Crowley v. Lumpkin

September 30, 2022

Nathan Ochsner, Clerk

UNITED STATES DISTRICT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

JAMES DWAYNE § CIVIL ACTION NO

CROWLEY, § 4:21–cv–00785

(TDCJ–CID #02125813) §

Petitioner, §

§

§

vs. § JUDGE CHARLES ESKRIDGE

§

§

BOBBY LUMPKIN, §

Respondent. §

MEMORANDUM ON DISMISSAL

The motion by Respondent Bobby Lumpkin for

summary judgment is granted. Dkt 12.

The petition by James Dwayne Crowley for a writ of

habeas corpus is dismissed with prejudice. Dkt 1.

His motion for evidentiary hearing is denied. Dkt 18.

1. Background

Crowley was charged by indictment with aggravated

robbery. The indictment further alleged two previous

felony convictions for punishment-enhancement purposes.

Dkt 11-24 at 144. The State also filed a notice of

enhancement alleging four additional prior felony

convictions. Dkt 11-10 at 99–101. A jury found Crowley

guilty of aggravated robbery in August 2015 in Cause

Number 15-10-11144, before the 435th Judicial District

Court of Montgomery County, Texas. Dkt 11-24 at 145–

148. The Ninth Court of Appeals summarized the pertinent

factual background as follows:

After midnight on October 18, 2015, Crowley

entered the Flying J Truck Stop in New Caney,

Texas. During the approximately five hours that

followed, Crowley entered the store multiple times

and changed his attire several times. In video

surveillance from the truck stop, Crowley’s

distinctive hand tattoos are visible, as well as his

wristwatch, and boots. These remained visible and

consistent despite the clothing changes.

During those early morning hours, Crowley,

wearing a short-sleeved gray Dallas Cowboys t-

shirt, was captured on camera stealing multiple

items from the store, including a flashlight and

Cobra GPS units. At one point, Crowley is observed

speaking to a clerk and pointing to items on an

aisle in the electronics section of the store. After

interacting with the clerk, he is then observed on

video watching the clerk disappear down a hall

toward an office into a restricted area, while he

remained in the unrestricted part of the store.

Later, Crowley entered the restricted area,

proceeded down the hall to the back office, grabbed

an armload of merchandise, including a Cobra GPS

unit, and exited through the rear door of the store.

He returned to the store after 3:00 a.m.,

wearing the same gray Dallas Cowboys t-shirt, but

he had added a jacket and a blue Dallas Cowboys

hat. Crowley stole multiple Cobra GPS units and

was recorded checking the safe. At one point in the

evening, the surveillance camera also captured him

speaking with witness Ronald Hill.

Following the merchandise thefts, Crowley re-

entered the store shortly before 5:00 a.m. wearing

a different jacket and a camouflaged hat with flaps

over the ears. A little before 5:00 a.m., the

surveillance cameras captured Crowley taking a

glove out of a package in the store and putting it on

his right hand. He is then observed pointing a gun

at Connie Prior and another employee in the office

area. Prior can be seen opening the safe, and

Crowley is seen removing two large bags of coins.

2

As Crowley was struggling with the bags of coins

from the safe, the gun went off and a projectile

ricocheted off the floor, hitting Prior in the arm.

Unable to sustain the weight of the coins, the

handle from the cloth shopping bag Crowley was

using broke and it was left on the floor in the store.

Crowley dropped one of the bags of coins outside

the store but got away with one bag of coins.

Officers responded to the scene and collected

surveillance footage from the store. Upon

reviewing the footage, an officer recognized Hill,

the man Crowley spoke with briefly in the store.

The officers located Hill, and after speaking with

him, concluded James Crowley was a suspect. The

lead investigator on the case, Montgomery County

Sheriff’s Office (“MCSO”) Detective Hahs, obtained

an arrest warrant for Crowley. The MCSO

determined Crowley drove a blue Dodge vehicle

owned by his wife and acquired its license plate

number. At the scene, they recovered the handle

from the shopping bag Crowley used and the

projectile fired from the gun.

