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”
How later courts described this case
- 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”
- “Conclusory allegations of ineffective assistance of counsel do not raise a constitutional issue in a federal habeas proceeding.”
- a defendant has the burden to show that he had a subjective expectation of privacy in the place searched that society is prepared to recognize as reasonable
- the applicant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy
Written by the judges who cited it.
The opinion
September 30, 2022
Nathan Ochsner, Clerk
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
EDWARD BEALEFIELD, § CIVIL ACTION NO
(TDCJ–CID #2022207) § 4:21–cv–01630
Petitioner, §
§
§
vs. § JUDGE CHARLES ESKRIDGE
§
§
BOBBY LUMPKIN, §
Respondent. §
MEMORANDUM ON DISMISSAL
The motion for summary judgment by Respondent
Bobby Lumpkin is GRANTED. Dkt 9.
The petition for a writ of habeas corpus brought by
Edward Bealefield is DISMISSED WITH PREJUDICE. Dkt 1.
His motion for evidentiary hearing is DENIED. Dkt 19.
1. Background
The indictment charged Bealefield as follows:
IN THE NAME AND BY AUTHORITY OF
THE STATE OF TEXAS: The duly
organized Grand Jury of Harris County,
Texas, presents in the District Court of
Harris County, Texas, that in Harris
County, Texas, Edward Bealefield,
hereafter styled the Defendant, heretofore
on or about October 12, 2011, through
November 17, 2011, did then and there
unlawfully, during a period of time of thirty
or more days in duration, commit at least
two acts of sexual abuse against a child
younger than fourteen years of age,
including an act constituting the offense of
aggravated sexual assault of a child,
committed against [A.R.] on or about
October 12, 2011, and an act constituting
the offense of aggravated sexual assault of
a child, committed against [A.R.] on or
about November 17, 2011, and the
Defendant was at least seventeen years of
age at the time of the commission of each of
those acts. Against the peace and dignity of
the State. [Signed by the foreman of the
Grand Jury.]
Dkt 12-30 at 201.
A jury found Bealefield guilty of continuous sexual
abuse of a child in August 2015 in Cause Number 1464575,
before the 176th Judicial District Court of Harris County,
Texas. Dkt 12-40 at 211–12. The Fourteenth Court of
Appeals summarized the pertinent factual background as
follows:
When they first met, appellant was
forty-six years old and the complainant was
thirteen. They were both neighbors, and
their families bonded over a summer trip to
the beach.
Nothing inappropriate happened
during the trip, but once they returned
home, a romantic relationship started to
form. Appellant and the complainant
began having frequent conversations in
private. They kissed for the first time about
a month after the trip. A few months later,
their relationship became sexual, and for
the next few years, they would meet
regularly to have sexual intercourse, as
frequently as three or four times each
week.
The complainant claimed that she was
in love with appellant, but her feelings
gradually waned as she entered high
2
school. At age fifteen, she told a relative
about the relationship. The relative
notified police, who then arrested
appellant.
Bealefield v State, 2018 WL 3734102, at *6 (Tex App
Houston [14th Dist] Aug 7, 2018, no pet) (unpublished).
Upon conviction by the jury, Bealefield elected to have
the trial court assess punishment. Dkt 12-40 at 211. The
trial court sentenced him to forty years in prison. Ibid. The
Fourteenth Court of Appeals affirmed his conviction in
August 2018. Bealefield v State, 14-15-00805-CR, 2018 WL
3734102, at *6 (Tex App Houston [14th Dist.] Aug 7, 2018,
no pet). Bealefield didn’t file a petition for discretionary
review with the Texas Court of Criminal Appeals.
Bealefield then filed a state application for a writ of
habeas corpus on June 26, 2019. Dkt 12-40 at 37. 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
April 14, 2021. Dkt 9-1 at 1.
Bealefield filed this federal petition for a writ of habeas
corpus in May 2021. Dkt 1. He contends that his conviction
is void for several reasons as summarized here and
specified further below:
o He was denied effective assistance of trial
counsel because his trial counsel:
• Failed to investigate the timeline of events;
• Failed to interview potential witnesses,
namely his family members, A.R.’s mother,
and a witness who was in the courtroom,
Lygia Armstrong;
• Advised him not to testify;
• Failed to object to the prosecutor’s closing
statement, the jury charge, and the lack of
notice regarding extraneous offenses;
• Failed to investigate his medical condition;
3
• Failed to file a motion to suppress evidence
obtained through an illegal search and
seizure;
o The evidence is insufficient to support his
conviction;
o The prosecution erred during closing argument
by stating opinions instead of facts; and
o His due process rights were violated during his
state habeas proceeding.
Dkt 1 at 6–8.
2. Legal standard
Respondent moves for summary judgment, arguing
that claim two is procedurally barred and that the
remaining claims by Bealefield lack merit and must be
dismissed. Dkt 9 at 7–10. Also submitted were the trial
transcript and other state-court records. Dkts 11 & 12.
a. AEDPA
Bealefield 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 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
4
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
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
5
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).
Finally, several other technical or procedural limita-
tions 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
6
(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
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).
7
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
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). This procedural default is also 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).
8
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
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
9
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
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
10
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. Claim 2: sufficiency of the evidence
Bealefield challenges the sufficiency of the evidence as
his second claim and argues that he properly exhausted it.
Dkt 16 at 9. He didn’t. Bealefield was required to present
this challenge to the sufficiency of the evidence on direct
appeal. He did file a direct appeal, but he didn’t file a
petition for discretionary review to the Texas Court of
Criminal Appeals. This means that it was defaulted on
collateral review. Ex parte Grigsby, 137 SW3d 673, 674
(Tex Crim App 2004). Without proper exhaustion, the
second claim is procedurally barred from review here.
