Brown v. Lumpkin

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

VERNARD JAY BROWN, Jr., §

TDCJ No. 02040544 §

Petitioner, §

§

v. § A-19-CV-223-LY

§

LORIE DAVIS, Director, §

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

§

Respondent. §

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

TO: THE HONORABLE LEE YEAKEL

UNITED STATES DISTRICT JUDGE

The Magistrate Judge submits this Report and Recommendation to the District Court

pursuant to 28 U.S.C. § 636(b) and Rule 1(e) of Appendix C of the Local Court Rules of the United

States District Court for the Western District of Texas, Local Rules for the Assignment of Duties

to United States Magistrates Judges.

Before the Court are pro se Petitioner Vernard Brown, Jr.’s Petition for Writ of Habeas

Corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1), Respondent Davis’s Response (ECF No. 16),

and Petitioner’s Reply (ECF No. 18). Petitioner has also filed a Motion for Evidentiary Hearing,

appointment of counsel, bench warrant, loan of appellate record, and issuance of subpoenas. (ECF

No. 19.) Having reviewed the record and pleadings submitted by both parties, the undersigned

concludes Petitioner’s federal habeas corpus petition should not be granted under the standards

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prescribed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See 28 U.S.C.

§ 2254(d). The undersigned also recommends the Court deny Petitioner’s pending motion and

deny a certificate of appealability.

I. Background

In September 2015, Petitioner was charged by indictment with one count of continuous

sexual abuse of a young child, five counts of aggravated sexual assault of a child, and four counts

of indecency with a child by contact. (ECF No. 17-22 at 4-8.) In December 2015, Petitioner was

found guilty of continuous sexual abuse of a young child and sentenced to ninety-nine years in

prison. State v. Brown, No. D-1-DC-15-904067 (167th Dist. Ct., Travis Cnty., Tex. Dec. 11, 2015)

(ECF No. 17-22 at 61.) Below is a summary of the factual background for Petitioner’s conviction.

Brown is the biological father of the victim in this case, C.H. Prior to C.H.

turning eleven years old, C.H. had never met Brown. According to the testimony

from trial, after C.H. had lived with her aunt for some time, Brown contacted C.H.,

started visiting her, and obtained legal custody over C.H. Once Brown obtained

custody of C.H., C.H. moved into the home of Brown’s mother, Ernestine Haney,

in July 2011 when C.H. was twelve years old. There was some dispute at trial

regarding whether Brown was living in the home with C.H. and Haney. According

to C.H. and Felicia Smith, who was a woman that Brown became romantically

involved with after C.H. moved into Haney’s home, Brown was living full time at

Haney’s home during the relevant time frame. According to Haney, Brown did not

live at her home permanently and was “seldom there,” but Haney explained that he

would spend the night at the house sometimes. After Brown started dating Smith,

he moved in with Smith and her son, T.S., in October 2011. According to Haney

and Smith, C.H. moved in with Smith in November or December of 2011. During

the trial, testimony was introduced establishing that after C.H. moved into Smith’s

home, T.S. and C.H. began a sexual relationship that resulted in C.H. becoming

pregnant.

Regarding the months that she lived at Haney’s home, C.H. testified that

“shortly after” she moved in, Brown began touching her in inappropriate ways.

First, she explained that while they were watching television in the living room, he

touched her stomach in a way that made her feel weird and that on another day, he

“touched [her] butt” over her clothes in the kitchen. In addition, C.H. related that

this type of behavior escalated. In particular, C.H. explained that when she was

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watching television in her bedroom, Brown “went in [her] night pants” and touched

her “private part” with his hand over her underwear. Then, C.H. stated that the next

inappropriate act also occurred in her bedroom while she and Brown were watching

television and explained that Brown touched her “private part” again but went in

her underwear this time. In addition, C.H. related that nothing else happened that

time and that Haney walked into the bedroom and told Brown to leave because it

was not appropriate for him to be in C.H.’s room with the door closed and because

C.H. “was too big for him to just be in [her] room like that.” Further, C.H. revealed

that the next act of abuse also occurred in her bedroom. Specifically, she stated that

Brown got under the covers in her bed, told her that he was going to show her “how

to please . . . [her] man,” took both of their pants off, and “started having sex with”

her by inserting his penis into her vagina. When describing the assault, she said that

it hurt, that she told Brown that it hurt, and that Brown told her that the pain would

go away. In her testimony, C.H. explained that Haney walked into the room like

she had the time before, asked what the noise was, and told Brown that “he

shouldn’t be in [C.H.’s] room.”

Later in her testimony, C.H. related that after Haney caught him in C.H.’s

bedroom for the second time, Brown never initiated any sexual activity in C.H.’s

bedroom again and would instead take C.H. to his bedroom at Haney’s house when

everyone else was sleeping. Regarding the first incident in Brown’s room, C.H.

stated that they had sexual intercourse and that Brown “tried to put his penis in [her]

butt” but that he stopped after she told him that it hurt. Next, C.H. testified that on

another evening Brown took her to his bedroom and that they had sexual

intercourse. In discussing yet another incident, C.H. related that Brown asked her

to “play with” his penis by placing her hand on it and moving her hand “[u]p and

down,” that this action caused Brown’s penis to become erect, and that she felt

something wet come out of his penis. Further, she testified that on one occasion,

Brown touched her breast with his penis and that on another occasion, he put his

fingers in her vagina. In her testimony, C.H. explained that they had vaginal

intercourse “a lot.” In fact, she stated that they had sex “[m]ore than 10 times”

during the time that she lived at Haney’s home. Regarding the last time that the

conduct occurred, C.H. testified that they had vaginal intercourse right “[b]efore he

went to go live with” Smith. When Brown’s trial attorney, Joe Sawyer, cross-

examined C.H., he asked C.H. about her relationship with T.S., about whether she

had initially claimed that Brown had forced T.S. and C.H. to have sex, and about

whether that initial claim was true. Moreover, Sawyer asked C.H. about other

claims that she had made against Brown.

During her testimony, Haney explained that when she walked into C.H.’s

bedroom, she saw C.H. and Brown watching television and stated that they both

had clothes on. Further, Haney related that she only went into the room after hearing

the television and told them that it was too late to still be watching television. In

addition, she denied hearing any moaning or any similar noises and stated that she

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never believed that anything inappropriate happened between Brown and C.H.

Haney did admit that there were times when Brown was alone with C.H. at the

house and that she asked C.H. if Brown had tried to sleep with her. In addition,

Haney testified that some time after C.H. moved out, C.H. told Haney that Brown

had engaged in inappropriate sexual activity with her at Haney’s home, and Haney

related that she offered to call the police but that C.H. told her not to and then

recanted the allegation. Further, Haney characterized C.H. as “a compulsive liar.”

During his cross-examination of Haney, Sawyer did not question Haney about the

allegations.

Following Haney’s testimony, a recording of a phone call between Haney

and Brown made while he was in jail was admitted into evidence and played for

the jury. On the recording, Haney stated that she went into the room because she

heard “moaning and groaning,” recalled that Brown jumped up when she entered

the room and acted weird, stated that she had no idea “what the hell was going on

between” Brown and C.H. when he was in her room at 3:00 a.m. after everyone had

gone to sleep, mentioned that there were times when Brown and C.H. were alone

at the house, and questioned generally whether something inappropriate had

occurred.

According to the testimony presented at trial, sometime after Brown and

C.H. moved in with Smith, Brown and Smith ended their romantic relationship, but

C.H. continued to live with Smith and considered Smith to be a mother figure.

Several months after the breakup, Brown told Smith and C.H. that he wanted C.H.

to come live with him and his new girlfriend. According to Smith’s testimony, C.H.

stated that she did not want to live with Brown and told Smith that she and Brown

had a sexual relationship in the past and that they had engaged in oral, vaginal, and

anal sex. In addition, Smith related that C.H. told her that Brown would rub his

penis on her vagina. Moreover, Smith testified that C.H.’s description of the order

and manner in which Brown performed the various sexual acts and of the topics

that Brown discussed during those acts was consistent with Smith’s own sexual

experiences with Brown. In addition, Smith recalled that C.H. told her that the

sexual behavior occurred while C.H. was living at Haney’s house with Brown.

