holding that Rule 56 “applies only to the extent that it does not conflict with the habeas rules”
How later courts described this case
- holding that Rule 56 “applies only to the extent that it does not conflict with the habeas rules”
- holding that the right to a hearing on a motion for new trial is not an “absolute right”
- “Habeas petitioners must exhaust state remedies by 36 pursuing their claims through one complete cycle of either state direct appeal or post- conviction collateral proceedings.”
- stating being “merely wrong” or in “clear error” will not suffice for federal relief under AEDPA
Written by the judges who cited it.
The opinion
□ Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT June 17, 2021
SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
HOUSTON DIVISION
ANTONIO BERMUDEZ, §
(TDCJ #1911288) §
§
Petitioner, §
§
VS. § CIVIL ACTION NO. H-18-3387
§
BOBBY LUMPKIN, Director, §
Texas Department of Criminal Justice - §
Correctional Institutions Division, §
§
Respondent. §
§
MEMORANDUM OPINION AND ORDER
Antonio Bermudez, a Texas state inmate, has filed a petition for writ of habeas
corpus under 28 U.S.C. § 2254, challenging his 2014 state court conviction for aggravated
assault of a family member with a deadly weapon. (Docket Entry No. 1). The respondent,
Bobby Lumpkin,’ answered with a motion for summary judgment, which was subsequently
amended, arguing that Bermudez is not entitled to the relief he seeks. (Docket Entry Nos.
9, 19). Bermudez filed a response. (Docket Entry No. 33). Based on careful consideration
of the pleadings, the record, and the applicable law, the Court concludes that Bermudez
has not stated meritorious grounds for federal habeas relief, denies his section 2254
petition, and, by separate order, enters final judgment. The reasons are explained below.
'The previously named respondent in this action was Lorie Davis. On August 11, 2020,
Bobby Lumpkin succeeded Lorie Davis as Director of the Correctional Institutions Division.
Under Rule 25(d)(1) of the Federal Rules of Civil Procedure, Lumpkin “is automatically
substituted as a party.”
1 BACKGROUND
A. Procedural Background
Bermudez is currently in custody of the Texas Department of Criminal Justice—
Correctional Institutions Division (“TDCJ”) as a result of a felony conviction in Harris
County Cause Number 1370940. A jury found Bermudez guilty as charged of one count
of aggravated assault on a family member with a deadly weapon. (Docket Entry No. 10-
11, at 220-22). At sentencing on February 6, 2014, Bermudez pleaded true to one
enhancement,” and the court sentenced him to 60 years in prison. (/d.). On March 4, 2014,
Bermudez filed a motion for new trial, contending that he was denied the effective
assistance of counsel because trial counsel had a hearing impairment that rendered him
unable to properly respond to the trial proceedings. (/d. at 234-40). The trial court denied
the motion without a hearing on March 27, 2014. (d. at 250).
The First Court of Appeals of Texas affirmed Bermudez’s conviction on direct
appeal. See Bermudez v. State, 471 S.W.3d 572 (Tex. App.—Houston [1st Dist.] 2015,
pet. ref'd). The Texas Court of Criminal Appeals refused Bermudez’s petition for
discretionary review. Ex parte Bermudez, PD-1074-15 (Tex. Crim. App. Dec. 16, 2015).
The United States Supreme Court denied Bermudez’s petition for writ of certiorari on May
23,2016. Bermudez v. Texas, 136 S. Ct. 2381 (2016).
On May 12, 2017, Bermudez filed an application for a state writ of habeas corpus
under Article 11.07 of the Texas Code of Criminal Procedure. (Docket Entry No. 10-21,
*The State abandoned a second enhancement. (Docket Entry No. 10-17, at 24),
at 6-25). On September 12, 2018, the Court of Criminal Appeals denied the application,
without written order or hearing, on the findings of the trial court. (Docket Entry No. 10-
20; Ex parte Bermudez, Writ No. 88,612-01).
In his federal petition, executed on September 13, 2018, Bermudez raises the
following grounds for federal habeas relief:
I. Ineffective assistance of trial counsel by:
a. Falsely telling Bermudez that counsel could get the charge reduced or
dismissed because he was in good standing with the trial judge;
b. Falsely telling Bermudez that he could not testify during the
guilt/innocence phase of the proceedings because of his prior
convictions;
C. Failing to file a motion to exclude Bermudez’s prior convictions;
d. Failing to provide discovery to Bermudez and consult him about trial
strategy;
e. Incorrectly advising Bermudez that he could not be convicted of
aggravated assault because the State could not prove that he used a
weapon;
f. Advising Bermudez to elect sentencing by the judge because counsel
had a good relationship with the judge;
g. Refusing to permit Bermudez to make a statement of remorse during
the punishment phase of the proceedings;
h. Refusing to call character witnesses to testify in the punishment
phase;
i. Failing to ensure that counsel’s hearing impairment did not affect the
trial;
j. Failing to be adequately prepared for trial; and
k. Failing to research and prepare for legal arguments on issues raised at
trial.
2. Denial of due process and a fair trial when Bermudez was shackled during
trial.
3. Denial of Bermudez’s constitutional right to testify in his own defense.
4, Ineffective assistance of appellate counsel by failing to include all of trial
counsel’s deficiencies in the motion for new trial.
5. Denial of due process by denying Bermudez’s motion for new trial without
a hearing.
(Docket Entry No. 1, at 11-19). The respondent argues that the petition should be denied
because Bermudez’s claims are without merit. (Docket Entry No. 19).
B. Factual Background
In December 2012, Juana Zapata was living in Houston with her two sons, Antonio
*The respondent originally filed a motion for summary judgment arguing that Bermudez’s
federal petition was untimely under 28 U.S.C. § 2244(d). (Docket Entry No. 9). Upon learning
that Bermudez had filed a petition for writ of certiorari in the United States Supreme Court, the
respondent sought leave to file an amended motion, (Docket Entry No. 14), which the Court
granted. (Docket Entry No. 15). Bermudez appealed the order granting leave to file the amended
motion. (Docket Entry No. 20). That appeal was ultimately dismissed. See Bermudez vy. Davis,
No. 19-20240, slip op. (Sth Cir. May 20, 2019).
(“Tony”) and Miguel, whom she shared with Bermudez. (Docket Entry No. 10-14, at 25-
27). Zapata and Bermudez were estranged, and he was working and living in San Antonio.
Ud. at 26-31). On the evening of December 12, Zapata was home with her sons when
Bermudez and his niece, Graciela Cortinas, showed up unexpectedly. (Ud. at 25-27, 35).
Zapata immediately noticed that Bermudez had been drinking and looked angry. (Jd. at
35-36, 103).
After a brief exchange of words, Bermudez began to assault Zapata. (/d. at 36-38).
Bermudez hit Zapata with his fists and grabbed her by the hair. (/d.). He then threw her
on the floor, got on top of her, and repeatedly hit her with a closed fist. Ud. at 40). Zapata
began bleeding from her mouth and nose. (/d. at 39). Bermudez dragged Zapata to her
feet and pushed her against the table and the china cabinet. (Ud. at 41). As he did, he
threatened to kill her and throw her body in the river. (/d. at 42).
Zapata begged her son Tony to call the police and to get their neighbors to help. (/d.
at 40-41). Tony got a cell phone and called the police. (Docket Entry No. 10-15, at 58).
Cortinas also called the police to try to end the fight. (/d. at 96).
During those calls, Bermudez dragged Zapata outside the house and pulled her
towards his car while threatening to shoot her. (Docket Entry No. 10-14, at 43). Zapata
believed that Bermudez had a gun in his car. (/d.). When Bermudez was unable to get the
car door open, he dragged Zapata towards an outbuilding behind the house, pulling her by
her hair and continuing to hit her with a closed fist. (/d. at 50).
Zapata’s neighbor arrived on the scene and tried to intervene, but Bermudez
continued to assault Zapata. (/d. at 52). He dragged Zapata back into the house through
the kitchen door, grabbed a knife from the kitchen counter, and held it to Zapata’s neck.