On October 21, 2015, Hahs and his partner

received a call from MCSO Sergeant Swilling

regarding a shots-fired incident in another part of

the county, advising them that the description of

the shooter matched their armed robbery suspect.

On the way to the shots-fired location, Hahs

observed a vehicle matching Crowley’s vehicle

traveling the opposite direction. Hahs testified he

made a U-turn and followed it until it pulled into

the parking lot of a local business. The license plate

number matched the one on the vehicle owned by

Crowley’s wife. Hahs testified that because he had

an arrest warrant for Crowley and was unsure who

was in the vehicle at the time, he and his partner

proceeded to perform a felony takedown. The

individuals exited the vehicle, but Crowley was not

3

with them. A blue Dallas Cowboys hat matching

the one Crowley wore the night of the armed

robbery was observed in plain view on the deck of

the rear window.

Hahs testified the driver of the vehicle, John

Colletti, said he borrowed the car from Crowley,

and there was no evidence connecting the

individuals in the vehicle to the crime. Colletti

offered to ride with detectives and take them to the

gun used during the robbery. Hahs testified that

because Colletti left with them, and none of the

other individuals owned the car or had been given

permission to drive, they impounded the vehicle.

Due to it being impounded, department policy

required Hahs to conduct an inventory search of

the vehicle, which he briefly did at the location of

the felony takedown. During the inventory, Hahs

located a GPS box consistent with the ones taken

from the truck stop, as well as drug paraphernalia.

Hahs confirmed he did not have a warrant to

search the vehicle.

Detective Hahs testified that it appeared

Colletti had information that might be useful to the

investigation. Colletti took them to an RV park to

the residence of Terry Goad. As soon as detectives

told Goad why they were there, he directed them to

a gun in the glove box of his motor home. The

officers located a .380 pistol and magazine in the

glove box and took the items as evidence. Goad

confirmed he purchased the gun from Crowley on

October 21, 2015, several days after the robbery.

Later in the investigation, Hahs obtained a

search warrant to retrieve data from Crowley’s cell

phone. The judge signed the warrant at 3:23 p.m.

on October 27, 2015. However, the return is dated

August 7, 2009. At trial, Hahs testified he executed

the search warrant “immediately” and

acknowledged the wrong date on the return was a

4

clerical error.

The primary focus of the State’s case was video

surveillance footage from the store that captured

the crime on film and photographs retrieved from

those surveillance videos. The State’s ballistics

expert testified regarding the tests performed and

concluded that the projectile retrieved as evidence

from the store was fired from the gun Crowley sold

to Goad. Moreover, DNA obtained from the

shopping bag handle also linked Crowley to the

crime. Evidence obtained from the blue Dodge

included the blue Dallas Cowboys hat and a GPS

unit from the trunk. Cell phone data from

Crowley’s phone showed multiple searches seeking

information regarding the aggravated robbery at

the Flying J and searches for criminal defense

attorneys in the days after the robbery.

Following two hearings, the trial court denied

Crowley’s motion to suppress the evidence seized

from the vehicle and the cell phone data. The trial

judge also denied Crowley’s requested article 38.23

jury instruction. The jury convicted Crowley of

aggravated robbery.

Crowley v State, No. 09-17-00133-CR, 2019 WL 942873, *1–

3 (Tex App Beaumont Feb 27, 2019, pet ref’d)

(unpublished).

Crowley elected to have the trial court assess

punishment upon conviction by the jury. Dkt 11-24 at 147.

The trial court found four of the six enhancements true and

sentenced him to life in prison. Id at 145–148. The Ninth

Court of Appeals affirmed his conviction in February 2019.

Crowley, 2019 WL 942873. The Texas Court of Criminal

Appeals refused his petition for discretionary review on

July 24, 2019. Dkt 11-9 at 1.

Crowley then filed a state application for a writ of

habeas corpus on December 1, 2019. Dkt 11-23 at 26. The

Texas Court of Criminal Appeals denied it without written

order or hearing on December 9, 2020. Dkt 11-22 at 1.

5

Crowley filed this federal petition for a writ of habeas

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

conviction is void for several reasons specified below.

