Brown v. Lumpkin

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

ROBERT JAY BROWN, §

TDCJ No. 02096329, §

§

Petitioner, §

§

v. § CIVIL NO. SA-21-CA-0145-XR

§

BOBBY LUMPKIN, Director, §

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

§

Respondent. §

MEMORANDUM OPINION AND ORDER

Before the Court are Petitioner Robert Jay Brown’s Petition for Writ of Habeas Corpus

pursuant to 28 U.S.C. § 2254 (ECF No. 1) and supplemental memorandum in support (ECF

No. 10), as well as Respondent Bobby Lumpkin’s Answer (ECF No. 11) thereto. Having reviewed

the record and pleadings submitted by both parties, the Court concludes Petitioner is not entitled

to relief under the standards prescribed by the Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA). See 28 U.S.C. § 2254(d). Petitioner is also denied a certificate of appealability.

I. Background

In October 2016, Petitioner plead guilty to two counts of aggravated assault with a deadly

weapon. (ECF No. 12-5 at 48-57). Pursuant to the plea bargain agreement, Petitioner judicially

confessed to committing the offenses as charged in the indictment in exchange for the State

waiving two charges of aggravated assault and agreeing to a sentencing cap of fifteen years. Id.

Following a separate punishment hearing, the trial court sentenced Petitioner to twelve years of

imprisonment for each count, with the sentences to run concurrently. State v. Brown,

No. 2012CR10633A (437th Dist. Ct., Bexar Cnty., Tex. Oct. 13, 2016); (ECF No. 12-5 at 127-

30).

Because he waived the right to appeal as part of the plea bargain agreement, Petitioner did

not directly appeal his conviction and sentence. (ECF No. 12-5 at 52). Instead, he challenged the

constitutionality of his convictions by filing a pro se application for state habeas corpus relief in

October 2017, with an amended application being filed by counsel in August 2020. Ex parte

Brown, No. 91,653-01 (Tex. Crim. App.); (ECF No. 12-5 at 4-42). The Texas Court of Criminal

Appeals denied the applications without written order on February 10, 2021. (ECF No. 12-2).

Counsel for Petitioner filed the instant federal habeas petition two days later, with a

supplemental memorandum in support following shortly thereafter. (ECF Nos. 1, 10). In the

petition and supplemental memorandum, Petitioner raises three allegations that were rejected by

the Texas Court of Criminal Appeals during his state habeas proceedings—namely, that (1) his

plea was unknowing and involuntary because he was not advised that he would have to serve at

least half of his sentence before becoming eligible for parole, (2) his trial counsel rendered

ineffective assistance by failing to so advise him, and (3) his trial counsel rendered ineffective

assistance at the punishment phase by failing to present a key expert witness.

II. Standard of Review

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

provided by the AEDPA. 28 U.S.C.A. § 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 intentionally difficult standard

stops just short of imposing a complete bar on federal court relitigation 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, regardless of

whether the federal habeas court would have reached a different conclusion itself. Richter, 562

U.S. at 102. Instead, a petitioner must show that the 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). So long as “fairminded jurists could disagree” on the

correctness of the state court’s decision, a state court’s determination that a claim lacks merit

precludes federal habeas relief. Richter, 562 U.S. at 101 (citing Yarborough v. Alvarado, 541 U.S.

652, 664 (2004)). In other words, 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).

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III. Merits Analysis

Pursuant to a plea bargain agreement, Petitioner judicially confessed to committing two

counts of aggravated assault with a deadly weapon, acknowledged the range of punishment for

these offenses, and waived his right to a jury trial in exchange for a sentencing cap of fifteen years.

(ECF No. 12-5 at 48-57). Petitioner now challenges the constitutionality of his guilty plea by

arguing that the plea was involuntary (Claim 1) and that he was denied his right to effective counsel

(Claims 2, 3). Because he voluntarily plead guilty to the convictions he is now challenging under

§ 2254, however, Petitioner waived the right to challenge all non-jurisdictional defects in his

proceedings. Moreover, these allegations were rejected by the state court during Petitioner’s state

habeas proceedings. As discussed below, the state court’s rejection of these claims was neither

contrary to, nor an unreasonable application of, Supreme Court precedent. Richter, 562 U.S.

at 101.

A. Petitioner’s Plea Was Voluntary (Claim 1)

It is axiomatic that a guilty plea is valid only if entered voluntarily, knowingly, and

intelligently, “with sufficient awareness of the relevant circumstances and likely consequences.”

Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005); United States v. Hernandez, 234 F.3d 252, 254

(5th Cir. 2000). A plea is intelligently made when the defendant has “real notice of the true nature

of the charge against him.” Bousley v. United States, 523 U.S. 614, 618 (1998) (internal quotation

marks omitted). And a plea is “voluntary” if it does not result from force, threats, improper

promises, misrepresentations, or coercion. United States v. Amaya, 111 F.3d 386, 389 (5th Cir.

1997). The longstanding test for determining the validity of a guilty plea is whether the plea

represents a voluntary and intelligent choice among the alternative courses of action open to the

defendant. Hill v. Lockhart, 474 U.S. 52, 56 (1985); United States v. Juarez, 672 F.3d 381, 385

(5th Cir. 2012).

The record in this case indicates Petitioner’s plea was a voluntary and intelligent choice

and not the result of any misrepresentation. To start, the voluntariness of Petitioner’s plea is

demonstrated by his signature on the “Court’s Admonishment and Defendant’s Waivers and

Affidavit of Admonitions” and accompanying “Plea Bargain.” (ECF No. 12-5 at 48-52). These

documents demonstrate Petitioner was admonished as to the maximum punishment range for the

second-degree offense of aggravated assault with a deadly weapon (two to twenty years of

imprisonment), but that Petitioner’s sentence was to be capped at fifteen years maximum. Id.

Petitioner also made the following concessions in his plea agreement:

1. I have had my Constitutional and legal rights explained to me by my

attorney, and have decided to waive my Constitutional right of trial by jury

and enter this plea before the judge. I hereby request the consent and

approval of the State’s Attorney and of the Court to my waiver of trial by

jury. I further represent to the Court as follows:

2. I am mentally competent now and was legally sane at the time that this

offense was committed.

3. I have not been threatened, coerced or placed in fear by any person to induce

me to enter my plea.

4. If I have a plea bargain agreement with the prosecutor, its terms are fully

set forth in the attached document. I have received no promise from the

prosecutor, my attorney or the Court which are not set forth in that

document, and I realize that no one else would be empowered to make me

any promises.

5. If I am pleading GUILTY, it is because I am guilty, and for no other reason.

If my plea is one of NOLO CONTENDERE, it is because I have considered

all aspects of my legal situation and discussed them with my attorney and

have determined that the entry of such plea is in my own best interest.

6. If applicable, my attorney has explained to me the requirements and

consequences of Chapter 62 of the Texas Code Of Criminal Procedure Sex

Offender Registration Program.

7. I understand the Courts admonishments as contained in this waiver.

8. I am satisfied with the advice and representation of my attorney in this case.

Id. at 50. Petitioner’s trial counsel signed the agreement after concluding that Petitioner had a

rational and factual understanding of the pending charges against him and the rights he was

waiving, and the trial court approved the agreement by stating Petitioner was mentally competent

and his waiver was knowing, intelligent, and voluntary. Id. at 51.

In addition, Petitioner signed a “Waiver, Consent to Stipulation of Testimony and

Stipulations,” where Petitioner stated he knowingly and voluntarily agreed to waive his rights to

confrontation and cross-examination of witnesses and admitted that the allegations contained in

the indictment are true and correct. Id. at 53-56. Counsel for Petitioner again signed the waiver,

stating that he discussed with Petitioner the rights he was waiving and indicating his belief that

Petitioner “fully understands these rights and has intelligently and voluntarily waived these rights

and entered into these agreements after due deliberation[.]” Id. at 57. The trial judge then gave his

approval of the waiver, concluding:

The Defendant having signed the Waiver, Consent to Stipulation of Testimony and

Stipulations in open Court and under oath, the Court questioned both the Defendant

and his Counsel and thereby became satisfied that the Defendant understands the

rights which have been waived and therefore can be truly said to have voluntarily

relinquished known rights. The Waiver, Consent to Stipulation of Testimony and

Stipulations are approved and ORDERED filed in the papers of the cause.

Id.

Petitioner’s signature on the guilty plea documents is prima facie proof of the validity of

the pleas and is entitled to “great evidentiary weight.” Theriot v. Whitley, 18 F.3d 311, 314 (5th

Cir. 1994); United States v. Abreo, 30 F.3d 29, 32 (5th Cir. 1994) (citing Hobbs v. Blackburn, 752

F.2d 1079, 1081 (5th Cir. 1985)). Petitioner’s formal declarations in open court (ECF No. 12-4 at

4-12) also carry “a strong presumption of verity” and constitute a formidable barrier to any

subsequent collateral attack. United States v. Kayode, 777 F.3d 719, 729 (5th Cir. 2014) (quoting

Blackledge v. Allison, 431 U.S. 63, 74 (1977)). Because Petitioner has not provided any evidence

or argument that would overcome these “strong presumptions of verity,” this Court denies any

allegation made by Petitioner concerning the validity of his guilty plea. Blackledge, 431 U.S. at

74 (finding “[t]he subsequent presentation of conclusory allegations which are unsupported by

specifics is subject to summary dismissal.”).