(Id. at 53-54, 59). At that point, the police arrived, and Zapata was able to escape. (/d. at
73).
On cross-examination, Zapata admitted that neither of the 9-1-1 callers reported that
Bermudez had a knife. (/d. at 79). However, she testified that she did not see anyone else
in the house when Bermudez grabbed the knife. Ud. at 129-31). Zapata also admitted that
she told the police, the EMTs, and the hospital staff that she was afraid that Bermudez had
a gun, but she never mentioned the knife. Ud. at 106).
Bermudez’s 10-year-old son Tony testified that he saw his father grab his mother
by the hair and punch her, hit her, and later hold a knife to her. (Docket Entry No. 10-15,
at 58-60). However Bermudez’s niece, Cortinas, testified that she never saw Bermudez
with a knife. Ud. at 113). She testified that the jacket Bermudez was wearing that night
had a line of silver buttons down the sleeve that could possibly have been mistaken for a
knife. (Ud. at 127).
Deputy Jose Pefia of the Harris County Sheriffs Office (HCSO) was the first officer
on the scene. (Docket Entry No. 10-14, at 168). When he arrived at the house, he saw
people gathered outside, and he heard yelling and screaming coming from inside the home.
Pefia entered the house through the back door and saw Bermudez holding Zapata’s
hair with one hand and holding a knife to her neck with the other. (Docket Entry Nos. 10-
14, at 169-70; 10-15, at 28). Pefia, with his weapon drawn, told Bermudez to drop the
knife. (Docket Entry No. 10-14, at 169). After several tense moments, Bermudez dropped
the knife and surrendered to Pefia. (Ud. at 170-71).
Deputy David Cortazar of the HCSO arrived at the scene after Bermudez was in
custody and while Zapata was being treated by EMTs. (id. at 144-45). He spoke with
Zapata while she was being treated Ud. at 155), and she never said anything about
Bermudez having a gun. (/d. at 159-60). However, he testified that both Zapata and her
son Tony told him that Bermudez had used a knife. (/d. at 162).
Zapata was treated at the hospital for a broken nose and finger, along with numerous
cuts and bruises, a large bite on her arm, and a broken tooth. (/d. at 59).
Il. LEGAL STANDARDS
A. Anti-Terrorism and Effective Death Penalty Act
Bermudez’s petition for federal habeas corpus relief is governed by the applicable
provisions of the Anti-Terrorism and Effective Death Penalty Act (““AEDPA”). See
Woodford v. Garceau, 538 U.S. 202, 207 (2003); Lindh v. Murphy, 521 U.S. 320, 335-36
(1997). Under AEDPA, federal habeas relief based on claims that were adjudicated on the
merits by the state courts cannot be granted unless the state court’s decision (1) “was
contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States” or (2) “was based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 7-8 (2002); Cobb v. Thaler,
682 F.3d 364, 372-73 (Sth Cir. 2012).
Review under AEDPA is “highly deferential’ to the state court's decision.
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam). To merit relief under AEDPA,
a petitioner may not simply point to legal error in the state court's “decision.” White v.
Woodall, 572 U.S. 415, 419 (2014) (stating being “merely wrong” or in “clear error” will
not suffice for federal relief under AEDPA). AEDPA review exists only to “guard against
extreme malfunctions in the state criminal justice systems.” Woods v. Donald, 575 U.S.
312, 316 (2015) (internal citation and quotation marks omitted). “[F]ocus[ing] on what a
state court knew and did,” Cullen v. Pinholster, 563 U.S. 170, 182 (2011), AEDPA requires
inmates to “show that the state court's ruling on the claim being presented in federal court
was so lacking in justification that there was an error well understood and comprehended
in existing law beyond any possibility for fair[-]minded disagreement.” Woodall, 572 U.S.
at 419-20 (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). “If this standard is
difficult to meet, that is because it was meant to be.” Richter, 562 U.S. at 102.
For questions of law or mixed questions of law and fact adjudicated on the merits
in state court, this Court may grant habeas relief under section 2254(d)(1) only if the state
court’s decision “was contrary to, or involved an unreasonable application of, clearly
established” Supreme Court precedent. Jd. at 97-98. Under the “contrary to” clause, this
Court may grant habeas relief if the state court “reaches a legal conclusion in direct conflict
with a prior decision of the Supreme Court or if it reaches a different conclusion than the
Supreme Court on materially indistinguishable facts.” Matamoros v. Stephens, 783 F.3d
212, 215 (Sth Cir. 2015) (internal quotation marks and citations omitted). To constitute an
“unreasonable application” of clearly established federal law, the state court's decision
“must be objectively unreasonable, not merely wrong; even clear error will not suffice.”
Woods, 572 U.S. at 316 (internal citation and quotation marks omitted).
A state court’s factual determinations are also entitled to deference on federal
habeas corpus review. Findings of fact are “presumed to be correct” unless the petitioner
rebuts those findings with “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). When
a claim presents a question of fact, a petitioner cannot obtain federal habeas relief unless
he shows that the state court’s denial of relief “was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(2). “It is not enough to show that a state court's decision was incorrect or
erroneous. [Rather, a] petitioner must show that the decision was objectively unreasonable,
‘a substantially higher threshold[,|’” requiring “the petitioner [to] show that ‘a reasonable
factfinder must conclude’ that the state court's determination of the facts was
unreasonable.” Batchelor v. Cain, 682 F.3d 400, 405 (5th Cir. 2012) (quoting Blue v.
Thaler, 665 F.3d 647, 654 (Sth Cir. 2011)). A federal habeas court “may not characterize
these state court factual determinations as unreasonable ‘merely because [it] would have
reached a different conclusion in the first instance.’” Brumfield v. Cain, 576 U.S. 305,
313-14 (2015) (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)). “Instead, § 2254(d)(2)
requires that [a federal court] accord the state trial court substantial deference.” Jd. This
deference is “especially strong when the state habeas court and the trial court are one in the
same[,]” as they were in this case. Clark v. Johnson, 202 F.3d 760, 764 (Sth Cir. 2000)
(collecting cases); see also Pippin v. Dretke, 434 F.3d 782, 792 (Sth Cir. 2005) (“A trial
court’s credibility determinations made on the basis of conflicting evidence are entitled to
a strong presumption of correctness and are ‘virtually unreviewable’ by the federal
courts.”).
B. Summary Judgment
The respondent in this case has moved for summary judgment. Summary judgment
is proper when the record shows “no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.” FED. R. Clv. P. 56(a). In ordinary
civil cases, a district court considering a motion for summary judgment must construe
disputed facts in a light most favorable to the nonmoving party. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986) (“The evidence of the nonmovant is to be believed,
and all justifiable inferences are to be drawn in his favor.”). And, “[a]s a general principle,
Rule 56 of the Federal Rules of Civil Procedure, relating to summary judgment, applies
with equal force in the context of habeas corpus cases.” Clark, 202 F.3d at 764.
However, AEDPA limits both the nature and availability of habeas review, and
federal courts apply general summary judgment standards only insofar as they do not
conflict with the language and intent of AEDPA. See Smith v. Cockrell, 311 F.3d 661, 668
(Sth Cir. 2002) (holding that Rule 56 “applies only to the extent that it does not conflict
with the habeas rules”), abrogated on other grounds by Tennard v. Dretke, 542 U.S. 274
(2004). Generally, in ruling on a motion for summary judgment the court resolves any
doubts and draws any inferences in favor of the nonmoving party. Hunt v. Cromartie, 526
USS. 541, 552 (1999) (quoting Anderson, 477 U.S. at 255). However, section 2254(e)(1)
requires this court to presume that that the state court factual findings are correct,
overriding the general summary judgment rule. Smith, 311 F.3d at 668. The petitioner
must rebut the presumption of correctness by clear and convincing evidence; otherwise,
the court will presume that the factual determinations of the state court are correct. Jd.