1) The trial court violated his Fourth Amendment

rights by erroneously denying his motion to

suppress;

2) The trial court violated his Fourth Amendment

rights by refusing to give proper jury

instructions under Texas Code of Criminal

Procedure article 38.23;

3) The prosecutor knowingly presented false

testimony and failed to correct it regarding who

created the compilation video viewed by the

jury;

4) The prosecution knowingly withheld

exculpatory evidence such as a quality incident

report from Texas Department of Public Safety

indicating that a DNA sample had been

contaminated by Detective Paul Hahs;

5) Trial counsel rendered ineffective assistance by

failing to:

a) raise objections to unauthenticated video

discs;

b) research, prepare and investigate

erroneous DNA match testimony; and

c) effectively cross-examine identification

testimony resulting in the appearance of

stipulation;

6) Trial counsel’s cumulative errors denied him

effective assistance of counsel;

7) Crowley was convicted with no competent or

credible evidence to prove every essential

element of the charged offense; and

8) The trial court deprived Crowley of due process

and effective assistance of counsel by

interfering with counsel’s ability to voir dire

prospective jurors who admitted a pro-police

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bias and by failing to rule on his objections.

Dkt 1 at 7–9; Dkt 3 at 1–32.

2. Legal standard

Respondent moves for summary judgment, arguing

that claims two, seven, and eight are procedurally barred

and that the remaining claims by Crowley lack merit and

must be dismissed. Dkt 12 at 11, 27–31. He attached the

trial transcript and other state-court records to that

motion. Dkt 11.

a. AEDPA

Crowley 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

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

7

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

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),

8

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

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, 188 F3d at 254. 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

9

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, 501 US at 735 n 1; Williams v

Thaler, 602 F3d 291, 305 (5th Cir 2010), quoting Bagwell,

372 F3d at 755. 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

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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, 501 US at 729. 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).

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

11

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,

507 US at 637.

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

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)

12

“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

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).

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3. Procedurally barred claims

a. Claim 2: Failure to give jury instruction

In his second claim, Crowley challenges the trial court’s

failure to issue an instruction under Texas Code of

Criminal Procedure 38.23. This would have allowed the

jury to disregard evidence if it believed it was obtained

illegally.

Crowley raised this claim based on jury instruction on

direct appeal. Dkt 11-4 at 4. He argues that he properly

exhausted this claim because he raised it on direct review

and on state habeas review. Dkt 18 at 11. Though he filed

a direct appeal, he didn’t file a petition for discretionary

review to the Texas Court of Criminal Appeals. Because

Crowley didn’t exhaust his second claim, it is procedurally

barred from review by this Court.

Crowley 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). Crowley doesn’t

make this showing. He can’t show cause because state

court records reflect that he could and should have raised

this claim as part of his direct appeal in a petition for

discretionary review.

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). He fails to address

why a trial-court error relating to the jury instruction claim

wasn’t raised on direct appeal in a petition for

discretionary review.

Crowley’s second claim is procedurally barred and will

be dismissed.

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b. Claim 7: No evidence

Crowley asserts that he was convicted with no

competent or credible evidence to prove every essential

element of the charged offense. Dkt 1 at 7(a); Dkt 3 at 26–

29. He argues that he was never identified in or out of court

by anyone who witnessed the crime; the purported

identifications from the unauthenticated video were based

on a similarity of clothing; he was excluded from the

firearm used in the crime by genuine forensic evidence; his

fingerprints were excluded from the crime scene; the actual

witnesses who spoke with the robber did not identify him

as the criminal; and there is no video surveillance footage

that shows him entering or leaving the scene.

Texas law permits a defendant to raise a no-evidence

claim for the first time on collateral review only when the

conviction is totally devoid of any evidentiary support. Ex

parte Barfield, 697 SW2d 420, 421 (Tex Crim App 1985),

superseded by statute on other grounds, Ex parte Sewell,

742 SW2d 393, 395 n 2 (Tex Crim App 1987, en banc). An

insufficient-evidence claim may be raised only on direct

appeal—not on collateral review. See Ex parte Williams,

703 SW2d 674, 678–79 (Tex Crim App 1986).

Here, Crowley raised only a no-evidence claim on state

habeas review. And the record is not totally devoid of

evidentiary support for the finding that Crowley committed

the offense of aggravated robbery. Video, ballistic, and

DNA evidence, as well as evidence gathered from Crowley’s

cell-phone search history, all support the jury’s verdict.

