# Crowley v. Lumpkin

> District Court, S.D. Texas · September 30, 2022

URL: https://www.frixlaw.com/law-library/cases/10675895

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** September 30, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10675895

## How later opinions describe it (automated extraction)

- finding no constitutional error if prosecutor doesn’t knowingly present false testimony at trial
- stating typical summary-judgment standard in civil cases
- 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”

## Opinion text

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
6
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
10
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).

13
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.

14
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10675895. Public record. Not legal advice.