Bell v. Lumpkin-Director TDCJ-CID

□ Southern District of Texas

ENTERED

: UNITED STATES DISTRICT COURT September 16, 202:

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

JOHN FRANKLIN BELL, JR., §

TDCJ #02153737, §

§

Petitioner, §

§

VS. § CIVIL ACTION NO. H-21-01961

BOBBY LUMPKIN-DIRECTOR TDCJ- §

CID, - §

§

Respondent. §

MEMORANDUM AND ORDER

Petitioner John Franklin Bell, Jr. (TDCJ #02153737) is a state inmate incarcerated □

in the Texas Department of Criminal Justice - Correctional Institutions Division (TDCJ).

Bell, represented by counsel, filed this petition for a writ of habeas corpus under 28 U.S.C.

§ 2254 to challenge his conviction and sentence for continuous sexual abuse of a child

_under fourteen. Doc. No. 1 (Petition). Respondent filed a motion for summary judgment,

Doc. No. 6, and Bell filed a response in opposition, Doc. No. 7. The Court has carefully

considered the pending motion, response, record, and applicable law, GRANTS

Respondent’s motion for summary judgment, and DISMISSES this petition with prejudice

for the reasons that follow. .

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I. BACKGROUND AND PROCEDURAL HISTORY

Bell was convicted of continuous sexual abuse of a child under fourteen after a jury

trial in the 506th Judicial District Court of Waller County, Texas, in cause number 14-12-

14933.! He is serving a 55-year sentence, without the possibility of parole, as a result of

that conviction.2 The state intermediate appellate court affirmed his conviction on appeal.

See Bell y. State, No. 01-17-00811-CR, 2019 WL 1560855 (Tex. App.—Houston [Ist

Dist.] Apr. 11, 2019, pet. ref'd). The Texas Court of Criminal Appeals refused his petition

for discretionary review on June 19, 2019. Jd. The Texas intermediate court of appeals

summarized the background facts as follows:

Bell became R.M.’s stepfather when she was five or six years old.

R.M., her mother, and Bellresided in Waller County, and R.M

considered Bell her father. Bell and R.M.’s mother had two daughters

together who also lived with the family.

On February 16, 2012, when she was a 15-year-old freshman in high school,

R.M. reported to her school counselor that she was being touched

inappropriately by Bell. The counselor testified at trial that R.M. began by

writing a statement that she had been sexually abused, but as she became

more comfortable, she made an oral disclosure of abuse. R.M. told her

counselor that the abuse began when she was about ten years old. She

described specific incidents of abuse that happened over the years and said

that the latest incident occurred the night before. She told the counselor that

this was the first time she was reporting the abuse. Based on the information,

the counselor notified Child Protective Services (hereinafter “CPS”) of

R.M.’s outcry of sexual abuse.

! See Petition at 2. Citations following “Doc. No. ---” reflect the Clerk’s pagination as stamped

by the CM/ECF system; if specified, citations to state court records reflect the pagination according

to the Bates stamp on the bottom of the page of those records.

? Petition at 2.

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The outcry triggered a criminal investigation. Lieutenant H. Sanders was

assigned to the case and testified at trial. She was employed by the Waller

County Sheriff's Office as a peace officer who specialized in sexual assault

investigations. After receiving notice that R.M. had made an outcry, Lt.

Sanders scheduled a forensic interview with R.M. that took place the next

day. Lt. Sanders monitored R.M.’s forensic interview via closed circuit

television but did not participate in the interview process. R.M. also had a

sexual assault examination.

On the same day that she received the outcry notice, Lt. Sanders contacted

R.M.’s mother, Laura Bell, by phone to get consent to retrieve evidence from

R.M.’s bedroom. Initially, Laura Bell:was cooperative and agreed to allow

Lt. Sanders to retrieve items from the home for an investigation.-Lt. Sanders

retrieved several items. About a week later, Laura realized that R.M. was

having explicit online communications with a 57-year-old man later

identified as Patrick Mason. Laura phoned Lt. Sanders to report the

discovery, and Lt. Sanders scheduled a second interview with R.M.

During the interview, R.M. admitted that she lied during the forensic

interview when she did not disclose that Mason was the first person she told

of her abuse. Instead, she said her school counselor was the first person

because she knew her online communication with Mason was inappropriate

and she did not want to get in trouble. R.M. also disclosed that it was Mason

who encouraged her to tell someone that she was being sexually abused.

Based on information in the interview, Lt. Sanders obtained a search warrant

on February 21, 2012, seeking information that would corroborate R.M.’s

disclosure of her online communications and outcry to Mason. She obtained

R.M.’s cell phone and computers, and analysts retrieved communications

between R.M. and Mason. Lt. Sanders read the communication and noted

that R.M. told Mason about her abuse on February 15, 2012, the day before

she reported it to the school. He encouraged her to disclose the abuse, just as

R.M. had said during her interview with Lt. Sanders. Lt. Sanders also

reviewed photographs recovered from R.M.’s camera and home computer.

R.M told Lt. Sanders she sent pictures to Mason, described the locations

where the photographs were taken, and described the clothing she was

wearing. Lt. Sanders identified the pictures in the materials recovered. She

noted that they were not sexually explicit or suggestive and were exactly as

R.M. described in the interview. Lt. Sanders also confirmed Mason’s identity

and contacted him in Michigan. He corroborated R.M.’s disclosures.

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By two weeks into the investigation, R.M.’s mother no longer supported her

and believed she fabricated the story of abuse. After the outcry, R.M. never

lived at home again. She and her two younger half-sisters first went to stay

with their maternal grandmother. R.M.’s grandmother also did not believe

her. R.M. stayed briefly with an aunt before going back to her grandmother's,

and eventually she lived at the Methodist Children’s Home for four years.

R.M. testified at a jury trial five years later, when she was 20 years old. She

explained that the abuse began when she was 10 or 11 years old and the

earliest she can remember was an incident in the laundry room. She explained

that she was helping Bell do laundry. Bell told.R.M. to sit on a deep freezer

and instructed her to pull aside her shorts. Bell approached with.a “long

metal-like object” that she later learned was a vibrator and touched it both

inside and outside her vagina. He asked her how it felt. R.M. did not recall

her response, only wishing that the event would end. She did as she was told _

because she feared a spanking, and she did not tell her mother because she

did not comprehend the nature of the touching at the time.

She testified to a second incident of abuse in her bedroom when she was in

the seventh grade. She recounted wanting something a child would want,

such as food, a book, a toy, or money, and asking Bell for it. Bell told her to

remove her clothing and sit on her bed. He then conducted an “anatomy

lesson,” explaining various parts of her body as he touched them, including

touching her breasts and penetrating her vagina with his finger. When he was

finished, Bell gave R.M. the item she asked for. She did not disclose the

abuse for fear of not being believed and “losing everything.”

She testified to a third incident in a field-in summer of 2011 at 14 years old.

After running errands, R.M. asked Bell to buy her lunch and books. He

agreed if she would “do something” for him. Once she agreed, he purchased

books and fast food. He drove R.M. to a field near their home, parked his

truck, and touched her genitals, penetrating her vagina with his fingers. He

also placed his mouth on her breasts. She did not disclose this incident

because she was scared. R.M. verified the location of the field on a map □

during her testimony.

R.M. recounted additional incidents of sexual abuse between ages 12 and 14.

These incidents involved Bell touching her breasts and genitals with his

fingers and mouth and penetrating her vagina with his mouth and tongue.

They occurred in her bedroom or in Bell’s pickup truck on the backroads of

Waller County. She described that the abuse occurred monthly in exchange

for something she had asked for. She explained that she did not tell anyone

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because she feared for her safety. On one occasion, she threatened to tell

someone, and Bell responded that she “might end up dead” and nobody

would blame him.