In addition to Smith, Haney, and C.H. being called to the stand, the State

also called Dr. William Lee to provide expert testimony regarding victims and

perpetrators of sexual abuse. During his testimony, Dr. Lee mentioned, among other

things, that “[t]he generally accepted statistic is about six to eight percent of the

time when a sexual abuse allegation is made the child is just flat-out lying,” and

Sawyer later cross-examined Dr. Lee regarding that statistic.

At the conclusion of the guilt-or-innocence phase of the trial, the jury

determined that Brown was guilty of the offense of continuous sexual abuse.

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During the short punishment phase, the State called the following three

witnesses to the stand: Smith, T.S., and Amisca Mallard. In her testimony, Smith

discussed the impact that the abuse has had on C.H. During his testimony, T.S.

mentioned that after Brown moved in with Smith, Brown encouraged T.S. to take

drugs and to fight. In addition, T.S. related that he caught Brown having sex with

women other than Smith and that on one of those occasions, Brown asked T.S. if

he wanted to join them. Finally, the State called Mallard to the stand, and she

testified that she knew Brown when they were in high school. In addition, she

explained that one day while they were at school, he started touching her in an

inappropriate manner, that he dragged her behind a trash can, that he raped her

behind the trash can, and that she tried but was unable to fight him off. During the

punishment phase, Sawyer did not cross-examine any of the witnesses.

At the conclusion of the punishment phase, the jury assessed Brown’s

punishment, and the district court rendered its judgment of conviction. Following

the district court rendering its judgment, Brown filed a motion for new trial

asserting that he “received ineffective assistance of counsel.” The district court

convened a hearing on the motion in which Brown called several witnesses to

testify on behalf of Brown, and the district court later denied the motion but did not

issue any findings of fact or conclusions of law.

Brown v. State, No. 03-16-00011-CR, 2017 WL 876029, at *1-3 (Tex. App.--Austin Feb. 28. 2017,

pet. ref’d).

On February 28, 2017, Petitioner’s direct appeal was affirmed by the Third Court of

Appeals of Texas. Id. On June 2, 2017, the Texas Court of Criminal Appeals (TCCA) refused

Petitioner’s petition for discretionary review (PDR). Brown v. State, No. PD-0266-17 (Tex. Crim.

App. June 2, 2017). Petitioner did not file a writ of certiorari in the United States Supreme Court.

(ECF No. 1 at 3.)

On October 22, 2018, Petitioner filed his state habeas corpus application. Petitioner’s

complete application listed the following sixteen grounds for relief:

1. Trial counsel provided ineffective assistance when counsel failed to investigate the crime

scene, i.e. Petitioner’s mother’s home;

2. Trial counsel provided ineffective assistance when counsel failed to investigate documents

relating to Petitioner’s residence;

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3. Trial counsel provided ineffective assistance when counsel failed to investigate favorable

witnesses;

4. Trial counsel provided ineffective assistance when counsel failed to investigate the state’s

witnesses prior to trial;

5. Trial counsel provided ineffective assistance when counsel failed to investigate prior to

trial;

6. Trial counsel provided ineffective assistance when counsel failed to cross-examine and

impeach state’s witnesses at trial;

7. Trial counsel provided ineffective assistance when counsel failed to cross examine and

rehabilitate Petitioner’s favorable witness;

8. Trial counsel provided ineffective assistance when counsel failed to offer evidence and

pursue agreed-upon defense;

9. Petitioner was constructively denied counsel for his Texas Code of Criminal Procedure

Art. 38.072 hearing;

10. Petitioner was constructively denied counsel at his sentencing, when his trial counsel failed

to investigate or challenge the state’s evidence and witnesses;

11. Petitioner was constructively and actually denied counsel in the preparation of his motion

for a new trial and at that the hearing;

12. The prosecutor engaged in misconduct by using false and misleading testimony and by

making improper closing arguments;

13. Appellate counsel provided ineffective assistance when counsel failed to investigate;

14. Appellate counsel provided ineffective assistance when counsel failed to raise meritorious

issues on appeal and had a conflict of interest;

15. The trial court abused its discretion and plainly erred when it denied Petitioner’s motion

for a new trial, and the Court of Appeals plainly erred by deciding his case based on an

incomplete record; and

16. The evidence used to convict Petitioner is legally insufficient. (ECF No. 17-44 at 5-44.)

On November 16, 2018, the state filed its original answer to Petitioner’s state writ application.

(ECF No. 17-44 at 107-13.) On November 29, Petitioner filed a motion to file supplemental

grounds to his original writ application, and included the following three grounds:

17. Trial counsel provided ineffective assistance when he misled Petitioner about allocution

and failed to advise Petitioner about his motion for a new trial;

18. Petitioner received ineffective assistance of trial counsel based on counsel’s cumulative

errors; and

19. The trial court and Court of Appeals plainly erred by applying the wrong legal standard in

deciding his motion for a new trial.

(Id. at 96-106.) The Clerk of Court transmitted Petitioner’s state writ application—including his

motion to file supplemental grounds—on December 4, 2018 (id. at 164), and on January 16, 2019,

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the TCCA denied Petitioner’s state habeas corpus application without written order, Ex parte

Brown, No. WR-89,263-01. (ECF No. 17-41 at 1.)

Petitioner filed the instant federal habeas petition on February 29, 2019. (ECF No. 1.) In

it, he raises the same claims that were raised and rejected in his state writ application and the

motion to supplement. On August 15, 2019, Respondent filed an answer to Petitioner’s federal

habeas petition, to which Petitioner replied on September 11, 2019. (ECF Nos. 16, 18.) On

November 25, 2019, Petitioner filed a Motion for Evidentiary Hearing, Appointment of Counsel,

Bench Warrant, Loan of Appellate Record, and Issuance of Subpoenas. (ECF No. 19.)1

II. Standard of Review

Petitioner’s federal habeas petition is governed by the heightened standard of review

provided by AEDPA. See 28 U.S.C. § 2254. Under § 2254(d), a petitioner may not obtain federal

habeas corpus relief on any claim that was adjudicated on the merits in state court proceedings

unless the adjudication of that claim either: (1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established federal law, as determined by the

Supreme Court of the United States, or (2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the state court proceeding. Brown

v. Payton, 544 U.S. 133, 141 (2005). This demanding standard stops just short of imposing a

1 Respondent argues that several of Petitioner’s claims are unexhausted and procedurally barred. However, after

reviewing Petitioner’s petition and the state habeas record, the Court concludes that claims 17-19 were included in

Petitioner’s state habeas application in the motion to file supplemental grounds he filed on November 29, 2018. (ECF

No. 17-44 at 96-106.) Further, the Court also concludes that Petitioner has presented the substance of claims 11 and

14 to the state habeas court, and thus these claims are exhausted for purposes of federal review. See 28 U.S.C.

§ 2254(b)(1)(A) (federal court may not grant habeas relief unless the petitioner “has exhausted the remedies available

in the courts of the State”); Picard v. Conner, 404 U.S. 270, 275 (1971) (grounds raised in a federal habeas petition

must have been “fairly presented” to the state courts prior to presentation in federal courts; in order for a claim to be

exhausted, the state courts must have been presented with the same facts and legal theory upon which the petitioner

bases his federal claims).

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complete bar on federal court re-litigation of claims already rejected in state proceedings.

Harrington v. Richter, 562 U.S. 86, 102 (2011) (citing Felker v. Turpin, 518 U.S. 651, 664 (1996)).

A federal habeas court’s inquiry into unreasonableness should always be objective rather

than subjective, with a focus on whether the state court’s application of clearly established federal

law was “objectively unreasonable” and not whether it was incorrect or erroneous. McDaniel v.

Brown, 558 U.S. 120 (2010); Wiggins v. Smith, 539 U.S. 510, 520-21 (2003). Even a strong case

for relief does not mean the state court’s contrary conclusion was unreasonable. Richter, 562 U.S.

at 102. A petitioner must show that the state court’s decision was objectively unreasonable, which

is a “substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer v.

