Johnson v. Lumpkin

September 30, 2022

Nathan Ochsner, Clerk

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

ANTHONY DEON § CIVIL ACTION NO

JOHNSON, § 4:21–cv–01028

(TDCJ–CID #2116179) §

Petitioner, §

§

§

vs. § JUDGE CHARLES ESKRIDGE

§

§

BOBBY LUMPKIN, §

Respondent. §

MEMORANDUM AND OPINION ON DISMISSAL

The motion for summary judgment by Respondent

Bobby Lumpkin is granted. Dkt 11.

The petition for a writ of habeas corpus brought by

Anthony Deon Johnson is dismissed with prejudice. Dkt 1.

1. Background

A jury found Johnson guilty of possession of a

controlled substance with five prior felonies alleged for

enhancement of punishment in January 2017 in Cause

Number 15-07-07053, before the 9th Judicial District

Court of Montgomery County, Texas. Dkt 12-32 at 7. The

state summarized trial testimony in its brief on appeal as

follows:

Officer Dawn Leggett of the Conroe

Police Department sought to execute an

active warrant for the appellant’s arrest (3

R.R. 101). Leggett noticed the appellant’s

vehicle parked outside of a house, so she

called for backup before knocking on the

front door (3 R.R. 102–03, 106). The

appellant answered the door and quickly

retreated inside the house (3 R.R. 106–08).

Leggett pursued the appellant into the

house while two other CPD officers,

Raymond Adams and “rookie” Officer

Salas, followed (3 R.R. 30, 109).

As Leggett commanded the appellant

to stop, he continued to flee inside the

house, and Leggett could see a pill bottle

and toilet paper in the appellant’s hand (3

R.R. 109). The appellant threw down the

pill bottle and toilet paper before Leggett

managed to apprehend him in the kitchen

(3 R.R. 110). Adams picked up the bottle,

opened it, and saw what he knew from his

training and experience to be crack cocaine

(3 R.R. 42). Adams placed the bottle on the

kitchen counter as he attempted to secure

the scene (3 R.R. 42, 116–17).

Several other individuals were in the

adjacent room, so the officers waited for

other officers to arrive before performing a

protective sweep of the house (3 R.R. 46).

As they waited, Adams heard a loud crash

that sounded like a breaking window, so

Adams ran outside and pursued an

individual who was fleeing the scene (3

R.R. 50–52). During this commotion,

Leggett moved the appellant outside for

safety purposes (3 R.R. 116–17). When the

scene was secure and she came back inside,

the pill bottle was gone, but officers found

the same bottle still full of crack cocaine

and displaying the same features in the

room adjacent to the kitchen, where the

other individuals had been (3 R.R. 117–18).

Subsequent analysis confirmed that

the substance in the pill bottle was cocaine

and weighed 23.67 grams (3 R.R. 225).

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Dkt 12-5 at 7–8.

Johnson also pleaded “true” to prior convictions of (i)

possession with intent to deliver/manufacture a controlled

substance, (ii) possession of controlled substance, (iii)

delivery of controlled substance, (iv) aggravated assault

with a deadly weapon, and (v) possession of controlled

substance. Dkt 12-32 at 5–6. The jury sentenced him to

forty-five years in prison. Dkt 12-32 at 7.

The Ninth Court of Appeals affirmed his conviction in

April 2018. Johnson v State, No. 09-17-00058-CR, 2018 WL

1631643, *3 (Tex App Beaumont, pet refd).

The Texas Court of Criminal Appeals granted

Johnson’s application to file an out-of-time petition for

discretionary review. Dkt 12-23 at 2. That court refused

Johnson’s petition for discretionary review in July 2019. In

re Johnson, 2019 Tex Crim App Lexis 679 (Tex Crim App

July 3, 2019).

Johnson then filed his first state application for a writ

of habeas corpus on March 26, 2019. Dkt 12-28 at 20. The

Texas Court of Criminal Appeals dismissed it because it

was filed prior to his conviction becoming final due to his

out-of-time petition for discretionary review being granted

in May 2019. Dkt 12-25 at 1. Johnson filed his second state

application in May 2020. Dkt 12-32 at 39. The Texas Court

of Criminal Appeals denied it without written order on the

findings of the trial court without a hearing and on the

court’s own independent review of the record on March 10,

2021. Dkt 12-29 at 1.

Johnson filed the instant federal petition for a writ of

habeas corpus in March 2021. Dkt 1. He contends that his

conviction is void for the following reasons:

1) His due process rights were violated by police

tampering with and fabricating evidence by

failing to secure the crime scene;

2) His Fourteenth Amendment rights were

violated by an unreasonable search and

seizure, and by the police arresting him

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without probable cause;

3) His trial counsel was ineffective for failing to

hire a forensic expert to assist with his defense;

4) His trial counsel was ineffective for failing to

properly question a juror during voir dire;

5) The prosecutor gave false and misleading

impressions to the jury during opening and

closing arguments;

6) His trial counsel was ineffective for failing to

object to the prosecutor’s misleading

statements during opening and closing

arguments;

7) His trial counsel was ineffective for failing to

file a motion to suppress the pill bottle, which

was not properly secured or preserved; and

8) His trial counsel was ineffective for failing to

file a motion to suppress the cocaine, which was

obtained through illegal search and seizure.

Dkt 1 at 6–14; Dkt 1-2 at 1–11.

2. Legal standard

Respondent moves for summary judgment, arguing

that first, second, and fifth claims above are procedurally

barred and that the remaining claims by Johnson lack

merit and must be dismissed. Dkt 11 at 6–8. The trial

transcript and other state-court records were attached to

that motion. Dkt 12.

a. AEDPA

Johnson proceeds here pro se. A pro se petition is

construed liberally and isn’t held to the same stringent and

rigorous standards as pleadings filed by lawyers. See

Martin v Maxey, 98 F3d 844, 847 n 4 (5th Cir 1996);

Bledsue v Johnson, 188 F3d 250, 255 (5th Cir 1999).

The Antiterrorism and Effective Death Penalty Act, 28

USC § 2241 et seq, governs this federal petition for habeas

corpus. See Woodford v Garceau, 538 US 202, 205–08

(2003); Lindh v Murphy, 521 US 320, 335–36 (1997). This

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has consequences for the standard of review as to disputed

questions of both law and fact.

As to disputed questions of law, AEDPA bars federal

habeas corpus relief based upon claims that were

adjudicated on the merits by state courts unless the

decision of the state court “was contrary to, or involved an

unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United

States,” or “was based on an unreasonable determination

of the facts in light of the evidence presented in the State

court proceeding.” 28 USC § 2254(d); see also Early v

Packer, 537 US 3, 7–8 (2002); Cobb v Thaler, 682 F3d 364,

372–73 (5th Cir 2012). The Fifth Circuit holds that a state-

court decision is contrary to clearly established federal law

“if it 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 based on

materially indistinguishable facts.” Gray v Epps, 616 F3d

436, 439 (5th Cir 2010), citing Williams v Taylor, 529 US

362, 404–08 (2002). And the Fifth Circuit holds that an

unreasonable application of federal law means that the

decision is “unreasonable, not merely wrong; even clear

error will not suffice.” Escamilla v Stephens, 602 F Appx

939, 941 (5th Cir 2015, per curiam), quoting White v

Woodall, 572 US 415, 419 (2014). This is a high bar. To

satisfy it, a petitioner must “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 fairminded disagreement.” Woods v Donald,

575 US 312, 316 (2015), quoting Harrington v Richter, 562

US 86, 103 (2011).