The final incident of sexual abuse occurred on February 15, 2012, the night

before she reported to her school counselor. She asked for money for a book

fair, and Bell agreed to give it to her if she did something for him. Her mother

and siblings were asleep in their rooms. Bell instructed her to shower and

shave her genital area. She caught him watching her shower, and he left the

bathroom when he realized she had noticed. After the shower, she went to

her bedroom. Bell placed his mouth on R.M.’s genitals and told her that he

would give her extra money for two extra minutes of access. He set a timer

for the additional minutes. He gave her $40 for the book fair, and she

purchased books and pens.

R.M. testified that she had to ask permission to use the internet in the home

and accessing the internet required a password key provided by Bell. She

testified that he used internet access to force her to submit to additional acts

of sexual abuse. She explained that-she first accessed online chat rooms at

school, but then she accessed them from her computer in her bedroom. She

began regularly communicating with Patrick Mason. Initially, she told him

that she was 23 years old and believed him to be in his 50s: Eventually, she

disclosed her real age, and they continued to communicate online, often in a

sexually explicit manner. Mason was adamant that they would never meet as

long as she was under 18, and she never believed that they would have a

relationship beyond online chatting. They exchanged photographs, but the

photographs were not sexually explicit.

R.M. testified that she contacted Mason over the internet after Bell left her

room on the night of February 15, 2012. She told him she was being sexually

abused, and he encouraged her to tell a counselor. This prompted her to tell

the counselor at school the next day.

She continued to have explicit conversations by text and internet with Mason

after she reported the abuse. One incident occurred while she was living with

her grandmother. Her mother found out and punished her with respect to

phone and computer access. The same day, she requested to move to her

aunt's house because her grandmother did not believe her about the abuse.

Her mother also did not believe her. Eventually she moved into the Methodist

Children’s Home.

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In addition to testimony from the school counselor and Lt. Sanders,

the State called Fiona Remko, a licensed clinical social worker who

conducted a forensic interview with R.M. She explained the forensic

interview process and explained the dynamics of child abuse, such as

grooming behaviors a perpetrator uses with a child victim to set the stage for

sexual abuse. She also explained that in her experience, when a child □

discloses abuse, the entire family often blames the child, directing all their

anger at the child and cutting the child out of their lives. Finally, she

explained that children who suffer sexual abuse may engage in inappropriate

or promiscuous behaviors.

Rachel Bryant, the nurse who performed the sexual assault examination on

R.M., testified about the process of the examination, the information that

R.M. relayed to her about abuse during the examination, and her findings.

She explained that by the time she conducted the exam, R.M. had washed,

urinated, ate and drank, and changed clothes, decreasing any possible DNA

sample. She explained that the fact that R.M. did not have genital injuries

was still consistent with having been sexually assaulted, including that in ten

years of conducting between 1,500 and 2,000 exams, it was rare to see an

injury.

Bell and his wife testified. Bell denied all allegations of sexual abuse. He

described R.M. as having problems with discipline from the time he came

into her life and acknowledged that he was the disciplinarian. She understood

that if she disobeyed him, she would get in trouble. He referred to specific

instances of spanking because she spoke disrespectfully to her mother. He.

admitted that he could restrict her internet access, and he was angry when he

found out that R.M. was communicating with Mason because she had

claimed that she was doing homework on the computer. He believed that

Mason and R.M. conspired to falsely accuse him of sexual-assault so that

they could be together, but he conceded that to do so they would have to

formulate and discuss a plan. He agreed that none of the online

communication between them discussed a plan to do so.

Bell acknowledged that many details of R.M.’s disclosure were accurate. For

example, R.M. and Bell stayed up later than the other people in the house.

Her bedroom was on the opposite side of the house from her parents'

bedroom. He and R.M. frequently went places together alone in his truck,

such as for fast food and to buy books. They were alone in a field together

more than once, and he woke R.M. up each morning.

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Bell also acknowledged that he spoke with a law enforcement officer on the

day after R.M. disclosed abuse to her counselor. When questioned at trial, he

agreed that when the officer asked if he touched R.M.’s breast when she was

ten years old, he did not deny it but instead asked if she even had breasts at

that age. When the officer confronted him with R.M.’s accusation that he.

penetrated R.M.’s vagina with his finger, he did not deny it but instead asked

if it would “leave DNA.” When the officer presented Bell with R.M.’s

disclosure of specific details of the abuse, he stated, “In other words, it

doesn’t look good for me.” And at the end of his interview, Bell reviewed

R.M.’s disclosure and responded, “No matter what, this is a black eye for

both of us.”

Bell also acknowledged that he volunteered specific information to the

officer without being questioned about it. Before the officer disclosed that

R.M. had alleged he went in her bathroom while she was

showering, Bell told the officer that he had been in the bathroom with R.M.

while she was showering, but then he explained it was to kill a bug. He also

volunteered that he had given R.M. $40 for the book fair before her outcry,

even though the officer had not mentioned R.M.’s allegation that the $40 was

payment for sexual contact.

Laura Bell testified that she did not believe R.M. She testified that she

thought the Methodist Children’s Home would be a safe environment for

R.M. to get counseling for “somebody who is, you know, able to lie about

something like this.” She acknowledged that in five years, R.M. never

recanted or changed the story she told her counselor, the investigating officer,

the nurse who examined her, the State’s attorney, CPS, and the jury.

The jury found Bell guilty. Following a sentencing hearing, the court

sentenced him to 55 years’ imprisonment.

Bell, 2019 WL 1560855, at *1-4.

Bell filed a state application for habeas corpus on September 3, 2020. He

subsequently requested an evidentiary hearing based on his claims of prosecutorial

misconduct (based on an allegedly misleading DNA lab report and false testimony) and

ineffective assistance of counsel (for failing to investigate the DNA evidence with an expert

and failing to impeach R.M.). The habeas court conducted a hearing on Bell’s claims and

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issued extensive findings of fact and conclusions of law, recommending that his habeas

application be denied. The Texas Court of Criminal Appeals denied Bell’s application

without written order on the findings of the trial court after a hearing and on an independent

review of the record. See Ex parte Bell, WR-92,405-01 (Tex. Crim. App. June 16, 2021),

Doc. No. 8-20 (Action Taken Sheet). This federal petition timely followed.

Il. CLAIMS

Bell asserts the following claims:

1. The state used a false and misleading lab report and false testimony.

2. Bell was denied effective assistance of counsel because his trial counsel, Mr. Calvin

Garvie, did not follow up with his DNA expert to review the DNA evidence during

the trial phase of the proceedings and failed to impeach the complainant with prior

inconsistent statements. :

3. ‘The cumulative effect of the false lab report/testimony and ineffective assistance of

counsel denied the petitioner a fair trial

See Petition at 6-7.

Il. STANDARD OF REVIEW

To be entitled to summary judgment, the pleadings and summary judgment evidence

must show that there is no genuine issue as to any material fact and the moving party is

entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). The moving party bears the

burden of initially raising the basis of the motion and identifying the portions of the record

demonstrating the absence of a genuine issue for trial. Duckett v. City of Cedar Park, Tex.,

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950 F.2d 272, 276 (Sth Cir. 1992). Thereafter, “the burden shifts to the nonmoving party

to show with ‘significant probative evidence’ that there exists a genuine issue of material

fact.” Hamilton v. Seque Software, Inc., 232 F.3d 473, 477 (Sth Cir. 2000) (quoting

Conkling v. Turner, 18 F.3d 1285, 1295 (Sth Cir. 1994)). The Court may grant summary

judgment on any ground supported by the record, even if the ground is not raised by the

movant. United States v. Houston Pipeline Co., 37 F.3d 20 4, 227 (5th Cir. 1994).

While Rule 56 of the Federal Rules regarding summary judgment applies generally

“with equal force in the context of habeas corpus cases,” Clark v. Johnson, 202 F.3d 760,

764 (Sth Cir. 2000), it applies only to the extent that it does not conflict with the habeas

rules. Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002), abrogated on other grounds

by Tennard vy. Dretke, 542 U.S. 274 (2004).