To the extent that Crowley’s claim should be construed

as a challenge to the sufficiency of the evidence, the claim

must be denied as procedurally barred. See Williams, 703

SW2d at 679–80 (noting that when record is “not totally

devoid of evidentiary support,” collateral attack is merely

insufficiency of evidence claim masquerading as no-

evidence claim); Vaughn v Stephens, No 4:14-cv-218-Y,

2015 WL 3504941, *2 (ND Tex June 3, 2015). Crowley has

neither demonstrated cause and actual prejudice nor

asserted the fundamental-miscarriage-of-justice exception.

15

c. Claim 8: Trial court error

Crowley asserts that trial court interfered with the

initial voir dire questioning by his trial counsel, resulting

in biased jurors serving on his jury. Dkt 1 at 7(a); Dkt 3 at

29–31. Crowley didn’t raise this issue on direct appeal,

though he did present it in his state habeas application.

Dkt 11-23 at 24–25. The state habeas court construed this

claim as one of trial-court error. Crowley now complains

that Respondent recharacterized his ineffective-assistance

claim as a trial-court-error claim. Dkt 18 at 27. The state

court found that Crowley’s challenges to the court’s trial

rulings were record-based and not cognizable on habeas

review. Dkt 11-24 at 128 (Finding No. 15), 30 (Conclusion

No. 4). The Texas Court of Criminal Appeals denied his

petition without written order based on the trial court’s

findings and its own independent review of the record.

Dkt 11-22 at 1.

Claims that could have been, but were not, raised on

direct appeal may not be raised in state habeas proceedings

in Texas. Ex parte Gardner, 959 SW2d 189, 191 (Tex Crim

App 1996). The Fifth Circuit holds that this rule is “an

adequate state ground capable of barring federal habeas

review.” Aguilar v Dretke, 428 F3d 526, 535 (5th Cir 2005),

quoting Busby, 359 F3d at 719.

Crowley failed to raise his voir dire claim on direct

appeal, and the state court explicitly denied review on

procedural-default grounds. Crowley hasn’t shown cause or

actual prejudice attributable to the default. Nor has he

shown that he is actually innocent of aggravated robbery.

Crowley’s eighth claim is procedurally barred and will

be dismissed.

4. Claim 1: Search and seizure

Crowley asserts that the trial court erred when it

denied his motion to suppress the seized cellular telephone

data and the search and seizure of a motor vehicle. Dkt 1

at 6; Dkt 3 at 5–10. The trial court issued its ruling after

holding a pre-trial conference. The Ninth Court of Appeals

upheld the trial court’s decision to deny the motion to

16

suppress. Crowley, 2019 WL 942873 at *3–5. Crowley

reargued a part of his Fourth Amendment claim in his PDR

that the Texas Court of Criminal Appeals refused. Crowley

v State, PDR No 0278-19 (Tex Crim App June 11, 2019).

Crowley now argues that the state court’s decision

upholding the searches was unreasonable. But Fourth

Amendment claims are categorically barred from federal

habeas review when the state has provided “an opportunity

for full and fair litigation” of the claim. Stone v Powell, 428

US 465, 494 (1976). Crowley had that opportunity to

litigate his Fourth Amendment claim pre-trial and on

direct review. As such, he can’t raise such claim on federal

habeas review.

Crowley’s first claim is without merit and will be

dismissed.

5. Prosecutorial misconduct

Claims of prosecutorial misconduct in a state court

prosecution are governed by the clearly established

standard set forth in Darden v Wainwright, 477 US 168

(1986). See also 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 habeas relief 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

determination of guilt.” Whittington v Estelle, 704 F2d

1418, 1422 (5th Cir 1983).