10
C. Pro Se Pleadings
Finally, Bermudez is a pro se petitioner. Pro se habeas petitions are construed
liberally and are not held to the same stringent and rigorous standards as pleadings lawyers
file. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam) (holding that filings by
pro se litigants are held to “less stringent standards than formal pleadings drafted by
lawyers”). This Court broadly interprets Bermudez’s state and federal habeas petitions.
Bledsue v. Johnson, 188 F.3d 250, 255 (Sth Cir. 1999).
Ill. DISCUSSION
A. Ineffective Assistance of Trial Counsel
Bermudez contends that he was denied effective assistance of trial counsel in
violation of the Sixth Amendment. Claims concerning allegedly ineffective assistance of □
counsel, whether at trial or on direct appeal, are governed by the two-prong test established
in Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires a habeas petitioner
to show both that counsel’s performance was deficient and that the deficient performance
prejudiced the defense. /d. at 687. “Unless a defendant makes both showings, it cannot be
said that the conviction .. . resulted from a breakdown in the adversary process that renders
the result unreliable.” Jd.
To establish the deficient performance prong of Strickland, a habeas petitioner must
demonstrate that his attorney’s performance fell below an objective standard of
reasonableness. /d. at 687-88. To meet this standard, trial counsel’s error must be “so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” Jd. at 687; see also Buck v. Davis, 580 U.S. —, 137 S. Ct. 759, 775
11
(2017) (reaffirming that “[i]t is only when the lawyer’s errors were ‘so serious that counsel
was not functioning as the “counsel” guaranteed .. . by the Sixth Amendment’ that
Strickland’s first prong is satisfied’) (citation omitted). “[B]Jecause of the risk that
hindsight bias will cloud a court’s review of counsel’s trial strategy, ‘a court must indulge
a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that, under
the circumstances, the challenged action might be considered sound trial strategy.’”
Feldman v. Thaler, 695 F.3d 372, 378 (Sth Cir. 2012) (quoting Strickland, 466 U.S. at 689).
“A conscious and informed decision on trial tactics and strategy cannot be the basis
for constitutionally ineffective assistance of counsel unless it is so ill chosen that it
permeates the entire trial with obvious unfairness.” Cotton v. Cockrell, 343 F.3d 746, 752-
53 (Sth Cir. 2003) (quoting United States v. Jones, 287 F.3d 325, 331 (Sth Cir. 2002)).
“The Supreme Court has admonished courts reviewing a state court’s denial of habeas
relief under AEDPA that they are required not simply to give [the] attorney’s [sic] the
benefit of the doubt, . . . but to affirmatively entertain the range of possible reasons
[petitioner’s] counsel may have had for proceeding as they did.” Clark v. Thaler, 673 F.3d
410, 421 (Sth Cir. 2012) (internal quotation marks omitted) (quoting Cullen, 563 U.S. at
196). Therefore, “[o]n habeas review, if there is any ‘reasonable argument that counsel
satisfied Strickland’s deferential standard,’ the state court’s denial must be upheld.”
Rhoades v. Davis, 852 F.3d 422, 432 (Sth Cir. 2017) (quoting Richter, 562 U.S. at 105).
In addition to showing deficient performance, the habeas petitioner alleging
ineffective assistance of counsel must also show that he was prejudiced by that deficient
12
performance. See Strickland, 466 U.S. at 687, 692. “This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable.” Jd. at 687. To demonstrate prejudice, a habeas petitioner “must show that there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Jd. at 694. “[T]he question is not whether a
court can be certain counsel’s performance had no effect on the outcome or whether it is
possible a reasonable doubt might have been established if counsel acted differently.”
Richter, 562 U.S. at 111. “Instead, Strickland asks whether it is ‘reasonably likely’ the
result would have been different.” Jd. at 111-12 (quoting Strickland, 466 U.S. at 696).
“The likelihood of a different result must be substantial, not just conceivable.” Jd. at 112.
Moreover, ineffective assistance of counsel claims alleged in a federal habeas
petition raise mixed questions of law and fact that must be analyzed under the
“unreasonable application” standard of section 2254(d)(1). See Gregory v. Thaler, 601
F.3d 347, 351 (Sth Cir. 2010). Thus, AEDPA does not permit this Court to conduct a de
novo review of trial counsel’s conduct. See Richter, 562 U.S. at 101-02. Instead, the
“pivotal question” for this Court is “whether the state court’s application of the Strickland
standard was unreasonable.” Jd. at 101. In that instance, this Court’s review becomes
““doubly deferential’ because we take a highly deferential look at counsel’s performance
through the deferential lens of § 2254(d).” Rhoades, 852 F.3d at 434; see also Woods v.
Etherton, —-U.S.——, 136 S. Ct. 1149, 1151 (2016) (per curiam) (explaining that federal
habeas review of ineffective assistance of counsel claims is “doubly deferential” “because
13
counsel is ‘strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment,’” and because
federal courts must “afford ‘both the state court and the defense attorney the benefit of the
doubt’” (quoting Burt v. Titlow, 571 U.S. 12, 15 (2013))); see also 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.” (internal quotation marks and
citations omitted)). “‘If this standard is difficult to meet’—and it is—‘that is because it
was meant to be.’” Burt, 571 U.S. at 20 (quoting Richter, 562 U.S. at 103).
1. False statements regarding relationship with judge
(Grounds I(a) and 1(f))
Bermudez first claims that trial counsel Jon Thomas provided ineffective assistance
by promising Bermudez that he could get the charge against Bermudez reduced or
dismissed because Thomas was in good standing with the trial judge. Bermudez also
alleges that Thomas advised him to elect sentencing by the judge because of Thomas’s
good relationship with the judge. Bermudez alleges that these falsehoods resulted in him
receiving a harsher sentence than he should have received.
Thomas filed an affidavit in the state habeas proceedings responding to this claim:
I have never guaranteed a case result for any client and I did not
guarantee Mr. Bermudez that the charges would be reduced to a
misdemeanor offense. Mr. Bermudez claimed that he did not have a knife
during the occurrence with his wife. I would have explained that if the
prosecution was unable to prove that a deadly weapon was involved then the
charge could be reduced either by a plea bargain or at trial.
I did not tell Mr. Bermudez that I was in “good standing” with Judge
14
Krocker or have any other special relationship with her. If Mr. Bermudez
inquired about my history with the court, I would have explained that I have
appeared before the court numerous times, conducted evidentiary hearings
and tried jury trials before Judge Krocker and other visiting judges in the
court. In regard to Mr. Bermudez’s election of punishment, his decision to
go to judge for punishment was based on his criminal history and the fact
that he was indicted as a habitual offender facing 25-99 years in TDCJ. I
would have explained that as a general rule juries tend to be more erratic
during sentencing while judges are not swayed or shocked by a defendant’s
criminal history. Based our discussions Mr. Bermudez elected to have Judge
Krocker assess punishment in the event that he was found guilty.
(Docket Entry No. 10-21, at 154-55).
After reviewing Bermudez’s allegations, Thomas’s affidavit, and its own
recollection of the trial proceedings, the state habeas court found the facts alleged in
Thomas’s affidavit to be credible and true. (/d. at 183). Relying on that credibility
determination, the state habeas court found that Thomas had not made promises to
Bermudez about the charges and that Thomas had properly explained the options of having
the judge or jury assess punishment. (/d. at 185-86). The court also found that Thomas
had not falsely claimed “good standing” with the judge as a reason for Bermudez to have
the judge determine punishment. (/d. at 186). Based on these findings, the state habeas
court concluded that Bermudez had failed “to prove by a preponderance of evidence that
Thomas’s performance fell below an objective standard of reasonableness, or that but for
the unprofessional performance of counsel there is a reasonable probability that the
outcome [of] the case would have been different.” (/d. at 189).