B. The Ineffective-Assistance Claims (Claims 2, 3)

By entering a knowing, intelligent, and voluntary guilty plea, a defendant waives all non-

jurisdictional defects preceding the plea. Tollett v. Henderson, 411 U.S. 258, 265 (1973); United

States v. Scruggs, 714 F.3d 258, 261-62 (5th Cir. 2013). This rule encompasses errors of

constitutional dimension that do not affect the voluntariness of the plea, includes ineffective-

assistance claims unless the alleged ineffectiveness relates to the voluntariness of the guilty plea.

Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983) (waiving claims of ineffective assistance, except

for claims related to voluntariness of plea). As such, the only claims that survive a guilty plea are

those implicating the validity of the plea itself. Tollett, 411 U.S. at 267; United States v. Glinsey,

209 F.3d 386, 392 (5th Cir. 2000).

Here, Petitioner does make one allegation that, if successful, may implicate the

voluntariness of his guilty plea: that trial counsel was ineffective for failing to advise him about

parole eligibility consequences (Claim 2). According to Petitioner, counsel was required to inform

him that, under the law in effect at the time he committed the crimes, he would not become parole

eligible until at least half of his sentence had been served. Petitioner also raises an allegation

(Claim 3) that counsel rendered ineffective assistance after the guilty plea was entered by failing

to obtain a witness to testify at the subsequent punishment hearing. Neither of these allegations

warrant federal habeas relief.

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 both that (1) counsel’s performance was deficient, and (2) this

deficiency prejudiced his defense. 466 U.S. at 687-88, 690. According to the Supreme Court,

“[s]urmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356,

371 (2010).

To establish counsel’s performance was deficient, a petitioner must first show his counsel’s

performance fell below “an objective standard of reasonableness.” Id. at 688-89. When

determining whether counsel performed deficiently, courts must be highly deferential to counsel’s

conduct, and 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. But, in the context of a guilty plea, proving Strickland’s

prejudice requirement turns “on whether counsel’s constitutionally ineffective performance

affected the outcome of the plea process.” Hill, 474 U.S at 59. This means, “in a guilty plea

scenario, a petitioner must prove not only that his attorney actually erred, but also that he would

not have pled guilty but for the error” and, instead, “would have insisted upon going to trial.”

Armstead v. Scott, 37 F.3d at 206 (citations omitted). This assessment will turn partially on “a

prediction of what the outcome of a trial might have been.” Id.

2. Parole Eligibility

Petitioner contends his plea was involuntary because counsel did not explain that he would

be required to serve at least half of his sentence—six years—before becoming parole eligible.

Petitioner does not allege that counsel gave misleading or erroneous advice. Rather, Petitioner

argues that he was not advised at all about the consequences of a deadly weapon finding on his

eligibility for parole. Had counsel informed him of his parole eligibility date, Petitioner avers, he

would not have pled guilty and would have insisted on going to trial.

A guilty plea is intelligent if the defendant understood the nature and substance of the

charges against him and not necessarily whether he understood their technical legal effect. See

James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995) (citing Taylor v. Whitley, 933 F.2d 325, 329 (5th

Cir. 1991)). The “knowing” requirement that a defendant understand “the consequences” of a

guilty plea means only that the defendant must know the maximum prison term and fine for the

offense charged. Id. at 666. It is not necessary that a defendant be advised of all of the “collateral”

consequences of his plea, including his eligibility for parole. See Hill, 474 U.S. at 56 (holding the

Constitution does not require the State to furnish a defendant with information on parole eligibility

in order for the defendant’s plea to be voluntary); James, 56 F.3d at 667 (same). Thus, neither the

Supreme Court nor the Fifth Circuit has held that a counsel’s failure to correctly advise a defendant

regarding parole eligibility amounts to ineffective assistance of counsel. See Mitchell v.

Quarterman, 285 F. App’x 170, 171 (5th Cir. 2008) (citing Hill, 474 U.S. at 54-55); James, 56

F.3d at 667.

Further, even assuming counsel was deficient for not advising Petitioner about his parole

eligibility, Petitioner cannot show he would not have accepted the current plea and would have

instead insisted on going to trial but for counsel’s errors. Armstead, 37 F.3d at 206. Again, such

an assessment will turn partially on “a prediction of what the outcome of a trial might have been.”