Andrade, 538 U.S. 63, 75-76 (2003). “A state court’s determination that a claim lacks merit

precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of

the state court’s decision.” Richter, 562 U.S. at 101 (citation omitted). As a result, to obtain

federal habeas relief on a claim previously adjudicated on the merits in state court, Petitioner must

show that the state court’s ruling “was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fairminded

disagreement.” Id. at 103; see also Bobby v. Dixon, 565 U.S. 23, 24 (2011).

III. Analysis

A. Ineffective Assistance of Trial Counsel (IATC) (claims 1-4, 6-9, 17-18)

Petitioner raises several overlapping IATC claims in his federal petition, each one having

been raised and rejected during Petitioner’s state habeas proceedings. Specifically, Petitioner

contends trial counsel failed to: (1) investigate the crime scene, i.e. his mother’s, Ernestine

Haney’s, home prior to trial; (2) investigate and obtain documents relating to Petitioner’s actual

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residence; (3) investigate, interview, and subpoena witnesses; (4) interview State witnesses prior

to trial; (5) cross-examine and impeach the State’s witnesses; (6) rehabilitate Petitioner’s only

favorable witness (Ernestine Haney); (7) investigate prior to trial; (8) offer evidence and provide

a defense; (9) misled Petitioner about allocution and provided no advice regarding the motion for

a new trial; and (10) provide effective assistance of counsel based on cumulative errors. As

discussed below, Petitioner fails to demonstrate the state court’s rejection of these challenges was

contrary to, or an unreasonable application of, Supreme Court precedent.

1. The Strickland Standard

Sixth Amendment claims concerning the alleged ineffective assistance of trial counsel are

reviewed under the familiar two-prong test established in Strickland v. Washington, 466 U.S. 668

(1984). Under Strickland, a petitioner cannot establish a violation of his Sixth Amendment right

to counsel unless he demonstrates (1) counsel’s performance was deficient and (2) this deficiency

prejudiced his defense. Id. at 687-88, 690. The Supreme Court has emphasized that “[s]urmounting

Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).

When determining whether counsel performed deficiently, courts “must be highly

deferential” to counsel’s conduct, and a petitioner must show that counsel’s performance fell

beyond the bounds of prevailing objective professional standards. Strickland, 466 U.S. at 687-89.

Counsel is “strongly presumed to have rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.” Burt v. Titlow, 571 U.S. 12, 22

(2013) (quoting Strickland, 466 U.S. at 690). To demonstrate prejudice, a petitioner “must show

that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694. Under this prong, the

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“likelihood of a different result must be substantial, not just conceivable.” Richter, 562 U.S. at

112. A habeas petitioner has the burden of proving both prongs of the Strickland test. Wong v.

Belmontes, 558 U.S. 15, 27 (2009).

IATC claims are considered mixed questions of law and fact and are analyzed under the

“unreasonable application” standard of 28 U.S.C. § 2254(d)(1). See Gregory v. Thaler, 601 F.3d

347, 351 (5th Cir. 2010). Where, as here, the state court adjudicated the IATC claims on the merits,

a federal court must review a petitioner’s claims under the “doubly deferential” standards of both

Strickland and Section 2254(d). See Woods v. Etherton, 136 S. Ct. 1149, 1151 (2016) (citing

Cullen v. Pinholster, 563 U.S. 170, 190 (2011)); Knowles v. Mirzayance, 556 U.S. 111, 112 (2009).

In such cases, the “pivotal question” is not “whether defense counsel’s performance fell below

Strickland’s standards,” but whether “the state court’s application of the Strickland standard was

unreasonable.” Richter, 562 U.S at 101. Consequently, the question is not whether counsel’s

actions were reasonable, but whether “there is any reasonable argument that counsel satisfied

Strickland’s deferential standard.” Id. at 105.

2. Failure to Investigate and Call Witnesses (claims 1-4, 8-9)

Petitioner argues that trial counsel provided ineffective assistance when he failed to (1)

investigate his mother’s home for impeachment evidence; (2) obtain government documents

showing that Petitioner did not live with Ms. Haney during the timeline of the sexual assaults; (3)

find, subpoena, and interview witnesses; and (4) fully investigate the case before trial and during

trial in order to understand the facts and construct an effective defense.

Strickland requires counsel to undertake a reasonable investigation. 466 U.S. at 690-91;

Charles v. Stephens, 736 F.3d 380, 389 (5th Cir. 2013). Counsel must, at minimum, interview

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potential witnesses and make an independent investigation of the facts and circumstances of the

case. Kately v. Cain, 704 F.3d 356, 361 (5th Cir. 2013). In assessing the reasonableness of

counsel’s investigation, a heavy measure of deference is applied to counsel’s judgments and is

weighed in light of the defendant’s own statements and actions. Strickland, 466 U.S. at 691. To

prevail on an IATC claim based on counsel’s failure to call a witness, the petitioner must name the

witness, demonstrate the witness was available to testify, delineate the content of the witness’s

proposed testimony, and show the testimony would have been favorable to the defense. Day v.

Quarterman, 566 F.3d 527, 538 (5th Cir. 2009). Furthermore, a petitioner cannot “simply allege

but must affirmatively prove prejudice” under Strickland when complaining of counsel’s failure

to investigate. Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir. 1992). A petitioner alleging that

an investigation is deficient must show what the investigation would have uncovered and how the

petitioner’s defense would have benefited from this information. Nelson v. Hargett, 989 F.2d 847,

850 (5th Cir. 1993); Lockhart v. McCotter, 782 F.2d 1275, 1282 (5th Cir. 1986).

In his federal petition, Petitioner’s claims based on counsel’s failure to investigate (claims

1-4) do not specify what, exactly, trial counsel should have uncovered. Looking at those same

claims in Petitioner’s state writ, Petitioner argues that, upon searching his mother’s home, counsel

would have learned that, contrary to the complainant’s outcry, there was no way to watch television

in the complainant’s room and that the house was solidly constructed such that Ms. Haney would

never have been able to hear noises—short of screaming—coming from the complainant’s room.

Petitioner also argued that counsel failed to obtain government documents, like his government

benefit application forms and his driver’s license, which would have shown he was not living at

Ms. Haney’s house during the time period in question, and did not have regular access to the

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complainant. Petitioner also argued that counsel failed to locate and subpoena several witnesses,

including Linda Curcio, Ebonee Chagois, Angela McRae, and Brenda McDonald Dickerson, who

would have testified that Petitioner was not living in Ms. Haney’s home in 2011; that the

complainant had a “character for falsehood”; and that he and the complainant had a good bond,

and he was a good father.

Petitioner further argues in his federal petition that trial counsel failed to discuss the state’s

witnesses with Petitioner, and that, if counsel had done so, he could have impeached Felicia Smith

with evidence that Petitioner was the complainant’s sole conservator—and, as such, had no

custody battle with Ms. Smith—and would have uncovered evidence of Ms. Smith’s “violent

nature” and fraudulent tax filings, thus suggesting she was financially motivated to fabricate the

complainant’s outcry. (ECF No. 17-44 at 10-17.) In claims 8-9, Petitioner essentially restates these

allegations, but transfers them from the pretrial to trial context, and adds that counsel failed to

contact the complainant’s guardian ad litem and failed to offer any evidence that Petitioner lacked

opportunity to commit the offense, his only viable defense. (ECF No. 1 at 13.)

Petitioner advanced many of these same claims in his December 2015 motion for a new

trial based on ineffective assistance of counsel. (ECF No. 17-22 at 96-114.) At the February 2016

MNT hearing, four witnesses testified: Willie Flavia, Petitioner’s court-appointed investigator;

Ebonee Chagois; Joe James Sawyer, Petitioner’s trial counsel; and the Petitioner.

