Baughman v. Lumpkin

UNITED STATES DISTRICT COURT February 15, 2023

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

§

Steve Kurt Baughman, §

§

Petitioner, §

§ Case No. 4:21-cv-03016

v. §

§

Bobby Lumpkin, Director, Texas §

Department of Criminal Justice, §

Correctional Institutions Division §

§

Respondent. §

MEMORANDUM AND RECOMMENDATION

Before the Court are Petitioner Steve Baughman’s petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254(d) and Respondent Bobby

Lumpkin’s (“the Director”) motion for summary judgment. Dkt. 1; Dkt. 14.

After carefully reviewing the petition, Baughman’s supporting memorandum,

Dkt. 2, the Director’s motion, Baughman’s response, Dkt. 26, the record, and

the appliable law, it is recommended that the Director’s motion for summary

judgment be granted and that Baughman’s petition be denied. It is further

recommended that the Court decline to hold an evidentiary hearing and deny

a certificate of appealability.

Background

On April 2, 2014, Kurt Baughman was arrested for aggravated assault

with a deadly weapon and felon in possession of a firearm. Dkt. 10-1 at 13.

The indictment charged him with striking his ex-girlfriend, Machell Spear,

with a firearm and threatening to kill Ms. Spear and her son, John Spear. Id.

at 25. The state district court appointed an attorney to serve as Baughman’s

counsel. Id. at 21. But Baughman eventually requested a new attorney and

filed a grievance against his original one. Id. at 28. The court then appointed

Baughman a second attorney, Ricardo Gonzalez. Id. at 29-30.

Baughman grew frustrated with Mr. Gonzalez’s strategy and later

moved to replace Mr. Gonzalez with yet another court-appointed attorney. See

id. at 57-58. After filing a bar complaint against Mr. Gonzalez, see id. at 87,

Baughman filed a flurry of pro se motions, complaints, and petitions for

mandamus relief. See id. at 90-588.

The trial court appointed Baughman a third attorney, Terrence Gaiser.

Id. at 591 (Aug. 15, 2017 appointment order). Mr. Gaiser promptly moved to

have an investigator appointed. Id. at 592-93. Although the record does not

indicate whether the court granted Gaiser’s request, it includes numerous

documents that either Gaiser or his investigator had procured—including

Baughman’s medical records, Dkts. 10-20–10-38.

Nevertheless, Baughman again demanded new counsel. Id. at 645-51

(Dec. 4, 2017 motion). The court immediately addressed Baughman’s request

at a hearing on pretrial motions. Dkt. 10-11 at 5-13. Baughman moved for a

new hearing to demonstrate that he and his attorney were at loggerheads over

trial strategy. See id. at 8. But the court denied this motion, explaining that

Baughman’s case had been pending for more than 1300 days, and that it “needs

to go to trial, and it needs to go today.” Id. at 7. Ultimately, Baughman decided

to proceed with Mr. Gaiser as his attorney. Id. at 13.

Baughman’s trial lasted two days. The State presented four witnesses:

the victims, Machell and John Spear, and two arresting officers, Deputies

Maxwell and Benningfield. See Dkt. 10-13 at 16-211. Ms. Spear testified that

Baughman came to her house, grew agitated, put a gun to her forehead, and

threatened to kill her and her son, John, who was standing nearby. Dkt. 10-

13 at 111-12, 115-16, 120. John corroborated these events, further describing

the weapon as a silver gun with a brown handle that Baughman had shown

John on a prior occasion. Id. at 169, 174-78, 190, 208-09 (State Ex. 38). Both

victims testified that Baughman used the gun to strike Ms. Spear on the back

of her head after she turned to flee. Id. at 116-17, 119-20; see also id. at 182-

83 (John’s testimony).

Ms. Spear had given a similar account of events to the officer who

interviewed her at the scene. See id. at 25-27 (Maxwell’s testimony). Deputy

Maxwell testified that Ms. Spear was hysterical, suffering pain, and had “an

egg-sized knot that had been split open and ... blood in her hair. Id. at 18, 23,

25; see also Dkt. 10-16 at 10-14 (State Exs. 8-12, photographs). About an hour

after Deputy Maxwell’s arrival, Baughman drove up on his motorcycle. Dkt.

10-13 at 29-30, 59. According to Deputy Maxwell, Baughman admitted to

having a gun (insisting later it was a BB gun) but said he had thrown it in a

ditch. Id. at 30-31. Maxwell took Baughman to the area where he claimed to

have thrown the gun but found nothing there. Id. at 30-31, 34, 61, 73.