The writ of habeas corpus provides an important, but limited, examination of an

inmate’s conviction and sentence. See Harrington v. Richter, 562 U.S. 86, 103 (2011)

(noting that “state courts are the principal forum for asserting constitutional challenges to

state convictions”). The Anti-Terrorism and Effective Death Penalty Act of 1996

(AEDPA), codified as amended at 28 U.S.C. § 2254(d), “imposes a highly deferential

standard for evaluating state-court rulings and demands that state-court decisions be given

benefit of the doubt”; it also codifies the traditional principles of finality, comity, and

federalism that underlie the limited scope of federal habeas review. Renico.v. Lett, 559

US. 766, 773 (2010) (quotations omitted).

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AEDPA “bars relitigation of any claim ‘adjudicated on the merits’ in state court,

subject only to the exceptions in [28 U.S.C.] §§ 2254(d)(1) and (d)(2).” Harrington, 562

U.S. at 98. “When a federal claim has been presented to a state court and the state court

has denied relief, it may be presumed that the state court adjudicated the claim on the merits

in the absence of any indication or state-law procedural principles to the contrary.” Jd. at

99. For AEDPA to apply, a state court need not state its reasons for its denial, nor must it

issue findings, nor need it specifically state that the adjudication was “on the merits.” Id.

at 98-99.

To the extent that the petitioner exhausted his claims, they were adjudicated on the

merits by state courts. This Court, therefore, can only grant relief if “the state court’s

adjudication of the merits was ‘contrary to, or involved an unreasonable application of,

clearly established Federal law.’” Berghuis v. Thompkins, 560 U.S. 370, 378 (2010)

(quoting 28 U.S.C. § 2254(d) (1)). The focus of this well-developed standard “is not

whether a federal court believes the state court’s determination was incorrect but whether

that determination was unreasonable—a substantially higher threshold.” Schriro v.

Landrigan, 550 U.S. 465, 473 (2007). Where a claim has been adjudicated on the merits

by the state courts, relief is available under § 2254(d) only in those situations “where there

is no possibility fairminded jurists could disagree that the state court’s decision conflicts

with” Supreme Court precedent. Harrington, 562 U.S. at 102.

Whether a federal habeas court would have, or could have, reached a conclusion

contrary to that reached by the state court on an issue is not determinative under § 2254(d).

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Id. (“even a strong case for relief does not mean that the state court’s contrary conclusion

was unreasonable.”). Thus, AEDPA serves as a “guard against extreme malfunctions in the

State criminal justice systems,” not as a vehicle for error correction. Jd. (citation omitted);

_ see also Wilson v. Cain, 641 F.3d 96, 100 (Sth Cir. 201 1). “If this standard is difficult to

meet, that is because it was meant to be.” Harrington, 562 U.S. at 102.

“Review under § 2254(d)(1) focuses on what a state court knew and did.” Cullen v.

Pinholster, 563 US. 170, 182 (201 1). Reasoning that “[i]t would be strange to ask federal

courts to analyze whether a state court’s adjudication resulted in a decision that

unreasonably applied federal law to facts not before the state court,” Pinholster explicitly

held that “[iJ]fa claim has been adjudicated on the merits by a state court, a federal habeas

petitioner must overcome the limitation of § 2254(d)(1) on the record that was before that

state court.” Jd. at 185. Thus, “evidence introduced in federal court has no bearing on

§2254(d)(1) review.” Id.

IV. DISCUSSION

A. Prosecutorial Misconduct (Ground One)

Bell alleges that the prosecutor committed misconduct and denied him a fair trial

because she presented (1) a false and misleading DNA lab report; (2) false testimony

concerning whether an assailant would have to ejaculate to leave DNA; and (3) false

testimony that Bell was the only male with whom R.M. had been sexually intimate.

A public official’s concealment of exculpatory evidence violates a criminal

defendant’s constitutional rights. See Brown v. Miller, 519 F.3d 231, 238 (5th Cir. 2008)

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(civil rights case under 42 U.S.C. § 1983 citing Burge v. Parish of St. Tammany, 187 F.3d

452, 480 n.11 (Sth Cir. 1999)). In the context of a federal habeas proceeding under 28

U.S.C. § 2254, the court must determine whether the alleged prosecutorial misconduct “so

infected the ... trial with unfairness as to make the result[] a denial of due process.”

Barrientes v. Johnson, 221 F.3d 741, 753 (5th Cir. 2000). “A trial is fundamentally unfair

if ‘there is a reasonable probability that the verdict might have been different had the trial

been properly conducted.’” Id (quoting Foy v. Donnelly, 959 F.2d 1307, 1317 (Sth Cir.

1992)).

“The State may not knowingly use false evidence, including false testimony, to

obtain a tainted conviction[.]” Napue v. Illinois, 360 U.S. 264, 269 (1959). The

prosecution denies a criminal defendant due process when it knowingly uses perjured

testimony at trial or allows untrue testimony to go uncorrected. Giglio v. United States,

405 U.S. 150 (1972); Faulder v. Johnson, 81 F.3d 515, 519 (5th Cir.), cert. denied, 519

U.S. 995 (1996). To demonstrate a constitutional violation based on the State’s use of

perjured testimony or a failure to correct false testimony, a habeas petitioner must show

that “(1) the testimony was actually false, (2) the state knew it was false, and (3) the

testimony was material.” Faulder, 82 F.3d at 519. “To warrant a new

trial, prosecutorial misconduct must be ‘so pronounced and persistent that it permeates the

entire atmosphere of the trial.’” Trottie v. Stephens, 720 F.3d 231, 253 (5th Cir. 2013)

(quoting United States v. Jimenez, 509 F.3d 682, 691-92 (5th Cir. 2007); United States v.

Wyly, 193 F.3d 289, 299 (5th Cir.1999)). Under AEDPA, the “prosecutorial-misconduct

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analysis is subject not only to the ‘high bar’ discussed above, but also to the deference that

we afford to the state habeas court’s decision.” Jd.

1. DNA Lab Report

After R.M.’s outcry, Sexual Assault Nurse Examiner (SANE) Rachel Bryant

conducted a SANE examination, taking labial and vaginal swabs of R.M., among other

evidentiary swabs. As part of the pre-trial investigation, investigators also took a cheek

swab sample from Bell for comparison. Jennifer Pollock, a Texas Department of Public

Safety (DPS) laboratory analyst, tested the samples. The DPS “YSTR Laboratory Report”?

indicated that “no Y-STR profile was obtained” for all but one of the evidentiary samples

from R.M., but for the M2 sample (vaginal swab), the report indicated that “no interpretable

Y-STR profile was obtained.”* The Y-STR report and other DPS laboratory reports

submitted as evidence showed that Bell did not contribute to any of the DNA found in

R.M.’s samples.

Before trial, Mr. Garvie, Bell’s trial counsel, requested and received authorization

to hire Dr. Elizabeth Johnson as a DNA expert, reached out to Johnson initially about the

case, and sent Johnson the DNA discovery. However, Garvie did not obtain a report from

Johnson. Because the parties agreed that the evidentiary samples taken from R.M. did not

3 Y-STR stands for “short tandem repeat” polymerase chain reaction (PCR) DNA analysis of

certain loci on the Y (male) chromosome. See Doc. No. 8-18 at 45. According to the report, the

test run by DPS examined the following 16 loci: DYS456, DYS3891, DYS390, DYS38911,

DYS458, DYS19, DYS385a/b, DYS393, DYS391, DYS439, DYS635, DYS392, YGATA □□□□

DYS437, DYS438, and DYS448. Jd.

* Doc. No. 8-18 at 45 (State’s Exhibit 42).

> See id. at 42-46.

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contain any DNA from Bell and the State would not be presenting testimony from the DPS

analyst who performed the testing, Garvie determined that he did not need Dr. Johnson to

testify.° Instead, the parties entered into a Stipulation of Evidence that stated, among other

things, that the DNA profile of John Franklin Bell, Jr. was not detected on any of the items

submitted and tested by DPS.’