The state habeas court’s factual findings that Thomas did not make promises to
Bermudez based on alleged “good standing” with the trial judge are not objectively
unreasonable. Nor are they based on an unreasonable determination of the facts in light of
15
the evidence presented in the state court proceedings. In his response to the respondent’s
motion, Bermudez contends that Thomas’s affidavit should have been deemed not credible
because Thomas was suspended from the Texas Bar after the trial. (Docket Entry No. 33,
at 12). In effect, Bermudez asks this Court to substitute its interpretation of the facts for
that of the state habeas court, which this Court cannot do. Having failed to show that the
state habeas court’s decision to reject this claim was objectively unreasonable, Bermudez
is not entitled to relief on this claim.
2. Denial of right to testify
(Grounds 1(b), 1(g), and 3)
Bermudez alleges in grounds 1(b), 1(g), and 3 that he was denied his right to testify
in both the guilt/innocence phase of trial and the punishment phase, which he alleges
constitutes an “intrinsically harmful” violation of his Fifth and Fourteenth Amendment
rights. (Docket Entry No. 2, at 26-29). Bermudez also alleges that Thomas “forced” him
to forego his right to testify by failing to move to exclude evidence of his prior convictions.
There is no question that a criminal defendant has a constitutional right to testify on
his own behalf. See Rock v. Arkansas, 483 U.S. 44, 49-52 (1987). This right, like other
constitutional rights, may be waived by the defendant if done knowingly and voluntarily.
See United States v. Mullins, 315 F.3d 449, 452 (Sth Cir. 2002). Further, only the defendant
may waive this right; counsel may not waive the right on the defendant’s behalf. Jd. at 454
(citing Emery v. Johnson, 139 F.3d 191, 198 (Sth Cir. 1997)). When a defendant asserts
that counsel interfered with his right to testify, the claim is appropriately considered as an
ineffective assistance of counsel claim. /d. at 452-53 (citing Sayre v. Anderson, 238 F.3d
16
631, 634 (Sth Cir. 2001)). Therefore, Bermudez’s three claims relating to his right to testify
will be discussed together.
In the state habeas proceeding, Thomas responded to Bermudez’s allegations
regarding his right to testify:
It is the defendant’s sole discretion on whether or not to testify in his
own defense and as such | did not prevent Mr. Bermudez from testifying. If
Mr. Bermudez would have expressed a desire to testify at anytime then he
would have taken the stand.
Though I don’t recall any specific conversations, Mr. Bermudez and
I would have discussed whether his testimony was necessary for the
guilt/innocence phase of trial. It appears that there were other defense and
fact witnesses that would have testified that they did not see Mr. Bermudez
with a knife. Therefore, I may have advised that his own testimony would
have been redundant. In addition, I may have advised that by testifying he
would subject himself to questions about other possible criminal acts that
arose from the same occurrence with his wife and other previous alleged acts
against his wife. In regard to the punishment phase of trial, I would have
advised Mr. Bermudez that if he admitted guilt that it could either limit or
prohibit certain appellate and post conviction relief. Likewise, if Mr.
Bermudez would have expressed to me that he was guilty of the crime, I
would have advised him that it would not be prudent to testify during the
guilt/innocence phase of trial.
(Docket Entry No. 10-21, at 156).
After considering Bermudez’s allegations, Thomas’s affidavit, and its own
recollections of the trial, the state habeas court found Thomas’s affidavit to be credible and
true. Ud. at 183). The court then found that Thomas did not prevent Bermudez from
testifying and would have permitted Bermudez to do so had he expressed a desire to testify.
(id. at 184). The court also found that Bermudez did not tell appellate counsel Cheri
Duncan that Thomas had denied him the right to testify at trial so that she could raise the
issue on appeal. (/d. at 188). Based on these findings, the state habeas court concluded:
17
1. The Court finds that the applicant fails to prove by a preponderance
of evidence that his trial counsel’s performance fell below an objective
standard of reasonableness, or that but for the unprofessional performance of
counsel there is a reasonable probability that the outcome for the case would
have been different. Strickland v. Washington, 466 U.S. 668 (1984); Mitchell
v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002); Mercado v. State, 615
S.W.2d 225, 228 (Tex. Crim. App. 1981).
4. The applicant fails to provide evidence beyond his mere assertions
and a rehash of the issue raised on appeal, that overcomes the presumption
that trial counsel made all significant decisions in the exercise of reasonable
professional judgment. Delrio v. State, 840 S.W.2d 442 (Tex. Crim. App.
1992).
(Docket Entry No. 10-21, at 190).
In this federal habeas proceeding, Bermudez points to no evidence, much less clear
and convincing evidence, to support his assertion that he was prevented from testifying.
The record does not show that Bermudez told the trial court that Thomas was preventing
him from testifying, either during the guilt phase or the punishment phase of the
proceedings, or that he raised the issue with appellate counsel. Bermudez’s bare and
unsupported allegations are legally insufficient to entitle him to habeas relief. See Ross v.
Estelle, 694 F.2d 1008, 1011 (Sth Cir. 1983) (“Absent evidence in the record, a court cannot
consider a habeas petitioner’s bald assertions on a critical issue in his pro se petition (in
state and federal court), unsupported and unsupportable by anything else contained in the
record, to be of probative evidentiary value.”). Having failed to overcome the presumption
of correctness with regard to the state habeas court’s factual findings, Bermudez has failed
to show that the state habeas court’s decision to reject this claim was objectively
unreasonable. He is therefore not entitled to relief on these claims.
18
3. Failure to prepare for trial
(Grounds 1(c), 1(d), 1(h), 1(j) and 1(k)
Bermudez alleges that Thomas provided ineffective assistance by failing to properly
prepare for trial or consult with him while doing so. Specifically, he alleges that Thomas
failed to file a motion to exclude Bermudez’s prior convictions that were more than ten
years old, failed to provide discovery to Bermudez and consult him about trial strategy,
failed to call character witnesses during the punishment phase, failed to adequately prepare
for trial, and failed to research and prepare for legal arguments on issues raised at trial.
“{C]ounsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691.
In determining reasonableness, a heavy measure of deference is due to counsel’s judgment.
Id. When alleging an inadequate investigation, a petitioner must identify what evidence or
information the investigation would have uncovered and how that information would have
changed the outcome of the proceeding. Gregory, 601 F.3d at 352.
In response to Bermudez’s allegations of an inadequate investigation, Thomas
asserted:
I filed a Motion to Produce Exculpatory and Mitigating Evidence, for
the purpose of obtaining the appearance of his minor son Antonio Bermudez,
III, who the prosecution was suppressing by not providing his address so that
he could be subpoenaed. His son was material to his defense because during
a 911 call he repeatedly told the operator that Mr. Bermudez did not have a
weapon. In addition, it was my practice to use the court’s standard discovery
order if it utilized one. In regard to a motion in limine prohibiting the
mention of Mr. Bermudez's prior convictions and bad acts, it was my practice
to make it orally on the record the day of trial along with any other motions
in limine.
I shared all pre-trial discovery results with Mr. Bermudez. The
prosecution had an open file policy, which I would periodically review for
19
updates and new material. Though, I do not recall the specifics of any
particular conversation with Mr. Bermudez, there would have been multiple
conversations where we discussed the evidence against him.
Mr. Bermudez claimed that there was no weapon involved during the
occurrence with his wife. When I interviewed multiple witnesses who were
at the scene, each stated they did not observe Mr. Bermudez with a weapon.
Likewise, 911 tapes also indicated that Mr. Bermudez did not have a weapon.
I would have advised Mr. Bermudez that we call each of the scene and 911
witness[es] to testify that they did not observe him with a knife or other
weapon. Though I do not recall the specifics of a particular conversation, I
would have advised Mr. Bermudez that if the prosecution could not prove a
deadly weapon, he could still be found guilty of a lesser included offense,
which may include misdemeanor assault or terroristic threat.
