHCR-31 at 155 (counsel affidavit), ECF No. 30-111. Since Brantley
provides no viable argument that a directed verdict would have been
granted, this claim is without merit and must be denied.

E. Failure to hire “a specialist” to testify

Brantley also cites counsel’s failure to find a specialist to testify on
his behalf in support of his IAC claims. Supp. Pet. 2, ECF No. 18.
Brantley does not specify what expert should have been called or how
such an expert would have helped his case.
Complaints of uncalled witnesses are not favored in federal habeas
corpus review because allegations of what the witness would have
testified are largely speculative. Evans v. Cockrell, 285 F.3d 370, 377
(5th Cir. 2002) (citing Sayre v. Anderson, 238 F.3d 631, 635-36 (5th Cir.
2001)). A petitioner seeking to show ineffective assistance of counsel for
failure to call witnesses must therefore “name the witness, demonstrate
that the witness was available to testify and would have done so, set out
the content of the witness’s proposed testimony, and show that the
testimony would have been favorable to a particular defense.” Day v.
Quarterman, 566 F.3d 527, 538 (5th Cir. 2009) (citation omitted). The
proposed testimony must be set out by affidavit or otherwise and
conclusory speculation is insufficient. Sayre, 238 F.3d at 635-36.
Here, Brantley does not identify or substantiate any proposed expert
testimony, whether said witnesses would have been available to testify,
or whether the testimony would have been favorable to his case. Pet. 7,
ECF No. 1; Supp. Pet. 2, ECF No. 18. Without more, Brantley’s claim is
conclusory and must be denied. See Ross, 694 F. 2d at 1011 (5th Cir.
1983); see also Evans v. Cockrell, 285 F.3d 370, 377 (5th Cir. 2002)
(rejecting ineffective assistance of counsel claim where petitioner did not
present any evidence or allegations concerning what the expert would
have stated, or what results the scientific tests would have yielded).

14
F. Failure to object to indictment

Brantley next complains that McKay “failed to object to the new
indictment that was rendered [nine] days before trial.” Supp. Pet. 2,
ECF No. 18. He provides no further explanation for this claim. Id. The
indictment behind his underlying convictions was executed on August
26, 2019, and he was tried from September 10th through September
13th, 2019. CR 9 (Reindictment), ECF No. 30-2; RR Vol. 1, ECF No. 30-
3. But Brantley does not explain how this time frame is objectionable,
nor is it apparent from the record. In state habeas court, Brantley
argued that McKay should have objected on double jeopardy grounds,
but the state habeas court concluded that “McKay did not raise a double
jeopardy claim because the allegations against Applicant were for
different acts of sexual abuse and were not charges based on the same
conduct,” and “Applicant has failed to prove that the indictment against
him was deficient.” SHCR-31 at 173 (finding of fact no. 52), 187
(conclusion of law no. 81), ECF No. 30-111. Because Brantley provides
no explanation for why these findings and conclusions are incorrect, this
claim is without merit. See Ross, 694 F. 2d at 1011.

G. Remaining ineffective assistance claims are unexhausted and
procedurally barred

Brantley also complains that McKay “failed to move for a speedy
trial,” Pet. 2, ECF No. 18 and Am. Pet. 5, ECF No. 22 , “failed to impeach
[JT’s mother]” with letters that their kids missed him, Supp. Pet. 2, 9,
ECF No. 18, “failed to ask for a mistrial after juror outburst at
sentencing,” Pet. 7, ECF No. 1, and “failed to obtain [his] medical
history” indicating he had cardiovascular/heart trouble, bipolar
disorder, seizures, and hypertension. Supp. Pet. 2, 11, ECF No. 18.
While Brantley claimed that the State violated his speedy trial rights in
state habeas proceedings, he never faulted McKay through any of these
claims until his pleadings before this Court. Id. Because these claims
were never properly raised in state court, they are unexhausted and now
procedurally barred.
15
AEDPA’s exhaustion requirements read in pertinent part as follows:
(b)(1) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment of
a State court shall not be granted unless it appears that–
(A) the applicant has exhausted the remedies available in
the courts of the State; . . .
(c) an applicant shall not be deemed to have exhausted
the remedies available in the courts of the State, within the
meaning of this section, if he has the right under the law of
the State to raise, by any available procedure, the question
presented.