During an inventory search of Baughman’s motorcycle, another officer,

Deputy Benningfield, recovered two firearms—including a brown-handled

pistol—from an attached saddlebag. Id. at 30-31, 35-36, 55; Dkt. 10-16 at 16-

38 (photos, State Exs. 14-36); Dkt. 10-13 at 83-85 (Benningfield). John Spear

identified the brown-handled pistol as the one Baughman had used to strike

his mother. See id. at 176-77 (identifying State Ex. 25).

The State also read into the record a stipulation concerning Baughman’s

prior conviction for attempted capital murder of a police officer, id. at 46, which

the jury was instructed to consider only for the limited purpose of determining

whether Baughman had a prior felony conviction—an element of the charge of

felon in possession of a firearm, Dkt. 10-1 at 657. Over Mr. Gaiser’s objection,

the court also admitted a 911 call from a neighbor to whose house Ms. Spear

had fled after the assault. Dkt. 10-13 at 130-32; see also id. at 127-28 (Ms.

Spear testifying that she sought help at house where the resident called 911).

During the defense’s case-in-chief, Mr. Gaiser put on two witnesses:

Gerald Bush and Linda Pugh. Mr. Bush testified that the firearms recovered

at the scene in belonged to him; Bush had left them in motorcycle after

borrowing it. Id. at 217-19. Ms. Pugh, who is Baughman’s mother, id. at

227-28, testified about Baughman’s character and his relationship with some

of the other witnesses in this case. See id. at 233-36.

The jury convicted Baughman on one count of felon in possession of a

firearm and two counts of aggravated assault with a deadly weapon. Dkt. 10-

14 at 20-21. Because of Baughman’s prior felony conviction, the court

sentenced him to 30 years in prison. Dkt. 10-15 at 26.

Baughman appealed. Dkt. 10-1 at 728 (docket sheet). The Fourteenth

Court of Appeals modified the judgment to delete duplicative court costs but

otherwise affirmed. Dkt. 10-39 at 19. The Texas Court of Criminal Appeals

(“TCCA”) denied review. See Dkt. 11-39.

Baughman then sought state habeas relief. See Dkt. 11-25; Dkt. 11-29;

Dkt. 11-32. The trial court denied his petitions, Dkt. 11-22; Dkt. 11-26; Dkt.

11-30, which decision was affirmed summarily on appeal, Dkt. 11-33. The

TCCA denied review. Dkt. 11-38. Baughman timely filed the instant petition

under 28 U.S.C. § 2254, which is ripe for review. Dkt. 1.

Legal Standard

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) curtails

the grounds on which a federal court may issue a writ of habeas corpus. Relief

is available for claims that were adjudicated on the merits only if the state

court’s decision (1) “was contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court of the

United States” or (2) “was based on an unreasonable determination of the facts

in light of the evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d); Early v. Packer, 537 U.S. 3, 7-8 (2002) (quoting 28 U.S.C. § 2254(d));

Cobb v. Thaler, 682 F.3d 364, 372-73 (5th Cir. 2012) (same). The analysis is

“limited to the record that was before the state court that adjudicated the claim

on the merits.” Cullen v. Pinholster, 563 U.S. 170, 180 (2011).

“A state court’s decision is deemed 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 F.3d 436, 439

(5th Cir. 2010) (citing Williams v. Taylor, 529 U.S. 362, 404-08 (2000)). To

constitute an “unreasonable application of” clearly established federal law, a

state court’s holding “must be objectively unreasonable, not merely wrong;

even clear error will not suffice.” Woods v. Donald, 575 U.S. 312, 316 (2015)

(quoting White v. Woodall, 572 U.S. 415, 419 (2014)). “To satisfy this high bar,

a habeas petitioner is required to ‘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.’” Id. (quoting Harrington v. Richter,

562 U.S. 86, 103 (2011)).

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

unless the petitioner rebuts those findings with “clear and convincing

evidence.” 28 U.S.C. § 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 F.3d 578, 597 (5th Cir. 2018) (quoting Valdez v. Cockrell,

274 F.3d 941, 948 n.11 (5th Cir. 2001)). A federal court “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 U.S. 305, 313-14 (2015) (quoting Wood v. Allen, 558 U.S. 290, 301

(2010)). “Instead, § 2254(d)(2) requires that [a federal court] accord the state

trial court substantial deference.” Id. at 314.