17

a. Claim 3: Perjured testimony

Crowley’s first claim is that the State presented and

failed to correct perjured testimony. He refers to the

compilation video of the relevant surveillance footage

viewed by the jury. Dkt 1 at 8; Dkt 3 at 13–16. The

prosecutor knowingly elicited further false testimony from

Detective Hahs that the compilation video was a true and

correct representation of events at the Flying J truck stop

on the morning of the offense. Crowley asserts that this

false and confusing testimony was presented to confuse the

court and the jury as to the source of the video and the lack

of chain of custody.

The prosecution may not knowingly use perjured

testimony or allow perjured testimony to go uncorrected.

Napue v Illinois, 360 US 264, 269 (1959); Giglio v United

States, 405 US 150, 154 (1972). However, to establish a due

process violation, a petitioner must demonstrate that (i)

the testimony in question was actually false, (ii) the

prosecutor was aware of the perjury, and (iii) the testimony

was material. Faulder v Johnson, 81 F3d 515, 519 (5th Cir

1996).

Crowley fails to offer any factual or legal support for

his claim of perjured testimony, and his bare assertions

don’t establish that material, false or misleading testimony

was admitted at trial. See Ross v Estelle, 694 F2d 1008,

1011 (5th Cir 1983) (cited cases omitted) (“Absent evidence

in the record, a court cannot consider a habeas petitioner’s

bald assertions on a critical issue in his pro se petition . . .,

unsupported and unsupportable by anything else

contained in the record, to be of probative evidentiary

value”). Crowley’s apparent focus is on Detective Hahs’s

search of the blue Dodge and the preparation of the

surveillance video.

However, Crowley’s disagreement with Detective

Hahs’s testimony falls well short of any proof that he

testified falsely at trial. “Conflicting or inconsistent

testimony is insufficient to establish perjury.” Kutzner v

Johnson, 242 F3d 605, 609 (5th Cir 2001), citing Koch v

18

Puckett, 907 F2d 524, 531 (5th Cir 1990). Rather,

“contradictory trial testimony . . . merely establishes a

credibility question for the jury.” Koch, 907 F2d at 531. And

absent a showing that the testimony at issue was actually

false and that the prosecutor knew it was false, Crowley

cannot establish a constitutional violation. See Pierre v

Vannoy, 891 F3d 224, 229 (5th Cir 2018) (finding no

constitutional error if prosecutor doesn’t knowingly

present false testimony at trial), citing Kinsel v Cain, 647

F3d 265, 272 (5th Cir 2011).

Crowley claims that no state court made any findings

of fact, and there is no presumption of correctness. Dkt 18

at 26. Not so. The state habeas court found that (i) the State

did not elicit false testimony on the surveillance footage,

(ii) the allegedly false testimony on the surveillance footage

was immaterial to Crowley’s guilt, and (iii) the State

properly authenticated the surveillance footage. Dkt 11-24

at 128.

Findings by the state habeas court are entitled to

substantial deference on federal habeas review and are

presumed correct under § 2254(e)(1) absent clear and

convincing evidence to the contrary. See Coleman v

Quarterman, 456 F3d 537, 541 (5th Cir 2006), citing

Guidry v Dretke, 397 F3d 306, 326 (5th Cir 2005); Valdez,

274 F3d at 947. This presumption is especially strong

where the trial judge and state habeas judge are the same,

as they are here. Miller-El v Johnson, 261 F3d 445, 449,

454 (5th Cir 2001), citing Clark, 202 F3d at 764, 766.

Crowley asserts that witness David Peak, a Flying J

employee, testified that he handed the surveillance footage

over to the police at the scene on the morning of the offense,

but that a list of the evidence submitted in the Montgomery

County Sheriff’s Office Property Inventory and Laboratory

Report indicates that it was sent to the police via FedEx.

Dkt 3 at 14. That same list also indicates that nine discs of

surveillance footage were received from the Flying J

manager while on the scene. Dkt 11-23 at 36. Crowley also

cites to the examination of Detective Hahs to raise

19

questions regarding who created the compilation video.