Though I do not recall the specifics, I would have vetted potential
character witnesses from both Mr. Bermudez’s family and other scene
witnesses who lived on his property. It would have been my preference to
have at least one character witness testify on his behalf during the
punishment phase of trial, assuming they were willing to testify favorably. I
do not recall whether or not character witnesses testified during the
punishment phase of trial.
I visited the crime scene in advance of trial and took extensive
photographs and interviewed witnesses who lived on the property. I do not
recall if I asked Mr. Bermudez’s sister to take additional photographs at a
later date.
(Docket Entry No. 10-21, at 156-58).
After considering Bermudez’s allegations, Thomas’s affidavit, and its own
recollections of the trial, the state habeas court found Thomas’s affidavit credible and that
“the facts asserted therein are true.” (/d. at 183). The court then found:
8. The Court finds, based on the Thomas affidavit, that trial counsel
did file standard discovery motions and, as was his normal practice, he would
make any motion in limine orally, on the record, the day of trial if needed.
Id. at 3-4.
9. The Court finds, based on the Thomas affidavit, that trial counsel
did share all pre-trial discovery gleaned in the case with the applicant. Jd. at
4,
20
14. The Court finds, based on the Thomas affidavit, that trial counsel
met with the applicant on multiple occasions, filed pre-trial discovery
motions, collected the evidence in the case, reviewed the evidence in the
case, vetted potential witnesses, interviewed and subpoenaed three
witnesses, planned a defense, visited and photographed the crime scene, and
reviewed testimony from a previous hearing held in the primary case. /d. at
3-7.
15. The Court finds, based on the Thomas affidavit, that it is trial
counsel’s usual practice to vet potential character witnesses including
members of the applicant’s family and witnesses from the scene. /d. at 5.
(Docket Entry No. 10-21, at 184-86). Based on these findings, the state habeas court denied
relief,
In this federal habeas proceeding, Bermudez has alleged no facts to support his
assertions that Thomas conducted an inadequate investigation or was unprepared for trial.
Contrary to Bermudez’s assertions, Thomas orally moved to exclude Bermudez’s prior
convictions that were more than ten years old when the State sought to introduce them
during the punishment phase, and the trial court granted that motion in part. (Docket Entry
No. 10-17, at 10-15). The record also shows that Thomas called Bermudez’s niece,
Graciela Cortinas, as a character witness during the punishment phase, contradicting his
contention that Thomas called no character witnesses during the punishment phase. (/d. at
16-20). Bermudez points to nothing in the record that supports his allegations that Thomas
failed to share discovery with him, failed to consult him about trial strategy, failed to call
other character witnesses that Bermudez wanted called, or was otherwise unprepared.
Bermudez also has not identified the evidence or information that any additional
investigation would have uncovered or explained how that information would have
changed the outcome of the proceeding. In the absence of such supporting evidence,
21
Bermudez’s allegations are insufficient to trigger habeas relief. See Gregory, 601 F.3d at
352; Ross, 694 F.2d at 1011. Having failed to overcome the presumption of correctness
with regard to the state habeas court’s factual findings, Bermudez cannot show that the
state habeas court’s decision to reject these claims was objectively unreasonable. He is
therefore not entitled to relief on these claims.
4. Incorrect advice concerning the State’s evidence
(Ground 1(e))
Bermudez alleges that Thomas provided ineffective assistance by incorrectly
advising him that the State could not prove that Bermudez used a knife to commit the
assault. (Docket Entry No. 1, at 11). He did not allege, however, how proper advice would
have changed the course of the proceedings.
Thomas’s affidavit in the state habeas proceeding confirmed that the disputed,
dispositive issue at trial was the presence or absence of a knife during the offense. (Docket
Entry No. 10-21, at 157). In opening statements, Thomas admitted that the evidence would
show that Bermudez assaulted Zapata, but he argued that the evidence would not show that
Bermudez used a knife or other weapon. (Docket Entry No. 10-14, at 19-20. He pointed
out that none of the witnesses to the assault saw Bermudez with a knife and that the 9-1-1
tapes did not reflect Bermudez had a knife. (/d.) Based on the lack of corroborating
evidence, Thomas alleged in his affidavit that he advised Bermudez that “if the prosecution
could not prove a deadly weapon, he could still be found guilty of a lesser included offense,
which may include misdemeanor assault or terroristic threat.” (Docket Entry No. 10-21,
at 157). The state habeas court found Thomas’s affidavit testimony to be credible and
22
concluded that his performance was not deficient. (Ud. at 185). Specifically, the court
found “based on the Thomas affidavit, that trial counsel discussed the effect of a deadly
weapon being used and the possibility of a lesser charge if the State could not prove a knife
was used in the offense.” Ud.) Bermudez has offered no clear and convincing evidence to
rebut the presumption of correctness of this factual finding.
But even if Bermudez could establish that Thomas’s performance in this regard was
deficient, Bermudez is not entitled to relief because he has failed to allege or show that he
was prejudiced by the deficient performance. “An error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the
error had no effect on the judgment. Strickland, 466 U.S. at 691. The prejudice element
“focuses on the question whether counsel’s deficient performance renders the result of the
trial unreliable or the proceeding fundamentally unfair.” Williams, 529 U.S. at 393 n.17.
Generally, a petitioner alleging ineffective assistance of counsel from a failure to properly
advise of the strength of the State’s case establishes prejudice by showing that a plea offer
was rejected or exculpatory evidence was not offered as a direct result of the defendant’s
lack of knowledge. See, e.g., United States v. Gonzalez, 943 F.3d 979, 983 (Sth Cir. 2019);
Jackson v. Cain, No. 12-cv-2132, 2015 WL 5020745 at *4 (W.D. La. Aug. 21, 2015);
Davis v. Quarterman, No. 3:08-cv-0510-K, 2009 WL 2447827 at *13 (N.D. Tex. Aug. 7,
2009).
Bermudez, however, did not allege prejudice in either his state habeas petition or
his federal petition. Bermudez did not allege that he would have accepted the State’s pre-
trial plea offer had he been properly informed of the strength of the State’s evidence. He
23
did not allege that his decision on whether to testify would have been different had he been
properly informed. In short, Bermudez has not shown that the outcome of the proceeding
would have been different had Thomas given him more information about the strength of
the State’s case. In the absence of such evidence, Bermudez cannot establish prejudice and
so cannot show that the state habeas court’s decision rejecting this claim is objectively
unreasonable. He is therefore not entitled to relief on this claim.
5. Failure to accommodate trial counsel’s hearing impairment
(Ground 1(i))
In his final ineffective assistance claim, Bermudez alleges that Thomas was
ineffective for failing to take steps to accommodate his hearing impairment. Bermudez
contends that Thomas’s failure to account for his hearing impairment and take steps to
compensate for it caused Thomas to “miss[] important matters during trial.” (Docket Entry
No. 1, at 12).
The trial record reflects that on the first day of trial the following occurred during a
discussion of an objection at the bench:
THE COURT: Okay. Of course, all of that is hearsay. So, what is
your response? I’m sorry. Are you having trouble hearing, Mr. Thomas?
MR. THOMAS: Yes, ma’am.
THE COURT: Okay.
(End of Bench Discussion)
THE COURT: I’m going to have to send the jury out. We need an
afternoon break anyway. So, you may have a recess until 4:00. All rise,
please, for the jury.
(Jury released)
THE COURT: And, ma’am, you may have a break, also. Thank you.
24
Please have a seat.
Mr. Thomas, it’s real important if you don’t hear anything that you let
me know, if you have trouble hearing at any time. Because, obviously, you
cannot render effective assistance unless you hear everything.
MR. THOMAS: Sure.
THE COURT: So, let me know and I will send the jury out.
MR. THOMAS: Yes, ma’am.
THE COURT: Okay. Are you following everything okay?
MR. THOMAS: Yes, ma’am, I am.
THE COURT; Okay.
MR. THOMAS: Just only when --
THE COURT: Whispering --
MR. THOMAS: Yeah.