As to disputed questions of fact, AEDPA precludes

federal relief unless the adjudication by the state court of

the merits was based on an “unreasonable determination

of the facts in light of the evidence presented in the state

court proceeding.” 28 USC § 2254(d)(2); see also Martinez v

Caldwell, 644 F3d 238, 241–42 (5th Cir 2011). A state

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court’s factual determinations are “presumed to be correct”

unless the petitioner rebuts those findings with “clear and

convincing evidence.” 28 USC § 2254(e)(1). This

presumption of correctness extends not only to express

factual findings, but also to implicit or “unarticulated

findings which are necessary to the state court’s conclusion

of mixed law and fact.” Murphy v Davis, 901 F3d 578, 597

(5th Cir 2018), quoting Valdez v Cockrell, 274 F3d 941, 948

n 11 (5th Cir 2001).

A federal court reviewing a petition for writ of habeas

corpus may only consider the factual record that was before

the state court when determining the reasonableness of

that court’s findings and conclusions. Cullen v Pinholster,

563 US 170, 180–81 (2011). And the Supreme Court

instructs that it “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 US 305, 313–14 (2015),

quoting Wood v Allen, 558 US 290, 301 (2010). To the

contrary, § 2254(d)(2) requires the federal court to “accord

the state trial court substantial deference.” Brumfield, 576

US at 314.

A petitioner seeking a writ of habeas corpus must also

demonstrate injury of a certain character. To warrant relief

based on state-court error, a petitioner must show the

alleged error had “substantial and injurious effect.” Brecht

v Abrahamson, 507 US 619 (1993); for example, see Hughes

v Quarterman, 530 F3d 336, 345 (5th Cir 2008). This high

bar isn’t met where evidence of the defendant’s guilt is

overwhelming. Burgess v Dretke, 350 F3d 461, 472 (5th Cir

2003). There must be more than a mere reasonable

possibility that it contributed to the verdict. Brecht, 507 US

at 638. But where a court is confident the error caused

grave harm—or even if the record is evenly balanced in this

regard—the petitioner is entitled to relief. See Fry v Pliler,

551 US 112 n 3 (2007), citing O’Neal v McAninch, 513 US

432, 435 (1995); see also Robertson v Cain, 324 F3d 297,

305 (5th Cir 2003).

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Finally, several other technical or procedural

limitations can foreclose federal habeas corpus relief. For

instance, a federal claim is foreclosed if it is barred because

of a failure to comply with state procedural rules. See

Coleman v Thompson, 501 US 722 (1991). It is likewise

foreclosed if it seeks retroactive application of a new rule of

law to a conviction that was final before the rule was

announced. See Teague v Lane, 489 US 288 (1989).

The scope of federal review on habeas corpus is limited

by the “intertwined doctrines” of both exhaustion and

procedural default. Bledsue v Johnson, 188 F3d 250, 254

(5th Cir 1999). These are intertwined because a failure to

exhaust may also result in procedural default.

As to exhaustion, the Anti-Terrorism and Effective

Death Penalty Act of 1996 requires that a person in custody

pursuant to the judgment of a state court generally must

exhaust available state remedies prior to filing a petition

for a writ of habeas corpus in federal court. To meet this

requirement “the petitioner must afford the state court a

‘fair opportunity to apply controlling legal principles to the

facts bearing upon his constitutional claim.’” Bagwell v

Dretke, 372 F3d 748, 755 (5th Cir 2004), quoting Anderson

v Harless, 459 US 4, 6 (1982). This means that a petitioner

must present his claims in a procedurally proper manner

to the highest court of criminal jurisdiction in the state,

which in Texas is the Texas Court of Criminal Appeals. See

O’Sullivan v Boerckel, 526 US 838, 844–45 (1999);

Richardson v Procunier, 762 F2d 429, 432 (5th Cir 1985).

A Texas prisoner may exhaust state court remedies by

filing a direct appeal from a judgment of conviction,

followed, if necessary, by a petition for discretionary review

in the Texas Court of Criminal Appeals. See TRAP 68.1;

TCCP art 11.07. A prisoner may also file an application for

a writ of habeas corpus under Article 11.07 of the Texas

Code of Criminal Procedure in the convicting court, which

is sent to the Texas Court of Criminal Appeals once the

trial court determines whether findings are necessary. See

TCCP art 11.07, § 3(c). Texas prisoners must typically

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exhaust state remedies “by pursuing their claims through

one complete cycle of either state direct appeal or post-

conviction collateral” review under Article 11.07. Busby v

Dretke, 359 F3d 708, 723 (5th Cir 2004).

As to procedural default, if a petitioner fails to exhaust

state remedies (or to satisfy an exception to exhaustion)

and the state court would find the claims procedurally

barred, then “there is a procedural default for purposes of

federal habeas.” Coleman v Thompson, 501 US 722, 735 n

1 (1991); Williams v Thaler, 602 F3d 291, 305 (5th Cir

2010), quoting Bagwell v Dretke, 372 F3d 748, 755 (5th Cir

2004). Thus, in line with the text of § 2254(b)(2), a district

court reviewing the claims of a habeas petitioner who fails

to satisfy the exhaustion requirement may dismiss the

action on either procedural-default grounds or on the

merits. Trevino v Davis, 829 F3d 328, 341 (5th Cir 2016).

This means that procedural default functions as a

“corollary to the habeas statute’s exhaustion requirement,”

similarly constricting the scope of federal review on habeas

corpus. Dretke v Haley, 541 US 386, 392–93 (2004); see also

Coleman, 501 US at 729.

Federal review of a claim on habeas corpus is also

procedurally barred if the last state court to consider the

claim expressly and unambiguously bases its denial of

relief on a state procedural default. Davila v Davis, 137

S Ct 2058, 2064 (2017); Coleman v Thompson, 501 US 722,

729 (1991). But to qualify, that state-law procedural

ground must provide an “independent and adequate

ground for dismissal.” Rocha v Thaler, 626 F3d 815, 820

(5th Cir 2010), quoting Nobles v Johnson, 127 F3d 409, 420

(5th Cir 1997). As used, independent means “independent

of the merits of the federal claim.” Id at 821, quoting Finley

v Johnson, 243 F3d 215, 218 (5th Cir 2001). And adequate

means that the rule is “strictly or regularly applied

evenhandedly to the vast majority of similar claims.” Ibid,

quoting Amos v Scott, 61 F3d 333, 339 (5th Cir 1995). See

Ex parte Grigsby, 137 SW3d 673, 674 (Tex Crim App 2004)

(“[W]here an applicant challenges the sufficiency of the

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evidence on an application for a writ of habeas corpus, and

[the TCCA] subsequently dispose[s] of the application by

entering a denial without written order, the applicant’s

sufficiency claim was denied because the claim is not

cognizable.”); see also Reed v Thaler, 428 F Appx 453, 454

(5th Cir 2011, per curiam); West v Johnson, 92 F3d 1385,

1398 n 18 (5th Cir 1996). Moreover, this state procedural

default is an independent and adequate state law ground

to invoke the procedural bar insofar as it is not based on

federal law, and Texas courts have routinely held that a

sufficiency claim is not cognizable on state habeas review.