Mr. Favila testified that Mr. Sawyer asked him to locate three witnesses: Ebonee Chagois,

Tatronya Matthews, and Shonday Love. Mr. Favila only succeeded in contacting Ms. Chagois,

whom he spoke with on the phone in November 2015, one month prior to Petitioner’s trial. He

testified that the conversation lasted less than sixty seconds, that she sounded evasive, and that he

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felt as though she did not want to help Petitioner. Favila also testified that Ms. Chagois told him

she and Petitioner had “stayed together” and suggested that the complainant was a liar. Mr. Favila

was not successful in locating Ms. Chagois in person. Mr. Favila also testified that he spoke with

Petitioner in person in October and December 2015, and that he let Petitioner know that Ms.

Chagois was not cooperative. Mr. Favila also stated he contacted Linda Cucio, the guardian ad

litem, who told him she was not allowed to speak with him due to confidentiality. (ECF No. 17-

36 at 13-29.)

Mr. Sawyer, Petitioner’s trial attorney, testified that, regarding the defense Petitioner

wanted to pursue: “basically [his] defensive theory, and the one I adopted as well, was that he

couldn’t have been present to perform the acts of misconduct of which he stood accused.” (ECF

No. 17-36 at 35.) Regarding the pretrial investigation, Sawyer testified “[t]here is no question that

the names of the three women that Mr. Brown had given us I thought were absolutely important

to establishing his defense.” He further noted that he was impressed by how thorough Favila had

been with his investigation, that he took two continuances in order to find the witnesses Petitioner

listed, and that he and Mr. Favila had done “everything we could think of to locate these

witnesses.” (Id. at 52-53.)

Ms. Chagois testified at the hearing that she had received a phone call, but denied having

said anything that would have given Mr. Favila the impression she did not want to be involved in

the case or would have been a bad witness. She also testified that she would have appeared in court

to testify, if she had been subpoenaed. (Id. at 81-82.) Regarding Ms. Curcio, the complainant’s

previous guardian ad litem, Sawyer testified he did not call her because he “felt there was nothing

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there.” (Id. at 57.) Neither Mr. Favila nor Mr. Sawyer had any knowledge of Brenda McDonald

Dickerson or Angela McRae.

When asked whether he had obtained Petitioner’s driver’s license, which listed a different

address than Petitioner’s mother’s house, Sawyer testified:

I understand how one can think it’s somewhat dispositive, but we had live

testimony about where [Petitioner] was living and when he was at [his mother’s]

house. And I think lawyers have to elect what evidence they’re actually going to

offer a jury, how persuasive it is, how it fits into the defensive scheme or theory.

And I had many conversations with Mr. Brown about what he thought was the

appropriate way to try the case. He spent an awful lot of time reading the law and

making himself familiar with case law. But I think in the end the manner in which

proof is presented is something a trial lawyer has to decide. . . . I think his theory

was sound. I think that some of his ideas about how to go about it were simply—

wouldn’t have been fruitful at trial. So, yeah, I think a trial lawyer is charged with

the responsibility of deciding the best way to present evidence to a jury in order to

obtain a not guilty. Sometimes the evidence is superfluous. Sometimes it’s not in

any way really going to be dispositive to a jury. (Id. at 40-41.)

Further, when asked about the residence timeline Petitioner had created, Sawyer testified:

Sawyer: The problem I saw was that it was other witnesses’ testimony that we were

going to have to counter, and the timeline would have worked except for the fact

that, I believe, it was an act of futility in the face of the evidence I knew that we

were going to be offered at trial.

Q. And what was that evidence?

Sawyer. That he had more than one occasion to have engaged in a conduct alleged

and I think that those witnesses made it clear that those opportunities were there.

For example, when Ernestine Haney was asked at trial “were there times where he was alone with

[the complainant]?”, she responded “Yes, I’m sure.” (ECF No. 17-32 at 159.)

Regarding the complainant’s alleged “compulsive lying,” Sawyer described his trial

strategy as follows:

Sawyer: I think one of the things that did happen in the trial, we discussed it and

I—in fact, it was in response to the State’s question in front of a jury that she

14

admitted that she had lied. I remember specifically the State asked why did you lie,

and her response was, tearfully, I don’t know. So I felt that this was presented to

the jury. I felt there was an admission from her that she had lied. Now, the State

never tried to sidestep that and took it straight on with the jury. So the jury knew

that she had lied.

Q: And what specifically had she lied about? Because, obviously, I wasn’t at trial.

I don’t know what the specifics of it were.

Sawyer: If I recall, and I think I do, there were these two or three instances of her

having lied. In fact, having lied not too long before trial began about having been

sexually assaulted by someone else. Again, I thought we covered that ground fairly

well. I thought that point was made to the jury. (ECF No. 17-36 at 42-43.)

More specifically, during the trial Sawyer impeached the complainant with her prior statement that

Petitioner had made her engage in sexual intercourse with another minor so that he could watch.

It was during Sawyer’s cross-examination that she admitted the story was a lie. (Id. at 54-55.)

Accordingly, the Court concludes that Petitioner has not rebutted, with clear and

convincing evidence, the state habeas court’s implied factual finding that counsel’s investigation

was adequate. Petitioner gave counsel several witnesses to contact, but Favila and Sawyer’s

investigation produced only the one telephone contact with Chagois, who left them with the

impression she did not want to help Petitioner’s case. Even if Ms. Chagois had testified at trial,

her motion for a new trial testimony that Petitioner had lived with her from June to October 2011

and that the complainant had a propensity for lying, was cumulative of the evidence introduced at

trial. See Trottie v. Stephens, 720 F.3d 231, 246-47 (5th Cir. 2013) (finding IATC claim for failing

to call a witness fails if the proposed testimony was cumulative of evidence already in the record);

Skinner v. Quarterman, 528 F.3d 336, 345 n. 11 (5th Cir. 2008) (same).

Petitioner’s IATC claims rely heavily on his theory that trial counsel failed to understand

and investigate sufficiently his lack-of-opportunity defense. The record does not bear this out. Mr.

15

Sawyer testified that he pursued the lack-of-opportunity defense to the best of his ability. The

prosecution, however, also supplied evidence showing that, regardless of where he lived, Petitioner

had access to the complainant on more than one occasion. Petitioner has not alleged with any

specificity what further investigation would have revealed or how it would have altered the

outcome of the trial. See Druery v. Thaler, 647 F.3d 535, 541 (5th Cir. 2011). Petitioner also has

not pointed to exculpatory evidence that trial counsel could have uncovered with additional

investigation or proven that an undiscovered witness would have testified in his favor. See Gregory

v. Thaler, 601 F.3d 347, 353 (5th Cir. 2010); Day v. Quarterman, 566 F.3d 527, 538 (5th Cir.

2009). As a result, Petitioner has not shown counsel’s performance was deficient or that the state

court’s denial of this claim was an unreasonable application of Strickland.

3. Failure to Cross-Examine/Rehabilitate Witnesses and Offer Evidence (claims 6-7)

In claims 6-7, Petitioner argues that trial counsel was ineffective because he failed to

adequately cross-examine Felicia Smith and failed to rehabilitate Ernestine Haney during the

guilt/innocence portion of the trial. These claims echo Petitioner’s claims from the prior section;

namely that, had trial counsel done more investigative work, he could have cross-examined Ms.

Smith with evidence of the duress and coercion she placed on the complainant and with her

inconsistent statements. Further, if trial counsel had investigated Ms. Haney’s home, he could have

rehabilitated her on cross-examination, and thus saved her testimony as she was Petitioner’s only

favorable witness.

“[C]ounsel has wide latitude in deciding how best to represent a client . . .” Yarborough v.

Gentry, 540 U.S. 1, 5-6, 8 (2003) (“When counsel focuses on some issues to the exclusion of

others, there is a strong presumption that he did so for tactical reasons rather than through sheer

16

neglect.”). “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 trial with obvious unfairness.” Cotton v. Cockrell, 343 F.3d 746, 752-53 (5th Cir. 2003).

Thus, counsel’s choice of a defense and his strategy in arguing that defense to a jury are “virtually

unchallengeable.” Strickland, 466 U.S. at 690.