THE COURT: -- goes on. Okay. So, let’s do this outside the
presence of the jury then. Do you have any — why don’t you repeat what you
want to do?
(Docket Entry No. 10-14, at 136-37). The prosecutor then repeated his argument as to why
he believed certain hearsay statements were admissible, and Thomas responded to those
arguments. (/d. at 137-39). The court found the hearsay statements inadmissible and
sustained Thomas’s objection. (/d. at 139).
Later, the court again discussed Thomas’s hearing impairment with counsel at the
bench:
THE COURT: Hi. Of course, the child witness had a very soft voice.
So, I can see why you were having trouble hearing him; but maybe it would
be good if your co-counsel sat next to you so in case there is -- you have a
question about something that’s said, he could help you with that. Do you
think?
MR. ROBERTSON: | can do that job.
THE COURT: You may not have any problem with the last witness,
if she is the last witness. It’s just the child was unusually soft. But I want to
make sure you hear everything. If you don’t, stop and let me know; and I
will assist you with that.
MS. JOHNSON: | don’t think he hears you right now, Judge.
THE COURT: Yeah. When I whisper, I know you can’t hear me.
Will you tell him?
MR. ROBERTSON: Yes, Judge, we will.
25
THE COURT: Okay. So, thank you.
(Docket Entry No. 10-15, at 76-77). No further mention of Thomas’s hearing impairment
was made on the record.
In the state habeas proceedings, it was undisputed that Thomas had a hearing
impairment; the only question was whether that impairment resulted in ineffective
assistance. In response to Bermudez’s allegations, Thomas asserted:
I do suffer from hearing loss, but it does not limit my ability to communicate
with either my clients or participate in courtroom proceedings. I was able to
hear the proceedings at all times, although there was a child witness where I
had to ask him to repeat some of his responses because he spoke softly. My
co-counsel Aubrey Robertson was present at counsel table with myself and
Bermudez and ensured that I was able to hear the proceedings and participate
fully in the trial.
(Docket Entry No. 10-21, at 157-58).
After considering Bermudez’s allegations, Thomas’s affidavit, and its own
recollection of the trial proceedings, the state habeas court found:
24. The Court finds, based on the Thomas affidavit, that trial counsel
does suffer some hearing loss, but that he was able to hear and communicate
effectively during his representation of the applicant. Thomas affidavit at 5.
25. The Court finds, based on the Thomas affidavit, that trial counsel
was able to hear proceedings during the applicant’s trial with the exception
of the testimony of a child who spoke softly and so he sought to have answers
repeated. Id.
26. The Court finds, based on the Thomas affidavit, that trial counsel
had co-counsel at trial, Aubrey Robertson, to assist him and help him
hear/clarify everything during proceedings and participate fully in the trial.
Td.
(id. at 188-89). The court also found that the issue of whether Thomas had provided
ineffective assistance due to his hearing impairment had been raised and rejected on direct
appeal. (d. at 188). Based on these findings, the state habeas court concluded that
26
Bermudez had not shown Thomas’s performance was deficient or that Bermudez was
prejudiced. Cd. at 189-90).
In this federal habeas proceeding, Bermudez has not pointed to any evidence in the
record to support his contention that Thomas’s hearing impairment affected his
representation of Bermudez. Bermudez does not identify the alleged “important matters”
that he contends Thomas missed, and the record does not show that Thomas failed to raise
proper objections or that he made inappropriate arguments. Nothing in the record supports
Bermudez’s claim that Thomas “missed important matters,” and Bermudez’s bare
allegations are insufficient, standing alone, to entitle him to habeas relief. See Ross, 694
F.2d at 1011. Therefore, Bermudez has failed to overcome the presumption of correctness
with regard to the state habeas court’s factual findings concerning the effect of Thomas’s
hearing impairment, and the state habeas court’s determination that Thomas provided
effective assistance was not objectively unreasonable Having failed to meet his burden of
proof, Bermudez is not entitled to relief on this claim.
B. Denial of due process due to shackling. □
(Ground Two)
In his second claim for relief, Bermudez contends that he was denied due process
and a fair trial because he was shackled during trial in view of the jury. (Docket Entry No.
1, at 14). He maintains that because the shackles were visible in the courtroom and because
the case involved a violent crime, the shackles “posed a threat to the fairness of the fact-
finding process” that “affected the jury’s judgment.” (/d.). Bermudez attached to his
petition an affidavit from his sister supporting his allegations. (/d. at 46-47).
27
The Supreme Court has held that “the Fifth and Fourteenth Amendments prohibit
the use of physical restraints visible to the jury absent a trial court determination, in the
exercise of its discretion, that they are justified by a state interest specific to a particular
trial.” Deck v. Missouri, 544 U.S. 622, 629 (2005). However, the use of restraints does
not undermine the presumption of innocence, and no specific finding of a state interest is
required, if the restraints are obscured from the view of jurors because only “[v]isible
shackling undermines the presumption of innocence and the related fairness of the
factfinding process.” Id. at 630; Chavez v. Cockrell, 310 F.3d 805, 808—09 (Sth Cir. 2002).
Moreover, the Fifth Circuit has long held that “brief and inadvertent exposure to jurors of
defendants in handcuffs is not so inherently prejudicial as to require a mistrial, and
defendants bear the burden of affirmatively demonstrating prejudice.” United States v.
Diecidue, 603 F.2d 535, 549 (Sth Cir. 1979). On collateral review of a state conviction, a
federal court will grant habeas relief only when the use of restraints had “a substantial and
injurious effect or influence in determining the jury's verdict.” Hatten v. Quarterman, 570
F.3d 595, 604 (Sth Cir. 2009) (quoting Fry v. Pliler, 551 U.S. 112, 121-22 (2007)). Further,
overwhelming evidence of a petitioner’s guilt may be sufficient to render harmless any
error in shackling a defendant. Jd.
In the state habeas proceeding in this case, both Thomas and appellate counsel
Duncan submitted affidavits addressing Bermudez’s allegation that he was shackled in
front of the jury. Thomas alleged:
It was the general practice of the court’s bailiffs, while outside the presence
of the jury, to bring defendants restrained from the holding cell to inside the
courtroom and place them behind counsel’s table. Once seated behind
28
counsel’s table the bailiff would remove any handcuffs and leave any leg
shackles on. Any leg shackles would be shielded from the view of the jury
by counsel’s table, which three sides extended all the way to the floor. To
the best of my recollection, I do not believe any member of the jury saw Mr.
Bermudez restrained.
(Docket Entry No. 10-21, at 159).
In her affidavit, appellate counsel Duncan alleged that in preparing Bermudez’s
motion for new trial and appellate brief, she met with Bermudez in person and spoke with
Thomas on the phone. (/d. at 148). She also alleged that she spoke with Bermudez’s sister
on the phone at least once. (/d.). On the issue of shackling, Duncan alleged:
I do not recall Mr. Bermudez telling me that he was shackled during trial in
front of the jury. None of my notes of conversations relating to this case
reflect any mention of Mr. Bermudez being shackled in front of the jury.
(Id. at 151).
After considering Bermudez’s allegations, his sister’s affidavit, the affidavits of
Thomas and Duncan, and its own recollection of the trial proceedings, the state habeas
court found Thomas and Duncan’s affidavits to be credible and that “the facts asserted
therein are true.” (/d. at 183). The court then found:
16. The Court finds that the applicant’s second claim, which is based
on the applicant’s sister’s statement, that his due process rights were violated
because the jury saw him shackled in the court room on two occasions. Writ
application at 8.
17. The Court finds, based on the Thomas affidavit, that it is the
general practice of the 184th District Court to bring defendants into the
courtroom with both wrist and leg shackles, removing the wrist cuffs once
the defendant is seated where his legs are hidden from view from the jury.
Thomas affidavit at 6.
18. The Court finds, based on the Thomas affidavit, that trial counsel
does not believe that the jury saw the applicant restrained in shackles. Jd.
