Badger v. Director, TDCJ-CID

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

QWENTON NARVELL BADGER, §

§

Petitioner, §

§

v. § Civil No. 4:22-CV-947-Y

§

BOBBY LUMPKIN, Director, §

TDCJ-CID, §

§

Respondent. §

OPINION AND ORDER DENYING

PETITION FOR WRIT OF HABEAS CORPUS

Before the Court is a petition and supporting brief seeking a

writ of habeas corpus under 28 U.S.C. § 2254 filed by Petitioner,

Qwenton Narvell Badger, a state prisoner, against Bobbie Lumpkin,

director of the Texas Department of Criminal Justice, Correctional

Institutions Division, Respondent. After having considered the

pleadings and relief sought by Petitioner, the Court concludes that

the petition must be denied.

I. FACTUAL AND PROCEDURAL HISTORY

A. Procedural history

Badger is in custody as a result of a judgment and sentence of

the 371st Judicial District Court, Tarrant County, Texas, in case

number 1496031D, styled The State of Texas v. Qwenton Narvell

Badger. (SHCR at 6–8(judgment and sentence for murder as a repeat

offender), doc. 13-24.)1 In that case, Badger pleaded not guilty,

but the jury found him guilty and the court sentenced him to

thirty-five years of confinement on October 26, 2018. (Id. at 6-7.

doc. 13-24.)

Badger appealed, but the appellate court affirmed his

convictions in October 2019. See Badger v. State, No.

02-18-00475-CR, 2019 WL 5089761 (Tex. App.—Fort Worth 2019, pet.

ref’d). He filed a petition for discretionary review, but the Texas

Court of Criminal Appeals (TCCA) refused it. Badger v. State, No.

PD-1170-19 (Tex. Crim. App. 2019).

Badger filed a state application for writ of habeas corpus in

March of 2021.(SHCR at 15, doc. 13-24.) The TCCA denied his

application “without written order on findings of trial court

without [a] hearing and on the Court’s independent review of the

record” in October of 2021. (SHCR at “Action Taken” cover sheet,

doc. 13-20.)

With the assistance of counsel, Badger filed the instant

petition and brief2 seeking relief under 28 U.S.C. § 2254 on

October 20, 2022.(Pet. 1-17, doc. 1; Brief 1-20 (plus exhibits),

1. “SHCR” refers to the Clerk’s Record of pleadings and documents

filed with the court during Petitioner’s state habeas-corpus proceedings.

See generally, Ex parte Badger, Application No. 92,896-01. These records

are on the Court’s docket at docs. 13-20 through 13-24. “CR” refers to

the Clerks’s Record, on the docket at doc. 13-1. The Reporter’s Record

(“RR”) is on the docket at docs. 13-2 through 13-11.

2Counsel completed and filed a form petition for relief under § 2254

(doc. 1), and a separate document entitled “Petition for Writ of Habeas

Corpus,” (doc. 2) which the Court has construed and cited as a brief.

2

doc. 13-2.)

B. Factual Background

The intermediate appellate court summarized the factual

background in this case as follows:

Hicks’s Problems with a Coworker

Vanessa Valle, who was Hicks’s girlfriend for over

fifteen years, testified that in April 2017, a temporary

job service had placed Hicks with [Ben E. Keith,] a

beverage distribution company located in southwest Fort

Worth. Hicks worked from 4 p.m. until whenever the job

was finished—sometimes around 3:00 a.m.—and usually came

home around 10:15 p.m. to eat his “lunch.”

When Hicks came home for his lunch on April 18, 2017, he

told Valle that he was upset with a guy from work. Valle

was fearful for Hicks and told him not to go back to

work. Hicks said that he had to take care of his family,

kissed Valle on the forehead, and returned to work.

Badger and Hicks Exited the Parking Lot at the Same Time

The daily log of vehicles from the guard shack at the Ben

E. Keith beverage distribution center reflected that

Badger, with license plate HRZ ####, entered at 10:07

p.m. on April 18 and left at 1:10 a.m. on April 19. Hicks

also left at 1:10 a.m. on April 19.

The Shooting

Eric Wisdom, who worked on Will Rogers Boulevard near the

Ben E. Keith beverage distribution center, testified that

he was sitting in his vehicle during a work break on the

night in question and noticed a dark-colored vehicle

sitting on Will Rogers Boulevard with its headlights on.

Wisdom then heard a gunshot followed approximately ten

seconds later by a second gunshot. After the second

gunshot, Wisdom saw another set of headlights on a

light-colored vehicle, which came from behind the

stationary vehicle and sped past him, and he called 911.

3

On cross-examination, Wisdom testified that he was

absolutely certain that the vehicle that sped away was

not black or red. Wisdom believed that the person in the

light-colored car had fired the shots. Wisdom wrote out

a statement at the scene and gave it to the police. He

was not contacted by the police after that date.

Ida Barnes testified that her nephew Deaundre Mitchell

worked at the Ben E. Keith distribution center and that

she drove him to and from work. She recalled that after

she had picked up Mitchell on the night in question, she

saw what she initially thought was a wreck. As Barnes

slowed to fifteen or twenty miles per hour, she saw that

there had not been a wreck because there was no damage to

either car; instead, two men were standing outside their

vehicles and appeared to be arguing. Barnes said that a

short black man [FN 1-The record reflected that Badger

was five feet, four inches tall] was near a maroon car,

which was shaped like a Mercury or a Taurus and which was

parked behind a black car that had a tall black man [FN

2-The record reflected that Hicks was six feet, two or six

feet, three inches tall] near it.

“[N]ot even two minutes” after Barnes had driven less

than two blocks past the two cars, she heard a single

gunshot and slowed down. In her rearview mirror, she saw

the maroon car speed around the black car and watched as

the maroon car sped up to her. Barnes accelerated and

called 911.