Dkt 3 at 14. Crowley maintains that this was all done to

confuse the court and jury about the source of the video and

mask its chain of custody and authenticity. But Crowley

fails to allege how this was material to the case and

provides no support for his challenge to the authenticity of

the video. Mere conclusory statements don’t raise a

constitutional issue in a habeas case. Ross, 694 F2d at

1011.

Crowley’s third claim is without merit and will be

dismissed. He hasn’t shown that the prosecutor engaged in

misconduct or that the state habeas court’s rejection of this

claim was unreasonable or contrary to federal law.

b. Claim 4: Suppression of evidence

Crowley’s fourth claim is that the State withheld

exculpatory evidence in the form of a quality incident

report from the Texas Department of Public Safety

indicating that the DNA sample taken from a holster was

contaminated by Detective Hahs. Dkt 1 at 8; Dkt 3 at 16–

19. Crowley asserts that the withholding of the report

interfered with his ability to challenge the chain of custody

on the biological sample evidence, the unreliability of the

evidence handling, the handlers, the DNA samples, and

the integrity of the evidence itself.

The state habeas court found that (i) “[t]he State did

not suppress a DPS quality incident report,” and (ii) the

information in the report was immaterial to Crowley’s guilt

because Crowley “was already aware that a quality event

rendered inconclusive the DNA test results from samples

taken from a holster used in the robbery.” Dkt 11-24 at 128.

It concluded on this basis that Crowley’s due process rights

were not violated by suppression of favorable evidence. Dkt

11-24 at 129.

A review of the record reveals that the DNA quality

incident report was provided to defense counsel. See Dkt

11-10 at 39 (State’s Standard Discovery Order Response

indicating Texas DPS DNA Lab Report issued on August

19, 2016, was currently in State’s file); Dkt 11-16 at 35

20

(Texas DPS Laboratory Report issued on August 19, 2016,

indicating that DNA profile taken from swab of handmade

holster was inconclusive due to quality event). Further

review reveals that counsel expressed no surprise at lab

analyst Shauna Schoonover’s testimony regarding the

quality event and raised no objections to it. See generally

Dkt 11-13 at 185–88.

Suppression by the prosecution of evidence that is

material to the guilt or punishment of the accused does

indeed violate due process. Banks v Dretke, 540 US 668,

691 (2004), citing Brady v Maryland, 373 US 83, 87 (1963).

But the record indicates that defense counsel was provided

the quality incident report here. Thus, no Brady violation

occurred.

Crowley’s fourth claim is without merit and will be

dismissed.

6. Ineffective assistance of counsel

Crowley asserts in his fifth claim that his trial counsel

was ineffective in a number of ways. As detailed below, he

asserts that his counsel failed to:

(a) raise proper objections to unauthenticated

video discs;

(b) properly research, prepare, and investigate

erroneous DNA match testimony; and

(c) cross-examine identification testimony result-

ing in the appearance of stipulation.

Crowley 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).

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

21

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

“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.

a. Claim 5a: Failure to object

Crowley argues that the State’s entire case rested on

the unauthenticated surveillance video. Dkt 3 at 20.

Crowley challenges the admission of the surveillance

videos from the Flying J truck stop on grounds that the

videos were not sufficiently authenticated. The state

habeas court found that the State had properly

authenticated the Flying J surveillance footage. Dkt 11-24

at 128 (Finding No. 11).

“To satisfy the requirement of authenticating or

identifying an item of evidence, the proponent must

22

produce evidence sufficient to support a finding that the

item is what the proponent claims it is.” Tex R Evid 901(a).

Video recordings sought to be used in evidence, such as the

recordings in this case, are treated as photographs and are

properly authenticated when it can be proved that the

images reflect reality and are relevant. Cain v State, 501

SW3d 172, 174 (Tex App—Texarkana 2016, no pet). “The

preliminary question for the trial court to decide is simply

whether the proponent of the evidence has supplied facts

that are sufficient to support a reasonable jury

determination that the evidence he has proffered is

authentic.” Tienda v State, 358 SW3d 633, 638 (Tex Crim

App 2012). “If the trial court’s ruling that a jury could

reasonably find proffered evidence authentic is at least

within the ‘zone of reasonable disagreement,’ a reviewing

court should not interfere.” Ibid.