See Ex parte Knight, 401 SW3d 60, 64 (Tex Crim App

2013).

A petitioner may obtain federal review of a defaulted

claim by showing cause for the default and actual prejudice

as a result of the alleged violation of federal law, or by

demonstrating that failure to consider the claim will result

in a fundamental miscarriage of justice. Coleman, 501 US

at 750; see also Trevino v Thaler, 569 US 413, 421 (2013).

As used, cause must be something external to the

petitioner that can’t be fairly attributed to him. McCowin

v Scott, 67 F3d 100, 102 (5th Cir 1995). And actual

prejudice requires a petitioner to demonstrate that “the

error had substantial and injurious effect or influence in

determining the” outcome of litigation. Barrientes v

Johnson, 221 F3d 741, 756 (5th Cir 2000), quoting Brecht v

Abrahamson, 507 US 619, 637 (1993).

A petitioner may also obtain federal review of a

defaulted claim by demonstrating that failure to consider

the claim will result in a fundamental miscarriage of

justice. This exception applies where the petitioner is

actually innocent of the crime of which he was convicted.

Rocha, 619 F3d at 402; Sawyer v Whitley, 505 US 333, 339–

40 (1992). A showing of actual innocence requires a

petitioner to produce “new reliable evidence—whether it be

exculpatory scientific evidence, trustworthy eyewitness

accounts, or critical physical evidence”—sufficient to

persuade the district court that “no juror, acting

9

reasonably, would have voted to find him guilty beyond a

reasonable doubt.” Schlup v Delo, 513 US 298, 324, 329

(1995); see also McQuiggin v Perkins, 569 US 383, 386

(2013); House v Bell, 547 US 518, 536–38 (2006). To be

clear, a claim of actual innocence is “a gateway through

which a habeas petitioner must pass to have his otherwise

barred constitutional claim considered on the merits.”

Herrera v Collins, 506 US 390, 404 (1993). It isn’t a stand-

alone claim. Id at 400.

b. AEDPA and Rule 56

The Fifth Circuit holds, “As 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 v Johnson, 202 F3d 760, 764

(5th Cir 2000). But where Rule 56 and the rules governing

habeas corpus petitions conflict, the latter governs. Austin

v Davis, 647 F Appx 477, 483 (5th Cir 2016, per curiam);

see also Torres v Thaler, 395 F Appx 101, 106 n 17 (5th Cir

2010, per curiam) (citations omitted). As such, the

presumption of correctness mandated by § 2254(e)(1)

“overrides the ordinary summary judgment rule that all

disputed facts must be construed in the light most

favorable to the nonmoving party.” Austin, 647 F Appx at

483 (citation omitted); cf Anderson v Liberty Lobby, 477 US

242, 255 (1986) (stating typical summary-judgment

standard in civil cases).

An articulated opinion from a state court has natural

pertinence to resolution of disputed questions of both law

and fact on habeas corpus review. But some state-court

decisions reach a conclusion without such articulation.

What then? The Fifth Circuit holds, “When faced with a

silent or ambiguous state habeas decision, the federal court

should ‘look through’ to the last clear state decision on the

matter.” Jackson v Johnson, 194 F3d 641, 651 (5th Cir

1999), quoting Lott v Hargett, 80 F3d 161, 164 (5th Cir

1996). This is because a presumption exists that later,

unexplained orders rejecting a federal claim are decided on

the same basis as earlier, reasoned orders resting upon the

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same ground. Ylst v Nunnemaker, 501 US 797, 803 (1991).

This also accords with decisional practice of the Texas

criminal courts. The Texas Court of Criminal Appeals

holds that a statement of denial of a state application for a

writ of habeas corpus without written order signifies an

adjudication that the court below reached the correct

ruling on the merits (as compared to a statement of

dismissal, which means only that the claim was declined

on grounds other than the merits). Ex parte Torres, 943

SW2d 469, 472 (Tex Crim App 1997, en banc); see also

Singleton v Johnson, 178 F3d 381, 384 (5th Cir 1999).

Even so, the state court’s decision will at times be

unaccompanied by explanation, with no level of review

having issued a reasoned opinion. The Supreme Court

holds in such situations that “the habeas petitioner’s

burden still must be met by showing there was no

reasonable basis for the state court to deny relief.”

Harrington, 562 US at 98; see Salts v Epps, 676 F3d 468,

480 n 46 (5th Cir 2012) (applying Harrington).

3. Analysis

a. Claims 1, 2 & 5: Procedural bar

Petitioners cannot dole their claims out individually in

repeated attempts. Ex Parte Garner, 959 SW2d 189, 192

(Tex Crim App 1996) (en banc). And when a habeas

petitioner could have raised a claim on direct appeal, but

didn’t, those claims are barred. Application of this principle

serves to bar Johnson’s first, second, and fifth claims.

Johnson’s first claim alleges that his due process rights

were violated by police tampering with and fabricating

evidence and failing to secure the crime scene. Dkt 1 at 6;

Dkt 1-2 at 5. Johnson’s second claim alleges that his

Fourteenth Amendment rights were violated by an

unreasonable search and seizure, and by the police

arresting him without probable cause. Dkt 1 at 6–7; Dkt 1-

2 at 6–7. Johnson’s fifth claim alleges that the prosecutor

gave false and misleading impressions to the jury during

opening and closing arguments. Dkt 1 at 10–11; Dkt 1-2 at

8–9.

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The state court found Johnson’s first, second, and fifth

claims to be procedurally defaulted because he could have

raised them on direct appeal but did not. Dkt 12-32 at 91.

The Texas Court of Criminal Appeals later adopted the

state habeas court’s findings and denied Johnson’s

application. Dkt 12–29 at 1. Based on this procedural

history, Johnson’s first, second, and fifth claims are now

procedurally barred. Gardner, 959 SW2d at 192.

This procedural bar to federal review may be overcome

by demonstrating “(1) cause for the procedural default and

actual prejudice as a result of the alleged violation of

federal law, or (2) that failure to consider his claims will

result in a fundamental miscarriage of justice.” Smith v

Johnson, 216 F3d 521, 524 (5th Cir 2000) (internal

quotation marks and citation omitted). Johnson doesn’t

make this showing. He tries instead to meet this standard

by arguing that his appellate counsel was ineffective for

failing to raise his first, second, and fifth claims on direct

appeal, thus causing the default. Dkt 16 at 3. But Johnson

didn’t exhaust such an ineffective assistance of counsel

claim before the Texas Court of Criminal Appeals, so it

cannot serve as cause to overcome the procedural default.

Edwards v Carpenter, 529 US 446, 452 (2000); Murray v

Carrier, 477 US 488-89 (1986). He can’t show cause because

state court records reflect that he could and should have

raised these claims as part of his direct appeal.