When the maroon car passed Barnes’s vehicle, Barnes

caught part of the license plate—an H and a Z. Barnes

testified that Will Rogers Boulevard did not have much

traffic on it at that time, which was after midnight.

Hicks’s Death

Officer Collin Sweeney with the Fort Worth Police

Department (FWPD) testified that he was dispatched to a

shooting in the 6900 block of Will Rogers Boulevard at

1:15 a.m. on April 19, 2017. When Officer Sweeney arrived

on the scene two minutes later, he saw a black sedan that

had crashed into a light pole. Officer Sweeney saw blood

all over the windshield and dashboard and a black male

slumped over the gear shift. Officer Sweeney felt what he

4

thought was a hole or slivered skin on the driver’s neck.

Hicks was pronounced dead in the emergency room at John

Peter Smith Hospital at 1:42 a.m.

Dr. Mark Krouse, the chief deputy medical examiner who

performed the autopsy, testified that Hicks was a healthy

thirty-two-year-old man. The cause of his death was blood

loss from the carotid artery injury due to a gunshot

wound to the neck. Dr. Krouse ruled Hicks’s death a

homicide.

The Investigation

Officer Cassidy Tischler with the FWPD testified that

when she arrived on the scene at 1:29 a.m., she obtained

a description of the suspect’s vehicle—a maroon four-door

Mercury. Officer Tischler provided information about the

vehicle to the FWPD’s Real-Time Crime Center, which

identified two vehicles in the southside area matching

the vehicle’s description. After running the partial

license plate information, only one of the two vehicles

matched both the vehicle description and the partial

license plate. Officer Tischler arrived at 2:00 a.m. at

the address connected to that vehicle and saw a maroon

vehicle parked in front of the home.

Detective Bruce Anderson with FWPD’s Special Response

Team was called around 2:00 or 3:00 a.m. to guard a car

that had been involved in a homicide. He went to a

cul-de-sac and surveilled the vehicle. While he and his

team were watching the vehicle in the cul-de-sac, the

patrol unit informed Detective Anderson that in the next

cul-de-sac over, there was a black male who was wearing

a white shirt and red shorts. Detective Anderson walked

around the corner and saw that the male was standing in

front of the house that was directly behind the house

that was being surveilled. Detective Anderson described

the individual as a medium-skinned black male who was

five foot ten to six feet tall and who was around thirty

to thirty-five years old. Detective Anderson instructed

two members of his team to go talk to the male. As the

two team members turned the corner, the man took off

running and jumped a fence. The person was not caught.

Detective Anderson testified that the man looked vaguely

like a man in a family portrait that was in the entryway

of the home where the vehicle was being surveilled.

5

Officer Christopher Bain with FWPD’s crime scene search

unit testified that he had arrived at 2:02 a.m. and had

photographed the crash site (outside the Ball Corporation

parking lot). Officer Bain also collected two shell

casings and a live .9 millimeter bullet from the shooting

scene (the corner of Joel East and Will Rogers).

He then went to Badger’s home. Officer Bain testified

that a red vehicle with license plate HRZ #### was parked

at the home. Officer Bain took pictures of the vehicle

showing red stains in the tire tread and “spatter” along

the underside of the vehicle. Inside the home, Officer

Bain collected three guns and almost 400 rounds of

ammunition. [FN 3-The guns collected from the home did not

match the ballistics from the two casings and the live

cartridge that were found at the shooting scene].

Detective Ernest Pate with FWPD testified that he had

arrived at the scene on Will Rogers Boulevard at 3:00

a.m. and had noted a black Ford vehicle that was resting

against a lamp post. The driver of the vehicle had

already been transferred from the scene via ambulance.

Around 4 a.m., Detective Pate went to the address

associated with Badger’s license plate and saw a red

four-door Mercury with an H and a Z in the license plate.

He noted that the vehicle appeared to have blood in the

wheel well and requested that the vehicle be taken to the

auto pound. [FN 4-Officer Timothy Lee with FWPD’s Crime

Scene Search Unit testified that he went to the crime scene

bay at the auto pound two days after the incident. Officer Lee

noted that the red Mercury's right front wheel and back wheel

on the passenger side contained red stains. He took sample

swabs of several places that contained red stains, and using

black fingerprint powder, he created a tread pattern of the

right side wheels]. Detective Pate knocked on the door and

received Badger’s wife’s consent to search the home.

Badger was not in the home.

Detective Pate obtained surveillance video from the guard

shack at the Ben E. Keith distribution center, but it was

not of good quality, did not show the date and time, and

did not show the two vehicles involved. Detective Pate

was told that there was video available showing the date

and time, but he was unable to obtain that video after

following up with the contact person several times.

Detective Pate testified on cross-examination that he did

not check with any of the owners of the surrounding

buildings to see if they had surveillance cameras.

6

Detective Pate spoke with several managers and with

twenty to thirty employees at the distribution center and

received no information that Hicks and Badger had any

prior incidents, arguments, or fights.

On cross-examination, the defense asked if Detective Pate

had made any mistakes in this investigation, and he

replied, “Sure.” Detective Pate explained that there were

three witnesses—Wisdom, Barnes, and Mitchell—and that his

understanding was that all three witnesses had been

interviewed when, in fact, only two were interviewed.

Detective Pate did not discover until he was preparing

for trial that Wisdom had not been interviewed. Detective

Pate said that if he had the chance to redo this

investigation, he would interview Wisdom. But Detective

Pate stated that he “100 percent” stood behind the

investigation that he had done in this case and that

interviewing Wisdom would not have changed the outcome of

the case. Detective Pate said that he would “take the

forensic evidence over what anyone says any day because

... people make mistakes.”