29
20. The Court finds, based on the Duncan affidavit, that the applicant
did not tell appellate counsel that he was shackled in front of the jury, nor
was there any mention of it in the official court records, in order for it to be
raised as aclaim. Duncan affidavit at 4.
at 187). The court concluded that Bermudez had failed “to provide credible proof that
members of the jury actually viewed [him] in restraints, which is required to show an error
was made.” (/d. at 190-91). The state habeas court denied relief on this basis.
In his federal petition, Bermudez has not pointed to clear and convincing evidence
to rebut the state habeas court’s finding that jurors did not see him in shackles. In his
response, Bermudez points to his sister’s affidavit and argues that the state habeas court
should have found her more credible than Thomas and Duncan. (Docket Entry No. 33, at
10-11). However, the credibility determinations of state habeas courts are entitled to
deference on federal habeas review. See Coleman v. Quarterman, 456 F.3d 537, 541 (5th
Cir. 2006) (“A credibility determination by the state habeas court also is afforded
deference.”); Pippin, 434 F.3d at 792 (holding that state habeas court credibility
determinations are “virtually unreviewable” by the federal courts). And while a federal
habeas court can disagree with a state court’s credibility determination, it may do so only
if the state court’s decision was unreasonable or its factual premise was incorrect by clear
and convincing evidence. See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
Here, review of the record does not reveal clear and convincing evidence that the
state habeas court’s factual finding that the jurors did not see Bermudez in shackles is
incorrect, nor does it show that the state court’s decision was objectively unreasonable.
Bermudez is therefore not entitled to relief on this claim.
30
C. Ineffective Assistance of Appellate Counsel
(Ground 4)
In his fourth claim for relief, Bermudez alleges that appellate counsel Duncan
provided ineffective assistance because she failed to include multiple claims of ineffective
assistance of trial counsel and trial court error in Bermudez’s motion for new trial, thus
failing to preserve them for direct appeal. (Docket Entry No. 1, at 17).
A claim of ineffective assistance of appellate counsel is governed by the test set out
in Strickland, which requires the defendant to establish both constitutionally deficient
performance and actual prejudice. See Smith v. Murray, 477 U.S. 527, 535-36 (1986)
(applying Strickland to a claim of ineffective assistance of counsel on appeal). To establish
that appellate counsel's performance was deficient, the defendant must show that counsel
was objectively unreasonable in failing to find arguable issues to appeal—that is, that
counsel unreasonably failed to discover non-frivolous issues and raise them. Smith v.
Robbins, 528 U.S. 259, 285 (2000). The defendant must also establish prejudice by
demonstrating a “reasonable probability” that, but for counsel's deficient performance, “he
would have prevailed on his appeal.” Jd.
A reasonable appellate attorney has an obligation to research the relevant facts and
law and make informed decisions as to whether any identified issues will, or will not, prove
fruitful. Strickland, 466 U.S. at 690-91. However, the Constitution does not require an
appellate attorney to advance every conceivable argument, regardless of merit. Evitts v.
Lucey, 469 U.S. 387, 394 (1985). When an attorney fails to adequately brief an issue on
direct appeal, the petitioner must show “that the appeal would have had, with reasonable
31
probability, a different outcome if the attorney adequately addressed the issue.” United
States v. Dovalina, 262 F.3d 472, 474-75 (Sth Cir. 2001) (citing Jones v. Jones, 163 F.3d
285, 302 (Sth Cir. 1998)). The petitioner must also show that the deficient performance
led to a fundamentally unfair and unreliable result. Jd. at 475 (citing Goodwin v. Johnson,
132 F.3d 162, 176 (Sth Cir. 1997)).
In his federal habeas petition, Bermudez alleges that Duncan should have included
in the motion for new trial “the fact that [he] desired to testify during both guilt/innocence
and punishment phase of the trial” and that he was “prevented from testifying at either
stage of the trial.” (Docket Entry No. 1, at 17). Bermudez alleges that Duncan also failed
to argue that Bermudez’s sister “saw [him] shackled in the courtroom during trial in the
presence of the jury.” (/d.).
In response to these allegations, Duncan alleged in her state habeas affidavit that
she met with Bermudez in person, spoke with Thomas by phone, and spoke by phone with
Bermudez’s niece and sister. (Docket Entry No. 10-21, at 148). She also alleged:
After I received the record on appeal, I read the full record, line by
line, looking for reversible error. As is my usual practice, I made detailed
hand written notes as I read Mr. Bermudez record, to review and assist me in
writing the brief on appeal.
In particular, I noted that at the start of the trial, Mr. Bermudez was
brought into the courtroom after a pretrial conference that he should have
been present for. The conference concerned motions in limine, the need for
Mr. Bermudez’ son to appear and testify, the election of punishment by the
court rather than the jury, and the court’s question about voir dire on potential
lesser included offenses. I did not believe I could make this an issue,
however, since Mr. Bermudez’ absence did not appear to cause any actual
harm or prejudice. Specifically, concerning his punishment election, [t]he
reporter’s record showed that Mr. Bermudez’ counsel conferred with his
client about the election, and the clerk’s record showed that Mr. Bermudez
signed the written election, i.c., Defense Motion at Time of Entering Plea of
32
Not Guilty, which designated the judge to assess punishment.
I also noted that defense counsel requested a jury instruction regarding
the lesser offense of assault, a Class C misdemeanor, which the court denied.
Instead, the jury was charged on the indicted offense of aggravated assault
with a deadly weapon, and the lesser included offense of terroristic threat, a
Class A misdemeanor as alleged in this case. I believed it was error for the
court to deny the requested charge, but I did not believe I could successfully
establish sufficient harm to qualify as reversible error. The jury found Mr.
Bermudez guilty of the most serious offense, aggravated assault with a
deadly weapon. Neither terroristic threat nor misdemeanor assault include
the element of a deadly weapon. Therefore, I did not believe I could establish
on appeal that the jury might have found Mr. Bermudez guilty of
misdemeanor assault, since they clearly believed he used or displayed a
deadly weapon.
at 149-50). Duncan did not recall, nor did her notes reflect, that Bermudez told her
that he wanted testify at trial, nor did she recall either Bermudez or his sister raising the
issue of Bermudez being shackled while the jury was in the courtroom. (/d. at 150).
The state habeas court found Duncan to be credible and the facts alleged in her
affidavit to be true. (Ud. at 183). Based on Bermudez’s allegations, Duncan’s affidavit,
and its own knowledge of the trial court proceedings, the state habeas court then found:
19. The Court finds that the applicant’s fourth claim is that he was
denied effective assistance of appellate counsel because Cheri Duncan failed
to raise claims of due process violations regarding him being shackled and
being denied his right to testify. Writ application at 12.
20. The Court finds, based on the Duncan affidavit, that the applicant
did not tell appellate counsel that he was shackled in front of the jury, nor
was there any mention of it in the official court records, in order for it to be
raised as a claim. Duncan affidavit at 4.
21. The Court finds, based on the Duncan affidavit, that the applicant
did not tell appellate counsel that he desired to testify at trial and was denied
in order for it to be raised as a claim. Jd.
22. The Court finds, based on the Duncan affidavit, that appellate
counsel considered several options when determining what, if any grounds,
the applicant had to raise on a direct appeal, including ineffective assistance
of counsel, failure to have the applicant present during oral pretrial motions,
and a jury instruction concern. Jd. at 2-3.
33
23. The Court finds, based on the Duncan affidavit, that appellate
counsel determined that legally, the most substantive claim for appeal was
the ineffective claim due to trial counsel’s alleged hearing loss that deprived
him of effective counsel. /d. at 2.
Ud. at 187-88). Based on those findings, the state habeas court concluded:
6. The Court finds that appellate counsel’s approach on appeal did
not fall outside prevailing professional norms and that appellate counsel does
not have a duty to raise all “colorable” claims suggested by a client. Jones
v. Barnes, 463 U.S. 745,754 (1983).