“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 F.3d 760, 764 (5th Cir. 2000) (citing Rule 11 of the Rules

Governing § 2254 Cases and Fed. R. Civ. P. 81(a)(2)). In ordinary civil cases,

a court must construe the facts in a light most favorable to the nonmoving

party. See Tolan v. Cotton, 572 U.S. 650, 657 (2014). AEDPA, however,

modifies these principles; Rule 56 “applies only to the extent that it does not

conflict with the habeas rules.” Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir.

2002), overruled on other grounds by Tennard v. Dretke, 542 U.S. 274, 284

(2004). “Therefore, § 2254(e)(1)—which mandates that findings of fact made

by a state court are ‘presumed to be correct’—overrides the ordinary rule that,

in a summary judgment proceeding, all disputed facts must be construed in

the light most favorable to the nonmoving party.” Id.

As for the habeas petition itself, pleadings by pro se litigants are held “to

less stringent standards than formal pleadings drafted by lawyers[.]” Haines

v. Kerner, 404 U.S. 519, 520 (1972). “The filings of a federal habeas petitioner

who is proceeding pro se are entitled to the benefit of liberal construction.”

Hernandez v. Thaler, 630 F.3d 420, 426 (5th Cir. 2011) (citations omitted).

Analysis

Baughman advances eleven grounds that allegedly entitle him to a new

trial. Dkt. 1. The Director’s summary judgment motion groups these claims

into four categories: ineffective assistance of counsel (grounds one, seven, nine,

ten, and eleven), improperly admitted evidence (grounds two and six), Brady

violations (grounds three and eight), and prosecutorial misconduct (grounds

four and five). Dkt. 14 at 11, 24, 28, 31.

There is no dispute that Baughman raised the same contentions in his

state habeas proceedings. See Dkt. 11-32 at 10-29; Dkt. 11-35 at 10-29; Dkt.

11-37 at 10-29.1 All factual determinations by the state habeas courts—even

those merely implicit in the decision—therefore are presumed to be accurate.

See 28 U.S.C. § 2254(e)(1); Martinez, 644 F.3d sat 242-42. Moreover, the state

courts summarily rejected Baughman’s habeas claims without explanation,

Dkt. 11-30; Dkt. 11-33; Dkt. 11-38. So to obtain relief here, Baughman must

show that “there was no reasonable basis for the state court to deny relief.’”

Salts v. Epps, 676 F.3d 468, 480 n.46 (5th Cir. 2012)) (applying this standard

“where a state court summarily denies a petitioner’s motion” without providing

reasons, quoting Harrington, 562 U.S. at 98).

I. Baughman’s counsel was not unconstitutionally deficient.

Many of Baughman’s contentions challenge the conduct of his trial

counsel. Three of them allege that Mr. Gaiser conducted an inadequate

investigation (grounds seven, nine, and ten), see Dkt. 1 at 9, 12, 14, and two

allege that Mr. Gaiser provided inadequate representation at trial (grounds

one and eleven), id. at 6, 16.

1 The Director does not argue that Baughman failed to exhaust or otherwise defaulted

on any of his claims. See Dkt. 14 at 8.

A. Legal standard: Strickland v. Washington

Baughman’s complaints about his counsel are governed by Strickland v.

Washington, 466 U.S. 668 (1984). Under Strickland, Baughman first must

demonstrate that his attorney’s representation was deficient. See id. at 690.

“[S]trategic choices made after thorough investigation of law and facts relevant

to plausible options are virtually unchallengeable; and strategic choices made

after less than complete investigation are reasonable precisely to the extent

that reasonable professional judgments support the limitations on

investigation.” Hinton v. Alabama, 571 U.S. 263, 274 (2014) (internal

quotation marks omitted).

Under the first prong of Strickland’s test, counsel’s performance must be

compared to “an objective standard of reasonableness, mindful of the strong

presumption of adequacy.” Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir.

1997). “A conscious and informed decision on trial tactics and strategy cannot

be the basis for constitutionally ineffective assistance of counsel unless it is so

ill chosen that it permeates the entire [process] with obvious unfairness.” Id.

(quoting Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983)).

Review of counsel’s conduct is doubly constrained in the context of

Section 2254(d) petitions. “Federal habeas courts must guard against the

danger of equating unreasonableness under Strickland with unreasonableness

under § 2254(d). When § 2254(d) applies, the question is not whether counsel’s

actions were reasonable. The question is whether there is any reasonable

argument that counsel satisfied Strickland’s deferential standard.”

Harrington, 562 U.S. at 105.

The second prong of Strickland examines whether the attorney’s

“deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687.

To satisfy this requirement, the defendant must show “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694.

B. Baughman has not shown that counsel’s investigation was

deficient or that any deficiency prejudiced him.

Baughman attacks his counsel’s performance by asserting that Mr.