28 U.S.C. § 2254. Thus, a § 2254 petitioner must have first provided to
the highest court of the state a fair opportunity to apply (1) the
controlling federal constitutional principles to (2) the same factual
claims, before a federal court will entertain the alleged errors. Duncan
v. Henry, 513 U.S. 364, 365–366 (1995); Picard v. Connor, 404 U.S. 270,
275, 277-78 (1971).
In this instance, Brantley never properly presented these ineffective
assistance claims before the TCCA. His petition for discretionary review
only presented his claim that counsel was ineffective for failing to object
to officer testimony. “Appellant’s Petition for Discretionary Review” at
2, Brantley v. State, No. PD-0645-21 (Tex. Crim. App. 2021), ECF No.
30-23. Similarly, Brantley failed to present this claim before the state
habeas court. He complains of a violation of his right to speedy trial but
he never connects that claim to the ineffectiveness of his attorney.
SHCR-31 at 49–60, ECF No. 30-111. Consequently, neither the state
habeas court nor McKay’s affidavit responded to these IAC claims.
SHCR-31 at 154–55 (McKay’s affidavit), 163–64 (state habeas court
recounting Brantley’s claims), ECF No. 30-111.
Brantley’s failure to present these claims before the TCCA not only
renders them unexhausted, but also renders them procedurally
defaulted. Because Brantley already filed for a state writ challenging
the cause of his incarceration, any attempt to file for another state writ
challenging the same incarceration with new claims would result in a
16
citation for abuse of the state writ by the Texas Court of Criminal
Appeals. See Ex parte Whiteside, 12 S.W.3d 819, 821-22 (Tex. Crim. App.
2000). It is well-settled that citation for abuse of the writ by the Court
of Criminal Appeals constitutes a procedural default that bars federal
habeas review of the merits of a habeas petitioner’s claims. Nobles v.
Johnson, 127 F.3d 409, 422 (5th Cir. 1997); Fearance v. Scott, 56 F.3d
633 (5th Cir. 1995). Therefore, these claims are procedurally barred
from review.
III. Double Jeopardy Claim
Brantley also claims the State violated his due process and double
jeopardy rights when it “dismissed the original indictment and then
reindicted before trial with a new cause number for the same offense.”
Pet. 8, ECF No. 1. The state court rejected this claim, concluding
“Because Applicant did not receive multiple punishments for the same
offense, he has failed to prove that a double jeopardy violation occurred.”
SHCR-31 at 185 (conclusion of law no. 60), ECF No. 30-111.
This Court explained in a previous § 2254 habeas proceeding,
Reindictment for the same offense by a subsequent grand
jury does not involve the bar of double jeopardy—it
descends only after the trial of one of the indictments has
terminated in such a way that jeopardy has attached.
United States v. Jasso, 442 F.2d 1054, 1056 (5th Cir.1971).
Jeopardy did not attach as to the first indictment where no
jury had been empaneled and sworn, no witness sworn, or
no guilty plea entered. See Fransaw v. Lynaugh, 810 F.2d
518, 523 (5th Cir.1987); Von Burleson v. Estelle, 666 F.2d
231, 233–34 (5th Cir. 1982).