As noted above, counsel thoroughly investigated Petitioner’s case and pursued Petitioner’s

chosen defense. There is no evidence in the record supporting Petitioner’s allegations against Ms.

Smith outside of his conclusory statements. See United States v. Demik, 489 F.3d 644, 646 (5th

Cir. 2007) (“[C]onclusory allegations are insufficient to raise cognizable claims of ineffective

assistance of counsel.” (quoting Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000))). Further,

Ms. Haney testified that Petitioner had access to the complainant, and between that testimony and

the jailhouse call between her and Petitioner, there is no support in the record for how counsel

could have rehabilitated her. Because counsel’s decisions regarding cross-examination were

strategic and eminently reasonable, they do not support an ineffective-assistance claim. Clark v.

Thaler, 673 F.3d 410, 427 (5th Cir. 2012) (recognizing the broad deference to which counsel is

entitled in making tactical decisions in closing argument). Petitioner has not shown counsel’s

performance was deficient, much less that the state court’s denial of this claim was an unreasonable

application of Strickland.

4. Failure to Provide Adequate Counsel During Motion for New Trial (claim 17)

In claim 17, Petitioner argues that counsel provided ineffective assistance at sentencing,

that he misled Petitioner about testifying, and that he provided no assistance with Petitioner’s

motion for a new trial. Petitioner alleges he prepared a statement to read to the jury before

17

sentencing, but counsel told him he could not read it because he had waived his right to testify.

Petitioner also argues that trial counsel withdrew five days after the trial ended and did not help

Petitioner file his motion for a new trial.

There is nothing in the record to support Petitioner’s allegations that he was prevented from

speaking to the jury prior to sentencing. At the motion for a new trial, counsel asked Mr. Sawyer

about Petitioner’s interest in testifying at trial:

Sawyer: Pretrial, I think it’s safe to say that Mr. Brown wanted to testify.

Q: And he did not testify at trial; is that correct?

Sawyer: That’s correct.

Q: And what was the difference? What changed?

Sawyer: We had a conference during the trial. It involved Kristiana Butler, a lady

who had no previous trial experience. She was simply sitting to see what a criminal

trial was like. She assisted me as much as she could, did anything that I asked her

to do during the trial. We met with Mr. Brown and discussed, again, what his

testimony might accomplish in the trial. He then elected not to testify. I wanted to

be absolutely sure that that was his wish, so I prepared a document, a copy reflecting

the fact that he had met with us and that it was his decision to exercise his right

pursuant to the Fifth Amendment and I had him sign it. And it was then that we

carried on and he didn’t testify.

Q: Okay. And the basis of his decision was the information that his lawyer—his

trial lawyer gave him basically at that point?

Sawyer: Well, and his own observation of what had happened to that point in trial.

And, again, Mr. Brown is a person who has made himself very familiar with the

law and the rules. We talked about the utility of his testimony, in what way he could

be impeached, whether it was worth the risk testifying, to have the robberies come

in to impeach him. He had used a box cutter, as I recall, in the robberies. They

would have been – the jury would have known that he was also charged with escape

as well as the two robberies.

In our meeting, we weighed that against the impact—the favorable impact

that he might have with the jury versus any impeachment and the evidence that the

jury had heard at that point in trial. We answered every question he had. We gave

him the input. As I said, he had participated in the trial to that point himself and it

was then that he elected not to testify. (ECF No. 17-36 at 47-48.)

18

The state proffered a copy of Petitioner’s letter waiving his right to testify. (ECF No. 17-38 at 5.)

Again, Petitioner’s allegations that trial counsel prevented him from speaking to the jury

and failed to assist him in filing a motion for a new trial are conclusory, have no support in the

record, and cannot be the basis for a cognizable habeas claim. See Demik, 489 F.3d at 646. Rather,

the record shows that Sawyer and Petitioner discussed whether he should testify at trial, and

Petitioner decided against testifying and signed the waiver letter. Accordingly, Petitioner cannot

show that counsel’s performance was deficient or that the state habeas court’s denial of this claim

was an unreasonable application of Strickland.

5. Cumulative Error (claim 18)

Petitioner’s last IATC claim argues that trial counsel provided ineffective assistance based

on the cumulative effect of all the errors previously discussed. However, as the Court has

concluded that none of Petitioner’s claims are meritorious, there can be no cumulative effect. See

Westley v. Johnson, 83 F.3d 714 726 (5th Cir. 1995) (“Meritless claims or claims that are not

prejudicial cannot be cumulated, regardless of the total number raised.” (citing Derden v. McNeel,

978 F.2d 1453, 1461 (5th Cir.1992))). Accordinly, under the deferential review encompassed by

Strickland and the AEDPA, Petitioner’s IATC claims should be denied. Richter, 562 U.S at 105.

B. Constructive/Actual Denial of Counsel (claims 5, 10, 12)

Petitioner advances three claims based on the constructive or actual denial of counsel: (1)

at the Article 38.072 outcry hearing (claim 5), Petitioner argues he was constructively denied

counsel because counsel never discussed strategy with him, did not cross-examine any witnesses,

19

and did not demonstrate that the complainant’s outcry was made under duress and coercion from

Felicia Smith; (2) during sentencing (claim 10), Petitioner argues he was constructively denied

counsel when counsel failed to rebut the state’s witnesses, offer any evidence on Petitioner’s

behalf, or ask for mercy on behalf of Petitioner’s mother who had recently lost her youngest child;

and (3) before and during his motion for a new trial, because the trial court failed to appoint

appellate counsel for two weeks after his trial counsel withdrew, thus resulting in his appellate

counsel being completely unprepared at the motion for a new trial hearing (claim 12).

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy

the right . . . to have the Assistance of Counsel for his defense.” U.S. CONST. amend. VI. This

means that “a defendant is entitled to be represented by counsel at all critical stages of a criminal

proceeding against him.” Mempa v. Rhay, 389 U.S. 128, 134 (1967); Gideon v. Wainwright, 372

U.S. 335, 342-43 (1963); see also United States v. Taylor, 933 F.2d 307, 312 (5th Cir.1991). In

general, a defendant asserting a violation of his Sixth Amendment right to counsel is required to

demonstrate Strickland’s two-pronged standard that counsel’s performance was deficient and that

he was prejudiced as a result. 466 U.S. at 692. However, in United States v. Cronic, the Supreme

Court recognized three situations involving circumstances “so likely to prejudice the accused that

the cost of litigating their effect in a particular case is unjustified” and thus prejudice is presumed:

(1) the “complete denial of counsel” during a critical stage of the proceedings; (2) where “counsel

entirely fails to subject the prosecution’s case to meaningful adversarial testing”; and (3) where

surrounding circumstances make it “unlikely that any lawyer could provide effective assistance.”

466 U.S. 648, 658-59 (1984); Bell v. Cone, 535 U.S. 685, 694-96 (2002).

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Petitioner argues that he was constructively denied counsel at his Article 37.082 hearing

because trial counsel failed to cross-examine witnesses and show that the complainant’s outcry

was made under coercion and duress. Texas Code of Criminal Procedure Article 38.072 provides

that, for certain criminal offenses committed against a child younger than 14 or a person with a

disability, a statement is not inadmissible hearsay if, inter alia, “the trial court finds, in a hearing

conducted outside the presence of the jury, that the statement is reliable based on the time, content,

and circumstances of the statement.” TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(b)(2) (West

2019). The outcry hearing was held prior to the start of the criminal trial. (ECF No. 17-32 at 8-32.)

The State called two outcry witnesses—Felicia Smith and Amy Howard, a forensic interviewer at

Child Abuse Network—as well as the complainant. Mr. Sawyer did not cross-examine either of

the witnesses or the complainant. Sawyer did make a closing argument where he argued that only

Felicia Smith should be permitted to make hearsay statements pursuant to Article 38.072. The

Court agreed and Ms. Howard was excluded as an outcry witness. (Id. at 32.) Although Petitioner

apparently wanted his counsel to cross-examine Felicia Smith and the complainant, the Article

38.072 hearing was not about witness credibility, but about who could make hearsay statements

during trial. Further, counsel succeeded in excluding one of the state’s outcry witnesses.