Bealefield can overcome this procedural bar to federal
review 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). But Bealefield can’t
show cause because state court records reflect that he could
have—and should have—raised this claim as part of his
direct appeal. With no showing of cause, the inquiry into
actual prejudice needn’t be considered. See Saahir v
Collins, 956 F2d 115, 118 (5th Cir 1992). Likewise,
Bealefield doesn’t make a satisfactory showing as to any
fundamental miscarriage of justice. Indeed, he fails to
address why a sufficiency claim wasn’t raised on direct
appeal in a petition for discretionary review.
Bealefield’s second claim for federal review on habeas
corpus will be dismissed as procedurally barred.
11
4. Claim 3: Prosecutorial misconduct
Bealefield asserts that the prosecutor erred during
closing argument when he stated that A.R. remembered
the first time she had sex with Bealefield, and because the
prosecutor stated that A.R. was maybe fourteen or fifteen
when Bealefield took photos of her in lingerie. He also
complains about the prosecutor’s summation of the
evidence, and in particular his references to the text
messages between Bealefield and A.R., the jewelry box A.R.
said Bealefield gave her, the t-shirts Bealefield gave her to
wear, and photos of the motel where Bealefield sexually
assaulted A.R. Dkt 1 at 7; Dkt 3 at 16–18; Dkt 12-2 at 74–
81 (closing argument).
The “standard set forth in Darden v Wainwright,
477 US 168 (1986), governs claims of prosecutorial
misconduct in a state court prosecution. See Parker v
Matthews, 567 US 37, 45 (2012, per curiam). A
constitutional violation occurs only where “the prosecutors’
comments ‘so infected the trial with unfairness as to make
the resulting conviction a denial of due process.’” Darden,
477 US at 181, quoting Donnelly v DeChristoforo, 416 US
637 (1974). Federal relief on habeas corpus is rarely
granted on the basis of prosecutorial misconduct because
“a prosecutor’s improper argument will, in itself, exceed
constitutional limitations in only the most ‘egregious
cases.’” Menzies v Procunier, 743 F2d 281, 288–89 (5th Cir
1984), quoting Houston v Estelle, 569 F2d 372, 382 (5th Cir
1978). A prosecutor’s comments will only render a trial
unfair where the improper argument was “a crucial,
critical, highly significant factor in the jury’s determi-
nation of guilt.” Whittington v Estelle, 704 F2d 1418, 1422
(5th Cir 1983).
“It is well established that an attorney may recite to
the jury those inferences and conclusions he wishes them
to draw from the evidence so long as they are based on the
evidence.” United States v Delgado, 672 F3d 320, 336 (5th
Cir 2012), citing United States v Webb, 950 F2d 226, 230
(5th Cir 1991). “A prosecutor’s assertion of what he believes
12
the evidence will show and has shown is not error” and
doesn’t constitute improper argument. Ortega v McCotter,
808 F2d 406, 410 (5th Cir 1987) (citation omitted).
“Moreover, ‘unflattering characterizations of a defendant
will not provoke a reversal when such descriptions are
supported by the evidence.’” Ibid, quoting United States v
Windom, 510 F2d 989, 994 (5th Cir 1975) (finding no error
in prosecutor’s reference to defendant as “con artist”).
However, prosecutors are not without limits. “[A]
prosecutor’s closing argument cannot roam beyond the
evidence presented during trial: Except to the extent the
prosecutor bases any opinion on the evidence in the case,
he may not express his personal opinion on the merits of
the case or the credibility of witnesses.” Gallardo–Trapero,
185 F3d at 320 (cleaned up).
When prosecutors exceed their limits with “improper
comment or questioning,” “it generally must be so
pronounced and persistent that it permeates the entire
atmosphere of the trial.” United States v Castillo, 77 F3d
1480, 1497 (5th Cir 1996) (citation and internal quotation
marks omitted). In that instance, it amounts to reversible
error. Ibid.
Context is important when reviewing the prosecutor’s
responsive argument. Defense counsel argued in part as
follows in his closing summation:
And what your job at that point, your
job is to decide has the State of Texas
proved to you beyond a reasonable doubt
that Mr. Bealefield committed the acts of
aggravated sexual assault to A.R. between
October 12, 2011, November 17, 2011, that
it was a continuous sexual assault during
those dates.
Now, I want you to look at all the
evidence. We had a ton of evidence in this
case. Look at all this evidence here, and
here, and here, and everywhere. See if you
find any piece of evidence, even one piece of
13
evidence that shows you 2011 on it. I want
to show you a very important date here. If
I can get this to work. Can you see that?
That’s the date that A.R. turned 14, April
14, 2012. This indictment alleges that
these acts happened when she was younger
than 14, back in October through
November of 2011. What evidence do we
have of that? That’s the question you have
to ask yourself.
Now, the State put on a lot of evidence
to show all sorts of phone calls, to show text
messages, to show the police involvement.
You look through all of this, and this is all
well after those dates. This is all in 2012,
2013, 2014.
When we look at the evidence, let’s
start, the first -- the first time the police got
involved was in December 20, 2012. That
was the first time the police were notified
by A.R.̓s mother. And you’ll remember
what she said, she said the police came out,
they talked to her, and A.R. denied it. Said
no, my mother’s crazy, my mother is an
alcoholic and a drug addict and my mother
has all these problems, mental problem,
and I didn’t do anything with Mr.
Bealefield.
The police go away. They come back
later. When do they come back? It’s not
until May of 2013. May of 2013, a year and
a half later. The police stop a car, and in the
car is Mr. Bealefield and A.R. And what did
A.R. say? She said, hey, Mr. Bealefield and
I, he’s a friend, he’s the neighbor, he comes
out to pick me up and take me to breakfast
because I’m hungry because my mother is
such an alcoholic –
14
MR. SOCIAS: I’m going to object,
outside the record.