Hill v. Quarterman, No. 3:06-CV-1156-P, 2008 WL 3895384 at *4 (N.D.
Tex. Aug. 14, 2008). The same principles apply here. Brantley’s cursory
claim fails to show how his re-indictment violated his double jeopardy
rights, or otherwise violated his constitutional rights. Pet. 8, ECF No. 1.
Moreover, he cannot show that the state courts’ denial of his claims
constituted an unreasonable or contrary application of clearly
established federal law as required by 28 U.S.C. § 2254(d). This claim
17
must be DENIED.
IV. Actual Innocence Claim
Brantley also claims he is “actual[ly] innocent” because the State
failed to produce matching DNA evidence of his sexual assaults. Pet. 10,
ECF No. 1. But claims of actual innocence by state prisoners do not
invoke a basis for federal habeas corpus relief, absent an independent
constitutional violation. Herrera v. Collins, 506 U.S. 390, 400 (1993).
Brantley has not shown an independent constitutional violation,
therefore, his actual innocence claim does not present a viable claim for
federal habeas corpus relief.
To the extent federal courts have recognized actual innocence for
federal prisoners, “[a]ctual innocence means ‘factual innocence and not
mere legal insufficiency.’” United States v. Jones, 172 F.3d 381, 384 (5th
Cir. 1999) (quoting Bousley v. United States, 523 U.S. 614, 623 (1998)).
“To establish actual innocence, [the] petitioner must demonstrate that,
‘in light of all the evidence,’ ‘it is more likely than not that no reasonable
juror would have convicted him.’” Bousley, 523 U.S. at 623 (quoting
Schlup v. Delo, 513 U.S. 298, 327-28 (1995)).
[A] substantial claim that constitutional error has caused
the conviction of an innocent person is extremely rare. To
be credible, such a claim requires petitioner to support his
allegations of constitutional error with new reliable
evidence–whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical
evidence–that was not presented at trial.
Schlup, 513 U.S. at 324 (internal citation omitted). Brantley has failed
to offer “new reliable evidence–whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical
evidence–that was not presented at trial” to support his claim that he is
actually innocent. Pet. 10, ECF No. 1. Since Brantley presents no new
or exculpatory evidence, he does not show actual innocence under
Schlup.
Moreover, to the extent this claim may be construed as a claim of
insufficient evidence under Jackson v. Virginia, 443 U.S. 307 (1979), his
18
claim is procedurally defaulted due to his failure to raise the claim on
direct appeal. See Renz v. Scott, 28 F.3d 431, 432 (5th Cir. 1994)
(recognizing that under Texas law a claim regarding sufficiency of the
evidence may be raised on direct appeal but not in a habeas corpus
proceeding); Rambo v. Lumpkin, No. 7:20-CV-00100-O-BP, 2021 WL
4897560 at *2 (N.D. Tex. June 14, 2021) (explaining that Texas § 2254
petitioner’s insufficient evidence claim is procedurally defaulted by his
failure to raise it on direct appeal), rep. and rec. adopted, 2021 WL
4893750 (N.D. Tex. Oct. 20, 2021). In sum, Brantley’s actual innocence
claim must be DENIED.
V. Juror Bias Claim
After the Respondent file an answer to all of Brantley’s claims in
three pleadings, he filed a reply/travers raising a new claim that Juror
Number 12 (“Juror 12”) was biased, depriving him of an impartial jury
and fair trial. Reply/Traverse 6-7, ECF No. 33. But the reply/traverse
does not challenge the state court fact findings that Brantley did not
object to Juror 12 at trial or raise this claim on direct appeal. Id.; SHCR-
31 at 176–77 (Findings of Fact Nos. 85–89), ECF No. 30-111. Although
Brantley raised this claim in his state habeas application, the state
habeas court rejected the claim because Brantley did not object at trial
or raise this claim during his direct appeal. SHCR-31 at 59, at 191
(Conclusions of Law Nos. 120–23), ECF No. 30-111. As explained below,
the juror bias claim must be rejected as procedurally barred, and
alternatively, because it fails on the merits.