Gaiser inadequately investigated the facts of the case. Dkt. 1 at 9, 12, 14. The

record does not support Baughman’s contentions.

As a legal matter, whether Mr. Gaiser investigated Baughman’s

proposed defenses is a factual issue that the state habeas court implicitly

resolved against Baughman. See Murphy, 901 F.3d at 597. Baughman offers

no “clear and convincing evidence” showing that the state court’s

determination is unreasonable. See 28 U.S.C. § 2254(e)(1). To the contrary,

the record indicates that Mr. Gaiser filed appropriate motions promptly after

his appointment, see Dkt. 10-1 at 592, requested video evidence, see Dkt. 10-19

at 4 (Gaiser’s Affidavit), and made strategic decisions about what evidence to

challenge or introduce and what witnesses could provide potentially

exculpatory evidence, see id. at 4-6.

Baughman’s contentions do not indicate that his counsel failed to

adequately investigate the case. For instance, Baughman complains (in

ground seven) that counsel failed to withdraw a prior attorney’s motion to

suppress and file a new motion. Dkt. 2 at 25-28. As the Director contends, and

the Court agrees, Mr. Gaiser had no obligation to withdraw prior counsel’s

suppression motion and file his own. See Dkt. 14 at 18.

Moreover, the motion to suppress was futile. According to Baughman,

the inventory search of his motorcycle that uncovered the firearm was

unlawful because officers did not follow internal procedures that required

completion of certain paperwork. See Dkt. 2 at 26-27 (quoting testimony about

information on the tow slip). But “failure to compile the written inventory does

not render the inventory search invalid.” See United States v. Loaiza Marin,

832 F.2d 867, 869 (5th Cir. 1987) (adopting this rule). Baughman’s trial

counsel had no obligation to pursue a meritless challenge. See Murray v.

Maggio, 736 F.2d 279, 283 (5th Cir. 1984) (per curiam) (“Counsel is not

required to engage in the filing of futile motions.”).

Nor did counsel improperly fail to investigate and pursue a self-defense

claim (tenth point). According to Baughman, one of the alleged victims, John

Spear, was “high on methamphetamine” and had attacked Baughman—as

purportedly evidenced by a bite mark on Baughman’s hand. See Dkt. 2 at 38.

As the Director notes, however, Mr. Gaiser investigated and obtained

Baughman’s medical records. Dkt. 14 at 20-21 (citing Dkt. 10-19 at 4-6). Those

records reflected no evidence of a wound until after Baughman was jailed. See

Dkt. 10-19 at 5. Mr. Gaiser’s decision to refrain from further exploring a self-

defense theory was reasonable. See Hinton, 571 U.S. at 274.

Baughman’s allegation that counsel failed to investigate evidence

exposing perjury by State witnesses (ninth point) is equally flawed. It asserts

that Mr. Gaiser failed to obtain date and time stamps on photographs taken

by police. See Dkt. 1 at 12; Dkt. 2 at 34-35. Those date and time stamps are

not in the record. Had this been investigated, Baughman argues, counsel

would have found that the officers had violated departmental policy by

searching Baughman’s motorcycle before charges were accepted—thereby

providing fodder for impeaching the officers’ testimony and invalidating the

inventory search that found the guns. Dkt. 2 at 34-35. This argument is

speculative on its face and could be rejected for that reason alone. See, e.g.,

Greer v. Davis, 2016 WL 6583712, at *17 (S.D. Tex. Nov. 2, 2016) (rejecting

“speculative” contention that trial counsel improperly failed to obtain dispatch

logs that would have been exculpatory, when the dispatch logs were not

included in the record).

But even if Baughman’s speculation about this timeline were accurate,

the state court reasonably could have concluded, albeit implicitly, that this

type of policy violation would not have required excluding the guns.

Baughman misplaces reliance on Florida v. Wells, 495 U.S. 1, 4-5 (1990), which

held that the complete absence of any criteria for conducting an inventory

search would violate the Fourth Amendment. But the Court finds no

analogous Supreme Court decision holding that mere deviations from policies

governing the timing for conducting an inventory search will categorically

invalidate the search. See, e.g., Gray, 616 F.3d at 439 (requiring that the state

court’s decision contravene a prior Supreme Court decision, either directly, or

“based on materially indistinguishable facts”). Given Baughman’s inability to

meet the strict standard of review and invalidate the search itself, he cannot

do so with respect to counsel’s alleged failure to investigate the issue.

C. Counsel’s conduct at trial was neither deficient nor

prejudicial under Strickland.

