Perez v. Director, TDCJ-CID

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

CRISTIAN FAVELA PEREZ a/k/a §

CRISTHIAN FAVELA PEREZ, §

§

Petitioner, §

§

v. §

§ No. 4:23-CV-755-O

BOBBY LUMPKIN, Director, Texas §

Department of Criminal Justice, §

Correctional Institutions Division, §

§

Respondent. §

MEMORANDUM OPINION AND ORDER

The matters before the Court are (1) Perez’s federal habeas corpus petition, filed July 20,

2023 (ECF No. 1); (2) Respondent’s Answer, filed November 16, 2023 (ECF No. 11); and (30

Perez’s Reply brief, filed December 12, 2023 (ECF No. 13). For the reasons set forth below, Perez

is entitled to neither federal habeas corpus relief nor a Certificate of Appealability from this Court.

I. BACKGROUND

A. Perez’s Confession

The Texas Court of Appeals decision affirming Perez’s criminal convictions accurately

recited the factual basis for the criminal proceeding against Perez as follows:

In October 2016, Perez walked into an Arlington Police Department station

and orally confessed to sexually abusing Marie,1 a family member. Officer Vincent

Vasquez testified that Perez stated that he had touched Marie's breasts, vagina, and

anus over the previous eight years, beginning when Marie was three or four. Perez

then executed the following written statement:

I, Cristhian Perez, have touched [Marie] for the past 8 or five years

and I feel as if I need to voluntarily give myself up as peacefully as

possible to the law of Texas. I think it, being the molestation, started

when she was 4 years old and I may have been 15 and this continued

on and off for eight or five years and stopped two summers ago. I

touched her vagina and buttox [sic] and breasts, and regret my

detrim[ ]ental mistakes. I hope me coming in will ease her mental

state because she's possibly suicidal.

After his oral confession to Officer Vasquez and his execution of the written

statement, Detective Mary Tenorio interviewed Perez. A video recording of the

interview was admitted and shown to the jury. In it, Detective Tenorio began the

interview by asking Perez for his basic information—name, address—and then

reading him his rights. After reading each individual right, she asked if he

understood, to which he said yes. When finished, she asked him to sign a card

stating each of his Miranda rights, and he did.

Perez then provided a detailed confession of multiple instances of his sexual

abuse of Marie. Throughout, his demeanor remained calm, but 37 minutes into the

interview, he told Detective Tenorio that he had given up on school because of

plans to kill himself and that he was feeling “a little suicidal” right then. He started

crying, and he told Detective Tenorio that he had thought about how he would kill

himself and, “It[ would] be a little easier on everyone else if I was dead.” At that

point, Detective Tenorio text messaged her sergeant about her concerns for Perez's

mental health and wellbeing. Later in the interview, he again mentioned that he had

considered how to kill himself and thought about buying a gun. When Detective

Tenorio asked, “Do you feel like you might kill yourself if you leave here today?”

he answered, “Yes.” He mentioned that he had previously been diagnosed with and

taken medication for depression but had stopped taking the medication about a year

prior.

After fifty minutes, Detective Tenorio stepped out to complete paperwork,

leaving Perez alone in the interview room. Perez can be heard on the video

recording muttering, “I wish I could kill myself right now,” praying, and whispering

a series of numbers over and over. At times, he appeared to be crying. Eventually,

Detective Tenorio returned and explained that two officers would escort Perez to

John Peter Smith hospital for a mental evaluation.

Perez was subsequently charged with continuous sexual assault, three

counts of aggravated sexual assault, and three counts of indecency with a child by

contact. See Tex. Penal Code Ann. §§ 21.02(b), 21.11(a), 22.021(a).