Consequently, the state court’s decision to deny this claim was not an unreasonable application of

clearly established federal law or an unreasonable application of the facts in light of the evidence

presented.

In claim 10, Petitioner argues he was constructively denied counsel at sentencing when

Sawyer failed to conduct an investigation, present evidence, or subject the State’s case to

adversarial testing. Specifically, Petitioner argues Sawyer could have impeached the testimony of

21

sentencing witnesses Terrance Smith and Amisca Mallard, and asked for mercy on behalf of

Petitioner’s mother, Ernestine Haney, who had recently lost her youngest child. Petitioner does

not say in his federal habeas application what impeachment evidence he believed Sawyer should

have used, but in his state habeas application Petitioner argues that another uncalled witness—

Donna Allen—would have testified that Terrance regularly beat up on the complainant, and that

Amisca Mallard could have been impeached by showing how she had been “delusional obsessed”

with Petitioner since high school. (ECF No. 17-44 at 79-80.)

At the new trial hearing, Sawyer was asked about his preparations for the punishment phase

and responded “[t]here was very little to prepare for because he knew what was going to

commence. State had given me discovery. And as you know, the bad act allows virtually anything

to come in. And, again, there was just no surprise and no question about what was going on.” (ECF

No. 17-36 at 49-50.) Sawyer also testified that, during sentencing, he believed “any attempt at

mitigation would have only exacerbated [Petitioner’s] problem with that jury” and that he spoke

with Petitioner about “the certainty that if we proceeded to punishment, that I thought it would be

extreme.” Finally, of Amisca Mallard’s testimony, Sawyer testified he warned Petitioner “that if

that previous rape complainant were testifying . . . that that would probably be the end of the line”

and that her testimony “was a very quiet dramatic testimony, and I felt that anything offered by

the defense in light of that could only further inflame the jury.” (Id. at 50-51.)

In arguing he was constructively denied counsel at sentencing, Petitioner is effectively

arguing that Sawyer failed to test the prosecutor’s case. However, the Supreme Court has held that

this failure “must be complete.” Bell, 535 U.S. at 697. Although Sawyer did not offer evidence or

cross-examine the State’s witnesses during sentencing, his testimony makes clear that this was an

22

intentional strategy and that he believed cross-examining witnesses, or calling Ms. Haney, would

have only served to inflame the jury. Petitioner nonetheless received the maximum sentence even

with this strategy in place; he now likely wishes Mr. Sawyer had adopted a different strategy.

However, as the Supreme Court explained, “[j]ust as there is no expectation that competent counsel

will be a flawless strategist or tactician, an attorney may not be faulted for a reasonable

miscalculation or lack of foresight or for failing to prepare for what appear to be remote

possibilities.” Richter, 562 U.S. at 110. For this reason, every effort must be made to eliminate the

“distorting effects of hindsight.” Strickland, 466 U.S. at 689; Yarborough v. Gentry, 540 U.S. 1, 6

(2003) (“The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged

with the benefit of hindsight.”) (citations omitted).

Further, in the state sentencing context, Strickland requires a showing that “absent

counsel’s errors, there is a reasonable probability that the defendant’s sentence would have been

significantly less harsh.” Dale v. Quarterman, 553 F.3d 876, 880 (5th Cir. 2008). Here, the record

shows that Sawyer’s decision not to cross-examine witnesses or offer evidence at sentencing was

an intentional strategy and not the complete denial of counsel envisioned in Cronic. Further,

Petitioner has made no showing that adopting a different strategy would have resulted in a

significantly less harsh sentence. Indeed, counsel’s pretrial advice to Petitioner that if he were

found guilty and the case proceeded to sentencing, the sentence would be “extreme” was a very

reasonable prediction in light of the accusations and evidence against Petitioner. It is difficult to

imagine what any reasonable attorney could have to done to mitigate the punishment in these

circumstances. Accordingly, the state habeas court decision to deny this claim was not objectively

unreasonable.

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Finally, in claim 12, Petitioner argues that he was actually denied counsel during the two-

week period after his trial counsel withdrew and appellate counsel was appointed. He argues this

actual denial of counsel resulted in the constructive denial of counsel at his new trial hearing,

because appellate counsel was unfamiliar with the case and unable to truly represent him.

Petitioner was found guilty on December 10, 2015, sentenced on December 11, and Mr.

Sawyer withdrew as Petitioner’s counsel on December 16, 2016. (ECF No. 17-22 at 66.) Ariel

Payan was appointed as appellate counsel on December 30, 2015 but did not receive notice of this

appointment until January 4, 2016. (ECF No. 17-36 at 6.) Petitioner mailed his pro se motion for

a new trial on December 29, 2015, which was filed on January 7, 2016. (ECF No. 17-22 at 73-85)

At that point, Mr. Payan had already filed a “pro forma” motion for a new trial. (ECF Nos. 17-22

at 89; 17-36 at 6.) After speaking with the prosecutor, Mr. Sawyer, and then Petitioner on January

10, Mr. Payan filed an amended motion for new trial on January 11, 2016. (ECF No. 17-22 at 96-

97; 17-36 at 7.) Because Petitioner was transferred to the Texas Department of Correctional

Justice—Correctional Institutions Division (TDCJ-CID) on January 14, 2016, Mr. Payan did not

meet with him until February 17, 2016. (ECF No. 17-36 at 7.) The motion for new trial hearing

was held on February 22, 2016 where Mr. Payan represented Petitioner. Thus, Mr. Payan had from

January 11, 2016 (the date he filed in amended motion for new trial), to February 22, 2016, to

prepare for the hearing.

“It is well-settled that a defendant’s right to counsel attaches “at or after the time adversary

judicial proceedings have been initiated against him, and once the right attaches, it continues to

apply to every critical stage of the proceedings.” McAfee v. Thaler, 630 F.3d 383, 391 (5th Cir.

2011) (citations omitted). The Fifth Circuit has held “there is a Sixth Amendment right to the

24

assistance of counsel at the motion for new trial, during the post-trial, pre-appeal period, in Texas.”

Id. at 393. Here, there was a two-week delay between the withdrawal of trial counsel and the

appointment of appellate counsel. Petitioner points to no law suggesting such a delay implicates

his Sixth Amendment rights, and the Supreme Court has expressly declined to decide a similar

issue. See Rothgery v. Gillespie Cnty., Tex, 554 U.S. 191, 213 (2008) (“We do not decide wither

the 6-month delay in appointment of counsel resulted in prejudice to Rothgery’s Sixth Amendment

rights, and have no occasion to consider what standards should apply in deciding this.”) In the

absence of any controlling precedent, the Court concludes the state habeas court’s decision

denying this claim was not objectively unreasonable.

Petitioner goes on to argue that the delay in appointing appellate counsel resulted in Mr.

Payan being unprepared for the new trial hearing. At the beginning of the hearing, Mr. Payan

objected to Texas Rule of Appellate Procedure Rule 21.8, arguing it seriously limited his

preparation time while Petitioner was at TDCJ-CID, and made it difficult for him to represent

Petitioner to the best of his abilities. (ECF No. 17-36 at 5-8.) However, Mr. Payan went on to

conduct the hearing, and called several witnesses to testify, including Ms. Chagois, who did not

testify at the trial. Most of Petitioner’s arguments here mirror those he made in his IATC claims,

i.e. that had counsel had more time to prepare, counsel could have located witnesses and obtained

evidence to substantiate Petitioner’s alibi that he did not live at Ms. Haney’s house and could not

have sexually abused the complainant. But, like the IATC claims, Petitioner points to no evidence

outside his own statements to support his theories, and there is abundant evidence in the trial record

supporting the conclusion that Petitioner did have opportunity to sexually abuse the complainant.

See Ross, 694 at 1012 (“mere conclusory allegations do not raise a constitutional issue in a habeas

25

proceeding”). The Court thus concludes the state habeas court’s decision was not an unreasonable

application of federal law or an unreasonable application of the facts in light of the evidence

presented, and this claim should be denied.