MR. MCCOY: All right. In any event,
Mr. Bealefield is taking her out for
breakfast before school hours. And Mr.
Bealefield also told the police, you’ll recall,
I’m taking her out to get her some
breakfast. We’re going to the Jack In The
Box, then I’m going to take her back to
school.
But the police don’t believe him. They
detain him for a number of hours. They go
through everything. They take him down
there. He gives a statement. A.R. gives a
statement. The police let him go because
once again A.R. says, look, I don’t know
what’s going on but nothing has happened
between Mr. Bealefield and me, nothing’s
happening.
Then the police continue their investi-
gations and they find nothing. In the
meantime, it’s not until July 17, 2013, that
A.R. goes to the police and says, well, yeah,
okay, Mr. Bealefield and I are having a
sexual affair. We are having sex together,
and we’ve been having sex for a while.
Now, you have to ask yourself, first of
all, what does this case hinge on? The main
thing it hinges on is A.R.̓s testimony about
when this thing started. You have all of
this evidence tends to prove that if Mr.
Bealefield is guilty of anything, it
happened at least after 2012, at least after
she was 14 if not older, 14, 15, maybe even
16, but certainly not when she was 13.
The only -- only thing the State has
produced to say that it happened in 2013 --
or 2011 is A.R. herself where she said,
15
yeah, it started back in 2013. And if you’ll
recall on direct what she said, was she
remembered that they’d taken a summer
vacation, a summer vacation, and then it
started later after the summer vacation.
Well, on direct she said it started a
month or two later, which means that it
would have been October, November of
2011. But on cross-examination when I was
talking to her, if you’ll recall, what did she
say? She said it was a few months after the
trip, not -- not a couple of months but a few
months after the trip. It was later. She
couldn’t remember the exact time. And I
understand she can’t remember the exact
time, but let’s take a look at what else was
going on in A.R.̓s life. She told us that she
was having psychological problems. She’s
having all sorts of other problems, school
problems, psychological problem, problems
at home, family problems, to the extent to
where she starts cutting herself. She’s
cutting her wrists to the extent to where
she’s finally committing suicide or trying to
commit suicide to the extent to where she
winds up in the hospital for committing
suicide.
This is a troubled girl, and it’s not
unusual that troubled girls may not get
their dates exactly right. So what you have
to do is ask yourself, do I really believe that
it happened back then in 2011, in which
case it could be a continuous, or did it
happen after 2012, after April of 2012, in
which case it’s just an aggravated sexual
assault, or did it happen at all. That’s what
you have to ask yourself.
Dkt 12-2 at 66–70.
16
The prosecutor responded in part as follows:
One of the saddest things that happens
in cases like this is you have a girl, and only
in these cases a girl that comes up here and
testifies, and only to be told that she’s a
liar, that she made it up, that it’s a fantasy.
Only in these types of cases do you see that.
But get one thing clear and remember this,
A.R. got up on there, got up on that stand,
took an oath, and talked to you about what
happened to her. A girl talked to you about
being 13 years old and losing her virginity
to a 48-year-old man next door. That’s what
she told you. That wasn’t fun for her. We
all know that wasn’t fun.
And you know she remembered. That’s
the first time she had sex. 13 years old with
the man sitting across from you. And she
remembers the date real well, because
that’s when the relationship started. They
went on a summer trip, and that’s when the
defendant started asking about their
relationship to take it to the next step.
She’s very sure of the dates.
She told you about all the different
ways the defendant had sex with her,
vaginal, oral sex, anal sex, all of that.
That’s what she had to share in a room full
of people, strangers she never met before,
while the defendant sits right across there
and stares at her.
If you believe what she said up there,
that defendant is guilty of this charge,
continuous sexual abuse. No doubt about
that. If you believe what she said he is
guilty. And we know we can believe what
she said. We talked about this in jury
selection, one witness. That’s what these
17
cases boil down to. The evidence that you
use to decide is from what you hear up on
that stand and what’s right here. The only
thing you’ve heard is that girl talked to you
about her sexual experiences.
How do we know we can believe her?
Because everything makes sense. She has
no reason to lie. She has no motive to lie. At
this point, we said years later, why would
she do that? Why would she put herself
through that? What does she have to gain?
She told you the embarrassing truth, that
she had sex with a man that she loved, who
she thought she did. It was a relationship
that she thought was appropriate.
Dkt 12-2 at 74–75.
As is quite clear, the jury heard graphic testimony of
the sexual relationship between Bealefield and A.R. But
the statements by the prosecutor that Bealefield attacks
were all proper summations of the evidence presented. He
essentially argued that the jury would have to believe that
A.R. was lying in order to find that Bealefield wasn’t guilty
of the charged offense. And he further summarized the
evidence for the jurors, noting that A.R. remembered the
approximate date of her first sexual experience and that
A.R. had no motive to lie about the sexual abuse that took
place over a two-year period. Even if the statement was
improper under Gallardo–Trapero, it certainly was not “so
pronounced and so persistent that it permeate[d] the entire
atmosphere of the trial.”
The Texas Court of Criminal Appeals denied relief on
habeas corpus as to the prosecutorial misconduct claim. In
doing so, it reasonably applied the law to the facts,
consistent with clearly established federal law. Bealefield
hasn’t shown a basis for the relief he seeks. 28 USC
§ 2254(d)(1).