Two months after his confession, MHMR assessed Perez's mental health

and concluded that he had a mental illness—depression—but was not incompetent

to stand trial and did not need a competency evaluation, though it did recommend

a psychiatric evaluation. A month after that, upon the request of Perez’s trial

counsel, the trial court appointed Dr. Barry Norman to evaluate Perez and assist in

his defense. Dr. Norman concluded that Perez was incompetent to stand trial and

recommended his commitment, and the trial court adopted his opinion in February

2017. A year later, the trial court concluded that Perez remained incompetent and

extended Perez's commitment. It noted its findings that Perez had been diagnosed

as bipolar, was likely to cause serious harm to others, and was suffering severe and

abnormal mental, emotional, or physical distress; was experiencing deterioration of

his ability to function independently, exhibited by his inability to provide for his

needs; and was unable to make a rational and informed decision as to whether or

not to submit to treatment. A few months later, Perez was found competent to stand

trial.

After a three-day trial in April 2019, Perez was found guilty of continuous

sexual abuse and indecency with a child and sentenced to 75 and 20 years’

confinement, respectively.

Perez v. State, 02-19-00163-CR, 2020 WL 6788196, *1-*2 (Tex. App. – Fort Worth, Nov. 19,

2020, pet. ref’d).

B. Indictment

On February 24, 2017, a Tarrant County grand jury returned a seven-Count indictment

charging Perez with continuous sexual abuse, three Counts of indecency with a child by contact,

and three Counts of aggravated sexual assault.1

C. Trial

The guilt-innocence phase of Perez’s trial commenced on April 9, 2019. The prosecution

presented the testimony of (1) the two Arlington police officers who interviewed Perez when he

presented himself at the police station and confessed to having sexually abused his minor niece,

(2) Perez’s then-fourteen-year-old niece, (3) a forensic interviewer who interviewed Perez’s then-

twelve-year-old niece, and (4) the Sexual Abuse Nurse Examiner who conducted an examination

1 Copies of the indictment against Perez appear at pages 7-8 of ECF No. 10-14 (Clerk’s Record Volume 1 of

1) and pages 5-6 of ECF No. 10-25 (Clerk’s Record from Perez’s state habeas corpus proceeding). Count One charged

Perez with two or more acts of aggravated sexual abuse of a child under the age of fourteen throughout the time period

May 24, 2009 to May 31, 2016, during which period Perez was seventeen years old or older, i.e., continuous sexual

abuse. Count Seven charged Perez with an act of indecency with a child (i.e., touching the breast of a child under the

age of seventeen) on May 31, 2016, i.e., indecency with a child.

of Perez’s minor niece.2 The jury returned its verdict on April 11, 2019, finding Perez guilty of

Counts One and Seven.3

The punishment phase of Perez’s trial began later the same day.4 The jury returned its

verdict later the same day, imposing a sentence of 75 years on Count One and 20 years plus a fine

on Count Seven.5

D. Direct Appeal

Perez appealed.6 Perez presented two points of error on direct appeal: (1) the trial court

erred in admitting Perez’s statements to police because they were not voluntary; and (2) the trial

court erred in admitting evidence of Perez’s extraneous sexual offenses committed when he was a

juvenile. The Texas Court of Appeals affirmed Perez’s conviction and sentences. Perez v. State,

no. 02-19-00163-CR, 2020 WL 6788196 (Tex. App. – Fort Worth, Nov. 19, 2020, pet. ref’d). The

2 The verbatim transcription of the testimony and all other proceedings during the guilt-innocence phase of

Perez’s trial appears at Volumes 3-5 of the Reporter’s Record (henceforth “R.R.”), i.e., ECF Nos. 10-18, 10-19, & 10-

20. The first day of trial jury heard testimony from Arlington police detective Mary Tenorio, who interviewed Perez

and took his recorded statement. 3 R.R. [ECF No. 10-18] 36-64. The following day, the jury heard (1) more testimony

from detective Tenorio regarding her dealings with Perez, 4 R.R. [ECF No. 10-19] 8-26; (2) Arlington police officer

Vincent Vasquez, who took Perez’s written statement, 4 R.R. [[ECF No. 10-19] 27-39; (3) Perez’s then-fourteen-year-

old niece who testified about the years of sexual abuse Perez inflicted on her starting when she was three or four years

old, 4 R.R. [ECF No. 10-19] 45-68; (4) the forensic interviewed who interviewed Perez’s then-twelve-year-old niece

and to whom the niece reported her years of sexual abuse by Perez, 4 R.R. [ECF No. 10-19] 71-99; and (5) the Sexual

Abuse Nurse Examiner (”S.A.N.E.”) who examined Perez’s niece and recorded in her report the niece’s reports of her

abuse, 4 R.R. [ECF No. 10-19] 107-22.