Detective Pate testified that the steering wheel of the

red Mercury was swabbed and that the swab was sent for

DNA testing but was not tested for gunshot residue (GSR).

Detective Pate explained that DNA evidence is stronger

than GSR because GSR can be picked up from an item other

than a gun and because GSR is questioned by the Texas

Forensic Commission whereas DNA is not.

Detective Pate acknowledged that his supervisor did not

sign off on Badger’s arrest warrant. On redirect,

Detective Pate testified that the arrest warrant was

signed by a judge.

Badger’s Arrest

After the arrest warrant was issued, FWPD Officer Michael

Ruelas surveilled Badger’s wife but rarely saw her at

home in the evenings. Officer Ruelas believed that

Badger’s wife was meeting Badger somewhere. Officer

Ruelas ultimately arrested Badger at a Motel 6 on South

Freeway on April 25, 2017.

Forensic Evidence

7

John Witkowski, a forensic scientist with the Texas

Department of Public Safety’s regional crime lab,

testified that he had compared rolled tire impressions

from the red Mercury to photographs of tire impressions

that were left in blood stains on the roadway at the

scene. After his analysis, Witkowski concluded that

[t]he two partial overlapping tire impressions

are similar in size and general tread design

to the test impressions from the right rear

tire of the suspect vehicle, and the second

partial tire impression is similar to the

right front tire of the suspect vehicle.

It is my opinion that these partial tire

impressions could have been made by these

tires from the suspect vehicle or any other

tire with a similar tread design.

Trisa Crutcher, a senior forensic scientist with the FWPD

crime lab in the biology unit, testified that the partial

DNA profile obtained from the swab of the red Mercury’s

steering wheel was consistent with originating from

Badger and that the DNA profile obtained from the swab of

the red Mercury’s interior front right wheel well was

identified as originating from Hicks.

Badger, 2019 WL 5089761 at *1–4 (footnotes from original state

appellate court opinion incorporated into text).

II. ISSUES

Badger asserts that he received ineffective assistance of

counsel because his trial counsel failed to (A) sufficiently

question the venire panel, thereby allowing a possibly biased juror

on the jury panel, (B) present evidence that Badger was not “from

Cali,” and (C) present evidence of a bloody shoeprint found at the

scene of the murder in conjunction with a lack of blood evidence

8

inside of Badger’s car. (Brief 7–19, doc. 2.)

III. RULE 5 STATEMENT

The respondent does not assert that the § 2254 petition is

untimely or that is successive. Respondent does argue that although

Badger’s first two claims appear to be exhausted, his third claim

(ineffective assistance of counsel for not presenting shoeprint

evidence) is unexhausted and procedurally barred. Respondent argues

alternatively that Badger’s third claims should be denied on the

merits. (Resp. 8, doc. 12.)

IV. STANDARD OF REVIEW

Section 2254(d) reflects the view that habeas corpus is a

safeguard against extreme malfunctions in state criminal-justice

systems, not a substitute for ordinary error correction through

appeal. For claims that were adjudicated in state court, § 2254(d)

imposes a highly deferential standard that demands that 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 from a state-court judgment if the state court either

adjudicated a constitutional claim contrary to federal law or

unreasonably applied clearly established federal law as determined

by the United States Supreme Court. Harrington v. Richter, 562 U.S.

86, 100–01 (2011) (citing (Terry) Williams v. Taylor, 529 U.S. 362,

9

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: (1) if the state court applies a rule that

contradicts Supreme Court precedent, or (2) if the state court

confronts facts that are “materially indistinguishable” from

relevant Supreme Court precedent but reaches an opposite result.

(Terry) Williams, 529 U.S. at 405–06. 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. Id. 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 decide whether a state court made an unreasonable

application, a federal court “must determine what arguments or

10

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 decision of this Court.”

Harrington, 562 U.S. at 102. 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. at 101 (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. See § 2254(d)(2); Cullen v.

Pinholster, 563 U.S. 170, 180-81 (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

11

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 [that] are necessary to the state

court’s 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

12

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 n.3 (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); see also Sheppard v. Davis, 967 F.3d 458, 467

(5th Cir. 2020) (“We consider not only the arguments and theories

the state habeas court actually relied upon to reach its ultimate

decision but also all the arguments and theories it could have

relied upon”) (emphasis in original) (internal quotation omitted).

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

13

discovered evidence. See (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 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, and any such request is denied.

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).

14

V.ANALYSIS

Badger alleges he was deprived of effective assistance of

trial counsel because his trial attorney, Brian Bouffard, failed

to: (A) sufficiently voir dire the venire panel, thereby allowing

a possibly biased juror on the jury panel; (B) present exculpatory

evidence at trial showing that Badger was from Michigan, not

“Cali”; and (C) present exculpatory evidence in the form of a

bloody shoeprint found at the murder scene. (Suppl. Pet. 7-19, doc.

2.) For the reasons explained below, these claims must be denied.

A. Law Applicable to Review of 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, 466 U.S. 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.

15

Smith, 539 U.S. 510, 521 (2003) (quoting Id. 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. 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 prejudice makes it unnecessary to examine the other

prong. Strickland, 466 U.S. at 697.

With the above standards in mind, the Court turns to review of

each of Badger’s allegations of ineffective assistance of counsel.

B. Failure to Conduct Sufficient Voir Dire

Badger initially argues that counsel Bouffard performed

ineffectively by failing to sufficiently question the venire to

reveal juror Glenda Jordan’s familial relationship with an employee

of the district attorney’s (DA’s) office. (Brief 8-12, doc. 2.)

This claim must be rejected because Bouffard reasonably believed

16

the voir-dire questioning addressed such relationships and Badger

fails to show juror Jordan harbored any bias.