18
5. Ineffective assistance of counsel
Bealefield’s first claim is based on ineffective
assistance of trial counsel. Bealefield asserts that his trial
counsel was ineffective in a number of ways:
o He failed to investigate the timeline of events;
o He failed to interview potential witnesses,
namely his family members, A.R.’s mother, and
a witness who was in the courtroom, Lygia
Armstrong;
o He advised him not to testify;
o He failed to object to the prosecutor’s closing
statement, the jury charge, and the lack of
notice regarding extraneous offenses;
o He failed to investigate his medical condition;
and
o He failed to file a motion to suppress evidence
obtained through an illegal search and seizure;
Bealefield 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
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
19
“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 wasn’t successful doesn’t mean counsel’s
performance was deficient. Avila v Quarterman, 560 F3d
299, 314 (5th Cir 2009).
a. Claims 1A and 1E: failure to investigate
timeline and medical condition
Bealefield alleges that he was denied effective
assistance of trial counsel because his trial counsel failed
to investigate the timeline of events and his medical
condition. Dkt 1 at 6; Dkt 3 at 9–13.
As to the timeline of events, Bealefield complains that
counsel failed to investigate and discover all of the different
20
places A.R. lived while the abuse was allegedly taking
place. He asserts that it only took place during a two-month
period between October 12th to November 17th of 2011.
Dkt 16 at 26. And he apparently argues that because A.R.
moved around so much, he couldn’t have sexually abused
her on a regular basis, as claimed by A.R.
Bealefield’s defense counsel, Kenneth E. McCoy,
submitted the following affidavit in the state proceedings
on habeas corpus:
I had access to the State’s file in Mr.
Bealefield’s case and I reviewed all of its
contents, including police reports written
by various officers, photographs, video of
the complainant’s statements, the
complainant’s medical records, and data
from the complainant’s computer and cell
phone including many text messages. I
recall discussing the State’s evidence with
Mr. Bealefield, and I believed that he
understood the evidence. Mr. Bealefield
expressed to me that he believed the State’s
case would fall apart, particularly when I
cross-examined the complainant. He
claimed that the complainant’s mother had
an issue with him, though sometimes his
story about why she had the issue would
change, and I did not have any evidence
corroborating his claims about the mother.
I did not speak with the complainant
prior to trial. I watched the complainant’s
statements and she seemed firm that she
was going to testify that the sexual assault
occurred. I was already aware of
inconsistencies in her claims. I do not
believe additional evidence regarding a
timeline of where the complainant was
living would have helped Mr. Bealefield or
disproven that he had access to the
21
complainant, particularly in light of the
evidence that he picked her up from school.
Dkt 12-39 at 2–3 (emphasis added).
The state habeas court found:
15. The Court finds that the applicant fails
to prove Mr. McCoy was deficient for failing
to establish a timeline regarding the dates
the victim lived with other family
members.
a. The record establishes that Mr.
McCoy cross-examined the victim about
the fact that she moved around quite a bit,
and the victim was unclear about the dates.
5 R.R. at 7 (living with mother), 8
(grandparents), 10 (grandparents), 11
(mother), 13-14 (mother, aunt,
grandparents), 16 (mother), 25 (aunt), 27
(grandparents), and 29 (mother,
grandparents, mother, aunt, hospital,
friend, neighbor).
b. Mr. McCoy “do[es] not believe
additional evidence regarding a timeline of
where the complainant was living would
have helped [the applicant] or disproven
that he had access to the complainant,
particularly in light of the evidence that
[the applicant] picked her up from school.”
McCoy Affidavit, p. 2.
c. The applicant fails to establish that
additional evidence about a timeline of the
victim’s living arrangements would have
been beneficial, and fails to establish that
he was harmed by the lack of additional
evidence about the timeline.
Dkt 12-39 at 19–20.
22
Bealefield also complains that counsel didn’t investi-
gate his medical condition. Bealefield’s defense counsel Mr.
McCoy stated in his affidavit in the state proceedings on
habeas corpus,
I am certain Mr. Bealefield never told me
that he had a “massive hydrocele” or any
medical condition in his genital area. That
definitely would have stuck out in my mind
and, if true, easily could have been
presented during trial. Had Mr. Bealefield
told me this, I would have investigated this
claim and presented any credible evidence
supporting it, including impeaching the
complainant.
Dkt 12-39 at 3.
The state habeas court found:
14. The Court finds that the applicant fails
to prove Mr. McCoy was deficient for failing
to discover that the applicant allegedly had
an injury to his reproductive organs,
namely a massive hydrocele he had
allegedly had since 2006.
a. Mr. McCoy is “certain that [the
applicant] never told [him] that [the
applicant] had a ‘massive hydrocele̓ or any
medical condition in his genital area. That
definitely would have stuck out in [Mr.
McCoy’s] mind and, if true, easily could
have been presented during trial. Had [the
applicant] told [Mr. McCoy] this, [Mr.
McCoy] would have investigated this claim
and presented any credible evidence
supporting it, including impeaching the
complainant.” McCoy Affidavit, p. 2.
b. The applicant acknowledges he did
not tell Mr. McCoy that the applicant had
an injury to his reproductive organs,
23
namely a massive hydrocele. Writ
Application, p. 18.
c. The applicant provided medical
documentation from 2017. See Applicant’s
Writ Exhibit A, TDCJ Correctional
Managed Care Clinic Notes, dated
December 4, 2017. The sexual abuse
occurred in 2011.
d. Assuming arguendo the applicant
had an injury at the time of the incident,
the applicant fails to prove Mr. McCoy was
deficient for failing to investigate it
because the applicant never told Mr.
McCoy about the injury.
Dkt 12-39 at 18–19.