Bell’s first post-conviction DNA forensic expert, Dr. Frank Powell, was initially

asked to provide his opinion on whether Lt. Heather Sanders’s testimony—that a male

would have to ejaculate to leave detectable DNA in a vaginal swab sample—was false.*

After reviewing the record and reading the DNA Lab Report, Powell asked to review the

DNA discovery because he noticed that while most of the evidentiary swab samples

reflected that “no Y-STR profile was obtained,” the M2 vaginal swab sample results stated

that “no interpretable Y-STR profile was obtained.”? According to Powell, the

electropherogram results for the M2 sample showed that there was a peak that appeared to

be above the reporting threshold at the 15 allele on the DYS456 locus.!° He also noted that

the electropherogram results for Bell’s comparison sample indicated an initial, “off-scale”

® Doc. No. 8-22 (State Habeas Corpus Hearing) at 195:19-25, 218:18 —219:3.

1 Id. at 195:19-25; see also Doc. No. 8-23 at 5-7 (State’s Exhibit A).

® Doc. No. 8-23 at 144 (Affidavit of Dr. Frank Powell).

° Id.; Doc. No. 8-18 at 45 (emphasis added).

10 See Doc. No. 8-23 at 145, 185 (electropherogram); see also Doc. No. 8-23 at 190 (Affidavit of

Dr. Angie Ambers) (noting that the DPS Standard Operating Procedures’ analytical threshold for

Y-STR allele data is 100 RFUs (relative fluorescence units) and noting that the electropherogram

did not provide specific RFU data but the peak for the 15 allele at the DYS456 locus appears to be

above threshold because it registered in the DPS software).

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peak at the 16 allele on the DYS456 locus, which Pollock, who performed the testing, had

noted as “INC” for “inconclusive” rather than re-running the sample.!!

Bell contends that Pollock’s lab report was false and misleading and denied him due

process and a fair trial. He argues that Pollock’s characterization of the DNA results in the

vaginal swab sample as uninterpretable for comparison purposes was false because there

was a 15 allele on the Y-STR DYS456 locus, whereas Bell contends he has a 16 allele for

the Y-STR DYS45 6 locus. Bell claims that the DNA results show that there was another

male contributor for the 15 allele. He also contends that, had the jury heard about the

presence of other male DNA, his trial counsel could have impeached R.M.’s testimony that

she had not been sexually active with anyone but Bell. Bell further argues that Pollock

should have re-run his DNA comparison sample rather than considering it “inconclusive,”

and that the single peak on the evidentiary sample from R.M.—which did not match his

DNA Y-STR profile—is enough to exclude him as a contributor.

The Honorable Albert M. McCaig, Jr., presided over both the trial and the state

habeas corpus proceeding and issued extensive Findings of Fact and Conclusions of Law

after a lengthy hearing on Bell’s habeas claims. He heard the testimony of all of the

witnesses at trial, including that of R.M. and Bell; witnessed first-hand the assistance that

Garvie provided to Bell at trial; and heard the testimony of the DNA forensic experts, DPS

forensic analyst Pollock, and trial counsel at the habeas corpus hearing.

"Tq. at 145 (Affidavit of Dr. Frank Powell).

As used here, “evidentiary samples” refer to the swabs taken from R.M. and “comparison

me refers to the swab taken from Bell.

Regarding Bell’s DNA lab report claim, the state habeas court made the following

relevant factual findings:

11. Under then current DPS lab protocols, Jennifer Pollock had no scientific

basis for completing an on-scale profile regarding the Bell DNA and the

unknown DNA in that there was nothing with which to compare the unknown

DNA. There was no identified third-party or DNA from an unknown third-

party male on which to make a comparison.

15. All of the evidence and all the testimony at trial and at the writ hearing

agrees that John Franklin Bell, Jr., did not contribute any DNA found on any

of the evidentiary items or on R.M., and is uncontroverted.

19. The Lab Report did not say that there was no male DNA found on the

vaginal swab; it clearly stated that the DNA was not interpretable under the

DPS lab protocols in place at the time.

20. The Court finds Jennifer Pollock to be a credible and reliable witness and

her affidavits to be credible and supported by the record from the trial and

habeas corpus proceedings.

21. The Court finds Jennifer Pollock to be a qualified DNA analyst based on

her educational background, training, qualifications, and 13 years of analysis

experience. (SX C, SXD).

22. The Court finds Jennifer Pollock to be competent and technically

proficient in the field of DNA analysis and reporting. (SX C, AX 20) 23. The

Court finds that Jennifer Pollock’s employment evaluations reflect that she

meets or exceeds employment expectations and is competent, skilled and

effective in the performance of her duties as a forensic scientist since the

beginning of her employment with the Texas Department of Public Safety in

2007. (AX 20)

24. The Court finds that Pollock evaluated all the samples from R.M.’s

vaginal swabs, prior to reviewing any DNA sample from a known

16/38

contributor; and, this practice was in keeping with SWGDAM! guidelines

and mitigated any cognitive bias. (SX C)

25. Texas DPS Y-STR interpretation guidelines define an inconclusive result

as “insufficient Y-STR data or data too complex for meaningful

interpretation.” (SX F (5.4C Possible Conclusions))

26. Pollock followed both the DPS Y-STR Interpretation Guidelines (SX F)

and the DPS Standard Operating Procedures/Subject: Report Writing

Guidelines (SX G), m preparing and writing the Lap Report in question.

27. Pollock’s work notes: reflect that the electropherogram on the DNA

Extract from the vaginal swab of R. M. had one 15 allele at the DYS456

locus. (AX 13)

28. The Court finds that it cannot be determined how or when the biological

material that contained this one 15 allele was deposited on the vaginal swab

sample (AX 9); and, it cannot be determined if the one 15 allele was the result

of contamination of the sample or if it is scientifically accurate or reliable

data. Although the called allele is above threshold, it is still possible that it

was an anomaly, the result of random allele drop-in, or other effects and

artifacts from the PCR process. (SX C)

29. An electropherogram of the DNA extract taken from the applicant’s

sample suggested he had a 16 allele at the DYS456 locus. The RFU level for

the 16 allele call was likely the result of spectral pull-up and therefore

exceeded the maximum analytical threshold approved by the laboratory. The

Standard Operating Procedures for the laboratory state that “if data exceeds

the maximum analytical threshold at any locus, the off-scale locus must be

called inconclusive or the sample reanalyzed.” (AX 9, SX F)

30. Post-trial DNA testing confirmed that the applicant has a 16 allele at the

DYS456 locus. If the one 15 allele detected at the same location on R. M.’s

vaginal swab sample is an accurate finding, the applicant is excluded as a

contributor.

31. The Court finds by a preponderance of the credible evidence, that, based

on DPS lab protocols in place at the time of the Lab Report, and remaining

in effect through the writ hearing in December 2020, the Department of

'3 SWGDAM stands for “Scientific Working Group on DNA Analysis Methods.” See SWGDAM

. website, available at www.swgdam.org, last visited Sept. 7, 2022.

17/38

Public Safety report in question, Applicant’s Exhibit 2, at the writ hearing, is

not false and misleading.'*

Bell contends that the state habeas court’s factual findings that the lab report was

not false and misleading is “an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). In determining

whether a state court’s determination of the facts was unreasonable under AEDPA, the

Supreme Court has explained that “a state-court factual determination is not unreasonable

merely because the federal habeas court would have reached a different conclusion in the

first instance.” Wood y. Allen, 558 U.S. 290, 301 (2010). Further, it noted that “even if

reasonable minds reviewing the record might disagree about the finding in question, on

habeas review that does not suffice to supersede the trial court’s ... determination.” □□□

(internal quotation marks and alteration omitted); see also Brown v. Davenport, 142 S. Ct.

1510, 1525 (2022) (explaining that “under § 2254(d)(2), it is not enough to show that

‘reasonable minds reviewing the record might disagree about the finding in question’”

(citation omitted)).

At the state habeas hearing, Pollock testified that she determined that the

information present for R.M.’s vaginal swab sample was uninterpretable and inconclusive

for comparison purposes.!> Pollock explained that, once she obtained inconclusive results

from the evidentiary sample (the sample from R.M.’s vaginal swab), there was no need for

'4 Doc. No. 8-26 at 69-71, State Habeas Corpus Record (SHCR) at 676-78 (Findings of Fact on

Material Fact Issue No. 1).