Likewise, Baughman cannot demonstrate that his counsel was

unconstitutionally deficient at trial. Baughman argues he was constructively

denied counsel due to a conflict with Mr. Gaiser, Dkt. 1 at 6, and that Mr.

Gaiser should have objected to the State’s introduction of his prior convictions,

id. at 16. Baughman’s contentions do not warrant relief.

The denial of Baughman’s request for appointment of yet another

attorney provides no basis for relief. See Dkt. 1 at 6; Dkt. 2 at 1-3. Trial courts

have discretion to deny last-minute requests to substitute counsel, see United

States v. Silva, 611 F.2d 78, 79 (5th Cir. 1980), and requests that are made for

dilatory purposes, see Newton v. Dretke, 371 F.3d 250, 255-56 (5th Cir. 2004).

Courts examine six factors when reviewing a state court’s denial of a

continuance to obtain new counsel:

(1) the length of the requested delay; (2) whether the lead

counsel has an associate who is adequately prepared to try the

case; (3) whether other continuances have been requested and

granted; (4) the balanced convenience or inconvenience to

litigants, witnesses, opposing counsel and the court;

(5) whether the requested delay is for a legitimate reason, or

whether it is dilatory and contrived; (6) whether there are other

unique factors present.

Gandy v. Alabama, 569 F.2d 1318, 1324 (5th Cir. 1978). The record here

reflects that Baughman already had received multiple continuances to obtain

new counsel, that his case had been pending for over three years, and that his

latest request evinced an improper attempt to delay the trial. Dkt. 10-1 at 21,

30, 591 (appointment of attorneys); 645-51 (motion to appoint new counsel filed

December 4, 2017—the day of the pretrial hearing). The trial court did not err

by declining to grant Baughman’s eleventh-hour motion for continuance, filed

on the day of his pretrial hearing, to appoint a fourth new attorney in this case.

See United States v. Uptain, 531 F.2d 1281, 1290 (5th Cir. 1976) (“[T]he

freedom to have counsel of one’s own choosing may not be used for purposes of

delay.”); see also United States v. Sexton, 473 F.2d 512 (5th Cir. 1973) (“We

cannot hold that the trial judge abused his discretion by concluding that

Sexton’s eleventh hour motions were interposed for delay.”).

As for counsel’s performance at trial, Baughman maintains that Mr.

Gaiser should have objected to the stipulation about his prior conviction for

attempted capital murder of a police officer. Construed liberally, he maintains

that this violated his 14th Amendment right to due process. See Dkt. 1 at 16;

Dkt. 26 at 37. This argument is foreclosed.

First, Baughman has not shown that his trial counsel was objectively

deficient in handling the stipulation about the prior conviction. As noted by

the Fourteenth Court of Appeals, Baughman’s counsel did object when the trial

court first ordered the entire stipulation to be read into the record. See Dkt.

10-13 at 13 (Mr. Gaiser objecting to the reading of the stipulation); Dkt. 10-39

at 14 (court of appeals’ order). Moreover, as the trial court later acknowledged

at the hearing on Baughman’s motion for new trial, any error in reading the

stipulation to the jury was committed by the court, and not by Baughman’s

counsel. See Dkt. 10-18 at 7 (new counsel asserting that Mr. Gaiser failed to

object to reading of prior conviction); see also id. at 21 (trial court explaining

“if there was an error, this was my error and not Mr. Gaiser’s”).

Regardless, any alleged error regarding the stipulation was not

prejudicial, given the strong evidence supporting Baughman’s guilt. Dkt. 10-

39 at 15-16 (court of appeals’ opinion on direct appeal). As a matter of fact,

both victims gave nearly identical accounts of how Baughman threatened to

kill them and then struck Ms. Spear with a gun, compare Dkt. 10-13 at 111-

12, 115-16, 120 (Ms. Spear’s testimony), with id. at 174-78, 182-83, 190, 208-09

(John Spear’s testimony), and Baughman did not meaningfully challenge their

version of events. The officers also found the firearm used in the assault, which

Baughman (as a convicted felon) could not lawfully possess. Id. at 85 (Deputy

Benningfield testifying to contents of inventory search); id. at 176-77 (John

Spear identifying the gun).

And as a matter of law, admitting evidence of prior convictions that are

relevant to an offense does not violate a defendant’s due process rights,

especially when limiting instructions are given. See, e.g., Spencer v. Texas, 385

U.S. 554, 563, 568 (1967) (addressing habitual offender statute). Here,

Baughman’s counsel requested, and the trial court gave, a limiting instruction

that ensured the jury only considered the prior convictions to determine if

Baughman was a convicted felon—an element of the charge for felon in

possession of a weapon. See Dkt. 14 at 26; Dkt. 10-14 at 4-5; Dkt. 10-1 at 657.