Deferring to the state court’s factual findings, the state
court’s application of Strickland isn’t objectively
unreasonable. “Informed strategic decisions by counsel are
given a heavy measure of deference and should not be
second guessed.” United States v Jones, 287 F3d 325, 331
(5th Cir 2002). Furthermore, Bealefield failed to
demonstrate what a more thorough investigation would
have revealed and how it would have altered the outcome
of his trial. Gregory v Thaler, 601 F3d 347, 352 (5th Cir
2016) (petitioner “who alleges a failure to investigate on
the part of his counsel must allege with specificity what the
investigation would have revealed and how it would have
altered the outcome of the trial”). In short, Bealefield
doesn’t explain with any specificity what investigations
into other places A.R. lived and into his own medical
conditions would have revealed and how they would have
altered the outcome of his trial.
b. Claim 1B: failure to call witnesses
Bealefield asserts that counsel rendered ineffective
assistance by failing to interview and call witnesses—
namely, his family members, A.R.’s mother (who owed
Bealefield money), and Lygia Armstrong (a witness in the
24
courtroom). Dkt 1 at 6; Dkt 3 at 11–12. “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 2010). See also Sayre v
Anderson, 238 F3d 631, 635–36 (5th Cir 2001).
The state habeas court found:
12. The Court finds that the applicant fails
to prove Mr. McCoy was deficient for failing
to interview the applicant’s three
daughters and their friend.
a. Mr. McCoy “would not have reached
out to [the applicant’s] children without
[the applicant] telling [him] he wanted
them to be involved with his case or testify
in his trial.” McCoy Affidavit, p. 4. “[T]here
was no indication in the case that [the
applicant’s children] would have been
essential witnesses.” McCoy Affidavit, p. 4.
b. The applicant fails to allege that his
daughters and their friend attempted to
contact Mr. McCoy
c. The applicant provides no affidavit
from his three daughters and their friend.
Dkt 12-39 at 16.
The state habeas court also found:
9. The Court finds that the applicant fails
to prove Mr. McCoy was deficient for failing
to speak with witness Lygia Armstrong.
a. Mr. McCoy does not recognize the
name Lygia Armstrong and has not located
any notes in his file that contain her name.
McCoy Affidavit, p. 3.
b. Assuming arguendo that Ms.
Armstrong was 1) present during one of the
25
applicant’s court settings and 2) wanted to
speak with Mr. McCoy 3) about something
relevant or beneficial, the applicant fails to
prove that Mr. McCoy was aware that Ms.
Armstrong was present in court and
wanted to speak with him.
c. If Mr. McCoy had known Ms.
Armstrong was in court, Mr. McCoy “would
have spoken with her and almost certainly
made notes in [his] file. Had she said
anything that would indicate she would be
a beneficial witness in [the applicant’s]
trial, [Mr. McCoy] would have certainly
made notes in [his] file and attempted to
ensure she was present to testify.” McCoy
Affidavit, p. 3.
d. The applicant provides no affidavit
from Lygia Armstrong and fails to allege
what Ms. Armstrong would have told Mr.
McCoy. The applicant fails to establish that
Ms. Armstrong had any beneficial infor-
mation relevant to the applicant’s
investigation or trial. The applicant fails to
allege that Ms. Armstrong would have
testified in his trial.
Dkt 12-39 at 13–14.
This court has been 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 circum-
stances “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).
26
Here, Bealefield hasn’t shown that the mentioned
witnesses’ testimony would have been favorable to his
defense. He doesn’t describe the substance of their
testimony or explain why it would have altered the
outcome at trial.
Bealefield maintains that he never had sex with A.R.
A.R. testified that she and Bealefield had sex in various
locations, including her home, motels, and a camper in the
neighbor’s backyard. A.R. never testified that any other
individuals were present when the abuse took place.
Bealefield’s argument that counsel should have called
these favorable witnesses is conclusory. See Harper v
Lumpkin, 19 F4th 771, 778 (5th Cir 2021) (“Conclusory
allegations of ineffective assistance of counsel do not raise
a constitutional issue in a federal habeas proceeding.”),
quoting Miller v Johnson, 200 F3d 274, 282 (5th Cir 2000).
Bealefield fails to demonstrate that trial counsel’s
strategy was ill-chosen. As such, he hasn’t shown that
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 1C: erroneous advice about
testifying
Bealefield asserts that counsel rendered ineffective
assistance by advising him not to testify. Dkt 1 at 6. “A
criminal defendant has a constitutional right to testify in
his own behalf, and this right is granted to the defendant
personally and not to his counsel.” United States v
Martinez, 181 F3d 627, 628 (5th Cir 1999). Waiver must be
knowing and voluntary. Emery v Johnson, 139 F3d 191,
198 (5th Cir 1997). Further, only the defendant may waive
this right; counsel may not waive the right on the
defendant’s behalf. See United States v Mullins, 315 F3d
449, 454 (5th Cir 2002), citing Emery v Johnson, 139 F3d
191, 198 (5th Cir 1997). When a defendant asserts that
counsel interfered with his right to testify, the claim is
appropriately considered as an ineffective assistance of
27
counsel claim. Id at 452–53, citing Sayre v Anderson,
238 F3d 631, 634 (5th Cir 2001).
The state habeas court found:
18. The Court finds that the applicant fails
to prove Mr. McCoy was deficient regard-
ing advice about the applicant testifying.
a. Mr. McCoy explained in his affidavit
his customary practice and procedure
about his advice to clients regarding their
right to testify. McCoy Affidavit, p. 4.
b. Mr. McCoy also explained in his
affidavit his specific advice to this
applicant, including their multiple
conversations about testifying and the
applicant’s response to Mr. McCoy’s
challenges regarding certain pieces of
evidence. McCoy Affidavit, p. 5. “For a
while [Mr. McCoy] believed [the applicant]
would, in fact, testify.” McCoy Affidavit, p.
5. “Throughout [his] representation, [the
applicant] was constantly changing his
mind.” McCoy Affidavit, p. 5. When the
State rested during the applicant’s trial,
Mr. McCoy reviewed the advantages and
disadvantages of testifying. McCoy
Affidavit, p. 5. “Although [Mr. McCoy] had
prepared [the applicant] to testify, [Mr.
