# Badger v. Director, TDCJ-CID

> District Court, N.D. Texas · March 20, 2024

URL: https://www.frixlaw.com/law-library/cases/10671845

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** March 20, 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/10671845

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10671845. Public record. Not legal advice.