David Peak, the general manager for the Flying J,

testified as a witness with personal knowledge regarding

the content of the surveillance videos. He testified that the

surveillance system consisted of approximately twenty-five

cameras. He explained that the digital video recorder is

triggered by movement in the building. He testified that

the surveillance system was functioning on the day of the

offense and that he provided the footage to law

enforcement that day. Dkt 11-12 at 200–04. He confirmed

that State’s Exhibits 9 and 10 appeared to be the copies he

provided. Id at 202. Detective Hahs then confirmed that

State’s Exhibit 11 was a compilation of the same

surveillance footage with different views. Id at 205–06.

Based on the testimony presented to the trial court, it

appears that the surveillance footage was properly

authenticated. And Crowley has failed to show that his

counsel’s performance was deficient for not challenging the

surveillance video further. “Failure to raise meritless

objections is not ineffective lawyering; it is the very

opposite.” Clark v Collins, 19 F3d 959, 966 (5th Cir 1994).

Crowley has also not proved that his counsel’s actions

prejudiced his trial or that but for counsel’s errors, the

23

result of the proceeding would be different. See Strickland,

466 US at 693–94.

Crowley’s claim 5a is without merit and will be

dismissed.

b. Claim 5b: Failure to investigate

Crowley next asserts that his trial counsel was

ineffective for failing to adequately investigate and

challenge as erroneous DNA match testimony. Dkt 1 at 9;

Dkt 3 at 24–26. Specifically, Crowley asserts that trial

counsel completely failed to arm himself with the necessary

law and facts to defend Crowley at trial, leaving the jury to

believe the “magic DNA” evidence. Dkt 3 at 24. Crowley’s

argument isn’t supported by the record.

In his affidavit, trial counsel outlined the extensive

preparations he undertook to generally prepare for

Crowley’s trial, including reviewing DNA evidence. Dkt 11-

24 at 82. Trial counsel also detailed his preparations

specifically for DNA cross-examination. Id at 83. Trial

counsel’s cross-examination of Shauna Schoonover,

forensic scientist with the TDPS Crime Lab, supports the

explanation provided in counsel’s affidavit. Trial counsel

cross-examined Schoonover about the DNA quality event

and how it was reported, Dkt 11-13 at 191–94, the potential

fallibility of the software based on human error, id at 195–

96, DNA transfer, id at 200–03, shedding, id at 203,

interpreting the statistical results, id at 204–05, allelic

drop-off, id at 205–06, and presence of stutter, id at 208–

09.

The state habeas court found that trial counsel’s

challenge to the DNA test results wasn’t deficient. Dkt 11-

24 at 128 (Finding No. 13). Deferring to the state court’s

factual findings, the state court’s application of Strickland

isn’t objectively unreasonable under the doubly deferential

standard. “Informed strategic decisions by counsel are

given a heavy measure of deference and should not be

second guessed.” Jones, 287 F3d at 331. Furthermore,

Crowley failed to demonstrate what a more thorough

investigation would have revealed and how it would have

24

altered the outcome of his trial. Gregory v Thaler, 601 F3d

347, 352 (5th Cir 2016) (stating that 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”).

Crowley’s claim 5b is without merit and will be

dismissed.

c. Claim 5c: Failure to effectively cross-

examine witnesses

Crowley next complains that counsel failed to cross-

examine identification testimony. Dkt 1 at 9; Dkt 3 at 22–

24. He asserts that because trial counsel failed to challenge

the in-court identifications, it left the jury with the

impression that the defense was essentially stipulating to

them. Dkt 3 at 25. The state habeas court found that trial

counsel was not deficient in this respect. Dkt 11-24 at 128.

Tactical and strategic choices made by counsel—

including whether to cross-examine witnesses and to what

extent—involve the exercise of professional judgment and

are virtually unchallengeable on habeas review. See

Ransom v Johnson, 126 F3d 716, 721 (5th Cir 1997);

Kitchens v Johnson, 190 F3d 698, 704 (5th Cir 1999).