Thus, the state habeas courts reasonably rejected Baughman’s Strickland

contentions, which bars relief here.

II. Baughman’s evidentiary challenges provide no basis for habeas

relief.

Baughman raises two points about impermissibly admitted evidence.

The first largely reprises one of his Strickland allegations rejected above that

the substance of his prior criminal conviction was improperly admitted. Dkt.

1 at 6 (ground two); Dkt. 2 at 9-11; see supra Part I.C. But the Fifth Circuit

rejected an analogous due process challenge to the introduction of a

defendant’s prior crimes, holding that this evidence—even without a limiting

instruction—did not have a “substantial and injurious effect or influence in

determining the jury’s verdict.” Smallwood v. Johnson, 73 F.3d 1343, 1349-50

(5th Cir. 1996) (quoting Pemberton v. Collins, 991 F.2d 1218, 1226 (5th Cir.

1993)). Admitting Baughman’s prior conviction did not violate his due process

rights, particularly when the trial court gave a limiting instruction.

Second, Baughman contends (in ground six) that the trial court violated

the Confrontation Clause by admitting a 911 call containing double hearsay.

The call included statements from Ms. Spear recounting the events and asking

for help. Dkt. 2 at 23-24; Dkt. 10-13 at 127-28. When admitting the call, the

trial court ruled the statements fell within a hearsay exception for excited

utterances and were not testimonial. Dkt. 10-13 at 128-32.

The admissibility of alleged hearsay presents a question of state law that

cannot provide a basis for habeas relief. See Lawrence v. Lensing, 42 F.3d 255,

258 (5th Cir. 1994) (citing Gray v. Lynn, 6 F.3d 265, 268 (5th Cir. 1993)); see

also infra, Part IV.B. Admitting the 911 call also did not violate the

Confrontation Clause because the recorded statements during an ongoing

emergency do not qualify as “testimonial” under Crawford v. Washington, 541

U.S. 36 (2004). See Davis v. Washington, 547 U.S. 813, 828 (2006). Rather, as

the trial court correctly reasoned, these statements were made to obtain

emergency assistance and not for the purposes of admitting the statements at

trial. Dkt. 10-13 at 130-31 (“It’s clearly an ongoing emergency. The guy

making the call was armed with a gun because he was frightened.... It

certainly is not testimonial.”).

In addition, the State correctly asserts that admitting the 911 call, even

if erroneous, was harmless. After all, Ms. Spear testified about the events

recounted on the call. See Dkt. 10-13 at 126-30. Baughman’s evidentiary

challenges should be rejected.

III. Baughman is not entitled to relief under Brady v. Maryland.

Baughman next attacks the adequacy of the State’s disclosure of

exculpatory and impeachment evidence as required by Brady v. Maryland. See

Dkt. 2 at 11-14, 30-33 (grounds three and eight). To prevail, Baughman must

show that (1) the prosecution suppressed evidence; (2) the evidence was

favorable; (3) the evidence was material to either guilt or punishment; and

(4) discovery of the allegedly favorable evidence was not the result of a lack of

due diligence. See Avila v. Quarterman, 560 F.3d 299, 305 (5th Cir. 2009). The

state habeas courts reasonably rejected Baughman’s Brady challenge.

A. The disciplinary reports are not constitutionally material.

Baughman’s first complaint (in ground three) concerns a series of

disciplinary reports against the two officers who testified at trial: Deputy

Benningfield and Deputy Maxwell. Baughman claims that the State

unlawfully suppressed these reports. See Dkt. 2 at 11-14, 63-84.

For Brady claims, “evidence is material only if there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of

the proceeding would have been different.” United States v. Bagley, 473 U.S.

667, 682 (1985). “The mere possibility that an item of undisclosed information

might have helped the defense, or might have affected the outcome of the trial,

does not establish ‘materiality’ in the constitutional sense.” United States v.

Agurs, 427 U.S. 97, 109-10 (1976). Rather, the alleged suppression of evidence

must have “put the whole case in a different light so as to undermine

confidence in the verdict.” Kyles v. Whitley, 514 U.S 419, 434-35 (1995).

The disciplinary reports do not meet this test. The record indicates that

Deputy Benningfield was disciplined twice—once for “fail[ing] to seal [an]

evidence bag” and once for failing to correct paperwork. Dkt. 2 at 12, 79, 81.