Johnson also fails to make a showing of actual

innocence. See Rocha, 619 F3d at 402; Sawyer v Whitley,

505 US 333, 339–40 (1992). He hasn’t produced “new

reliable evidence—whether it be exculpatory scientific

evidence, trustworthy eyewitness accounts, or critical

physical evidence”—sufficient to persuade the district

court that “no juror, acting reasonably, would have voted

to find him guilty beyond a reasonable doubt.” Schlup v

Delo, 513 US 298, 324, 329 (1995); see also McQuiggin v

Perkins, 569 US 383, 386 (2013); House v Bell, 547 US 518,

536–38 (2006). Thus, he can’t show cause by showing that

failure to consider his claims will result in a fundamental

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miscarriage of justice.” Smith, 216 F3d at 524.

Because no showing of cause is made, the inquiry into

actual prejudice needn’t be considered. See Saahir v

Collins, 956 F2d 115, 118 (5th Cir 1992). Johnson’s first,

second, and fifth claims for federal review on habeas corpus

will be dismissed as procedurally barred.

b. Claims 3, 4, 6, 7 & 8: Ineffective assistance

of counsel

Johnson’s remaining claims are based on ineffective

assistance of trial counsel. Johnson alleges failures by his

trial counsel to:

o Hire a forensic expert to assist with the

defense;

o Properly question a juror during voir dire;

o Object to the prosecutor’s misleading

statements during opening and closing;

o File a motion to suppress the pill bottle, which

was not properly secured or preserved; and

o File a motion to suppress the cocaine, which

was obtained through illegal search and

seizure.

Johnson must demonstrate both deficient performance

and ensuing prejudice to establish ineffective assistance by

his trial counsel. See Strickland v Washington, 466 US 668

(1984); see also Charles v Stephens, 736 F3d 380, 388 (5th

Cir 2013). “Both the Strickland standard and the AEDPA

standard are highly deferential, and when the two apply in

tandem, review is doubly so.” Charles, 736 F3d at 389

(internal quotations and citation omitted); see also

Harrington, 562 US at 105.

To establish deficiency, the petitioner must show that

the performance by trial counsel fell below an objective

standard of reasonableness based on “prevailing norms of

practice.” Loden v McCarty, 778 F3d 484, 494 (5th Cir

2016); see also Kitchens v Johnson, 190 F3d 698, 701 (5th

Cir 1999). In that regard, courts should be “highly

deferential” to counsel. Strickland, 466 US at 689. This

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means that “counsel is strongly presumed to have rendered

adequate assistance and to have made all significant

decisions in the exercise of reasonable professional

judgment.” Id at 690. This is particularly true as to

“strategic choices made after thorough investigation of law

and facts relevant to plausible options,” which are

“virtually unchallengeable.” Id at 690–91; see also United

States v Jones, 287 F3d 325, 331 (5th Cir), cert denied, 537

US 1018 (2002). “Strickland does not require deference to

those decisions of counsel that, viewed in light of the facts

known at the time of the purported decision, do not serve

any conceivable strategic purpose.” Moore v Johnson, 194

F3d 586, 615 (5th Cir 1999). But beyond this, the Fifth

Circuit has described the deficient-performance standard

as requiring counsel to have “blundered through trial,

attempted to put on an unsupported defense, abandoned a

trial tactic, failed to pursue a reasonable alternative

course, or surrendered his client.” Jones, 287 F3d at 331.

To establish prejudice, the petitioner must show a

reasonable probability that—absent the deficient

performance—the outcome of the proceedings would have

been different. Reed v Stephens, 739 F3d 753, 773 (5th Cir

2014), quoting Strickland, 466 US at 687. In this context,

a reasonable probability is one that is sufficient to

undermine confidence in the outcome of the proceedings.

Strickland, 466 US at 694.

On federal habeas review, this Court is mindful that

“Strickland does not allow second guessing of trial strategy

and must be applied with keen awareness that this is an

after-the-fact inquiry.” Granados v Quarterman, 455 F3d

529, 534 (5th Cir 2006). In other words, simply because

counsel’s strategy was not successful does not mean

counsel’s performance was deficient. Avila v Quarterman,

560 F3d 299, 314 (5th Cir 2009).

i. Claim 3: Failure to call a forensic

expert

Johnson asserts that a forensic expert would have

benefited his case, with exculpatory evidence that would

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have revealed the truth of the matter and would have

created reasonable doubt as to his being in possession of

the pill bottle with crack cocaine. He maintains that none

of his fingerprints were found on the pill bottle nor was it

tested for DNA. Dkt 1-2 at 29.

Trial counsel testified in her affidavit to the state

habeas court as follows:

I am Lydia Clay-Jackson, a licensed

attorney in the State of Texas and I make

this affidavit in good faith upon order of

this Court.

COMES now trial attorney for the

above Applicant, who in response to the

Court’s order complies herein as follows:

(1) Did you consider hiring an expert or

seeking funds to hire an Expert to conduct

an independent analysis of the pill bottle

containing cocaine for purposes of

evaluating whether the Applicant’s

fingerprints or DNA were present on the

bottle? Please explain.

(2) If you sought an expert opinion

regarding fingerprints or DNA on the pill

bottle, why [d]id you choose not to call that

person as a Witness during trial?

(3) If you did not seek an expert

opinion, please explain that decision.

. . .

RESPONSE:

The conversations with Applicant, in

trial preparation, I was convinced that any

forensic testing would not provide evidence

that could have been used against us in

trial. From the conversation with the

Applicant and the witness, he provided it

was my opinion that our witness would

provide the reasonable doubt. It was not

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anticipated that the witness would turn

against her friend. The witness was

steadfast in her assertion that Applicant

had nothing to do with the drugs found in

the house.

. . .

Given hindsight, having the pill bottle

tested may have better advanced the

theory of defense at Applicant’s trial.

Dkt 12-32 at 67–68.

In denying this claim, the state habeas court found:

8. Conroe Police Officers Dawn Leggett

and Raymond Adams provided credible

testimony at trial.

9. No evidence suggests that officers

tampered with, fabricated, or “planted”

evidence in this case.

10. The applicant has not established

that a forensic expert was available to

testify during trial or that the expert would

have testified in a manner beneficial to the

defense.

11. Evidence demonstrating that the

applicant’s DNA was absent from the pill

bottle containing crack cocaine would not

have changed the outcome of this case.

Dkt 12-32 at 91. That court concluded, “The applicant has

failed to establish that he was denied his constitutional

right to the effective assistance of counsel during trial. See

Strickland v Washington, 466 US 668, 687 (1984).” Dkt 12-

32 at 92.

“To prevail on an ineffective assistance of counsel claim

based upon uncalled witnesses, an applicant must name

the witness, demonstrate that the witness would have

testified, set out the content of the witness’s proposed

testimony, and show that the testimony would have been

favorable.” Gregory v Thaler, 601 F3d 347, 352 (5th Cir

16

2010); see also Sayre v Anderson, 238 F3d 631, 635–36

(5th Cir 2001). The Fifth Circuit makes clear that such

“complaints based upon uncalled witnesses” are “not

favored because the presentation of witness testimony is

essentially strategy and thus within the trial counsel’s

domain, and that speculations as to what these witnesses

would have testified is too uncertain.” Alexander v

McCotter, 775 F2d 595, 602 (5th Cir 1985) (citations

omitted). And to satisfy Strickland’s prejudice requirement

under such circumstances “the appellant must show not

only that this testimony would have been favorable, but

also that the witness would have testified at trial.” Ibid

(citations omitted).