C. Prosecutorial Misconduct (claim 11)

In claim 11, Petitioner argues the prosecutor engaged in misconduct by soliciting perjured

testimony from the complainant, Felicia Smith, Terrance Smith, and Amisca Mallard, and by

making an improper closing argument when she referred to facts not in evidence and commented

on the complainant’s prior sexual experiences. Petitioner is not specific; however, Respondent

speculates the facts not in evidence involved Ms. Haney’s jailhouse phone call where she said she

heard the complainant “moaning and the bed knocking against the wall” while Petitioner was in

her room. Petitioner has not rebutted this assumption.

In Napue v. Illinois, 360 U.S. 264 (1959), the Supreme Court held that a criminal defendant

is denied due process when the State knowingly uses false or perjured testimony or allows false

testimony to go uncorrected at trial. See also Giglio v. United States, 405 U.S. 150 (1972). A

petitioner seeking to obtain relief on such a claim must show that (1) the testimony is false, (2) the

prosecution knew that the testimony was false, and (3) the testimony was material. Reed v.

Quarterman, 504 F.3d 465, 473 (5th Cir. 2007); Kutzner v. Johnson, 242 F.3d 605, 609 (5th Cir.

2001). False testimony is only material if there was a reasonable likelihood that it affected the

jury’s verdict. Giglio, 405 U.S. at 153-54; Barrientes v. Johnson, 221 F.3d 741, 753 (5th Cir.

2000).

Here, Petitioner restates his allegations that complainant was coerced into making the

outcry by Felicia Smith and that Felicia Smith, Terrance Smith, and Amisca Mallard all committed

26

perjury by falsely testifying at Petitioner’s trial and sentencing, and that the prosecution knowingly

used this false testimony to obtain a conviction. Petitioner has offered no evidence to substantiate

his claim of perjury and, again, his conclusory opinion as to the complainant’s and other witnesses’

credibility and the veracity of their testimony does not establish that their testimony was false or

that the prosecution knew the testimony was false. Little v. Butler, 848 F.2d 73, 76 (5th Cir. 1988)

(inconsistencies in witnesses’ testimony at trial are to be resolved by trier of fact and do not suffice

to establish that certain testimony was perjured); Ross, 694 F.2d at 1012.

Under Rule 2(c) of the Rules Governing Section 2254 Cases, a petitioner is required to

plead facts in support of his claims. “‘Absent evidence in the record,’” a court should not

“‘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.’” Ford v. Davis, 910 F.3d 232, 235 (5th Cir. 2018) (quoting Ross, 694 F.2d at

1011). Because Petitioner offers no facts or evidence to support his allegation of perjury, his claim

is conclusory and should be denied. See Miller, 200 F.3d at 282 (a petitioner is not entitled to relief

on the basis of conclusory allegations).

As to the prosecutor’s closing arguments, Petitioner must show that the prosecutor’s

improper arguments “so infected the penalty phase of the trial with unfairness as to make the

resulting sentence a denial of due process.” Barrientes, 221 F.3d at 753; see also Darden v.

Wainwright, 477 U.S. 168, 181 (1986). The burden is on the petitioner to show “a reasonable

probability ‘that but for these remarks’ the result would have been different.” Nichols v. Scott, 69

F.3d 1255, 1278 (5th Cir. 1995) (citation omitted). The prosecutor’s statements must render the

trial fundamentally unfair. Barrientes, 221 F.3d at 744. “A trial is fundamentally unfair if ‘there is

27

reasonable probability that the verdict might have been different had the trial been properly

conducted.” Id. (citing Foy v. Donnelly, 959 F.2d 1307, 1317 (5th Cir. 1992).) “[I]t ‘is not enough

that the prosecutors’ remarks were undesirable or even universally condemned.’” Darden, 477

U.S. at 181 (citation omitted).

Petitioner has not met his burden of showing that, but for the prosecutor’s statements, it is

reasonably probable that the result of his trial would have been different. Assuming he is arguing

that the prosecutor improperly referred to the jailhouse telephone call between him and his mother,

it is clear from the Court of Appeals opinion—which expressly refers to and quotes from this

telephone call—that the phone call was in evidence and there can be no error in the prosecutor

referring to it. Accordingly, Petitioner is not entitled to federal habeas relief on these grounds.

D. Ineffective Assistance of Appellate Counsel (IAAC) (claims 13-14)

Petitioner raises two IAAC claims in his federal petition. Petitioner first argues his

appellate counsel provided ineffective assistance when he failed to investigate and find evidence

to support the errors raised on appeal; and, in the alternative, that counsel should have moved to

abate the appeal so the record could be further “fleshed out.” Second, Petitioner argues appellate

counsel provided ineffective assistance by failing to raise various meritorious claims on appeal,

including prosecutorial misconduct, trial counsel’s failure to object to prosecutorial misconduct,

and “his own government cause ineffectiveness” stemming from counsel’s appointment having

been delayed two weeks after trial counsel withdrew.

A criminal defendant is constitutionally entitled to effective assistance of appellate counsel

when he has a right to appeal under state law. Evitts v. Lucey, 469 U.S. 387 (1985); United States

v. Phillips, 210 F.3d 345, 348 (5th Cir. 2000). The Strickland standard for proving ineffective

28

assistance of counsel applies equally to both trial and appellate attorneys. Smith v. Robbins, 528

U.S. 259, 285 (2000); Dorsey v. Stephens, 720 F.3d 309, 319 (5th Cir. 2013). Thus, to obtain relief

on his IAAC grounds, Petitioner must demonstrate that (1) appellate counsel’s conduct was

objectively unreasonable under then-current legal standards, and (2) there is a reasonable

probability that, but for appellate counsel’s deficient performance, the outcome of Petitioner’s

appeal would have been different. See Smith, 528 U.S. at 285; Higgins v. Cain, 720 F.3d 255, 260-

61 (5th Cir. 2015). He does neither.

There is nothing in the record to support Petitioner’s claim that his appellate counsel

provided him with constitutionally deficient legal assistance. Appellate counsel raised three points

of error on appeal: (1) the evidence was legally insufficient to support the verdict; (2) trial counsel

provided ineffective assistance; and (3) the trial court erred in not granting the motion for new

trial. (ECF No. 17-7.) To demonstrate deficiency, Petitioner must show that “counsel unreasonably

failed to discover [and raise] nonfrivolous issues”; however, counsel is not required to “raise every

nonfrivolous claim, but rather may select among them in order to maximize the likelihood of

success on appeal.” Smith, 528 U.S. at 286, 288.

The claims Petitioner brings against appellate counsel echo back to the claims he brought

against trial counsel. The Court has already concluded the denial of Petitioner’s IATC claims was

not objectively unreasonable. The same holds for Petitioner’s IAAC claims. Rather than pursuing

an appeal, Petitioner apparently wanted his counsel to relitigate his criminal trial by further

investigating in order to find documentary and exculpatory evidence. But this was not counsel’s

task. Counsel’s performance cannot be deemed deficient for not engaging in activities that went

beyond the scope of his appointment. Further, there is no error in counsel not pursuing every

29

conceivable error in the appeal, and as noted in prior sections, the errors Petitioner wanted counsel

to raise are not nonfrivolous. Accordingly, the state habeas court was not objectively unreasonable

in denying Petitioner’s IAAC claims.

E. Plain Error in Denying Motion for New Trial (claim 15)

In claim 15, Petitioner argues he is entitled to federal habeas relief because the trial court

erred in denying his motion for a new trial, and the Court of Appeals should not have decided his

appeal based on an incomplete record.

It is not clear from the petition what federal or constitutional right Petitioner believes was

violated when the trial court denied his motion for a new trial. As Respondent points out, “an error

in the application of state law by the trial court does not provide grounds for federal habeas relief.”