3 5 R.R. [ECF No. 10-20] 17-18. Copies of the jury’s verdict form appear at pages 215-20 of ECF No. 10-

14 and at pages 50-55 of EXF No. 10-25.

4 The verbatim transcript from all proceedings during the punishment phase of Perez’s trial appears at 5 R.R.

[ECF No. 10-20] 21-56. The prosecution presented no new evidence at the punishment phase of trial. The defense

presented testimony from Perez’s mother, which focused on the fact Perez had been anally raped multiple times as a

small child and later displayed depression and making multiple suicide attempts beginning when he was twelve. 5

R.R. 22-39. Perez also testified outside the jury’s presence that he did not wish to testify at the punishment phase of

trial and he was satisfied with his attorney’s performance. 5 R.R. [ECF No. 10-20] 41-42.

5 5 R.R. [ECF no. 10-20] 51-54. Copies of the jury’s punishment phase verdict form appear at page 233 of

ECF no. 10-14 and at page 59 of ECF No. 10-25.

6 Attorney Shelly Messerli filed Perez’s appellant’s brief on October 25, 2019, in the Texas Court of Appeals

for Fort Worth. A copy of Perez’s state appellant’s brief appears at ECF No. 10-5.

Court of Appeals concluded that (1) Perez alleged no facts suggesting either the Detective or other

Police Officer who interviewed him engaged in any coercive conduct toward Perez, which

rendered his due process challenge to his confession invalid; (2) the trial court did not abuse its

discretion in concluding, despite Perez’s statements to police that he was depressed and possibly

suicidal, that his statements were voluntarily made because Perez was given proper Miranda

warnings, appeared to understand his rights, and knowingly waived his rights; and (3) the trial

court did not abuse its discretion in admitting evidence of Perez’s acts of sexual abuse committed

while Perez was a juvenile because such evidence was expressly admissible under Article 38.37

of the Texas Code of Criminal Procedure. Perez, 2020 WL 6788196, at *2-*6. On July 14, 2021,

Perez filed a pro se petition for discretionary review in the Texas Court of Criminal Appeals

(“TCCA”) (ECF No. 10-12). The TCCA refused Perez’s petition for discretionary review on

September 15, 2021 (PDR 1243-20).

E. State Habeas Proceeding

Perez filed a pro se application for state habeas relief on November 29, 2022, asserting four

claims of ineffective assistance by his trial counsel, to wit, arguments his trial counsel rendered

ineffective assistance by (1) failing to argue that Perez’s confessions were rendered involuntary

due to the coercive nature of the complaining witness’s threats to commit suicide if Perez failed to

turn himself in and confess; (2) failing to assert that Perez was mentally incompetent during plea

negotiations with the prosecution; (3) failing to question further on voir dire a venire member who

had two family members who had been sexually abused for the purpose of making a possible

challenge for cause or peremptory strike; and (4) making statements identifying himself as “the

State” and eliciting testimony from a witness which established elements of the prosecution’s

case.7

The State obtained and filed affidavits from each of Perez’s trial counsel addressing his

ineffective assistance claims, as well as proposed findings of fact, conclusions of law, and a

recommendation that state habeas relief be denied.8 The Tarrant County Criminal Law Magistrate

adopted the State’s proposed findings, conclusions, and recommendation in an Order issued May

26, 2023 (ECF No. 10-25, at page 138). The state district court adopted the Magistrate’s Order on

May 30, 2023 (ECF No. 10-25, at page 139). The Texas Court of Criminal Appeals denied Perez’s

state habeas application without written order. Ex parte Perez, WR-94,860-01 (Tex. Crim. App.