McCoy] did not know whether [the
applicant] would or not until the moment
to make his decision arrived.” McCoy
Affidavit, p. 5.
c. After the State rested, Mr. McCoy
requested to put the following on the
record:
Mr. McCoy: Mr. Bealefield, you and
I have talked about your case, right?
The Defendant: Yes, sir.
28
Mr. McCoy: And you understand
we’ve reached the point where the
State has rested and you have a choice
to testify or not testify, correct?
The Defendant: Yes.
Mr. McCoy: And we’ve talked about
the advantages and disadvantages of
testifying.
The Defendant: Yes.
Mr. McCoy: And we’ve talked about
the advantages and disadvantages of
not testifying.
The Defendant: Yes.
Mr. McCoy: And you and I have
talked about all of this, you’ve asked
me a lot of questions. We’ve talked
about everything. It’s now time for you
to make a decision. Have you decided,
do you want to testify in your case or
not?
The Defendant: I guess not. I hope
that’s the right decision.
Mr. McCoy: Okay. So it’s your wish
at this point to not testify in your own
behalf and for us to simply rest; is that
correct?
The Defendant: Yes.
6 RR 63-64.
d. The applicant fails to prove that Mr.
McCoy provided insufficient or inaccurate
advice regarding the applicant’s right to
testify.
e. The applicant fails to prove that his
decision to not testify was not knowing,
intelligent, and voluntary. See 6 R.R. at 63-
64; McCoy Affidavit, p. 4-5.
29
Dkt 12-39 at 23–25.
In this federal habeas proceeding, Bealefield points to
no evidence, much less clear and convincing evidence, to
support his assertion that he was prevented from
testifying. The record does not show that Bealefield told the
trial court that counsel was preventing him from testifying
during the guilt phase of the proceedings. The record
clearly undercuts Bealefield’s claim. Bealefield’s bare and
unsupported allegations are legally insufficient to entitle
him to habeas relief. See Ross v Estelle, 694 F2d 1008, 1011
(5th Cir 1983) (“Absent evidence in the record, a court
cannot consider a habeas petitioner’s bald assertions on a
critical issue in his pro se petition (in state and federal
court), unsupported and unsupportable by anything else
contained in the record, to be of probative evidentiary
value.”). This claim will be dismissed.
d. Failure to object and file motions to
suppress
i. Claim 1D: Failure to object to argument
In claim 1D, Bealefield faults counsel for not objecting
to the prosecutor’s arguments.
Trial counsel’s strategy was to question A.R.’s
credibility. Through his cross-examination of witnesses,
counsel emphasized that A.R. had a history of depression;
she made at least three suicide attempts; she engaged in
self-mutilation; her mother was mentally ill and an
alcoholic; she lived in different places, including with other
family members; she and her sister went swimming at
Bealefield’s house; Bealefield lived next door with his
girlfriend, Mary Katherine and their young daughter; and
she gave inconsistent statements to investigators,
including outright denials of abuse. Counsel rigorously
cross-examined police officers and other forensic personnel
who examined the cell phones and computers as to their
method for retrieving information and whether they were
even connected to Bealefield.
30
In Texas, proper prosecutorial jury argument consists
of (1) a summation of the evidence, (2) a reasonable
deduction from the evidence, (3) a response to an
opponent’s argument, or (4) 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 of guilt 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, Bealefield has failed to show that objections or
motions would have been successful. The complained-of
arguments were a summation of the evidence or a
reasonable deduction from the evidence. Bealefield has not
established that the prosecutor’s comments during closing
warranted objections. Beyond that, defense counsel has
“wide latitude” when it comes to determining the best
strategy. Ward v Stephens, 777 F3d 250, 264 (5th Cir 2015),
abrogated on other grounds, Ayestas v Davis, 138 S Ct 1080
(2018); see also 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 to object or not object during
closing argument are matters of trial strategy that are
presumed reasonable under Strickland. Wiley v Puckett,
969 F2d 86, 102 (5th Cir 1992). At trial, trial counsel was
not ineffective for not making an objection that would have
been denied. See Clark v Collins, 19 F3d 959, 966 (5th Cir
1994) (“Failure to raise meritless objections is not
ineffective lawyering; it is the very opposite”); Green v
Johnson, 160 F3d 1029, 1037 (5th Cir 1998), citing Sones v
31
Hargett, 61 F3d 410, 415 n 5 (5th Cir 1995) (“failure to
make a frivolous objection does not cause counsel’s
performance to fall below an objective level of
reasonableness . . .”).
As such, Bealefield hasn’t overcome the strong
presumption in favor of finding that trial counsel rendered
adequate 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 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.
Second, Bealfield asserts that counsel rendered
ineffective assistance by failing to object to the jury charge.
Dkt 3 at 14–15. The state habeas court found:
19. The Court finds that the applicant fails
to prove Mr. McCoy was deficient for failing
to object to the “on or about” language in
the jury charge and the charge’s failure to
specify a 30-day period.
a. On appeal, the applicant raised
sufficiency of the evidence with regard to
the 30-day period and raised errors in the
jury charge. Bealefield, 2018 WL 3734102.
The Court of Appeals overruled the
applicant’s issues and affirmed the
applicant’s conviction. Id.; see also Brown
v. State, 381 S.W.3d 565, 574 (Tex. App.
Eastland 2012, no pet.) (indicating that
children are sometimes unable to identify
the exact dates of their abuse, and that this
offense, which focuses on a continuing
course of conduct rather than on precise
dates, was created in response to that
inability).
b. The applicant fails to establish there
is a reasonable probability he would have
32
prevailed on appeal had Mr. McCoy
objected to the “on or about” language in
the jury charge and the charge’s failure to
specify a 30-day period.
Dkt 12-39 at 25–26.