7. The applicant fails to provide sufficient evidence to support his
claim that appellate counsel’s performance was deficient and there is a
reasonable probability that the results of the case would have been different
but for counsel’s performance. Ex parte Butler, 884 S.W.2d 782, 783 (Tex.
Crim. App. 1994).
at 190-91).
The state habeas court found that Duncan made strategic decisions about which
claims to raise on appeal. (/d.). Counsel’s conscious and informed decisions on tactics
and strategy cannot be the basis for constitutionally ineffective assistance of counsel. See
Burger v. Kemp, 483 U.S. 776, 784 (1987) (reiterating that “the ‘process of winnowing out
weaker claims on appeal and focusing on’ those more likely to prevail, far from being
evidence of incompetence, is the hallmark of effective appellate advocacy” (quoting
Murray, 477 U.S. at 536 (1986))). This Court affords a heavy measure of deference to the
informed strategic decisions made by counsel.
Duncan explained her strategic reasons for selecting the issues to be raised in the
motion for new trial and appellate brief, and the state habeas court found her explanations
credible. (Docket Entry No. 10-21, at 183). In response, Bermudez points to Duncan’s
assertion that she “did not recall” him telling her he was shackled to argue that her
34
testimony was conditional and so should be rejected. (Docket Entry No. 33, at 20-21). But
Bermudez does not point to clear and convincing evidence to show that the state habeas
court’s decision was unreasonable or its factual premise was incorrect by clear and
convincing evidence. See Miller-El, 537 U.S. at 340. Thus, the state habeas court’s
credibility determination is entitled to deference. Because Bermudez has not met his
burden of rebutting the state habeas court’s credibility finding, it must be accepted as
correct on federal habeas review.
Based on the facts it found credible, the state habeas court concluded that Bermudez
had received reasonably effective assistance of appellate counsel. The Court of Criminal
Appeals expressly based its denial of habeas relief on this finding. The state court’s
decision as to this claim is a reasonable application of federal law, and the court reasonably
applied the law to the facts. Bermudez has not shown a basis for the relief he seeks in this
claim.
D. Denial of due process as to Bermudez’s motion for new trial
(Ground 5)
In his final claim, Bermudez alleges that he was denied due process when the trial
court denied his motion for new trial without a hearing. This claim is not properly before
this court because Bermudez failed to exhaust his state court remedies. And even had he
done so, the claim is not cognizable on federal habeas review.
“[A]bsent special circumstances, a federal habeas petitioner must exhaust his state
remedies by pressing his claims in state court before he may seek federal habeas relief.”
Henry v. Cockrell, 327 F.3d 429, 432 (5th Cir. 2003) (quoting Orman v. Cain, 228 F.3d
35
616, 619-20 (Sth Cir. 2000)); see also 28 U.S.C. § 2254(b)(1) (“An application for a writ
of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court
shall not be granted unless it appears that .. . the applicant has exhausted the remedies
available in the courts of the State. ...”). This exhaustion requirement “is not jurisdictional,
but reflects a policy of federal-state comity designed to give the State an initial opportunity
to pass upon and correct alleged violations of its prisoners’ federal rights.” Anderson v.
Johnson, 338 F.3d 382, 386 (Sth Cir. 2003). “The purpose of exhaustion ‘is not to create
a procedural hurdle on the path to federal habeas court, but to channel claims into an
appropriate forum, where meritorious claims may be vindicated and unfounded litigation
obviated before resort to federal court.’” Ruiz v. Quarterman, 460 F.3d 638, 642-43 (Sth
Cir. 2006) (quoting Keeney v. Tamayo-Reyes, 504 U.S. 1, 10 (1992)). Exceptions exist
only when there is no available State corrective process or when that process is ineffective
to protect the petitioner’s rights in his particular circumstances. See 28 U.S.C.
§ 2254(b)(1)(B).
To exhaust state remedies under section 2254(b)(1)(A), a habeas petitioner must
fairly present “the substance of his claim to the state courts.” Vasquez v. Hillery, 474 US.
254, 258 (1986). In Texas, this requires the petitioner to present his claims to the Texas
Court of Criminal Appeals by filing an appeal followed by a petition for discretionary
review or by filing an application for a writ of habeas corpus. See Myers v. Collins, 919
F.2d 1074, 1076 (Sth Cir. 1990) (exhaustion may be accomplished directly in a petition for
discretionary review or collaterally in a habeas corpus petition); see also Busby v. Dretke,
359 F.3d 708, 723 (Sth Cir. 2004) (“Habeas petitioners must exhaust state remedies by
36
pursuing their claims through one complete cycle of either state direct appeal or post-
conviction collateral proceedings.”). A federal habeas petitioner has not exhausted his state
remedies “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(c). A reviewing court may raise a petitioner’s
failure to exhaust sua sponte. Tigner v. Cockrell, 264 F.3d 521, 526 n.3 (Sth Cir. 2001).
In this case, the record plainly shows that Bermudez did not attempt to present the
substance of this claim to the Texas state courts. He did not raise the trial court’s refusal
to hold a hearing on his motion for new trial as an issue in either his direct appeal or his
state habeas petition. Because Bermudez never presented the substance of this claim to the
Court of Criminal Appeals, he has not exhausted his state remedies. Therefore, this claim
must be dismissed for lack of exhaustion.
Further, even if Bermudez had properly pursued his state remedies on this claim, he
would not be entitled to relief from this Court. “An error in the application of state law by
the trial court does not provide grounds for habeas relief.” Pemberton v. Collins, 991 F.2d
1223 (Sth Cir. 1993) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)); Hill v. Black,
887 F.2d 513, 522 (Sth Cir. 1989). Here, Bermudez was not entitled as a matter of law to
a hearing on his motion for new trial. See Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim.
App. 1993) (holding that the right to a hearing on a motion for new trial is not an “absolute
right”). Hence, any alleged abuse of discretion in the trial court’s refusal to hold a hearing
would be an error in state procedural law only—not an error of constitutional dimension.
Because this claim is not cognizable in a federal habeas proceeding, Bermudez is not
entitled to the relief he seeks.
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IV. CERTIFICATE OF APPEALABILITY
Habeas corpus actions under section 2254 require a certificate of appealability to
proceed on appeal. 28 U.S.C. § 2253(c)(1); Miller-El, 537 U.S. at 335-36. Rule 11 of the
Rules Governing Section 2254 Cases requires a district court to issue or deny a certificate
of appealability when entering a final order that is adverse to the petitioner. A certificate
of appealability will not issue unless the petitioner makes “a substantial showing of the
denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), which requires a petitioner to
demonstrate “that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Tennard, 542 U.S. at 276 (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)). Under the controlling standard this requires a
petitioner to show “that reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner or that the issues
presented were ‘adequate to deserve encouragement to proceed further.’” Miller-El, 537
U.S. at 336 (quoting Slack, 529 U.S. at 484). When the denial of relief is based on
procedural grounds the petitioner must show not only that “jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right,”
but also that they “would find it debatable whether the district court was correct in its
procedural ruling.” Slack, 529 U.S. at 484.
A district court may deny a certificate of appealability, sua sponte, without requiring
further briefing or argument. See Alexander v. Johnson, 211 F.3d 895, 898 (Sth Cir. 2000).
Because Bermudez has not shown that reasonable jurists would find the Court’s resolution
of the constitutional issues debatable or wrong, this Court will not issue a certificate of
38
appealability.
V. CONCLUSION AND ORDER
Based on the foregoing, the Court ORDERS as follows:
1. The respondent’s motion for summary judgment, (Docket Entry No. 19), is
GRANTED.
2. The petition for writ of habeas corpus is DENIED, and this case is
DISMISSED with prejudice.
3. A certificate of appealability is DENIED.
The Clerk shall also send a copy of this Order to the parties.
SIGNED at Houston, Texas on JUN 17 2021 .
ALF . BENNETT
UNITED STATES DISTRICT JUDGE
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