Neither incident bears on the Benningfield’s truthfulness. Even if they did,

the strong evidence of Benningfield’s guilt, as detailed supra Part I.C and infra,

Part II.B, undermines any reasonable probability that the outcome may have

differed had the reports been disclosed. See United States v. Weintraub, 871

F.2d 1257, 1262-64 (5th Cir. 1989) (affirming conspiracy conviction when

withheld impeachment evidence did not cast “serious doubt” on the conviction).

Deputy Maxwell’s disciplinary record is equally immaterial. He was

cited three times for failing to complete paperwork correctly, Dkt. 2 at 63-70,

once for not taking a complainant’s statement, id. at 71, 73, and once for failing

to investigate a burglary “because he advised the Complainant that he was

sick was about to go home,” id. at 77. Most of these are administrative errors.

None have any apparent relevance to Deputy Maxwell’s handling of this case.

And even if those infractions bore tangentially on his credibility, the strength

of the State’s case makes it improbable that the jury would have acquitted

Baughman if the reports were admitted. See Williams v. Davis, 2017 WL

4541463, at *8 (S.D. Tex. Oct. 10, 2017).

Baughman’s contentions are doubly insufficient because of the standard

of review in this case. To prevail, Baughman must show that the state habeas

courts violated “clearly established federal law.” See 28 U.S.C. § 2254(d)(1).

But the Court finds no binding authority that compelled the State to turn over

evidence analogous to these disciplinary reports. This asserted Brady violation

cannot support habeas relief.

B. The crime scene photograph metadata was not material to

Baughman’s guilt.

Baughman’s second Brady claim—that the prosecution withheld the

date and time for certain on-scene photographic evidence (ground eight)—fails

because the evidence was not material to his case. This argument hinges on

Ms. Spear’s testimony indicating that Baughman was arrested immediately

upon his arrival, Dkt. 10-13 at 140, a police log entry on the day of the incident

indicating that Baughman was charged and “In Custody’ at 9:03:46 a.m.,” Dkt.

11-32 at 157 (attached to Baughman’s third habeas petition), and two

photographs depicting him in handcuffs and standing by the patrol car, Dkt. 2

at 31 (citing Dkt. 10-16 at 39 (State Ex. 37) and Dkt. 10-16 at 63 (DX 1)).

Baughman speculates that evidence that the photos were taken earlier,

immediately upon his arrival, could have impeached Deputy Maxwell’s

testimony at the suppression hearing that Baughman was not arrested until

after the district attorney approved the charges, see Dkt. 10-11 at 47, thereby

leading to exclusion of both the search that uncovered the guns and

Baughman’s inculpatory statement about possessing a gun. Dkt. 2 at 30-32.

Like his related argument that his counsel was ineffective for failing to

procure this evidence, see supra Part I.B, Baughman’s contention that the

State violated Brady by failing to disclose it is wholly speculative. Regardless,

nothing indicates there was a reasonable probability that disclosure of the date

and time stamps on the photos would have led to a different outcome. See

Bagley, 473 U.S. at 682 (materiality standard).

The State’s case was strong. See supra Part I.C. Both victims testified

that Baughman put a gun to Ms. Spear’s head, threatened to kill her and John,

and then forcefully struck Ms. Spear’s head with the gun. Dkt. 10-13 at 111-

12, 115-17, 119-20 (Ms. Spear); id. at 169, 174-78, 182-83, 190, 208-09 (John

Spear). Bolstering that further, Ms. Spear’s account at trial dovetailed with

what she told Deputy Maxwell on the day of the incident, and what Deputy

Maxwell saw upon arrival. Id. at 18, 23, 25-27.

The Court finds no clearly established law indicating that whether

Baughman was arrested at 9:03 a.m. or sometime earlier affects the lawfulness

of the inventory search of his motorcycle that found his guns. Moreover, given

the record, the Court cannot conclude that the state court lacked a “reasonable

basis” for denying relief on this claim. Engle v. Lumpkin, 33 F.4th 783, 790

(5th Cir. 2022) (quoting Harrington, 562 U.S. at 98; see also, e.g., Cannon v.

Kelly, 2012 WL 1038802, at *9 (S.D. Miss. Mar. 29, 2012) (denying § 2254 relief

on Brady claim where “a finding of immateriality by the State would not be

objectively unreasonable”). Baughman’s Brady contentions do not merit relief.

IV. Baughman has not demonstrated that the State committed

misconduct warranting habeas relief.

Baughman’s remaining claims (grounds four and five) argue that the

prosecution offered perjured testimony and coached witnesses between

examinations at trial. See Dkt. 1 at 7, 8; Dkt. 2 at 15-23. According to

Baughman, these actions violated his due process rights. Dkt. 2 at 15.