The trial record pertaining to this claim was summarized by

the state appellate court. See Badger, 2019 WL 5089761 at *8–9; see

also (4 RR at 8-16, doc. 13-5.) During state habeas proceedings,

counsel Bouffard addressed this issue at length, averring that he

thought the likelihood was “pretty high” that he would have used a

peremptory challenge to strike Jordan from the jury had he known

that she was the mother of an employee of the DA’s office, but also

concluding that he did not believe he rendered ineffective

assistance of counsel. (SHCR at 231–32, doc. 13-24.) In reviewing

this claim, the state habeas court concluded inter alia that:

28. Applicant has failed to show that Juror Jordan’s

relationship to an employee of the Tarrant County

Criminal District Attorney’s Office deprived him of a

fair trial.

29. Counsel’s performance during voir dire fell within

the range of reasonably competent counsel.

30. Applicant has failed to show that but-for counsel’s

alleged error, the outcome of the trial would have been

different.

(SHCR at 338, doc. 13-24.)

Upon review of this claim now in this proceeding, Badger’s

claim fails both prongs of Strickland when viewed through the

deferential lens of AEDPA.

Counsel Bouffard reasonably believed the question about

17

whether any jurors or someone close to them ever worked in law

enforcement (4 RR at 15–16, doc. 13-5) would prompt disclosure of

relationships like juror Jordan’s maternal relationship to an

employee of the DA’s office. (SHCR at 230 (“I believe ‘law

enforcement’ clearly includes criminal prosecutors . . .”), doc.

13-24.) This seems consistent with the thought process of an

ordinary and reasonably prudent attorney, just as juror Jordan

could have reasonably believed that her daughter’s work as a public

relations specialist for the DA’s office does not constitute “law

enforcement.” The fact that an attorney and a civilian juror could

interpret a phrase such as “worked in law enforcement” differently

in this context is not unusual. Nor does this conflict in

understanding of these terms render counsel’s conduct during voir

dire deficient.

While Badger’s claim fails to meet Strickland’s deficiency

prong, it also fails under the prejudice prong. Badger cites no

evidence of juror Jordan harboring bias against him or his case.

(Brief at 7–12, doc. 2.) Badger provides no legal authority to show

Jordan’s relation to an employee of the DA’s office would be

sufficient to impute bias to her without any other evidence of

bias. Id. On the contrary, state and federal case law suggests that

Jordan’s relationship would not be enough to impute bias to her.

See State v. Morales, 253 S.W.3d 686, 693 (Tex. Crim. App. 2008)

(an assistant district attorney in the same office as the

18

prosecution, but who has no personal involvement in the prosecution

is not presumed to be biased under Texas law); Smith v. Phillips,

455 U.S. 209, 222 (1982)(refusing to impute bias to a juror where

the juror sought employment with the prosecutor’s office during

trial). Furthermore, Badger provides no reason to believe a

replacement juror would have disagreed with the other eleven jurors

in assessing Badger’s guilt beyond a reasonable doubt, especially

considering the overwhelming evidence against Badger. See generally

Factual Background, Badger v. State, 2019 WL 5089761 at *1-4.

Because Badger fails to show how replacing juror Jordan could have

made any difference in the outcome of his trial, this claim also

fails Strickland’s prejudice prong.

In addition to this claim’s failing Strickland analysis on its

face, Badger cannot establish that the state court’s denial of this

claim was 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. 28 U.S.C. §

2254(d). Badger focuses much of his argument on contesting the

state habeas conclusions which, in his view, improperly relied on

the state appellate court’s statements made under an “abuse of

discretion” standard. (Brief at 7–11, doc. 2.) But this argument

ignores the fact that the TCCA also expressly based its denial on

its “independent review of the record.” (SHCR at “Action Taken”

cover sheet, doc. 13-20.) The state habeas court also rejected

19

Badger’s claim under the federal Strickland standard. (SHCR at

334–35, 338 (conclusion nos. 4–12, 28–31), doc. 13-24.)

For all of these reasons, Badger’s first claim that counsel

was ineffective for failing to adequately raise a challenge to a

juror during voir dire must be denied.

C. Failure to present evidence about Badger’s geographic origin

In his second ground for relief, Badger argues that counsel

Bouffard performed ineffectively by not presenting exculpatory

evidence at trial in the form of evidence showing that Badger was

from Michigan, not “Cali” as indicated in an excluded hearsay

statement. (Brief at 13-16, doc. 2.) But since counsel acted based

on reasonable trial strategy and this evidence did not impact on

the verdict, this claim must be rejected.

Counsel based his decision to not pursue the evidence about

Badger’s home state on reasonable trial strategy. As he explains in

an affidavit filed in the state-court proceedings, this evidence

depended on hearsay testimony from the victim’s girlfriend, Vanessa

Valle. (SHCR at 232–34, doc. 13-24.) Valle relayed that the victim,

during a break from work just three hours before he was murdered,

told her that he had an altercation with a coworker. (Id.; CR 88

(State’s disclosure of Valle’s statement), doc. 13-24.) During this

altercation, Valle relayed that the coworker threatened victim

Hicks, stating “Nigger, I don’t play. I’m from Cali. We murder

niggers.” (CR 88, doc. 13-1.)

20

Counsel explained his strategy in detail. (SHCR at 234, doc.

13-24.) In sum, counsel states that he strategically decided that

it would be more beneficial for Badger’s defense to exclude Valle’s

statement, because her statement provided a motive for the murder

and pointed to a co-worker as the killer, while the statement “I’m

from Cali” was “a weak piece of evidence anyways, and reasonably

could have been viewed by the jury as mere bombast with no

particular reason to believe it was literally true . . . .” (Id.)