July 5, 2023) (ECF No. 10-22, at pages 1-3).

F. Proceedings in this Court

Perez filed his pro se federal habeas corpus petition on July 20, 2023 (ECF No. 1), asserting

the same four claims of ineffective assistance that he presented in his state habeas corpus

application. Respondent filed his Answer on November 16, 2023 (ECF No. 11). Perez filed a

Reply brief on December 12, 2023 (ECF No. 13).

II. STANDARD OF REVIEW

Because Perez filed this federal habeas corpus action after the effective date of the Anti-

Terrorism and Effective Death Penalty Act (“AEDPA”), this Court’s review of his claims for

federal habeas corpus relief is governed by AEDPA. Penry v. Johnson, 532 U.S. 782, 792 (2001).

7 Perez’s pro se state habeas application appears at pages 15-33 of ECF No. 10-25.

8 The affidavit of Perez’s lead trial counsel, attorney Don Hase, appears at pages 113-20 of ECF No. 10-25.

The affidavit of Perez’s “second chair” or co-counsel at trial, attorney Martin Purselley, appears pages 108-10 of ECF

No. 10-25. The State’s proposed findings, conclusions, and recommendation appears at pages 122-35 of ECF No. 10-

25.

The legislative history of the AEDPA indicates that it was intended as a limitation upon

the scope of federal habeas review, not as an enactment intended to broaden the scope of federal

habeas review or to reconfigure federal habeas courts as super state appellate courts. One of the

principle purposes of the AEDPA was to reduce delays in the execution of state and federal

criminal sentences, especially capital sentences. Ryan v. Valencia Gonzales, 568 U.S. 57, 76

(2013); Schriro v. Landrigan, 550 U.S. 465, 475 (2007); Rhines v. Weber, 544 U.S. 269, 276

(2005). Another purpose of the AEDPA was to encourage litigants to pursue claims in state court

prior to seeking federal collateral review. Duncan v. Walker, 533 U.S. 167, 181 (2001); see also

Hernandez v. Johnson, 108 F.3d 554, 558 n.4 (5th Cir. 1997) (the AEDPA imposes the burden on

a petitioner to litigate to the maximum extent possible, including fairly presenting all available

evidence supporting, his claims in state court). The AEDPA was also intended to prevent

piecemeal litigation and gamesmanship. Maywood v. Patterson, 561 U.S. 320, 334 (2010). Thus,

under the AEDPA, federal habeas review of claims is limited to the record that was before the state

court that adjudicated the prisoner’s claims on the merits. Cullen v. Pinholster, 563 U.S. 170, 182

(2011). “The AEDPA statute of limitations promotes judicial efficiency and conservation of

judicial resources, safeguards the accuracy of state court judgments by requiring resolution of

constitutional questions while the record is fresh, and lends finality to state court judgments within

a reasonable time.” Day v. McDonough, 547 U.S. 198, 205-06 (2006). Collectively, the provisions

of the AEDPA further the principles of comity, finality, and federalism. Panetti v. Quarterman,

551 U.S. 930, 945 (2007); Miller-El v. Cockrell, 537 U.S. 322, 337 (2003).

Under the AEDPA standard of review, this Court cannot grant Perez federal habeas corpus

relief in connection with 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. Davenport, 596 U.S. 118, 135-36 (2022); Brown v. Payton, 544 U.S. 133, 141 (2005); Williams

v. Taylor, 529 U.S. 362, 404-05 (2000); 28 U.S.C. § 2254(d).