Id. The record is silent as to whether Petitioner would have made the decision to plead not guilty

and go to trial had counsel further explained the plea bargain and parole eligibility to Petitioner.

In signing the waiver and stipulations of the trial court, however, the record does indicate that

counsel fully explained his rights and the plea agreement to Petitioner and that Petitioner

understood the plea was for a second-degree felony with a maximum possible sentence of up to

twenty years of imprisonment. Petitioner also admitted he committed the offenses, agreed with

the State’s punishment cap of fifteen years, and was not coerced or misled into making the plea.

Thus, based on the record before the Court, it appears unlikely Petitioner would have chosen to go

to trial.

Because the record in this matter indicates that Petitioner’s guilty plea was counseled,

knowing and voluntary, and not coerced or induced by threats, promises, or misrepresentations,

the state court’s denial of this claim was not clearly contrary to or an unreasonable application of

federal law.

3. Punishment Witness

Petitioner next contends that trial counsel was ineffective for failing to present the

testimony of Dr. Emma Matta Gatlan at the punishment phase of his trial regarding his Post-

Traumatic Stress Disorder (PTSD) diagnosis. Counsel had subpoenaed Dr. Gatlan, a physician

with the Department of Veteran’s Affairs (VA) who had counseled Petitioner regarding his PTSD,

but she was prevented from testifying due to VA regulations restricting the circumstances in which

VA employees may testify. See Touhy v. Ragen, 340 U.S. 462 (1951) (holding that federal

agencies may promulgate regulations controlling the release of agency documents to subpoena).

Petitioner argues counsel did not properly execute a Touhy request and, as a result, the trial court

was deprived of key information concerning his mental health and the effect of his military service.

Petitioner raised this allegation during his state habeas proceedings. In response,

Petitioner’s trial counsel, Robert Maurer, submitted an affidavit addressing Petitioner’s assertion

of ineffective assistance. (ECF No. 12-5 at 139-40). Based on counsel’s affidavit, the state habeas

trial court made the following findings:

e. Mr. Maurer had a thorough knowledge of the facts of this case.

f. Mr. Maurer also recognized the need for an expert to discuss the impact that

[Petitioner]’s PTSD diagnosis had on a potential defense or mitigation

argument.

g. Mr. Maurer had extensive discussions with [Petitioner] about the role that

his PTSD might have had in the accident. [Petitioner] informed Mr. Maurer

that he had been engaged in counseling for his PTSD at the Department of

Veteran’s Affairs. That counselor was successful in having Mr. Maurer’s

subpoena quashed, which prevented her from appearing on [Petitioner]’s

behalf.

h. Mr. Maurer obtained another expert to testify concerning [Petitioner]’s

PTSD to testify at sentencing, but that witness failed to appear. Mr. Maurer

obtained a continuance, but was unable to secure that witness to testify.

Id. at 144-45. The trial court ultimately concluded that counsel’s representation “was within the

range of competence demanded of attorneys in criminal cases” and that Petitioner has not shown

that he was denied effective assistance of counsel. Id. at 147. These findings and conclusions

were adopted by the Texas Court of Criminal Appeals when it denied Petitioner’s state habeas

application. (ECF No. 12-2). Such determinations are entitled to a presumption of correctness

unless they lack fair support in the record. Demosthenes v. Baal, 495 U.S. 731, 735 (1990); Miller

v. Thaler, 714 F.3d 897, 903 (5th Cir. 2013).

Petitioner fails to show that the state court’s ruling on trial counsel’s performance was

contrary to, or involved an unreasonable application of Strickland or that it was an unreasonable

determination of the facts based on the evidence in the record. 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 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). However, claims regarding an uncalled expert witness “are speculative and

disfavored by this Court as grounds for demonstrating ineffective assistance of counsel.” Evans

v. Cockrell, 285 F.3d 370, 377 (5th Cir. 2002). To prevail on such a claim, a 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).

Here, it is clear from the record that counsel investigated Petitioner’s PTSD and sought,

albeit unsuccessfully, to have an expert testify on Petitioner’s behalf at punishment. What is not

clear is whether counsel submitted a proper Touhy request to procure Dr. Gatlan’s testimony, or,

assuming he did not, whether the VA would have allowed Dr. Gatlan to testify had he done so.