Thus, counsel acted based on sound trial strategy. See generally

Strickland, 466 U.S. at 689 (stating “the defendant must overcome

the presumption that, under the circumstances, the challenged

action ‘might be considered sound trial strategy’”).

Badger, on the other hand, offers little rebuttal to counsel’s

strategy despite counsel’s lengthy explanation of his strategy and

Strickland’s dictates to consider trial counsel’s strategy.(Brief

at 14-15, doc. 2.) Badger appears to suggest that counsel

Bouffard’s strategy is negated by the fact that Valle testified

that the victim was “upset” with a coworker. (Id.; see also 4 RR at

41-42, doc. 13-5.) But this counter argument is unpersuasive, as a

trial attorney could reasonably believe that testimony indicating

that the victim was “upset” with a co-worker, is easily

distinguishable from testimony indicating that a coworker was

threatening to murder the victim.

Since Badger fails to rebut the presumption that counsel

21

Bouffard acted based on sound trial strategy in not pursuing

evidence about Badger’s home state, this claim fails. This

conclusion accords with the conclusions adopted by the state habeas

court. (SHCR at 338–39 (conclusion nos. 32–40), doc. 13-24.) Since

Badger cannot establish that the state court’s denial of this claim

was contrary to, or involved an unreasonable application of,

clearly established federal law, as determined by the Supreme Court

of the United States, this claim must be denied. 28 U.S.C. §

2254(d).

D. Failure to present evidence about a bloody shoeprint

Finally, Badger argues that counsel Bouffard performed

ineffectively by not presenting a photo of a bloody shoeprint at

the murder scene to argue Badger’s innocence because there was no

blood found on the floorboard of Badger’s car despite the car’s

being seized shortly after the murder. (Suppl. Pet. at 16–19, 115

(photo of shoeprint), doc. 2); 8 RR, State’s Exh. No. 43 (another

photo with shoeprint), doc. 13-9.)

(i) Claim is Unexhausted and Procedurally Barred

To the extent this claim depends on Badger’s factual

allegation that no blood was found in Badger’s car, this claim

factually differs from the claim Badger made in state court, and he

has not met the exhaustion requirements of 28 U.S.C. § 2254(b) and

(c), which 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

22

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 (West 2022).

Badger 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). The exhaustion doctrine is based on principles of

comity between the state and federal judicial systems and “reflects

a desire to ‘protect the state courts’ role in the enforcement of

federal law.’” Castille v. Peoples, 489 U.S. 346, 349 (1989)

(quoting Rose v. Lundy, 455 U.S. 509, 518 (1982)). To satisfy the

exhaustion requirement, Badger must have not only presented his

claims to the highest state court, but he must have presented them

in a procedurally correct manner. Castille, 489 U.S. at 351.

In the instant case, Badger argues that, to undermine the

state’s case, Bouffard should have introduced evidence of a faint

bloody shoeprint found at the murder scene in conjunction with the

lack of blood evidence on the floorboard of Badger’s car. (Brief at

23

16-19, doc. 2.) But this argument is significantly different from

the argument Badger presented in state court. In state court,

Badger argued that counsel should have introduced the bloody

shoeprint to show that the pattern of the shoeprint was

inconsistent with the shoes found in Badger’s closet in his home.

(SHCR at 163–64, doc. 13-24.)

Because Badger’s state-court version of this claim focused on

the difference between shoe pattern in the shoeprint and the shoe

pattern of the shoes found in Badger’s closet, the state court

proceedings also focused on these facts. Responding to Badger’s

allegations, counsel’s affidavit focused on the shoe patterns,

explaining that the shoe patterns were not helpful because Badger

obviously had ample opportunity to discard or destroy the shoes he

wore during the murder. (SHCR at 235, doc. 13-24.) Similarly, the

state habeas court’s findings and conclusions of law addressed

Badger’s argument that the shoe patterns did not match. In this

regard, the state court concluded, “Applicant has failed to

demonstrate that the outcome of the trial would have been different

had Mr. Bouffard introduced evidence regarding the comparison of

the bloody shoeprint to the shoes recovered from his residence.”

(SHCR at 339-40 (conclusion nos. 41-44 rejecting Badger’s argument

that the shoe patterns were exculpatory), doc. 13-24.)

Now, in this federal habeas-corpus petition, Badger claims the

shoeprint is exculpatory because of a “lack of blood” in his car.

24

(Brief at 16–19, doc. 2.) But state-court records do not appear to

have any information about whether there was blood inside of his

car and Badger does not cite any records or evidence to support

this factual assertion. (Brief at 18(“The lack of blood from the

interior of Badger’s car would have confirmed the shoeprint did not

belong to Badger either. [no citation]”), doc. 2.) Thus, Badger’s

claim that there was no blood in his car has not been reviewed in

state-court proceedings.

Since Badger failed to inform the state court of the same

facts and legal theories in support of his claim, his claim is now

unexhausted because he did not fairly present his claim to the

state court before coming to the federal court. See Picard, 404

U.S. at 276–77(a petitioner must have informed the state court

system of the same facts and legal theories upon which he bases his

assertions in his federal petition). Because this claim is

unexhausted and Badger cannot now go back to state court, this

claim is procedurally defaulted.

In this regard, Badger already petitioned for a state writ

challenging the circumstances surrounding his conviction, therefore

any attempt to petition for another state writ challenging the same

conviction would result in a 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 TCCA constitutes a procedural

25

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). The Fifth Circuit has noted that the TCCA applies its abuse-

of-the-writ rules regularly and strictly. Fearance v. Scott, 56

F.3d 633, 642 (5th Cir. 1995). A state court must explicitly apply

a procedural bar to preclude federal review in cases where a

petitioner has failed to exhaust his state-court remedies and the

state court to which he would be required to present his

unexhausted claims would now find these claims to be procedurally

barred. Id. In such cases, the federal procedural-default doctrine

precludes federal habeas-corpus review. Id; see Nobles, 127 F.3d at

423 (finding unexhausted claim, which would be barred by the Texas

abuse-of-the-writ doctrine if raised in a successive state habeas

petition, to be procedurally barred).