Counsel made a strategic decision not to call a forensic

expert. She spoke with Johnson in trial preparation, and

she was convinced that any forensic testing would not

provide evidence that could have been used against

Johnson. This was related in part to a tactical decision by

trial counsel to have another witness, Gloria Cumpian,

provide the reasonable doubt. Cumpian had been steadfast

in her assertion that Johnson had nothing to do with the

drugs found in the house. Counsel didn’t anticipate that

Cumpian would turn against her friend, Johnson.

During her cross-examination of Officer Adams,

counsel focused on questions regarding the chain of custody

as to the pill bottle; training in the military; the 600 hours

of training required to be an officer; how to preserve

evidence; collection of the pill bottle; the failure to collect

the rag and toilet paper roll; and the failure to include

information in the police report. See Dkt 12-19 at 62–97.

The record indicates that Johnson’s trial counsel was

prepared for trial and was very familiar with the evidence

and witnesses.

There was no trial testimony or evidence that

Johnson’s fingerprints or DNA were on the pill bottle.

Rather, testimony was heard that a DNA test was not

requested and that fingerprints were not found on the pill

bottle. Dkt 12-19 at 207. Officer Leggett saw Johnson

17

throw the pill bottle on the floor as she pursued him in the

kitchen. She saw that the pill bottle was full of cocaine. Id

at 112–13. She confirmed that the bottle retrieved from the

adjacent room was the same bottle she initially saw in

Johnson’s hand. Id at 118.

On cross-examination of Officer Leggett, counsel

questioned the importance of detail in the police report; her

25 years of experience; duties as primary officer; the failure

to mention cocaine in report; failure to recall if she saw

Officer Adams retrieve the pill bottle; whether she handled

the pill bottle with her bare hands; whether she retrieved

the rag and toilet paper roll; the failure to mention in the

report that the pill bottle was ever lost; and the failure to

mention in her report that there was a romantic

relationship between Gloria Cumpian and Anthony

Johnson. Dkt 12-19 at 127–80, 185.

Counsel’s strategy was to show there were other pill

bottles in the house; that Officer Leggett did not maintain

control over the pill bottle seized during the arrest; and

that the pill bottle recovered from the adjacent room was

not the same as that found during the arrest. Trial counsel

highlighted to jurors in closing argument how little

physical evidence connected Johnson to the pill bottle. Dkt

12-20 at 46–51.

“To support a defense argument that the prosecution

has not proved its case it sometimes is better to try to cast

a pervasive suspicion of doubt than to strive to prove a

certainty that exonerates.” Harrington v Richter, 562 US

86, 109 (2011). Counsel’s treatment of forensic evidence

was reasonable, and her decision to not call a forensic

expert resulted in no Strickland prejudice.

As noted above, an applicant must name the witness,

demonstrate that the witness would have testified, set out

the content of the witness’s proposed testimony, and show

that the testimony would have been favorable. Gregory,

601 F3d 347, 352 Here, Johnson neither identified an

expert witness nor made any showing that testimony by an

18

expert on the issue of fingerprints or DNA would have been

favorable to his defense.

At base, Johnson maintains that he never had

possession of the pill bottle, but beyond that are only

conclusory allegations. He fails to demonstrate that trial

counsel’s strategy was ill-chosen. And Johnson hasn’t

shown how an additional expert’s involvement would have

had any effect on the outcome of the trial. As such, he

hasn’t demonstrated that his trial counsel was ineffective

or that the state habeas court’s rejection of this claim was

unreasonable or contrary to federal law.

This claim will be dismissed.

c. Claim 4: Failure to question venireperson

Johnson’s fourth claim alleges that his trial counsel

was ineffective for failing to properly question a

prospective juror during voir dire. Dkt 1 at 8–9; Dkt 1-2 at

7–8. Johnson alleges that further questions would have

revealed a bias of the juror.

Margaret Dalgleish was selected to serve on the jury.

Dkt 12-18 at 140. The following exchange took place

outside the jury’s presence after the State had called its

first witness:

THE COURT: Just for the record,

would you give us your name?

JUROR: Margaret Dalgleish.

THE COURT: And your employer is the

Conroe Police Department?

JUROR: Yes.

THE COURT: And you’re a records

clerk?

JUROR: I enter arrests. I get

subpoenas, put them together.

THE COURT: Okay. Based on your

employment, are you able to -- and your

knowledge of these officers that may be

testifying in this particular case, are you

19

able to set that aside and make a judgment

base solely on the evidence that’s presented

to you in this particular case?

JUROR: I think so. I mean, I’ve never

been in this position. I don’t want to mess

anything up.

THE COURT: Sure. If you’re instructed

that you’re to follow the law, follow your

oath to make a decision based solely on the

evidence and the law presented to you in

this case, are you able to do that?

JUROR: Yes.

THE COURT: Would you be able to find

this defendant not guilty if the State did

not prove their case beyond a reasonable

doubt?

JUROR: Yes.

THE COURT: Okay. Thank you,

ma’am. You can go on back.

(Juror excused)

MS. CLAY-JACKSON: Judge, I would

ask that she be struck because I specifically

asked, “Is there anything that would cause

you -- that I haven’t asked you about.” And

she did not, at this point, be as

straightforward as she was here. The way

that she hesitated, I think the Court

recognized that and indicated that she --

the difficulty would be in giving other

people the benefit of the doubt, giving the

benefit of the doubt to the officers. I would

ask that she be struck and the alternate --

MR. TEISSIER: Judge, she indicated

she can follow the law if the evidence -- the

Court presented to her if the evidence is not

proven beyond a reasonable doubt – doesn’t

prove the case beyond a reasonable doubt,

20

she said she’d find the defendant not guilty.

I think that’s –

THE COURT: I’m going to take her on

her word that she can follow the law, and

she can render a verdict according to the

evidence and the law presented in this

case.

Dkt 12-19 at 55–57.

Counsel testified the following in her affidavit to the

state habeas court:

(4) Please explain why you did not

question prospective juror Dalgleish about

possible bias after it was revealed on her

juror questionnaire that she worked for the

Conroe Police Department.

RESPONSE:

Questioning Dalgleish would not have

advanced the theory of the defense and it

was determined that a preempt would be

used.

Dkt 12-32 at 67–68. The state habeas court found, “Juror

Margaret Dalgleish credibly established at trial that she

was not biased and would fairly evaluate the evidence,

despite her employment at the Conroe Police Department

as a records clerk.” Dkt 12-32 at 91. See Dkt 12-19 at 56.