'S Doc. No. 8-26 at 68, SHCR at 675; see also Doc. No. 8-22 (State Habeas Corpus Hearing) at

34:24, 42:15-20, 73:4-6.

18/38 ,

further comparison of Bell’s sample because the evidentiary sample had too little data

about which to make a conclusive-result.!® She noted that, in her professional opinion and

expertise in testing DNA samples, it was not a good sample for meaningful interpretation.!”

Pollock explained: “Since I deemed the evidence inconclusive, no further comparisons or

anything else would be done with that evidence.”'® She testified that, per protocols and

Standard Operating Procedures at the DPS at the time, the first step for the technician is to

determine a conclusion about an evidentiary sample (in this case, the vaginal swab sample),

and once a technician decides that the profile is inconclusive, everything “stops” and the

technician is not supposed to make a comparison off that sample.!® Pollock also testified

that Bell’s comparison sample had an inconclusive result at the DS Y456 locus, explaining:

[I]t’s off-scale data which is very common for us to encounter. And by the

indications on the electropherogram, it’s self-explanatory for a DNA analyst.

So, again, it was marked inconclusive because nothing was being done with

that known sample for any comparison purposes.”°

When challenged as to why she did not re-run Bell’s comparison sample, she explained

that it would be a waste of consumable resources at the lab for her to use more reagents on

a test that they were not going to use for comparison purposes because the evidentiary

sample did not yield interpretable data.?!

16 Doc. No. 8-22 (State Habeas Corpus Hearing) at 42:15-20, 73:4-6. .

'T Id. at 34:3-6, 61:15-20. □

'8 Td, at 36:17-19. :

19 Td. at 41:23 — 42:6.

20 Id, at 39:25 — 40:6. .

Id. at 41:18-20. :

19/38

The state habeas court heard Pollock’s testimony and the testimony of two of Bell’s

experts and found that Pollock was a credible and reliable witness.?? “A credibility

determination by the state habeas court is also afforded deference.” Coleman v.

Quarterman, 456 F.3d 537, 541 (Sth Cir. 2006) (citation omitted), Further, the

“presumption [of correctness] is especially strong when the state habeas court and the trial

court are one in the same,” as in this case. Mays v. Stephens, 757 F.3d 211, 214 (5th Cir.

2014) (quotations and citations omitted); Boyle v. Johnson, 93 F.3d 180, 186 (5th Cir.

2014) (“The presumption is particularly strong where, as here, the habeas court was the

same court that presided over the trial.”).

Pollock’s testimony is evidence in the habeas record that she determined that the

evidentiary sample was not interpretable for comparison purposes, and □□□

electropherogram printout of the M2 vaginal swab sample at issue reflects that, out of the

16 loci tested,”? only one peak appeared at one locus.”4 Dr. Robert Benjamin, one of Bell’s

DNA experts, noted that “[a]lthough based upon the laboratory’s interpretational

guidelines this limited information is not used for comparison purposes

(inclusion/exclusion of individuals), it is still quite true that the male genetic material

recovered from the vaginal swab could not have come from John Franklin Bell, □□□□

2 Doc. No. 8-26 at 70, SHCR at 677 20 (Findings of Fact on Material Fact Issue Number 1).

3 As noted supra note 3, the 16 loci that were tested in the Y-STR DNA test are: DYS456,

DYS3891, DYS390, DYS38911, DYS458, DYS19, DYS385a/b, DYS393, DYS391, DYS439,

DYS635, DYS392, YGATA H4, DYS437, DYS438, and DYS448. See Doc. No. 8-18 at 45. Only

the DYS456 locus yielded any measurable results. See Doc. No. 8-23 at 185.

4 Doc. No. 8-23 at 185 (Y-STR electropherogram results for the M2 vaginal swab sample).

Doc. No. 8-23 at 220 (Affidavit of Dr. Robert Benjamin).

20 / 38

Given that the sample yielded such “limited data” even according to Bell’s expert, along

with the testimony of Pollock and the DNA electropherogram results, the record contains

evidence to support the state habeas court’s factual finding that the sample yielded too little

usable data to be reliable for comparison purposes, and, therefore, the lab report was not

false or misleading based on the DPS lab protocols in place at the time. Bell does not meet

his burden to show, by clear and convincing evidence, that the state court’s finding

regarding the YSTR Laboratory Report was an unreasonable determination of the facts

based on the evidence in the state court record. Accordingly, the state court’s factual

finding that the DNA report was not false or misleading is entitled to the presumption of

correctness under AEDPA.

. 2. Lieutenant Sanders’s Testimony

Bell also alleges that the prosecutor elicited false testimony from Sanders when

Sanders testified that Bell would have had to ejaculate in order to leave his DNA in R.M.’s

vagina. It is uncontroverted that this statement is not scientifically accurate. To obtain

relief based on the state’s use of false testimony or a failure to correct false testimony, a

habeas petitioner seeking federal relief from a state court judgment must show that “(1) the

testimony was actually false, (2) the state knew it was false and (3) the testimony was

material.” Faulder, 82 F.3d at 519. A habeas petitioner must also show that the

prosecutorial misconduct was “so pronounced and persistent that it permeate[d] the entire

atmosphere of the trial.” Trottie, 720 F.3d at 253.

21/38

The state habeas court noted at the outset that Bell “withdrew his claim of

prosecutorial misconduct that the State knowingly used false testimony to secure a

conviction; therefore, leaving the claim that the State’s attorney unknowingly used false

testimony to secure a conviction.”*° The state habeas court found that, in view of the

Stipulation of Evidence and all representations by the State specifically negating the

presence of Bell’s DNA on any of the evidence, “an inaccurate statement about how DNA

may be deposited in the limited circumstances of the facts of this case do not prejudice

[Bell].”7

Further, the state habeas court found that “trial court judge gave a limiting

instruction with respect to [Sanders’s] testimony, instructing the jury that LT Sanders was

testifying for the ‘limited purpose of testifying as an investigator of these types of

offenses’” and the “jury was instructed not to consider LT Sanders as an expert in DNA.”

In addition, the state court found that another witness at trial, Rachel Bryant, testified that

she “would not be surprised” if DNA has been found in cases where the victim was

penetrated by a finger.”? The state habeas court further found that Sanders’s inaccurate □

statement that a male would have to ejaculate to be able to leave his DNA, when taken in

6 Doc. No. 8-26 at 66, SHCR at 673. The state habeas record confirms that Bell’s post-conviction

counsel stated on the record that “I’m not suggesting that she knew — that Ms. Magness knew that

there was false testimony.” Doc. No. 8-22 (State Habeas Corpus Hearing) at 223:19-20. Post-

conviction counsel also stated that “I’m not alleging that Ms. Magness intentionally put on false

testimony” and “J said in the brief I wasn’t alleging that.” Jd. at 225:11-15.

*? Doc. No. 8-26 at 72, SHCR at 679 95 (Findings of Fact on Material Issue Number 2).

28 Td. at 680 13.

29 Id. 416.

22 / 38

context of whether Bell ejaculated into R.M.’s vaginal canal, did not prejudice Bell at

trial.°°

Bell does not contend, in this federal proceeding, that the prosecutor knowingly

presented false testimony to the jury. Instead, without citing to authority, he argues that a

defendant “need not show that the prosecutor knew at the time that the testimony was false

or misleading.” Doc. No. 3 at 13. Contrary to Bell’s unsupported assertion, the Fifth

Circuit has explained that “‘[a]lthough some circuits recognize a due process violation

when perjured testimony is provided by a government witness even without the

government’s knowledge, we are limited by the AEDPA to applying only established

Supreme Court precedent,’ which “demands proof that the prosecution made knowing use

of perjured testimony.’” Pierre v. Vannoy, 891 F.3d 224, 228 & n.3 (Sth Cir. 2018)

(quoting Kinsel v. Cain, 647 F.3d 265, 271-72 & n.26 (Sth Cir. 2011); also citing other

cases and Kutzner v. Cockrell, 303 F.3d 333, 337 (Sth Cir. 2002) (“[D]ue process is not

implicated by the prosecution’s introduction or allowance of false or perjured testimony

unless the prosecution actually knows or believes the testimony to be false or perjured.”)).