Since the factual basis of this claim fundamentally differs

from the claim Badger presented before the TCCA, the responding

state authorities were denied the opportunity to rebut his factual

allegation that no blood was found in Badger’s car. Thus, the Court

initially determines that Badger’s third ground for relief is

procedurally barred from review.

(ii) Ground is also Without Merit

Regardless of the procedural defects in Badger’s petition the

Court may deny this third ground for relief on the merits. See 28

U.S.C. § 2254(b)(2)(“An application for a writ of habeas corpus may

26

be denied on the merits, notwithstanding the failure of the

applicant to exhaust the remedies available in the courts of the

State.”).

Badger argues that the shoeprint was exculpatory, because

“[h]ad Badger stepped in the blood at the scene, it would have

transferred to the interior of his car. He did not have time to

clean it up.” (Brief at 17, doc. 2.) Therefore, Badger argues,

“[t]he lack of blood from the interior of Badger’s car would have

confirmed the shoeprint did not belong to Badger,” suggesting

another suspect committed the murder. (Id. at 18.)

The problem with Badger’s argument is that he offers nothing

to sustain his factual assertion that there was a “lack of blood

from the interior of Badger’s car” or “none of the victim’s blood

was found inside Badger’s car.” (Id. at 17, 18 (no citations to

support quoted statements), doc. 2.) On the contrary, a careful

review of the photographs in evidence shows red spots on the

floorboard of Badger’s car that would be consistent with the

transfer of blood. (8 RR, State’s Exh. No. 74, doc. 13-10.) Other

than that photo, Badger does not identify any evidence about the

presence or absence of blood inside of Badger’s car.

Without any evidence to support his argument, Badger’s claim

must be denied because it depends on this conclusory factual

allegation. See Ross v. Estelle, 694 F. 2d 1008, 1011 (5th Cir.

1983) (“Absent evidence in the record, a court cannot consider a

27

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

se petition, unsupported and unsupportable by anything else

contained in the record, to be of probative evidentiary value.”).

Moreover, Badger cannot carry his burden to show ineffectiveness on

this point if he cannot even show that Badger’s car did not have

blood in it. On the contrary, it would be a matter of sound trial

strategy for counsel Bouffard to stay silent on the issue if the

victim’s blood could have been inside Badger’s car.

To the extent Badger reasserts his state habeas claim that the

shoeprint was exculpatory because it did not match the shoes found

in Badger’s closet, his claim fails because Bouffard discounted the

shoeprint evidence based on trial strategy. In short, the shoes

found in Badger’s closet almost certainly were not the shoes he

wore at the time of the murder since he fled the scene, fled his

home, and was not found for nearly a week after the murder. (SHCR

at 235 (Bouffard explaining that “[t]he reason why [the shoeprint]

is not exculpatory is that Mr. Badger was not apprehended until

almost a week after this incident. There is no evidence, nor even

reason to believe, that any of the shoes seized from his house the

night of the shooting were those worn by him at the time of the

shooting, and thus capable of making the blood shoeprint.”), doc.

13-24.) Consequently, the state habeas court concluded Bouffard

represented Badger effectively in this capacity as well. The state

court concluded:

28

43. Mr. Bouffard’s strategic decision not to elicit the

nonmatch of the bloody shoeprint with shoes recovered

from Applicant’s residence is within the range of

reasonably competent counsel.

44. Applicant has failed to demonstrate that the outcome

of the trial would have been different had Mr. Bouffard

introduced evidence regarding the comparison of the

bloody shoeprint to the shoes recovered from his

residence.

(SHCR at 340, doc. 13-24.)

Because Badger fails to show how Bouffard acted deficiently or

prejudicially, he cannot establish that the state court’s denial of

this claim was 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. Accordingly,

this claim must be denied. 28 U.S.C. § 2254(d); see Richter, 562

U.S. at 105 (“the standards created by Strickland and § 2254(d) are

both ‘highly deferential,’ and when the two apply in tandem, review

is ‘doubly’ so”).

VI. BADGER’S REPLY

Badger filed a reply focused on three arguments: (1) that

trial counsel was ineffective by not allowing hearsay evidence that

the victim’s coworker stated “I’m from Cali” amidst his arguments

and threats toward the victim; (2)that three portions of the record

show that the claim counsel should have challenged that no blood

was found on the floorboard was properly exhausted; (3) that his

trial counsel performed ineffectively by not arguing that no blood

29

was found on the floorboard of Badger’s car. The Court will address

these first two grounds, but need not further address the merits of

the claim that counsel was ineffective for failing to assert a lack

of blood evidence in Badger’s car.

A. Failure to Present the “I’m from Cali” Hearsay Evidence

Badger again argues that counsel effectively deprived him of

his right to competent counsel when he objected to hearsay from the

victim’s girlfriend (Valle), instead of allowing her hearsay

testimony that, hours before he was killed, the victim told her

that he got into an argument with an unnamed coworker who, while

threatening his life, stated “I’m from Cali.” (Reply at 1-2, doc.

15; CR 88 (State’s disclosure of Valle’s hearsay statement), doc.

13-1. To do so, he relies on Brady v. Maryland, 373 U.S. 83, 87

(1963) precedent, arguing that counsel should have allowed the “I’m

from Cali” statement3 because Badger is from Michigan and the

phrase was exculpatory under Brady. (Reply 1-2, doc. 15.)