In the context of determining whether the failure to

strike an allegedly partial juror constitutes deficient

performance, a court must first evaluate whether the juror

at issue was actually biased. Virgil v Dretke, 446 F3d 598,

608–10 (5th Cir 2006); see also Seigfried v Greer, 372 F

Appx 536, 539 (5th Cir 2010) (unpublished). The bias

determination centers on a juror’s own indication that he

has “such fixed opinions that he could not judge impartially

respondent’s guilt.” Patton v Yount, 467 US 1025, 1035

(1984); Virgil, 446 F3d at 607 (holding that “the Supreme

Court’s treatment of the right to an impartial jury is more

than a mere backdrop to our analysis; it is the lens through

21

which we must examine counsel’s performance in this

case”) (citation omitted). It is Petitioner’s burden to prove

that a biased juror served on his jury. See Smith v Phillips,

455 US 209, 215 (1982) (stating that prospective jurors are

presumed impartial).

Johnson hasn’t shown that juror Dalgleish had a bias

that could have been revealed by additional questions by

trial counsel. True, he does argue prejudice as to counsel’s

failure to strike Dalgleish because she worked for the

Conroe Police Department. But he offers no evidence or

argument to substantiate his claim that juror Dalgleish

was biased. The burden is on Petitioner to show that he is

entitled to relief, and the Fifth Circuit has consistently

held that a petitioner’s conclusory, self-serving allegations

will not merit habeas relief. Beazley v Johnson, 242 F3d

248, 270 (5th Cir 2001) (conclusory allegations will not

support federal habeas relief); Fahle v Cornyn, 231 F3d

193, 196–97 (5th Cir 2000) (self-serving allegations do not

merit relief); see also Rule 2(c) of the Rules Governing

Section 2254 Cases (requiring petitioner to plead facts in

support of his claims).

The record in no way demonstrates that Dalgleish had

“such fixed opinions that [she] could not judge impartially

[Petitioner]’s guilt.” Patton, 467 US at 1035; Virgil, 446 F3d

at 608–10. While expressing concerns during individual

questioning about her employment with the Conroe Police

Department, Dalgleish ultimately confirmed that she could

listen to the evidence and render a verdict based solely on

the evidence presented at trial. Dkt 12-19 at 55–57. She

also confirmed that she would not lower the State’s burden

of proof based on her initial apprehension. Thus, contrary

to Johnson’s assertion, counsel’s failure to strike juror

Dalgleish did not result in a biased juror being allowed onto

the jury.

In sum, Johnson has not pointed to any evidence

rebutting counsel’s factual assertions, much less

demonstrated that the state court’s ruling on trial counsel’s

performance “was so lacking in justification that there was

22

an error well understood and comprehended in existing law

beyond any possibility for fairminded disagreement.”

Richter, 562 US at 103. Consequently, viewing this

allegation under the deferential standard that applies on

federal habeas review, Johnson has not shown that the

state court’s decision was objectively unreasonable or that

he is entitled to relief on his ineffective assistance claim.

This claim will be dismissed.

d. Claims 6, 7 & 8: Failure to object and to

file motions to suppress

Johnson’s sixth claim alleges that his trial counsel was

ineffective for failing to object to the prosecutor’s

misleading statements during opening that there is no

police procedure for someone jumping out a window of an

unsecured house, and statements during closing that

twenty-three grams of crack cocaine is a “ton of crack.” Dkt

1 at 10–11; Dkt 1-2 at 9. His seventh and eighth claims

allege that his trial counsel was ineffective for failing to file

a motion to suppress the pill bottle and the cocaine. Dkt 1

at 12–14; Dkt 1-2 at 10–11.

The state habeas court found:

8. Conroe Police Officers Dawn Leggett

and Raymond Adams provided credible

testimony at trial.

9. No evidence suggests that officers

tampered with, fabricated, or “planted”

evidence in this case.

. . .

13. No testimony established that the

Conroe Police Department has a

designated procedure for how to handle a

situation where, as in this case, a limited

number of officers are attempting to control

a residence containing several people, and

a person breaks a window and runs away.

14. The prosecutor’s argument that the

pill bottle contained “a ton of crack cocaine”

23

was hyperbolic and not intended to mislead

the jury.

Dkt 12-32 at 91.

i. Failure to object to argument

In claim six, Johnson faults counsel for not objecting to

the prosecutor’s arguments. Trial counsel’s strategy was to

question the chain of custody over the pill bottle. Through

her cross-examination of witnesses, she emphasized that

Officer Leggett didn’t maintain control over the pill bottle

at all times. Dkt 12-19 at 169–72. Counsel argued that

Officer Leggett was negligent in leaving the pill bottle

unattended when she took Johnson out of the house after

hearing broken glass. Dkt 12-20 at 48–50.

In his opening argument, the prosecutor anticipated

counsel’s strategy and stated:

They are continuing to detain the

defendant, make sure he is arrested safely.

And as they are doing that, Officer Adams

goes to sweep a room that’s behind him.

He’s got his flashlight. He’s got his firearm

ready. He’s making sure this location is

safe. And what happens is there is a giant

crash in the room where all those people

were. And it turns out -- and they didn’t

know the time -- but someone jumped out

the window and started running, just

running down the street. Officer Leggett

initially thinks shots are fired. That’s how

loud and confusing and, frankly, scary that

was for them. So she does what I think all

us expect her to do is go outside with

Anthony Johnson to keep him safe, to keep

herself safe. Officer Adams doesn’t know

what just happened. So he goes outside to

check. And he sees that someone’s been

running down the street, another officer

already pursuing. And he joins the pursuit.

They don’t know if that person is armed, if

24

they have narcotics. They don’t know if he’s

a threat to the community. So he’s going to

chase him, of course. That’s what we expect

officers to do. What happens is during this

whole commotion that pill bottle is still

sitting on the counter. And it takes a few

minutes for the whole situation to die

down. But eventually Officer Leggett

realizes when she gets back in the house

that the pill bottle that was full -- full of

crack cocaine that was in his hands has

been moved. And they determine that no

officer moved it. And after she speaks with

people in the house, she goes into that room

where everybody else was sitting. And she

sees it sitting right there on the shelf. She

looks at the same pill bottle. She looks

inside. She looks inside, and it’s the same

amount of crack cocaine as before, the same

amount that was in his hands when she

first came to the door and knocked on the

door and he came to the door. There’s going

to be no procedure for something like that

happening, someone jumping out of a

window in an unsecured house. This all

happens in a span of about four to five

minutes. That’s how fast it was. And this

was a confusing situation. And there is no

procedure for it. And there is nothing the

officers did that we can look back on and

say I blame you for doing that. They acted

on their instincts, and you’re going to see

that. And ultimately the bottom line is that

this pill bottle with 22 grams of crack

cocaine was in his hand at the front door

when they first made contact. And

ultimately you’re determining whether he

knowingly possessed it. I’m going to show

you that the evidence today is going to

25

prove to you that he knowingly possessed

it, and there’s not going to be any

reasonable doubt of what he possessed and

when he possessed it.

Dkt 12-19 at 9–11.

Johnson also complains in this regard about the

prosecutor’s closing argument. Throughout trial, counsel

questioned whether the bottle retrieved from the adjacent

room was the same pill bottle Officer Leggett saw when

Johnson opened the door. Both Officer Leggett and Officer

Adams testified that the bottle was full of cocaine.