Pemberton v. Collins, 991 F.2d 1218, 1223 (5th Cir. 1993) (citing Engle v. Isaac, 456 U.S. 107,

119 (1982)). If Petitioner’s claim is based on a violation of state law, then federal habeas is not the

forum in which to pursue it. If it is based on a violation of any of the federal and constitutional

rights previously discussed, then it fails for the same reasons the other claims failed. Accordingly,

the state habeas court’s denial of this claim was not objectively unreasonable and should be denied.

F. Legally Insufficient Evidence (claim 16)

In claim 16, Petitioner argues he is entitled to federal habeas relief because the evidence

presented at his criminal trial was legally insufficient to support his conviction. Specifically,

Petitioner argues that “[o]nce the record in this matter is fully fleshed out, after I have had a full

and fair hearing . . . no juror, acting reasonably, could find every element of the offense for which

I was convicted beyond a reasonable doubt.” Respondent argues that Petitioner failed to include

this claim in his PDR and is thus procedurally barred from bringing it here.

30

Petitioner was convicted of one count of continuous sexual abuse of a young child. Under

Texas Penal Code § 21.02(b)-(c), the elements of this offense are as follows:

(b) A person commits an offense if:

(1) during a period that is 30 or more days in duration, the person commits two or

more acts of sexual abuse, regardless of whether the acts of sexual abuse are

committed against one or more victims; and

(2) at the time of the commission of each of the acts of sexual abuse, the actor is 17

years of age or older and the victim is a child younger than 14 years of age,

regardless of whether the actor knows the age of the victim at the time of the

offense.

(c) For purposes of this section, “act of sexual abuse” means any act that is a violation of

one or more of the following penal laws:

(2) indecency with a child under Section 21.11(a)(1), if the actor committed the

offense in a manner other than by touching, including touching through clothing,

the breast of a child;

(3) sexual assault under Section 22.011;

(4) aggravated sexual assault under Section 22.021.

Petitioner challenged the sufficiency of the evidence in his direct appeal (ECF No. 17-7)

but did not raise the issue in his PDR (ECF No. 17-19). He claimed insufficiency of the evidence

as a ground for relief in his state habeas application, which was then denied without written order.

Because Petitioner did not bring this claim in his PDR, Respondent argues he is procedurally

barred from bringing the claim in this forum based on a longstanding Texas procedural rule

prohibiting the TCCA from entertaining sufficiency of the evidence claims on habeas review. See

West v. Johnson, 92 F.3d 1385, 1398 n.18 (5th Cir. 1996) (TCCA has long held that sufficiency of

the evidence may only be raised on direct appeal and not on state habeas); Ex parte McLain, 869

S.W.2d 349, 350 (Tex. Crim. App. 1988) (en banc).

Even if Petitioner is not procedurally barred from challenging the sufficiency of the

evidence in his federal writ, there is no merit to the claim. The standard for testing the sufficiency

of evidence in a federal habeas review of a state court conviction is whether, after viewing the

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evidence in the light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

319 (1979). The evidence need not exclude every reasonable hypothesis of innocence or be

completely inconsistent with every conclusion except guilt so long as a reasonable trier of fact

could find that the evidence established guilt beyond a reasonable doubt. United States v. Leahy,

82 F.3d 624, 633 (5th Cir. 1996). In addition, the AEDPA imposes a “twice-deferential standard”

when a federal court reviews a state prisoner’s claim challenging the sufficiency of the evidence.

Parker v. Matthews, 567 U.S. 37, 43 (2012). As the Supreme Court explained:

The opinion of the Court in Jackson v. Virginia . . . makes clear that it is the

responsibility of the jury—not the court—to decide what conclusions should be

drawn from evidence admitted at trial. A reviewing court may set aside the jury’s

verdict on the ground of insufficient evidence only if no rational trier of fact could

have agreed with the jury. What is more, a federal court may not overturn a state

court decision rejecting a sufficiency of the evidence challenge simply because the

federal court disagrees with the state court. The federal court instead may do so

only if the state court decision was “objectively unreasonable.”

Cavazos v. Smith, 565 U.S. 1, 2 (2011) (citations omitted). Upon independent review of the record,

the Court concludes that the evidence adduced at trial supports the conviction: the complainant

testified that Petitioner had indecently touched her and sexually assaulted her on several occasions,

and her testimony was corroborated by an outcry witness, outside experts, and by Petitioner’s own

mother in the jailhouse phone call. Accordingly, the state habeas court’s denial of this claim was

not objectively unreasonable and this claim should be denied.

G. Trial Court and Court of Appeals Use of Incorrect Legal Standard (claim 19)

In Petitioner’s final ground for relief, he argues that the trial court and Court of Appeals

plainly erred by using the Strickland standard, rather than Cronic, when analyzing and denying his

motion for a new trial. As Petitioner notes in his response to Respondent, this claim is not

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cognizable on federal habeas review. See Pemberton, 991 F.2d at 1223 (federal habeas court asks

only whether a constitutional violation infected the trial; an error in the application for state law

does not provide grounds for federal habeas relief). Further, even if it were cognizable, it is

meritless as explained in the preceding sections. Thus, the state habeas court’s decision to deny

this claim was not objectively unreasonable.

H. Motion for Evidentiary Hearing, to Appoint Counsel, and for Bench Warrant

Section 2254(e)(2) provides:

If the applicant has failed to develop the factual basis of a claim in State court proceedings, the

court shall not hold an evidentiary hearing on the claim unless the applicant shows that–

(A) the claim relies on—

(i) a new rule of constitutional law, made retroactive to cases on collateral review

by the Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through the

exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing

evidence that but for constitutional error, no reasonable factfinder would have found the

applicant guilty of the underlying offense.

As explained above, Petitioner has failed to plead any allegations that would entitle him to a

hearing. Accordingly, Petitioner’s motion for an evidentiary hearing should be denied. Further,

because Petitioner’s federal habeas writ is without merit, his motions for appointment of counsel,

issuance of a bench warrant, issuance of subpoenas, and loan of appellate record should also be

denied.

IV. Recommendation

The undersigned recommends that the District Court DENY Petitioner’s petition for a writ

of habeas corpus and DENY Petitioner’s pending motion.

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V. Certificate of Appealability

A petitioner may not appeal a final order in a habeas corpus proceeding “unless a circuit

justice or judge issues a certificate of appealability.” 28 U.S.C. § 2253(c)(1)(A). Pursuant to Rule

11(a) of the Rules Governing Section 2254 Cases, the district court must issue or deny a certificate

of appealability when it enters a final order adverse to the applicant. See Miller-El v. Cockrell, 537

U.S. 322, 335-36 (2003) (citing 28 U.S.C. § 2253(c)(1)).

A certificate of appealability may issue only if a petitioner has made a substantial showing

of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). In cases where a district court rejects

a petitioner’s constitutional claims on the merits, “the petitioner must demonstrate that reasonable

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

Slack v. McDaniel, 529 U.S. 473, 484 (2000). When a district court rejects a habeas petition on

procedural grounds without reaching the constitutional claims, “a COA should issue when the

petitioner shows, at least, that jurists of reason would find it debatable whether the petition states

a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Id.

In this case, reasonable jurists could not debate the dismissal or denial of the Petitioner’s

§ 2254 petition on substantive or procedural grounds, nor find that the issues presented are

adequate to deserve encouragement to proceed. Miller-El, 537 U.S. at 327 (citing Slack, 529 U.S.

at 484). Accordingly, the undersigned recommends that the Court should not issue a certificate of

appealability.

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VI. Objections

Within 14 days after receipt of the magistrate judge’s report, any party may serve and file

written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636

(b)(1)(C). Failure to file written objections to the proposed findings and recommendations

contained within this report within 14 days after service shall bar an aggrieved party from de novo

review by the district court of the proposed findings and recommendations and from appellate

review of factual findings accepted or adopted by the district court except on grounds of plain error

or manifest injustice. Thomas v. Arn, 474 U.S. 140, 148 (1985); Douglass v. United Servs. Auto.

Assoc., 79 F.3d 1415 (Sth Cir. 1996) (en banc); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (Sth

Cir. 1988).

ENTERED this 21“ day of July, 2020.

A W. Austin

United States Magistrate Judge

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