But this is not a Brady claim. It’s a Strickland claim. The

question is not whether the isolated hearsay statement is

6 The Respondent points out that Badger’s argument assumes the phrase

“I’m from Cali” is to be understood as literally meaning “I’m from

California,” but questions that assumption. Sur-Reply 2, ECF No. 17

(citing, e.g., Lauren Anderson, California Slangs and Sayings, USC

American Language Institute (March 31, 2020),

https://ali.usc.edu/blog/the-slang-and-sayings-of-californians (“‘Cali’

is an abbreviation of ‘California’ that only non-Californians use. Nearly

every other U.S. state calls California ‘Cali,’ but Californians hate

this. Avoid using ‘Cali’ if you want to seem like a native

Californian.”).

30

“exculpatory.” The question is whether Bouffard’s decision to

object to that testimony was deficient representation and whether

that deficiency had a reasonable probability of altering the

outcome of the case. Strickland v. Washington, 466 U.S. 668, 687–94

(1984). Of course, the Strickland standard is in addition to

Section 2254(d) deference this Court must give to the state-court

decision. Harrington, 562 U.S. at 105.

Review confirms that the “I’m from Cali” hearsay does not

exist in a vacuum. It is blended with several inculpatory hearsay

statements and it comes from a witness who is hostile to Badger’s

case. If counsel allowed the victim’s girlfriend to testify to that

hearsay, he would have also opened the door to hearsay that the

coworker also threatened to go home and “get his piece” and

“murder” the victim on the same night the victim was shot and

murdered, thereby painting victim Hicks’s coworker (Badger) as his

likely killer.(CR 88, doc. 13-1.) Such hearsay, together with

evidence proving that Badger was the victim’s coworker that night

and left work at the same time as the victim, would have been more

harmful than beneficial to Badger’s defense. (4 RR 56–57, doc. 13-

5.) So, counsel operated based on sound trial strategy in objecting

to Valle’s damaging hearsay testimony. (SHCR at 233-34, doc. 13-

24.)

B. Failure to Exhaust “bloodless floorboard” argument

Badger also objects to Respondent’s argument that his final

31

ineffective-assistance claim is unexhausted and procedurally barred

under 28 U.S.C. § 2254(b) and (c).(Reply 3-6, doc. 15.) As noted

above, the Court determined that his state habeas claim is

unexhausted and procedurally barred because Badger’s state claim

was factually different from Badger’s federal claim, as Badger’s

arguments in state court did not question whether the victim’s

blood was found in his car.

Badger argues in his reply that three separate excerpts from

the record support his argument that he completed exhaustion: (i)

his original 11.07 state habeas application; (ii) his objection to

the state trial court’s findings of fact and conclusions of law;

and (iii) his request for reconsideration before the TCCA. (Reply

at 3–5, doc. 15.) The Court addresses these arguments below.

(i) 11.07 State Habeas Application Excerpt

Certainly, raising his “bloodless floorboard” argument in his

original 11.07 application would have sufficed to exhaust his

claim. But review of Badger’s state habeas application excerpt only

reinforces Respondent’s argument that Badger’s original claim had

nothing to do with whether blood was found on his car’s floorboard.

Instead, his excerpt only emphasizes that his claim in his state

habeas application was about whether his attorney should have

compared the bloody shoeprint and the shoes found in Badger’s

closet several days after the commission of the crime. Reply at 3-4

(section entitled “From Petitioner’s 11.07 Writ of Habeas Corpus

32

Application”), doc. 15.). This argument is rejected.

(ii) Excerpt from his objections to habeas trial

court findings

Badger’s second citation to an excerpt from the record at

least shows that Badger began changing the factual basis of his

argument to the allegedly bloodless floorboard in his objections to

the state-court findings. (Reply at 4(“None of Applicant’s shoes

matched the print, and more convincingly, there was no blood found

in Applicant’s car. Had Applicant stepped in the blood, there would

have been blood inside his car”), doc. 15.) But as explained below,

this mention of the factual basis for his “bloodless floorboard”

was presented beyond the applicable deadlines.

Reliance on this second excerpt is too late because Badger did

not file this objection until August 2, 2021, 24 days after the

state habeas trial court adopted its findings of fact and

conclusions of law on July 9, 2021.(SHCR 346 (order adopting state

magistrate’s findings), doc. 13-24);(SHCR supp.) at 4 (“Applicant’s

Objections to Trial Court’s Findings of Fact and Conclusions of

Law”), doc. 13-22.) Since his objection was due within 10 days of

the trial court’s findings, this objection was statutorily barred

from consideration. Tex. R. App. P. 73.4(b)(2) (“A party has ten

days from the date he receives the trial court’s findings of fact

and conclusions of law to file objections . . .”).

Moreover, even if this objection were somehow timely, it was

asserted in a procedurally improper pleading for raising a new

33

ground for relief. As a judge from the TCCA summarized,

In terms of content, [Rule 73 of TRAP] requires the

applicant to “provide all information required by the

form [for an application for habeas corpus]. The form

must include all grounds for relief and set forth in

summary fashion the facts supporting each ground. Any

ground not raised on the form will not be considered.

Legal citations and arguments may be made in separate

memorandum.” Tex. R. App. P. 73.1(c)(emphasis added).

This memorandum “shall” also comply with the rules

pertaining to length and format. Tex. R. App. P. 73.1(d).

Importantly, Rule 73.2 allows this Court to dismiss any

application that does not comply with the rules. Tex. R.

App. P. 73.2.

Ex parte Flowers, 665 S.W.3d 575 (Tex. Crim. App. 2022) (J.