Petitioner has provided no evidence showing that Dr. Gatlan was available to testify had counsel

followed the established Touhy regulations and has brought forth no evidence or affidavits from

Dr. Gatlan concerning her proposed testimony. Evans, 285 F.3d at 377 (providing petitioner must

“bring forth” evidence, such as affidavits, from uncalled witnesses, including expert witnesses, in

support of an IATC claim). For this reason, Petitioner has not shown counsel’s performance was

deficient under Strickland.

Even if Petitioner could establish that counsel’s performance was deficient in this case, he

still fails to demonstrate that the alleged error was prejudicial to his defense. Again, 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. “[A] court assessing prejudice must consider the totality of the evidence before the

judge or jury.” Mejia v. Davis, 906 F.3d 307, 315 (5th Cir. 2018) (quoting Strickland, 466 U.S. at

696) (internal quotation marks omitted).

Petitioner contends he was prejudiced because the trial court was deprived of key

information about the effect his military service had upon his mental health which would have

resulted in a lower sentence. But the trial court was not deprived of such information—to the

contrary, Petitioner himself testified about his military service, his later diagnosis of PTSD, and

his treatment by Dr. Gatlan. (ECF No. 12-4 at 89-96). Petitioner explained that as a result of his

PTSD he becomes startled easily, making it difficult for him to calm down or rest well. Id. at 96.

Petitioner also admitted that his medical records from the VA had been provided in preparation

for his pre-sentence investigation report which was taken into consideration by the trial court. Id.

at 111-12.

Furthermore, as the state habeas court found, the facts of Petitioner’s crime were

particularly egregious:

[Petitioner] began following a white pickup truck that had nearly hit him. He

admitted to exceeding the speed limit, and admitted that following the white truck

was a bad decision. Witnesses gave statements saying that [Petitioner] was driving

aggressively in an attempt to cut off the driver of the white truck. At times

[Petitioner] was driving in the center turn lane. When the white truck applied his

brakes, [Petitioner]’s truck hit the white truck from behind and caused it to collide

with another car, which was sent into oncoming traffic and collided with a fourth

vehicle being driven by Randy Nelson and his two year old son Braylon. The

accident broke Braylon Nelson’s spinal cord and paralyzed him from the neck

down. He requires 24/7 nursing care and a ventilator to help him breathe at night.

Randy Nelson suffered a right side fractured pelvis and multiple broken ribs and a

fractured sternum.

(ECF No. 12-5 at 146). Given the devastating consequences of Petitioner’s actions, it is unlikely

that the results of his sentencing proceeding would have been different had counsel presented

further testimony concerning Petitioner’s PTSD diagnosis. This is particularly true given that

Petitioner was ultimately sentenced well below the statutory maximum for a second-degree felony

(twenty years) and the maximum cap agreed to under the plea bargain (fifteen years).

As such, Petitioner is unable to establish that counsel’s performance was deficient or that

he was prejudiced by counsel’s alleged error. Because Petitioner fails to demonstrate that the state

court’s denial of Petitioner’s ineffective-assistance allegation was not an unreasonable application

of Strickland, relief on the claim is therefore denied.

IV. Certificate of Appealability

The Court must now determine whether to issue a certificate of appealability (COA). See

Rule 11(a) of the Rules Governing § 2254 Proceedings; Miller–El v. Cockrell, 537 U.S. 322, 335-

36 (2003) (citing 28 U.S.C. § 2253(c)(1)). A COA may issue only if a petitioner makes “a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If 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). This requires a petitioner to show “that

reasonable jurists could debate whether the petition should have been resolved in a different

manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’”

Miller–El, 537 U.S. at 336 (citation omitted).

A district court may deny a COA sua sponte without requiring further briefing or argument.

See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000). For the reasons set forth above, the

Court concludes that jurists of reason would not debate the conclusion that Petitioner was not

entitled to federal habeas relief. As such, a COA will not issue.

V. Conclusion and Order

Petitioner has failed to establish that the state court’s rejection of the aforementioned claims

on the merits during his state habeas proceedings was either (1) contrary to, or involved an

unreasonable application of, clearly established federal law, as determined by the Supreme Court

of the United States, or (2) based on an unreasonable determination of the facts in light of the

evidence presented during Petitioner’s state trial and habeas corpus proceedings.

Accordingly, based on the foregoing reasons, IT IS HEREBY ORDERED that:

1. Federal habeas corpus relief is DENIED and Petitioner Robert Jay Brown’s

Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1) is DISMISSED

WITH PREJUDICE;

2. No Certificate of Appealability shall issue in this case; and

3. All other motions, if any, are DENIED, and this case is now CLOSED.

It is so ORDERED.

SIGNED this November 23, 2021.

XAVIER RODRIGUEZ

UNITED STATES DISTRICT JUDGE

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