The offense of “continuous sexual abuse of a child” was
specifically created so that sexual abuse of children could
be successfully prosecuted despite the fact that children
often cannot remember the exact dates of their abuse. See
Brown v State, 381 SW3d 565, 574 (Tex App Eastland
2012). Bealefield has failed to show that an objection to the
jury instruction would have been successful. And so, his
trial counsel wasn’t ineffective for not making an objection
that would have been denied. See Clark v Collins, 19 F3d
959, 966 (5th Cir 1994). Especially given the statutory
purpose, counsel may have made a tactical decision not to
object. Bealefield fails to meet his burden regarding lack of
objection to the jury instruction to affirmatively prove 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.
Third, Bealefield asserts that counsel rendered
ineffective assistance by failing to object to the
prosecution’s closing argument and the lack of notice
regarding extraneous offenses. Dkt 3 at 13–15. Bealefield
asserts that extraneous offenses were presented to the jury
because the prosecutor argued during closing that the
complainant may have been older than thirteen when
Bealefield took photos of her in lingerie, and thus, he would
have been guilty of a different offense. Dkt 3 at 13–14.
Bealefield hasn’t shown that the decision to not object
wasn’t based on counsel’s strategy. West v Johnson, 92 F3d
1385, 1400 (5th Cir 1996). The jury was instructed that
they could find Bealefield guilty of continuous sexual abuse
of a child or aggravated sexual assault. Dkt 11-25 at 41.
Counsel chose to focus on showing that the abuse didn’t
take place when A.R. was thirteen years old. Counsel
maintained there was no evidence, other than A.R.’s
33
incredible testimony, of any sexual abuse. Arguing that the
evidence of abuse after the complainant turned 14 would
constitute a different offense, could have risked Bealefield
being charged with multiple offenses. Counsel may have
made a tactical decision not to give the jury an option of
finding Bealefield guilty of aggravated sexual assault in
addition to continuous sexual abuse of a child
Bealefield fails to meet his burden of proof and doesn’t
demonstrate that his trial counsel was ineffective for
failing to object or was in some way objectively
unreasonable in his actions. Bealefield has further failed to
show his trial counsel was ineffective because he has not
overcome the presumption that the actions were trial
strategy.
Bealefield fails to meet his burden to affirmatively
prove his counsel’s actions prejudiced Bealefield’s trial or
that but for counsel’s errors, the result of the proceeding
would be different. See Strickland, 466 US at 693–94.
Thus, all of Bealefield’s claims regarding his trial counsel’s
failures to object and file motions are without merit and
should be denied.
ii. Claim 1F: failure to suppress evidence
Bealefield argues that he was denied effective
assistance of counsel because trial counsel failed to seek
suppression of the evidence seized during his arrest.
“Fourth Amendment rights are personal rights which,
like some other constitutional rights, may not be
vicariously asserted.” Rakas v Illinois, 439 US 128, 133–34
(1978). “A person who is aggrieved by an illegal search and
seizure only through the introduction of damaging
evidence secured by a search of a third person’s premises
or property has not had any of his Fourth Amendment
rights infringed.” Id at 134 (citations omitted). 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, 439 US at 139–40. “A defendant bears
34
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)
(a defendant has the burden to show that he had a
subjective expectation of privacy in the place searched that
society is prepared to recognize as reasonable).
Furthermore, failing to file a suppression motion isn’t
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
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.
The state habeas court found:
11. The Court finds that the applicant fails
to prove Mr. McCoy was deficient for
allegedly failing to move to suppress all
illegally-obtained evidence, including the
text messages taken from the victim’s
laptop.
35
a. The applicant’s claim that Mr.
McCoy failed to move to suppress illegally-
seized items is contrary to the record.
b. Mr. McCoy filed two motions to
suppress -- a motion to suppress physical
items and a motion to suppress the
applicant’s statements. See State’s Writ
Exhibits B and C, Motions to Suppress. Mr.
McCoy referred to his motions multiple
times during trial. See 5 R.R. at 33-34, 39,
56-58.
c. When the State attempted to offer
certain items into evidence during the
victim’s trial testimony, Mr. McCoy
objected and/or questioned the victim on
voir dire to determine how the police
obtained the items. 4 R.R. at 63-65 (the
prepaid phones); 5 R.R. at 33-40 (the text
messages and photos); 43-44 (the shirts);
45 (the victim’s underwear, which resulted
in a sustained objection).
d. The applicant does not have
standing to suppress items that the victim
gave the police.
e. At Mr. McCoy̓s request, the trial
court held a suppression hearing during
trial in which the applicant testified for the
limited purpose of the hearing. 5 R.R. at 58-
158 (suppression hearing); 128-146 (the
applicant’s testimony). Mr. McCoy argued
the legality of the applicant’s stop and his
arrest pursuant to that stop. 5 R.R. at 148-
152. The trial court found that the
detention and length were reasonable and
that certain seized items were admissible.
5 R.R. at 152. However, pursuant to Mr.
McCoy’s motion and the evidence pre-
sented to the court, the trial court
36
suppressed the items found in the vehicle’s
trunk. 5 R.R. at 152. The trial court ruled
that the applicant’s statements were
admissible. 5 R.R. at 157-158.
Dkt 12-39 at 14–15.
Bealefield has not shown that he had standing to
challenge the evidence A.R. or her family gave to police,
such as the prepaid phones, text messages, t-shirts, and
underwear. His objections were overruled.
Any additional suppression motion or challenge by
trial counsel would have been meritless. Lacking standing
to object to the evidence A.R. gave the police, Bealefield
cannot 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 an objective level
of reasonableness, the petitioner hasn’t established
deficient performance).
e. Conclusion as to trial counsel
As to each of the foregoing assertions, Bealefield hasn’t
shown that the performance by his trial counsel was
deficient or that he was actually prejudiced as a result.
Strickland v Washington, 466 US 668 (1984). The state
habeas court made extensive findings of fact.