A. Juror bias claim is procedurally defaulted

The state habeas courts rejection of this claim on state procedural
grounds operates as a procedural bar in this federal habeas proceeding.
“The general rule is that the federal habeas court will not consider a
claim that the last state court rejected on the basis of an adequate and
independent state procedural ground.” Busby v. Dretke, 359 F.3d 708,
718 (5th Cir. 2004); (citing Coleman v. Thompson, 501 U.S. 722, 729-32
(1991) and Fisher v. Texas, 169 F.3d 295, 300 (5th Cir. 1999)). To excuse
19
such a procedural default, a petitioner must demonstrate cause for his
state-court default, and prejudice therefrom, before the federal habeas
court will consider the merits of that claim. Edwards v. Carpenter, 529
U.S. 446, 451 (2000).
Here, Brantley presented his biased juror claim in a state habeas
application, but it was rejected on two distinct procedural grounds, each
of which provides an independent basis for dismissing this claim with
prejudice as procedurally defaulted. SHCR at 191 (Conclusions of Law
Nos. 120–23), ECF No. 30-111.
In its first basis for not considering this claim, the state habeas court
found “[a]pplicant was twice given the opportunity to challenge juror 12
for cause” and concluded “[b]ecause Applicant failed to challenge juror
number 12 for cause at trial, he failed to preserve any claim that juror
number 12 should not have been allowed on the jury due to alleged bias
. . . he is precluded from raising it on habeas review.” SHCR-31 at 176
(Finding of Fact No. 86), 191 (Conclusion of Law Nos. 120–21), ECF No.
30-111.
Indeed, under Texas law, a party must make a timely request,
objection, or motion to the trial court to preserve a claim for appellate
review. See Tex. R. App. P. 33.1 (West 2019); Buchanan v. State, 207
S.W.3d 772, 775 (Tex. Crim. App. 2006) (“in order to preserve an issue
for appeal, a timely objection must be made that states the specific
ground of objection, if the specific ground was not apparent from the
context”). This contemporaneous objection rule constitutes an adequate
state procedural bar for purposes of federal habeas review. See Styron v.
Johnson, 262 F.3d 438, 453-54 (5th Cir. 2001). The state’s rejection of
this claim based on Brantley’s failure to comply with the
contemporaneous objection rule renders this claim procedurally
defaulted in this Court.
Additionally, the state habeas court gave a second procedural ground
for rejecting this claim, concluding “[Brantley] has forfeited the claim
because he did not raise it on appeal.” SHCR-31 at 191 (Conclusion of
Law No. 122), ECF No. 30-111. Indeed, under Texas law, record-based
20
claims must be raised on direct appeal before they may be considered in
a habeas corpus proceeding. See Ex parte Gardner, 959 S.W.2d 189, 199
(Tex. Crim. App. 1998) (requiring convicts to raise record-based claims
on direct appeal); see also Busby, 359 F.3d 708 (5th Cir. 2004) (denying
claim as procedurally defaulted where it was rejected in state court
based on the Gardner rule). Here, Juror 12’s bench conference
discussing her impartiality was captured by the trial reporter’s record.
3 RR 125–27, ECF No. 30-5. Thus, the Gardner rule required Brantley
to raise this claim on direct appeal, the state appellate court correctly
refused to consider his claim.
Since these claims were rejected on an adequate and independent
procedural ground and are procedurally defaulted, Brantley must show
cause and prejudice for his procedural default before the merits of his
claims may be considered by this Court. Brantley does not bother with
such a showing. ECF No. 33 at 6–7. The juror bias claim therefore must
be dismissed with prejudice.

B. Juror Bias Claim Fails on the Merits

Brantley alleges that Juror 12 was biased because she was in
anguish and crying, asked to be removed, and was a victim of sexual
assault. Reply/Traverse, 6, ECF No. 33.
The record both confirms and rebuts Brantley’s factual assertions.
During an emotional bench conference during which Juror 12 revealed
she was a victim of sexual abuse as a young girl, Juror 12’s affirmed her
impartiality with the Court as follows:
THE COURT: All right. And so I think you heard me say
several times that one of the requirements of being a juror
is you have to base your verdict only on the facts –
VENIREPERSON: Correct.
THE COURT: – of this case –
VENIREPERSON: Yes, I understand that.
THE COURT: – and the law. And so my question to you is,
I know this was a terrible thing for you. I’m sorry that
21
happened to you. But could you set that aside and base
your verdict in this case only on the facts that you hear in
this case?
VENIREPERSON: Yes, I do think I can. I – I was surprised
that I was overwhelmed when this – but I have not been
public with this. There’s only two people I’ve spoken –
sorry.
THE COURT: No, that’s fine.
VENIREPERSON: I’m so sorry.
THE COURT: There’s some Kleenex right there.
VENIREPERSON: There’s only two people I’ve ever
spoken to about this, and that’s just been in the last few
years.
THE COURT: So I think you said you could set that
experience aside –
VENIREPERSON: Yes.
THE COURT: – and decide this case based only on the facts
of this case?
VENIREPERSON: Uh-huh.
THE COURT: Could you say it out loud. I’m sorry. She’s
typing –
VENIREPERSON: Yes. I'm sorry. Yes.