Accordingly, Bell must show that the prosecutor knew that the testimony was false in order

to show a constitutional violation for federal habeas relief. As the state habeas court found

and the hearing transcript shows, Bell does not contend that the prosecution knew that

Sanders’s testimony was false. Therefore, he cannot show entitlement to habeas relief on

his prosecutorial misconduct claims as a matter of law.

3° Id. 417.

23 / 38

Even if Bell did not need to show that the prosecutor knew that the testimony was

false, the state habeas court also found that the testimony did not prejudice Bell because

the trial court gave a limiting instruction that Sanders was not a DNA expert, and another

witness stated that she would not be surprised if DNA would be recovered if an assailant

Spit on his fingers. The state habeas court’s conclusion that such testimony did not cause

prejudice is not contrary to, or an unreasonable application of, Supreme Court law, nor is

it an unreasonable determination of the facts based on the record as noted above.

Therefore, Bell does not show that he is entitled to habeas relief based on Sanders’s

testimony.

3. R.M.’s statement that she was not sexually active with anyone else

Bell claims that the prosecution elicited false testimony from R.M. about not being

sexually active with anyone else because there was a 15 allele at the DYS456 locus that

did not belong to Bell in R.M.’s Y-STR vaginal swab sample. He contends that the 15

allele was a true allele from another male and, therefore, R.M. lied.

As explained above, even if this testimony was false, Bell does not contend that the

prosecution knowingly presented false testimony to the jury. Accordingly, Bell cannot

prevail on this claim as a matter of law. See Pierre, supra.

In addition, the state habeas court, taking into consideration R.M.’s entire testimony,

the investigation, and the fact that she had been caught in lies of omission and commission

to her parents, her grandparents, her teachers, the forensic interviewer, the SANE nurse,

and Lieutenant Sanders, made the following findings regarding R.M.’s testimony:

24 / 38

23. The Court finds, by a preponderance of the evidence, that the testimony

by R.M. at trial is clear and that she stated that she had not been sexually

active prior to the outcry. (3 RR 165)

24. R.M.’s whereabouts in the days before her outcry were established

through the testimony of R.M., the applicant, and R.M.’s mother, Laura Bell.

25. In the days preceding her outcry of abuse, the trial testimony firmly

established she was with the applicant, her mother, or in school. She did not

have the opportunity outside of those occasions to have sexual contact with

anyone other than the applicant.

26. When questions about her experience as an investigator with 17 years

working in child sex cases, LT Sanders stated, “Well, children who have been

sexually abused as young children typically go for different outlets out there,

as in older relationships with people that they probably shouldn’t be in

relationships with. They go out there and sexting. Some get involved in

prostitution. There are no bounds to the type of behavior that come from

children who are sexually abused and what they do. And it’s all an outcry.”

(3 R.R. Page 237) .

27. In questioning by the State, Fiona Remko, the forensic examiner, during

the trial stated the following about whether children who have been sexually

abused engage in inappropriate behavior: “And so kids oftentimes seek that

out, especially if their emotional needs aren’t being met somewhere else, so

they can become promiscuous because that's how they’ve been taught to

show love and affection obviously in an unhealthy way” ( 4 R.R. page 21).

28. During the investigation and trial R.M. had already been caught in several

lies and the jury, as judges of the credibility of the witness during her

testimony five years after the disclosure of the acts, chose to disregard those

lies in arriving at its verdict of guilty.

29. The Court finds by a preponderance of the credible evidence that whether

R.M. was sexually active with another unknown male, or not, does not negate

her testimony and the investigation regarding the acts of John Frank Bell, Jr.

At most, the issue of her sexual activity could have possibly opened the door

for her impeachment within the bounds of Texas Rules of Evidence 404 and

Article VI. Witnesses.

25 / 38

30. The Court finds by a preponderance of the credible evidence that the

testimony of RM that she was not sexually active with anyone other than Bell

was not false.*! :

The state court also concluded that “there is no reasonable likelihood that her

testimony would have affected the judgment of the jury,” and Bell “failed to prove that the

outcome of the trial would have been different without the statement by R.M. regarding

her sexual activity prior to the outcry.”>?_—. .

The record shows that defense counsel presented examples to the jury of R.M. lying

or being caught in a lie around the time of the incidents in question. The jury heard about

R.M.’s concealment of Patrick Mason, her deceptive use of the internet for non-school

purposes, and her troubles at school with her grades, among other things. Nonetheless, the

jury also heard R.M.’s detailed testimony about what Bell had done to her over the course

of several years, and they heard Bell’s testimony in his own defense. The state habeas

court noted that although R.M. had already been caught in several lies, “the jury, as judges

of the credibility of the witness during her testimony five years after the disclosure of the

acts, chose to disregard those lies in arriving at its verdict of guilty.”33 The state habeas

court found, by a preponderance of the evidence, “that whether R.M. was sexually active

with another unknown male, or not, does not negate her testimony and the investigation

regarding the acts of John Franklin Bell, Jr.” and at most could have been used for

impeachment.*4

3! Doc. No. 8-26, SHCR at 681-82 9] 22-30 (Findings of Fact on Material Fact Issue Number 2).

32 Id. at 682 Jf 6-7 (Conclusions of Law on Material Fact Issue Number 2).

3 Id. 28.

34 Id. | 29.

26/38

The state habeas court’s conclusion that Bell did not show that the outcome of his

trial would have been different without the statement by R.M. regarding her sexual activity

prior to the outcry is ‘not an unreasonable determination based on the facts in the record.

On federal review, Bell does not meet the “high bar” to show that any prosecutorial

misconduct “permeate[d] the entire atmosphere of the trial,” nor does he overcome the

deference a federal court affords to the state court’s factual determination under AEDPA.

See Trottie, 720 F3d at 253. Further, as explained above, he does not show that the state □

court’s conclusion that there was no basis for a prosecutorial misconduct claim was

contrary to, or an unreasonable application of, Supreme Court precedent. Therefore,

Respondent is entitled to summary judgment regarding Ground One.

B. Ineffective Assistance of Counsel (Ground Two)

The Constitution guarantees a fair trial for criminal defendants through the Due

Process Clause, but the Sixth Amendment, which conveys the right to have the effective

_ assistance of counsel, largely defines the basic elements of a fair trial. See U.S. CONST.

amend. VI; Strickland v. Washington, 466 US. 668, 685 (1984); see also McMann v.

Richardson, 397 U.S. 759, 771 n.14 (1970) (observing that “the right to counsel is the right

to the effective assistance of counsel”). Claims for ineffective assistance of counsel are

analyzed under the following two-prong standard:

First, the defendant must show that counsel’s performance was deficient. .

This requires showing that counsel made errors so. serious that counsel was

not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the deficient

performance prejudiced the defense. This requires showing that counsel’s

27/38

errors were So serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.

Strickland, 466 U.S. at 687. Thus, to prevail under the Strickland standard, a defendant

must demonstrate both constitutionally deficient performance by counsel and actual

prejudice as a result of the alleged deficiency. See Williams v. T. aylor, 529 U.S. 390, 390-

91 (2000).

The first prong of the governing standard is only satisfied where the defendant

shows that “counsel’s representation fell below an objective standard of reasonableness.”

Strickland, 466 U.S. at 687. Scrutiny of counsel’s performance must be “highly

deferential,” and a reviewing court must make every effort “to eliminate the distorting

effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and

to evaluate the conduct from counsel’s perspective at the time.” Jd. at 689. There is a

“strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” See United States v. Molina-Uribe, 429 F.3d 514, 518 (Sth Cir.