In his affidavit, trial counsel explained that he was able

to effectively challenge during cross-examination the

witnesses’ ability to identify Crowley:

I was able to do that effectively for the most

part since most of the witnesses who

testified did not see Mr. Crowley’s face or

point him out in the courtroom. Mr.

Crowley’s identification was made mostly

through the DNA evidence of the strap that

was left behind at the scene that the

assailant dropped in dashing away from

the robbery. That DNA was tested and it

was learned that Mr. Crowley was a

contributor based on DNA obtained from

25

Mr. Crowley earlier. A video was produced

that showed 2 men in the Flying J earlier

that day. A police officer recognized one of

the men as Mr. Richard Hill. Mr. Hill was

contacted by the police and he informed

them that the other man in the video that

was with him was Mr. James Dwayne

Crowley. Mr. Crowley stated to me that he

had been caring for Mr. Hill’s mom. Mr.

Crowley was wearing the identical clothing

that the assailant was wearing in the

robbery of the Flying J later that day

except for a baseball cap and sun-glasses.

His shoes, jeans and t-shirt were identical.

I did question Mr. Hill but he did not

change his testimony.

Dkt 11-24 at 83.

A review of the record also reveals that trial counsel

questioned Ms. Prior, the shift leader for Flying J,

regarding her ability to provide an identification. Dkt 11-

12 at 130.

Q. Okay. Now, you said that you

described him as having an – I guess a

camouflage hat; is that correct?

A. Yes.

Q. Okay. Did he have sunglasses on or

anything?

A. I don’t remember seeing sunglasses.

Q. Okay. Did he have a jacket on?

A. I don’t remember.

Q. Okay. Did he have a sweater?

A. I don’t remember.

. . .

Q. Now, you indicated in your

statement that you did not get a good look

at the person; is that correct?

26

A. Yes.

Dkt 11-12 at 130–132.

Here, again, Crowley has failed to show that the

performance by his trial counsel was deficient or that he

was actually prejudiced as a result.

d. The claim based on the cumulative error

doctrine (Claim 6)

Crowley maintains that the cumulative effect of the

various errors resulting from the ineffective assistance of

counsel merits federal habeas relief. Dkt 3 at 25. The

cumulative error doctrine provides that “an aggregation of

non-reversible errors (i.e., plain errors failing to necessitate

reversal and harmless errors) can yield a denial of the

constitutional right to a fair trial, which calls for reversal.”

United States v Munoz, 150 F3d 401, 418 (5th Cir 1998),

cert denied, 525 US 1112 (1999). However, Crowley has

failed to establish any error in his trial.

Therefore, relief is not available under the cumulative

error doctrine. See United States v Williams, 264 F3d 561,

572 (5th Cir 2001) (no cumulative error where defendant

failed to identify single error in jury selection); Miller v

Johnson, 200 F3d 274, 286 (5th Cir 2000) (petitioner who

failed to demonstrate any error by trial counsel could not

establish cumulative error).

7. Motion for evidentiary hearing

Crowley 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,

27

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—

(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, 202

F3d at 766, 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).

Crowley presents nothing but conclusory assertions

that he is illegally confined due to ineffective assistance of

counsel, prosecutorial misconduct, and trial court error.

Dkt 18. An evidentiary hearing isn’t necessary where

nothing establishes a pertinent factual dispute that

28

requires development in order to assess the claims.

Robison v Johnson, 151 F3d 256, 268 (5th Cir 1998). 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

18.

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, Crowley 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 James Dwayne Crowley lacks merit.

The motion by Respondent Bobby Lumpkin for

summary judgment is GRANTED. Dkt 12.

The petition by Crowley for a writ of habeas corpus is

DENIED. Dkt 1. Crowley’s motion for evidentiary hearing is

DENIED. Dkt 18.

29

Any other pending motions are DENIED AS MOOT.

This case is DISMISSED WITH PREJUDICE.

A certificate of appealability is DENIED.

SO ORDERED.

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

__________________________

Hon. Charles Eskridge

United States District Judge

30