3 RR 126–27, ECF No. 30-5. Thus, while the record confirms that Juror
12’s childhood experience as a sexual assault victim still troubled her, it
also rebuts Brantley’s assertion that Juror 12 asked to be removed. Id.
Rather, Juror 12 steadfastly affirmed that she could maintain her
impartiality despite her past experiences. Id.
The Constitution entitles a defendant to a “jury capable and willing
to decide the case solely on the evidence before it.” Smith v. Phillips, 455
U.S. 209, 217 (1982). Court precedent categorizes the bias of a juror as
either actual or implied; “that is, it may be bias in fact or bias
conclusively presumed as [a] matter of law.” Solis v. Cockrell, 342 F.3d
22
392, 395 (5th Cir. 2003). Only ‘’extreme situations” would justify a
finding of implied (aka “imputed”) bias. Id. at 396; see also id. at 399
n.42 (compiling cases where implied juror bias doctrine was applied and
refused). In demonstrating actual bias, “admission or factual proof” of
bias must be presented. United States v.Bishop, 264 F.3d 535, 554 (5th
Cir. 2001) (citation omitted). “In evaluating claims of juror partiality, we
must consider whether the jurors in a given case had ‘such fixed opinions
that they could not judge impartially the guilt of the defendant.’” Chavez
v. Cockrell, 310 F.3d 805, 811 (5th Cir. 2002) (quoting Patton v. Yount,
467 U.S. 1025, 1035 (1984)).
On its face, Brantley’s claim fails to demonstrate actual or implied
bias. Between Brantley’s briefing and the reporter’s record, no evidence
shows that Juror 12 was actually biased. ECF No. 33 at 6. On the
contrary, Juror 12 repeatedly stated that she could maintain her
impartiality regardless of her personal experience with sexual assault.
3 RR 126–27, ECF No. 30-5.
Regarding implied bias, the Fifth Circuit remains undecided whether
such a claim could be cognizable on federal habeas corpus since there is
conflicting precedent about whether implied bias claims derive from
“clearly established” Supreme Court precedent. See Uranga v. Davis,
893 F.3d 282, 288 (5th Cir. 2018). The Respondent asserts that such a
claim would not be cognizable in these proceedings. Sur-Reply 7, ECF
No. 35.
Even if such a claim were cognizable, Juror 12’s status as a victim of
sexual assault in a case about sexual assault does not constitute an
‘’extreme situation” requiring the imputation of bias. See Soliz, 342 F.3d
at 395. While a juror who has an undisclosed and close emotional
involvement in a case could be presumed biased, bias cannot be imputed
to a juror who discloses her prior experience and maintains her
impartiality. See Buckner v. Davis, 945 F.3d 906, 914 (5th Cir. 2019); see
also Green v. Quarterman, 213 Fed. Appx. 279, 281 (5th Cir. 2007) (no
bias imputed to jurors in burglary trial who were also victims of burglary
where jurors disclosed their prior experiences to the court). Thus, Juror
23
12, despite her victimhood, could not be presumed biased in this case.
Because Juror 12 was not actually or impliedly biased, Brantley’s
allegation is without merit. Even to the extent such claim is cognizable,
Brantley has not shown, nor attempted to show, that the state habeas
court’s resolution of his claim resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly established
Federal Law, as determined by the Supreme Court of the United States
or result in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court
proceeding. 28 U.S.C. § 2254(d). Thus, alternatively, Brantley’s newly
asserted juror bias claims must be denied.

CONCLUSION

For all of the reasons explained herein, it is ORDERED that Ross
Thomas Brantley, III’s petition for a writ of habeas corpus under 28
U.S.C. § 2254 is DENIED. Further, pursuant to 28 U.S.C. § 2253(c), for
the reasons discussed herein, a certificate of appealability is DENIED.4

SO ORDERED on this 13th day of February 2024.

4Brantley also filed a motion for leave to file a rebuttal to the Respondent’s sur-
reply (ECF No. 36) filed as directed by the Court. ECF Nos. 34 and 35. That motion for
leave (ECF No. 36) is GRANTED only to the extent the Court has considered the
arguments therein. Brantley has also filed a motion for leave to be released on bond.
ECF No. 37. As the Court has denied the § 2254 petition, the motion for release on
bond (ECF No. 37) is DENIED.
24

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10671617. Public record. Not legal advice.