2005) (citing Strickland, 466 U.S. at 687-88), cert. denied, 547 U.S. 1041 (2006). In the

Fifth Circuit, “federal habeas review of a state court’s denial of an ineffective-assistance-

of-counsel claim is ‘doubly deferential’ because we take a highly deferential look at

counsel’s performance through the deferential lens of § 2254(d).” Rhoades v. Davis, 852

F.3d 422, 434 (Sth Cir. 2017).

To prove prejudice, the second prong under Strickland, a defendant must

demonstrate a “reasonable probability that, but for counsel’s unprofessional errors, the

28 / 38

result of the proceeding would have been different.” 466 U.S. at 694. “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Jd.

Bell claims that Garvie was ineffective because he did not follow up with his DNA

expert who could have testified regarding the DNA discovery and the 15 allele that did not

match Bell’s DNA profile. He contends that Garvie could have used the DNA

electropherogram results to suggest the presence of another male’s DNA in R.M.’s vaginal

swab to attack her credibility regarding her testimony that she had not been sexually

intimate with any other person, and that he could have pointed out inconsistencies in her

statements about whether Bell used his finger or his tongue on the night before her outcry.

In its Findings of Fact on this issue, the state habeas court found Mr. Garvie to be

an experienced criminal defense attorney.*> It found that Garvie received a copy of the

DPS YSTR Laboratory Report and Pollock’s work notes but, because he did not fully

understand them, he filed a motion for the court to appoint Dr. Elizabeth Johnson as a

defense DNA expert.*® The record reflects that the trial court granted Garvie’s request for

a DNA expert and authorized up to $3,000 for compensation with the possibility of

additional compensation if needed.*” Garvie filed a motion for review and re-testing of the

DNA evidence, but the trial court denied his request and ordered the state to provide the

existing DNA discovery.32

35 Doc. No. 8-26 at 76, SHCR at 683 § 1 (Findings of Fact on Material Issue Number 4).

36 Id. at 683-84 4¥ 2-3.

37 Id. at 6849 4.

381d 45. .

29 / 38

At the state habeas hearing, Garvie testified that he asked Dr. Elizabeth Johnson to

review the DNA discovery and tell him if he needed her to testify.*? He further testified

that he gave Johnson the DNA discovery and asked her to make sense of it for him.*®

According to Garvie, he had a conversation with Johnson where they talked about her

testifying if the State called the DPS analyst to testify.*! Garvie testified that he and the

State entered into the Stipulation of Evidence because the DPS analyst was not going to

testify and Garvie consequently concluded that he did not need Dr. Johnson to testify.”

Garvie stated that he expected that Dr. Johnson would call him if she had found anything

different.”

Garvie further testified that he had defensive theories based on: (1) the fact that no

DNA tied Bell to the crime; (2) the texts indicating that Patrick Mason was controlling

R.M. as a dominant and she was a submissive and, therefore, she made this up to be with

Patrick Mason; and (3) the lack of evidence tying Bell to the offense.*4 Garvie explained

that he achieved #1 and #3 with the Stipulation that he considered to be more favorable to

the defense than the actual DNA lab report.*> He also stated that, had he known and

understood the issue with the 15 allele in the vaginal swab sample, he would have added

this information “on the side” with all of the other impeaching information he presented to

° Doc. No. 8-22 (State Habeas Corpus Hearing) at 195:1-4.

4° Td, at 189:15 — 190:3.

Id, at 195:6-10.

“2 Td. at 195:19-25, 218:18 —219:3.

43 Id. at 196:8-10.

44 Td. at 188:3-6, 214:23 —215:20.

“5 Id. at 215:6-20.

30/38

the jury, but that his focus was on Patrick Mason and his involvement with R.M., including

the pornographic pictures she sent to Mason and the control he seemed to exert over her.’6

He questioned whether challenging R.M. on being sexually active would have been an

effective argument in view of the defensive strategy to present Patrick Mason as R.M.’s

real sexual interest.4”7 He further testified that he established his defensive theories and

pursued them as his trial strategy throughout the case.*®

The state habeas court found Garvie to be diligent in moving for appointment of a

DNA expert and that he was relying on Dr. Johnson’s expertise to understand the DNA

discovery for cross-examining the state’s expert at trial.” It further found that Garvie

persuaded the state to stipulate that the applicant’s DNA profile was not detected on any

item submitted and tested by the DPS, and that the reports would be submitted without

calling a sponsoring witness.°° The habeas court also found that the Stipulation of

Evidence supported Garvie’s trial strategy that the state could not produce any DNA

evidence linking Bell to the crime or establishing his guilt.5! The state habeas court

concluded that Garvie’s decision not to call-Dr. Johnson was a reasonable tactical decision

and part of his sound trial strategy in light of the favorable Stipulation.~?

“6 Id. at 216:2-13.

47 Td. at 216:24 — 217:7.

“8 Id. at 217:3-7.

” Doc. No. 8-26 at 77, SHCR at 684 § 9 (Findings of Fact on Material Issue Number 4).

°° Id. at 685 16.

51 Id. 17.

2 Id 419.

31/38

The state habeas court noted that although the presence of the 15 allele could have

opened the door for Garvie to impeach R.M., any attempt to impeach R.M. suggesting that

she had sexual contact with another male was in conflict with trial counsel’s defensive

theory, namely, that all allegations of sexual contact were fabricated so R.M. could pursue

a relationship with an out-of-state, online, adult suitor named Patrick Mason.°** The state

habeas court further found that Garvie developed his defensive theory by presenting a

cohesive statement of the case and noted that Garvie elicited evidence to support his trial

strategy to impeach R.M. at trial as follows:

a. R.M. became upset when Bell grounded her on the night of February 15,

2012 (4 R.R. 174-78). Thus, R.M. was seeking revenge on Bell.

b. On February 20, R.M., while staying with her grandmother, tried to hide her

phone from Laura Bell, who took it and discovered that R.M. had been

chatting online with a 57-yearold man (4 R.R. 204-06). Thus, R.M. was using

deception in her allegations.

c. When Mrs. Bell learned that the man lived in Michigan, she concluded that

R.M. was lying about Bell because earlier R.M. had asked about going to

school in Michigan without explaining why (4 R.R. 210-11). Thus, R.M. was

engaged in a conspiracy with Mason.

d. Ultimately, Laura Bell sent R.M. to the Methodist Children’s Home in Waco

Texas, in the hope that R.M. would receive counseling for chatting online

with sexual predators, being defiant, and lying (4 R.R. 253). Thus, R.M. was

disobedient and incorrigible.

e. John Bell and Laura Bell married in 2003, when R.M. was six years old

(4R.R. 67), and there were two other girls in the home who had not made

allegations of sexual abuse against Bell. Thus, the allegation was out of

context.

f. R.M. behaved poorly and spoke disrespectfully to her mother (4 R.R. 68).

She took the family’s computer into her bedroom, asserting that she needed

%3 Id. at 686 § 23.

32/38

to use it to do her homework (4 R.R. 76-77). Thus, R.M. was deceitful.

g. Bell denied having any sexual contact with R.M. (4 R.R. 66-67). Thus, R.M.

was lying.

_h. Bell voluntarily talked to the authorities and voluntarily gave a saliva sample

(4 R.R. 79-80), and; that Bell had cooperated with the police (5 R.R. 49).

Thus, he had nothing to hide.

i. Defense counsel argued that R.M. had no physical trauma (5 R.R. 43). Thus,

there was no physical evidence of the allegations.

j. R.M. said that Bell spit on his fingers the night before she made the

accusations, but his DNA was not found in her, and she did not testify that

she had cleaned herself (5 R.R. 43-45). Thus, the allegations were fabricated

and lacked physical evidence.

k. Mason was grooming R.M. on the Internet (5 R.R. 37-38); and that she made

good grades up until the time she met Mason (5 R.R. 47-48). Thus, the

allegation was planted by Mason.

R.M. lied to her mother about her involvement with Mason (5 R.R. 48); and

she asked her mother about going to boarding school in Michigan (5 R.R.