During his closing argument, the prosecutor stated:

And good defense attorneys, what they

do is they bring up those kind of things to

distract you, to misdirect you. Because if

you think about the evidence that we do

have in this case, the evidence that goes

right to the charge to whether he is guilty

or not guilty -- if you think about this, the

23 grams of crack cocaine, now this is the

closest you’ve got to it. That’s a ton of crack

cocaine. And that was in this bottle. That

was in his hands, State’s Exhibit 9. You’ve

seen that already. If you focus on that, the

State’s proven its case beyond a reasonable

doubt. No issue whatsoever. But they try to

distract you, get you focused on other

things that are not in the charge. They are

not relevant to get you away from that. But

you’re smart enough to realize when an

officer sees the defendant come to the door

with that bottle in his hand with a ton of

crack cocaine in that bottle that a person is

guilty of that offense. When that person is

in a drug house, and he’s been there before

even Gloria showed up, he’s guilty of that

offense. He knowingly possessed it.

. . .

26

First of all, the safety of the other

officers and people involved, that’s their

priority. But once that died down, they

found this same bottle they had earlier.

And I want you to consider just how Gloria

Cumpian reacted when she looked at this.

She described the cocaine she had. You

recall that, right? She said it was less than

that. When she saw this, she was taken

back. This an unmistakable amount of

cocaine. This is a lot of crack cocaine.

There’s not going to be multiple bottles

with this much crack cocaine in a house

like that because you see the reaction of

someone who uses crack cocaine. When she

sees this much, wow, that’s a lot. There’s

not more bottles of that there. You’re not

going to have the bottle that he had in his

hand full of crack cocaine and some other

bottle that the officers recovered later with

that much amount of crack cocaine in it.

That doesn’t make sense. That doesn’t even

make sense. And when we talk about

proving this case beyond a reasonable

doubt and proving that he knowingly

possessed crack cocaine, you can consider

that everybody in that house had

knowledge of what was going on.

Everybody in that house knew it was crack

cocaine there. And if they are going to party

and use it together, they are all having

care, custody, and control of it. In essence,

everybody was guilty of this offense in that

house. But your job is even easier than

that. All you have to deal with is this

defendant here. And you’ve heard in court

from -- you’ve heard about two people,

basically: The defendant and Gloria

Cumpian. Two guilty people here. She

27

admitted it on the record. But your job is to

find him guilty because we’ve proven our

case beyond a reasonable doubt because

we’ve proven to you that he answered the

door with a bottle of 23 grams of crack

cocaine in his hand. He dropped it on the

ground. It was recovered, looked at. And

it’s the same bottle, State’s Exhibit 9, that

was found later with 23 grams of crack

cocaine. Case closed. We’ve proven our case

beyond a reasonable doubt. And I trust

when you go back there and start

deliberating, you’re going to look at the

evidence, fairly, and impartially. But

you’re going to follow the law and find him

guilty . . .

Dkt 12-20 at 53–57.

In Texas, proper prosecutorial jury argument consists

of (i) a summation of the evidence, (ii) a reasonable

deduction from the evidence, (iii) a response to an

opponent’s argument, or (iv) a plea for law enforcement.

Hughes v Quarterman, 530 F3d 336, 347 (5th Cir 2008);

Ward v Dretke, 420 F3d 479, 497 (5th Cir 2005). Improper

jury argument is a basis for federal habeas relief only if it

is so prejudicial as to render the trial fundamentally

unfair. Darden v Wainwright, 477 US 168, 182–83 (1986);

Hughes, 530 F3d at 347, quoting Harris v Cockrell, 313 F3d

238, 245 (5th Cir 2002). Such unfairness exists only if the

prosecutor’s remarks evince either persistent and

pronounced misconduct or the evidence was so

insubstantial that in probability but for the remarks no

conviction would have resulted. Geiger v Cain, 540 F3d

303, 308 (5th Cir 2008); Hughes, 530 F3d at 347, quoting

Harris, 313 F3d at 245.

Here, Johnson fails to show that objections or motions

would have been successful. Indeed, he hasn’t established

that the prosecutor’s comments during opening and closing

even warranted objections. As such, Johnson hasn’t

28

overcome the strong presumption in favor of finding that

trial counsel rendered inadequate assistance and that the

challenged conduct was the product of reasoned trial

strategy. See Strickland, 466 US at 689; Wilkerson, 950

F2d at 1064. He also fails to meet his burden to

affirmatively prove that his counsel’s actions prejudiced his

trial or that but for counsel’s errors, the result of the

proceeding would be different. See Strickland, 466 US at

693–94.

Having independently reviewed the entire record from

Johnson’s trial, the Court concludes the state habeas court

reasonably construed all the prosecutorial arguments

identified by Johnson as proper inferences or summaries

drawn from the evidence. None of the prosecution’s closing

jury arguments identified by Johnson—whether viewed

individually or collectively—rendered the guilt/innocence

phase of his trial fundamentally unfair. In the same

manner, the Court independently concludes that no

reasonable probability exists that the outcome of the

guilt/innocence phase of Johnson’s trial would have been

different but for the failure of Johnson’s trial counsel to

object to any or all the prosecutorial jury arguments

identified in this claim.

Given that nothing was objectionable or prejudicial

about any of the prosecution’s opening or closing

arguments, Johnson’s complaints about his trial counsel’s

failure to object to those arguments satisfies neither prong

of Strickland. Paredes, 574 F3d at 291. Trial counsel has

broad discretion when it comes to determining the best

strategy. See Clark v Thaler, 673 F3d 410, 427 (5th Cir

2012) (recognizing broad deference to which counsel is

entitled in making tactical decisions in closing argument

“because of the broad range of legitimate defense strategy

at that stage”). Decisions on whether to object or not during

closing argument are matters of trial strategy that are

presumed reasonable under Strickland. Wiley v Puckett,

969 F2d 86, 102 (5th Cir 1992). And trial counsel can’t be

said to have been ineffective for not making an objection

29

that would have been denied. See Clark v Collins, 19 F3d

959, 966 (5th Cir 1994); Green v Johnson, 160 F3d 1029,

1037 (5th Cir 1998).

Johnson fails to meet his burden to affirmatively prove

his counsel’s failure to object prejudiced his trial or that but

for counsel’s errors, the result of the proceeding would be

different. See Strickland, 466 US at 693–94.

This claim will be dismissed.

ii. Failure to suppress evidence

In claims seven and eight, Johnson argues that he was

denied effective assistance of counsel because trial counsel

failed to seek suppression of the evidence seized during his

arrest.

To have standing to seek to suppress evidence on the

ground that it was obtained in an unconstitutionally

unreasonable search and seizure, a defendant must show

that he had a reasonable expectation of privacy violated by

the government. Rakas v Illinois, 439 US 128, 139–40

(1978). “A defendant bears the burden of establishing

standing to challenge a search under the Fourth

Amendment—that he has ‘a privacy or property interest in

the premises searched or the items seized which is

sufficient to justify a “reasonable expectation of privacy”

therein.’ Standing ‘is a personal right which cannot be

asserted vicariously.’” United States v Pierce, 959 F2d

1297, 1303 (5th Cir 1992) (internal citations omitted), cert

denied, 506 US 1007 (1992); see also Granados v State, 85

SW3d 217, 223 (Tex Crim App 2002) (defendant has burden

to show subjective expectation of privacy in place searched

that society is prepared to recognize as reasonable).