A. Baughman has not shown that the State offered perjured

testimony.

For his argument about perjured evidence, Baughman focuses on

statements made by officers that the firearm used to strike Ms. Spear had been

discharged three times. Baughman argues that forensic reports reflect the gun

was never fired, and thus the officers’ testimony was false. Dkt. 2 at 15-18.

To prevail on a due process claim of perjured testimony, a petitioner

must show (1) the actual falsity of that testimony; (2) that the prosecution

knew the testimony was false; and (3) that the testimony was material. See

Giglio v. United States, 405 U.S. 150, 153-54 (1972); see also United States v.

Mason, 293 F.3d 826, 828 (5th Cir. 2002). Lack of materiality alone defeats

Baughman’s claim. At best, whether Baughman fired the pistol was tangential

to the charges that he unlawfully possessed a firearm and committed assault

by threatening to kill the victims and striking Ms. Spear with the gun. See

Dkt. 10-13 at 111-20. Far from being “central” to the State’s case, the State’s

closing argument barely mentioned the discharge of the firearm. See Dkt. 10-

14 at 11-19 (single mention of this issue: “You heard about the gunshots”).

There was no violation of Baughman’s due process rights. And it was wholly

reasonable for the state habeas courts to reach this conclusion.

B. Baughman’s state law claims provide no basis for federal

habeas relief.

Baughman’s last contention (fifth ground) invokes “the Rule,” i.e., Texas

Rule of Evidence 614. That rule provides, “[a]t a party’s request, the court

must order witnesses excluded so that they cannot hear other witnesses’

testimony.” Tex. R. Evid. 614. Baughman asserts that by coaching its

witnesses, the State violated his due process rights. Dkt. 2 at 18-23.

This claim cannot support habeas relief. Under Section 2254, a state

prisoner seeking review “must assert a violation of a federal constitutional

right.” Lawrence, 42 F.3d at 258. Errors of state law are insufficient. Estelle

v. McGuire, 502 U.S. 62, 67 (1991) (“We have stated many times that federal

habeas corpus relief does not lie for errors of state law.”) (internal quotation

marks omitted); see also McDuff v. Johnson, 1998 WL 857876, at *9 (5th Cir.

Nov. 17, 1998) (rejecting invocation of “Texas’ accomplice-witness rule” as basis

for habeas relief). Baughman’s reliance on “the Rule” is unavailing.

V. Baughman is not entitled to an evidentiary hearing or a

certificate of appealability.

This Court should decline to hold an evidentiary hearing on Baughman’s

petition. A petitioner is entitled to a hearing only upon showing (1) a claim

that relies on “a new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was previously unavailable,”

(2) “a factual predicate that could not have been previously discovered through

the exercise of due diligence” or (3) “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.” 28 U.S.C. § 2254(e). Because Baughman has

not made any such showing, an evidentiary hearing is unwarranted.

Further, Section 2254 actions require a certificate of appealability to

proceed on appeal. 28 U.S.C. § 2253(c)(1); Miller-El v. Cockrell, 537 U.S. 322,

335-36 (2003). A district court must issue or deny a certificate of appealability

when entering a final order rejecting habeas relief. See Estelle v. Lumpkin,

2022 WL 17587128, at *2-3 (S.D. Tex. Nov. 22, 2022). Baughman has not made

the requisite showing of a “substantial showing of the denial of a constitutional

right,” 28 U.S.C. § 2253(c)(2), such that “reasonable jurists would find the

district court’s assessment of the constitutional claims debatable or wrong.”

Tennard, 542 U.S. at 282 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

This Court therefore should deny a certificate of appealability.

Recommendation

For the foregoing reasons, it is RECOMMENDED that the Court

GRANT Respondent Bobby Lumpkin’s motion for summary judgment (Dkt.

14), DENY Petitioner Steven Kurt Baughman’s petition for a writ of habeas

corpus (Dkt. 1), DENY his request for an evidentiary hearing, and DENY a

certificate of appealability.

The parties have fourteen days from service of this Report and

Recommendation to file written objections. 28 U.S.C. § 636(b)(1); Fed.

R. Civ. P. 72(b). Failure to file timely objections will preclude

appellate review of factual findings and legal conclusions, except for

plain error. Ortiz v. City of San Antonio Fire Dep’t, 806 F.3d 822, 825

(5th Cir. 2015).

Signed on February 15, 2022, at Houston, Texas.

Lat

Yvonne Y. Ho

United States Magistrate Judge

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