52). Thus, the allegations were a conspiracy of R.M. with Mason.**

The state habeas court concluded that Bell had not shown by a preponderance of the

evidence that he was prejudiced by Garvie’s performance or that he received ineffective

assistance of counsel by Garvie not calling Dr. Johnson to testify and found that there is no

reasonable probability that the result of the trial would have been different absent the

alleged deficient performance of Mr. Garvie.>

A review of the record confirms that the trial court’s findings and conclusions are

supported by the record at trial and the habeas corpus hearing. As explained in part

4 Id. at 686-87 § 26.

5 Id. at 688 4] 32-33.

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IV.A.1., supra, the habeas court’s determination that the lab report was not false or

misleading was not an unreasonable determination based on the state court record. Further,

as previously explained, the state habeas court also found that the DNA reports reflect that

no DNA from Bell was found on any evidentiary sample, and that fact was presented to

the jury in the parties’ Stipulation of Evidence.

Likewise, as discussed above in part IV.A.3, supra, Garvie attacked R.M.’s

credibility on several fronts and had a coherent defensive strategy regarding Patrick Mason

providing a motive to lie about the abuse. The state habeas court found that Garvie had a

sound tactical strategy and further found that Bell did not show that the result of his trial

would have been different if Garvie had been able to impeach R.M.’s testimony that she

had not been sexually active with anyone besides Bell before her outcry. These

determinations of the facts are not unreasonable based on the evidence in the record.

In addition, the state court’s finding that Garvie rendered reasonably effective

assistance of counsel is not an unreasonable application of Strickland. There, the Supreme

Court emphasized, “[jJudicial scrutiny of counsel’s performance must be highly

deferential” and that “[i]t is all too tempting for a defendant to second-guess counsel’s

assistance after conviction or adverse sentence, and it is all too easy for a court, examining

counsel’s defense after it has proved unsuccessful, to conclude that a particular act or

omission of counsel was unreasonable.” 466 U.S. at 689 (citations omitted). It later noted

that a state court’s conclusion that trial counsel was not ineffective for failing to present

blood expert investigation and testimony was not unreasonable, because “Strickland,

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however, permits counsel to ‘make a reasonable decision that makes particular

investigations unnecessary.’” Harrington, 562 U.S. at 106-07 (holding that the state

habeas court’s determination that trial counsel was not ineffective for failing to investigate

and present expert testimony on certain blood evidence because it was “well within the

bounds of a reasonable judicial determination for the state court to conclude that defense

counsel could follow a strategy that did not require the use of experts regarding the pool in

the doorway of [one of the victim’s] bedroom”).

In Harrington, the Supreme Court found that “it is at least arguable that a reasonable

attorney could decide to forgo inquiry” into an investigative path in the circumstances of

that case. Jd. Likewise, it was “at least arguable” that Garvie could decide that entering a

Stipulation of Evidence that was favorable to Bell, instead of presenting his DNA expert

to testify, was reasonable given the circumstances of this case, where the defense had an

alternate sexual interest it could point to in Patrick Mason, there was no DNA of Bell’s in

the evidentiary samples, and the State was not presenting the DPS analyst to testify. Given

the “wide latitude” state courts have in determining whether trial counsel made a

reasonable tactical decision, id. at 106, the state habeas court reasonably determined that

Garvie used a reasonable defense strategy that R.M. fabricated the allegations so she could

be with Patrick Mason in Michigan and that the Stipulation of Evidence made further DNA

expert investigation and testimony unnecessary. In addition, Bell does not show that

Garvie’s tactical decisions regarding his defensive strategy, in which he presented the

Stipulation of Evidence in lieu of DNA expert testimony, caused him actual prejudice.

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Under the doubly deferential review this federal court applies to ineffective assistance of

counsel claims under Strickland, Harrington, and AEDPA, Bell does not meet his burden

to show that his trial counsel rendered ineffective assistance in this case. Therefore, Bell

is not entitled to habeas relief on his claims in Ground Two.

C. Cumulative Prejudice (Ground Three)

Bell claims that the cumulative effect of the errors prejudiced him. The state habeas

court concluded that the errors, if any, from the lab report, the testimony, and defense

counsel’s trial strategy did not cumulatively undermine the confidence in the verdict.>°

Federal habeas relief is only available for cumulative errors that are of a constitutional

dimension. See Coble v. Quarterman, 496 F.3d 430, 440 (Sth Cir. 2007) (citing Livingston

v. Johnson, 107 F.3d 297, 309 (Sth Cir. 1997); Yohey v. Collins, 985 F.2d 222, 229 (Sth

Cir. 1993)). As previously discussed, ‘Bell has not established that the state court’s

determination that he failed to show prosecutorial misconduct or ineffective assistance of

counsel was based on an unreasonable application of the facts or Supreme Court precedent.

Nor does he show that the state court’s determination that there was no cumulative error

was contrary to, or an unreasonable application of Supreme Court precedent or the facts

based on the record. Because he has not identified errors of constitutional dimension, the

petitioner has failed to show that the state habeas corpus court’s rejection of his cumulative-

error claim was objectively unreasonable. See Westley v. Johnson, 83 F.3d 714, 726 (Sth

Cir. 1996) (noting that “claims that are not prejudicial cannot be cumulated, regardless of

son No. 8-26 at 82, SHCR at 689 (Conclusions of Law on Material Fact Issue Number 5).

the total number raised”); United States v. Hall, 455 F.3d 508, 520 (Sth Cir. 2006) (“Our

clear precedent indicates that ineffective assistance of counsel cannot be created from the

accumulation of acceptable decisions and actions.”); Yohey, 985 F.2d at 229 (stating that,

because certain alleged errors were not of constitutional dimension and because others

were meritless, the petitioner had “presented nothing to cumulate”). Therefore, Bell does

not show that he is entitled to federal habeas relief on Ground Three.*”

V. CERTIFICATE OF APPEALABILITY

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. See 28 U.S.C. § 2253. 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 282 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Under the

>? Bell recently submitted an “Advisory” regarding a state habeas case where the manslaughter

conviction was set aside by the state court because that court found that trial counsel was

ineffective for not adequately investigating the DNA evidence. See Doc. No. 9 (Advisory

attaching Findings of Fact and Conclusions of Law in McGuffin v. Nooth, Case No. 15CV1030

(Malhuer Cnty. Ore. Nov. 26, 2019)). McGuffin is readily distinguishable from the instant case.

McGuffin concerned a favorable determination for the petitioner by the state court, whereas this

case involves a state court finding that was unfavorable to Bell that is now subject to deference

under the AEDPA on federal habeas review. Another glaring difference is that the manslaughter

victim in McGuffin did not (and, of course, could not) testify and identify McGuffin as her

assailant, and identity of the assailant was at issue in that case. In sharp contrast, R.M. testified at

trial, identifying Bell as her abuser and providing specific details of continuous sexual abuse over

many years. As explained above, Bell does not meet his burden to overcome the deference

afforded to that adverse state determination on federal review of trial counsel’s performance under

the AEDPA, Strickland, and other Supreme Court precedent.

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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 vy. Cockrell, 537 U.S. 322, 336 (2003).

A district court may deny a certificate of appealability, sua sponte, without requiring

further briefing or argument. See Alexander v. Johnson, 21 I F.3d 895, 898 (Sth Cir. 2000).

For reasons set forth above, the Court concludes that jurists of reason would not debate

whether the Court’s ruling in this case was correct. Therefore, a certificate of appealability

will not issue.

VI. CONCLUSION AND ORDER

Based on the foregoing, the Court ORDERS.as follows:

1. The respondent’s motion for summary judgment (Doc. No. 6) is

GRANTED, and this habeas corpus petition is DISMISSED with prejudice.

2. All other pending motions, if any, are DENIED.

3. A certificate of appealability is DENIED.

The Clerk shall provide a copy of this order to the parties.

tt

SIGNED at Houston, Texas, this _/ S day of September 2022.

ANDREWS.HANEN

UNITED STATES DISTRICT JUDGE

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