Furthermore, failing to file a suppression motion is not

per se ineffective assistance of counsel. Kimmelman v

Morrison, 477 US 365, 384 (1986). A determination of

ineffectiveness “depends on whether either a suppression

motion or an objection would have been granted or

sustained had it been made.” United States v Oakley, 827

F2d 1023, 1025 (5th Cir 1987). Additionally, the defendant

30

must show counsel’s inaction amounts to deficient

representation and actually prejudiced the defense.

Strickland, 466 US at 687. “It is not enough for the

defendant to show that the errors had some conceivable

effect on the outcome of the proceeding.” Strickland, 466

US at 693. Actual prejudice in the context of an unfiled

suppression motion requires a meritorious Fourth

Amendment violation and “a reasonable probability that

the verdict would have been different” absent the

excludable evidence. Kimmelman, 477 US at 375.

Johnson hasn’t shown that he had a subjective

expectation of privacy in the search of the home located at

403 Avenue J. As such, he lacked standing to challenge the

search or search warrant. Additionally, Officer Leggett

testified that she saw the pill bottle in Johnson’s hand

when he opened the door and that he threw it on the floor.

Investigator Horn testified that he didn’t recover any

fingerprints from the pill bottle. He described the process

for obtaining latent fingerprints. He said that such prints

are fragile and can be easily destroyed. Dkt 12-19 at 196.

During her cross-examination of Officer Adams, she

alluded to the possibility that the prints were damaged

when he lifted the bottle with a rag. Counsel tried to

prevent the introduction of the pill bottle into evidence. Her

objection was overruled. Dkt 12-19 at 39–40.

Any additional suppression motion or challenge by

trial counsel would have been meritless. Lacking standing

to object to the search or search warrant, Petitioner can’t

show that trial counsel’s performance was deficient or that

prejudice resulted from trial counsel’s performance. See

Kimmelman, 477 US at 375; Oakley, 827 F2d at 1025; see

also Green v Johnson, 160 F3d 1029, 1037 (5th Cir 1998)

(because failure to make frivolous objection doesn’t cause

counsel’s performance to fall below objective level of

reasonableness, petitioner hasn’t established deficient

performance); see also Johnson v Cockrell, 306 F3d 249,

255 (5th Cir 2002) (concluding that counsel is not required

to make futile motions or frivolous objections).

31

This claim will be dismissed.

As to claims six, seven, and eight together, the Court

finds that Johnson hasn’t shown that the state habeas

court’s denial of such claims resulted in a decision that was

contrary to, or involved an unreasonable application of,

clearly established federal law as determined by the

Supreme Court of the United States, or that the decision

was based on an unreasonable determination of the facts

in light of the evidence presented in the state court

proceeding. Williams, 529 US at 402–03; Childress v

Johnson, 103 F3d 1221, 1224–25 (5th Cir 1997). Johnson

fails to show that the state court’s application of the

Strickland standard was unreasonable and that there was

no reasonable basis for the state court to deny relief.

Richter, 562 US at 101.

As such, Johnson’s claims six, seven, and eight will be

dismissed.

4. Motion for evidentiary hearing

Johnson seeks an evidentiary hearing as to his

challenge to his conviction and sentence. Dkt 16 at 4.

28 USC § 2254(e)(2) provides:

If the applicant has failed to develop

the factual basis of a claim in State court

proceedings, the court shall not hold an

evidentiary hearing on the claim unless the

applicant shows that—

(A) the claim relies on—

(i) a new rule of constitutional law,

made retroactive to cases on collateral

review by the Supreme Court, that was

previously unavailable; or

(ii) a factual predicate that could not

have been previously discovered through

the exercise of due diligence; and

(B) the facts underlying the claim

would be sufficient to establish by clear and

convincing evidence that but for

32

constitutional error, no reasonable

factfinder would have found the applicant

guilty of the underlying offense.

This reflects a congressional intent “to avoid unneeded

evidentiary hearings” in federal habeas corpus

proceedings. Williams v Taylor, 529 US 420, 436 (2000).

The reviewing court thus has discretion to reject the need

for an evidentiary hearing. See Conner v Quarterman, 477

F3d 287, 293 (5th Cir 2007), citing Roberts v Dretke, 381

F3d 491, 497 (5th Cir 2004). Rule 8 of the Rules Governing

Section 2254 Cases states, “If it appears that an

evidentiary hearing is not required, the judge shall make

such disposition of the petition as justice shall require.”

A federal habeas corpus petitioner can have an

evidentiary hearing if a genuine factual dispute exists and

the state hasn’t afforded a full and fair hearing. Clark v

Johnson, 202 F3d 760, 766 (5th Cir 2000), quoting Perillo

v Johnson, 79 F3d 441, 444 (5th Cir 1996). A petitioner isn’t

entitled to a federal evidentiary hearing “if his claims are

merely ‘conclusory allegations unsupported by specifics’ or

‘contentions that in the face of the record are wholly

incredible.’” Young v Herring, 938 F2d 543, 560 (5th Cir

1991), quoting Blackledge v Allison, 431 US 63, 74 (1977);

see also Washington v Davis, 715 F Appx 380, 385 (5th Cir

2017, per curiam).

Johnson presents nothing but conclusory assertions

that he didn’t possess the cocaine. An evidentiary hearing

isn’t necessary where nothing establishes a pertinent

factual dispute that requires development in order to

assess the claims. Robison v Johnson, 151 F3d 256, 268

(5th Cir 1998) (internal quotations omitted). To the

contrary, all issues raised in this case can be and have been

resolved based on the pleadings.

The motion for evidentiary hearing will be denied.

Dkt 16.

33

5. 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. A certificate of appealability will not issue

unless the petitioner makes “a substantial showing of the

denial of a constitutional right.” 28 USC § 2253(c)(2). This

requires a petitioner to demonstrate “that reasonable

jurists would find the district court’s assessment of the

constitutional claims debatable or wrong.” Slack v

McDaniel, 529 US 473, 484 (2000). Where the court denies

relief based on procedural grounds, the petitioner must

show that “jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a

constitutional right,” and that they “would find it debatable

whether the district court was correct in its procedural

ruling.” Ibid.

The Court finds that reasonable jurists wouldn’t find

this Court’s assessment of the constitutional claims

debatable or wrong. As such, Johnson hasn’t made the

necessary showing to obtain a certificate of appealability.

A certificate of appealability will be denied.

6. Conclusion

The pleadings and state court records show that the

federal petition for a writ of habeas corpus brought by

Petitioner Anthony Deon Johnson lacks merit.

The motion by Respondent Bobby Lumpkin for

summary judgment is GRANTED. Dkt 11.

The petition by Johnson for a writ of habeas corpus is

DENIED. Dkt 1.

The motion by Johnson for an evidentiary hearing is

DENIED. Dkt 16.

Any other pending motions are DENIED AS MOOT.

This case is DISMISSED WITH PREJUDICE.

A certificate of appealability is DENIED.

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SO ORDERED.

Signed on September 30, 2022, at Houston, Texas.

Che 0 ald =

Hon. Charles Eskridge

United States District Judge

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