The state habeas court found:
21. The Court finds that the applicant
fails to overcome the strong presumption
that Mr. McCoy’s actions were reasonable
and based on sound trial strategy.
22. The Court finds that the applicant
fails to prove that Mr. McCoy was
objectively unreasonable or deficient
during his representation of the applicant.
23. The Court finds that the applicant
fails to prove that there is a reasonable
37
probability that, but for Mr. McCoy’s
allegedly deficient performance, the result
of the proceeding would have been
different.
Dkt 12-39 at 26–27.
The state habeas court concluded:
3. The applicant fails to prove by a
preponderance of the evidence that trial
counsel’s representation fell below an
objective standard of reasonableness and
there is a reasonable probability that, but
for counsel’s unprofessional errors, the
result of the proceeding would have been
different. See Mitchell v. State, 68 S.W.3d
640, 642 (Tex. Crim. App. 2002); see also
Narvaiz v. State, 840 S.W.2d 415, 434 (Tex.
Crim. App. 1992) (citing Strickland v.
Washington, 466 U.S. 668, 688 (1984)).
4. The applicant fails to prove that trial
counsel failed to conduct an adequate
pretrial investigation. See Mooney v. State,
817 S.W.2d 693, 697 (Tex. Crim. App.
1991).
5. The applicant fails to prove that the
trial judge would have committed error in
overruling the objection of which the
applicant complains his trial counsel failed
to make. Ex parte White, 160 S.W.3d 46, 53-
54 (Tex. Crim. App. 2004); Vaughn v. State,
931 S.W.2d 564, 566 (Tex. Crim. App.
1996).
6. The applicant fails to overcome the
strong presumption that trial counsel’s
actions were reasonable and based on
sound trial strategy. See Ex parte White,
160 S.W.3d 46, 51 (Tex. Crim. App. 2004);
see also Jackson v. State, 877 S.W.2d 768,
38
771 (Tex. Crim. App. 1994); see also Ex
parte Ellis, 233 S.W.3d 324, 330 (Tex.
Crim. App. 2007) (the applicant must
overcome the presumption that, under the
circumstances, the challenged action might
be considered sound trial strategy).
7. The totality of the representation
afforded the applicant was sufficient to
protect his right to reasonably effective
assistance of trial counsel. Counsel’s
performance is judged by the totality of the
representation, and judicial scrutiny of
counsel’s performance must be highly
deferential with every effort made to
eliminate the distorting effects of
hindsight. Robertson v. State, 187 S.W.3d
475, 483 (Tex. Crim. App. 2006). Isolated
instances in the record reflecting errors of
omission or commission do not render
counsel’s performance ineffective, nor can
ineffective assistance of counsel be
established by isolating one portion of trial
counsel’s performance for examination. Id.
Dkt 12-39 at 27–29. The Texas Court of Criminal Appeals
also denied this claim for ineffective assistance 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 April 14, 2021. Dkt 9-1 at 1.
Bealefield fails to establish, as is his burden, that the
state court’s decision was contrary to clearly established
federal law or an objectively unreasonable application of it.
28 USC § 2254(d); Cobb, 682 F3d at 372–73. As such,
Bealefield hasn’t shown that he is entitled to habeas corpus
relief on this claim. 28 USC § 2254(d)(1).
6. Claim 4: infirmities in state habeas pro-
ceedings
Bealefield challenges certain events from the state
proceedings on habeas corpus. See Dkt 5 at 1; Dkt 16 at 6.
39
He complains that the state court failed to forward his
state application to the Texas Court of Criminal Appeals
on the 181st day, causing a delay of 193 days; allowed
counsel to wait 516 days before filing his affidavit; refused
to rule on motions; and failed to notify him that his case
had been remanded.
The Fifth Circuit is clear that “alleged infirmities in
state habeas proceedings are not grounds for federal
habeas relief.” Brown v Dretke, 419 F3d 365, 378 (5th Cir
2005). “An attack on a state habeas proceeding does not
entitle the petitioner to [federal] habeas relief in respect to
his conviction, as it ‘is an attack on a proceeding collateral
to the detention and not the detention itself.’” Nichols v
Scott, 69 F3d 1255, 1275 (5th Cir 1995), quoting Millard v
Lanaugh, 810 F2d 1403, 1410 (5th Cir), cert denied, 484 US
838 (1987).
Even liberally construed, Bealefield’s claims in this
regard must be summarily dismissed.
7. Motion for evidentiary hearing
Bealefield seeks an evidentiary hearing as to his
challenge to his conviction and sentence. See Dkt 19.
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.” 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).
Indeed, AEDPA reflects a congressional intent “to avoid
unneeded evidentiary hearings” in federal proceedings on
habeas corpus proceedings. Williams v Taylor, 529 US 420,
436 (2000). Section 2254(e)(2) of Title 28 thus 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—
40
(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
constitutional error, no reasonable
factfinder would have found the applicant
guilty of the underlying offense.
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). But 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).
Bealefield presents nothing but conclusory assertions
that he is illegally confined due to ineffective assistance of
counsel, prosecutorial misconduct, and state habeas court
error. Dkt 19. An evidentiary hearing isn’t necessary where
nothing establishes a pertinent factual dispute requiring
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 19.
41
8. 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, Bealefield hasn’t made the
necessary showing to obtain a certificate of appealability.
A certificate of appealability will be denied.
9. Conclusion
The pleadings and state court records show that the
federal petition for a writ of habeas corpus brought by
Petitioner Edward Bealefield lacks merit.
The motion by Respondent Bobby Lumpkin for
summary judgment is GRANTED. Dkt 9.
The petition by Bealefield for a writ of habeas corpus is
DENIED. Dkt 1. Bealefield’s motion for evidentiary hearing
is DENIED. Dkt 19.
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 (2 Fahd =
Hon. Charles Eskridge
United States District Judge
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