Slaughter, dissenting). Since Badger did not include his new claim

within the state habeas application form, it violates the

requirements of Rule 73. Nor did Badger characterize his

“objections” as an amended application or advance an intent to

supplement his original application with new grounds for relief.

See Ex parte Saenz, 491 S.W.3d 819, 824 (Tex. Crim. App. 2016) (“In

general, when an applicant files amended or supplemental pleadings

raising additional claims before we have disposed of his pending

application, we consider the merits of his claims, so long as the

pleadings comply with the rules and procedures in Article 11.07 and

Rule of Appellate Procedure 73.1, and so long as the claims are

otherwise cognizable and ripe for review.”) Also, since Badger’s

untimely objections were filed long after counsel presented an

affidavit refuting Badger’s allegations, he vitiated the state

court’s ability to legally address Badger’s claim that counsel

34

performed ineffectively as to the issue of evidence of blood in the

car.

As noted above, to exhaust his claim under 28 U.S.C. §§

2254(b)–(c), Badger needed to fairly present his claim in state

court in a procedurally proper manner, so that it could be

considered on its merits. See O’Sullivan v. Boerckel, 526 U.S. 838,

848 (1999) (“To . . . ‘protect the integrity’ of the federal

exhaustion rule, we ask not only whether a prisoner has exhausted

his state remedies, but also whether he has properly exhausted

those remedies, i.e., whether he has fairly presented his claims to

the state courts.” (internal citations omitted and emphasis in

original)). Because his objection did not present a proper

presentation of a new claim, it does not serve to exhaust that

claim.

(iii) Excerpt from his Motion for Reconsideration

In his third basis challenging the lack-of-exhaustion

determination, Badger quotes his argument presented in state court

as a “Request for Reconsideration on Court’s Own Motion,” which

again briefly complains about an alleged lack of blood on his

vehicle’s floorboard. (Reply at 4-5 (quoting “Request for

Reconsideration” in SHCR MFR at doc. 13-21), doc. 15.) But even if

this excerpt could be said to have clearly raised an ineffective-

assistance claim based on the “bloodless” floorboard argument,

Badger’s “request” for reconsideration fails to exhaust his state

35

remedies because such motions for reconsideration are not permitted

under state law.

In this regard, Texas Rule of Appellate Procedure 73.1(c)

requires habeas applicants to raise all grounds for relief in their

original habeas application. See Tex R. App. P. 73.1(c). Texas law

also forbids motions for reconsideration in state habeas cases:

“[a] motion for rehearing an order that denies habeas corpus relief

or dismisses a habeas corpus application under Code of Criminal

Procedure, articles 11.07 or 11.071, may not be filed.” Tex. R.

App. P. 79.2(d). Given this prohibition, another court in this

district recently rejected a similar argument:

The closest that [§ 2254 Petitioner] came to raising this

ground for relief was in his motion for reconsideration,

but presenting a ground for relief in a motion for

reconsideration to the state habeas court does not

exhaust it. See Williams v. Johnson, 169 F. Supp. 2d 594,

599 (N.D. Tex. 2001) (“Petitioner has not presented the

claim regarding violation of the Sixth Amendment and

denial of a fair trial. Presentation of this issue in a

motion for reconsideration does not satisfy the

exhaustion required.”).

Humphries v. Director, No. 3:19-CV-2100-B-BN, 2021 WL 784139, *12

(N.D. Tex. Jan. 5, 2021), rep. and rec. adopted, 2021 WL 1422271

(N.D. Tex. Apr. 15, 2021). Indeed, district courts have repeatedly

denied § 2254 petitioners’ arguments that they exhausted their

state-court remedies by raising an argument for the first time in

a motion for reconsideration. Althouse v. Davis, No.

3:18-CV-3091-B-BK, 2019 WL 4228594, at *2 (N.D. Tex. Aug. 19, 2019)

(“Texas law does not permit a motion for rehearing of an order that

36

denies habeas corpus relief. See Tex. R. App. P. 79.2(d). As such,

the TCCA did not have an opportunity to consider [Petitioner’s]

claim or any of his evidence and his second claim remains

unexhausted”), rep. and rec. adopted, 2019 WL 4201560 (N.D. Tex.

Sep. 5, 2019); cf. Olivares v. Quarterman, No. V-04-67, 2008 WL

416256, at *9 (S.D. Tex. Feb. 13, 2008).

Respondent notes these decisions are consistent with good

policy. (Sur-Reply 7, doc. 17.) If state habeas applicants could

raise arguments for the first time in a motion for reconsideration,

it would bypass or inhibit the State’s ability to respond to or

investigate such claims. It also would defeat AEDPA’s purposes of

reducing litigation and encouraging the finality of convictions. In

this case, the state habeas trial court and defense counsel went to

great lengths to address the claims Badger raised in his initial

state habeas application. Allowing Badger to present new claims

after his initial application would unnecessarily burden the state

court and defense counsel.

Because the record shows that Badger improperly attempted to

raise a new factual basis for his claim in his motion for

reconsideration, he did not fairly present the claim in a way that

could be considered on its merits. See O’Sullivan v. Boerckel, 526

U.S. at 848. Thus, Badger’s third excerpt from the record is also

insufficient to show he exhausted his state-court remedies as

required under 28 U.S.C. § 2254(b)–(c).

37

VII. CONCLUSION

For all of the reasons expressed, the Court DENIES Qwenton

Narvell Badger’s petition for a writ of habeas corpus under 28

U.S.C. § 2254.

Further, Federal Rule of Appellate Procedure 22 provides that

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

38

constitutional claims and/or procedural rulings. Therefore, a

certificate of appealability should not issue.

SIGNED March 20, 2024.

□□□ Illa

TERRE JR. MEAN

UNITED STATES DISTRICT JUDGE

39