The Supreme Court has concluded the “contrary to” and “unreasonable application”

clauses of Title 28 U.S.C. § 2254(d)(1) have independent meanings. Bell v. Cone, 535 U.S. 685,

694 (2002). Under the “contrary to” clause, a federal habeas court may grant relief if (1) the state

court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law

or (2) the state court decides a case differently than the Supreme Court on a set of materially

indistinguishable facts. Brown, 544 U.S. at 141; Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003)

(“A state court’s decision is ‘contrary to’ our clearly established law if it ‘applies a rule that

contradicts the governing law set forth in our cases’ or it ‘confronts a set of facts that are materially

indistinguishable from a decision of this Court and nevertheless arrives at a result different from

our precedent.’”). A state court’s failure to cite Supreme Court authority does not, per se, establish

the state court’s decision is “contrary to” clearly established federal law: “the state court need not

even be aware of our precedents, ‘so long as neither the reasoning nor the result of the state-court

decisions contradicts them.’” Mitchell, 540 U.S. at 16.

Under the “unreasonable application” clause, a federal habeas court may grant relief if the

state court identifies the correct governing legal principle from the Supreme Court’s decisions but

unreasonably applies that principle to the facts of the petitioner’s case. Brown, 544 U.S. at 141;

Wiggins v. Smith, 539 U.S. 510, 520 (2003). A federal court making the “unreasonable

application” inquiry should ask whether the state court’s application of clearly established federal

law was “objectively unreasonable.” McDaniel v. Brown, 558 U.S. 120, 132-33 (2010) (“A federal

habeas court can only set aside a state-court decision as ‘an unreasonable application of . . . clearly

established Federal law,’ § 2254(d)(1), if the state court’s application of that law is ‘objectively

unreasonable.’”); Wiggins, 539 U.S. at 520-21. The focus of this inquiry is on whether the state

court’s application of clearly established federal law was objectively unreasonable; an

“unreasonable” application is different from a merely “incorrect” one. Schriro v. Landrigan, 550

U.S. 465, 473 (2007) (“The question under the AEDPA is not whether a federal court believes the

state court’s determination was incorrect but whether that determination was unreasonable – a

substantially higher threshold.”); Wiggins, 539 U.S. at 520; Price v. Vincent, 538 U.S. 634, 641

(2003) (“[I]t is the habeas applicant’s burden to show that the state court applied that case to the

facts of his case in an objectively unreasonable manner”). “Under the Antiterrorism and Effective

Death Penalty Act, a state prisoner seeking a writ of habeas corpus from a federal court ‘must

show that the state court’s ruling on the claim being presented in federal court was so lacking in

justification that there was an error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.’” Bobby v. Dixon, 565 U.S. 23, 24 (2011) (quoting

Harrington v. Richter, 562 U.S. 86, 101 (2011)).

Legal principles are “clearly established” for purposes of AEDPA review when the

holdings, as opposed to the dicta, of Supreme Court decisions existing at the time of the relevant

state-court decision establish those principles. Brown, 596 U.S. at 136 (“It is not enough that the

state court decision offends lower federal court precedents. This Court’s dicta cannot supply a

ground for relief.” (citation omitted)); Yarborough v. Alvarado, 541 U.S. 652, 660-61 (2004) (“We

look for ‘the governing legal principle or principles set forth by the Supreme Court at the time the

state court renders its decision.’”); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).

AEDPA also significantly restricts the scope of federal habeas review of state court fact

findings. Section 2254(d)(2) of Title 28, United States Code, provides federal habeas relief may

not be granted on any claim that was adjudicated on the merits in the state courts unless the state

court’s adjudication of the claim resulted in a decision based on an unreasonable determination of

the facts in light of the evidence presented in the state court proceeding. Wood v. Allen, 558 U.S.

290, 301(2010) (“[A] state-court factual determination is not unreasonable merely because the

federal habeas court would have reached a different conclusion in the first instance.”); Williams v.

Taylor, 529 U.S. at 410 (“[A]n unreasonable application of federal law is different from an

incorrect application of federal law.”). Even if reasonable minds reviewing the record might

disagree about the factual finding in question (or the implicit credibility determination underlying

the factual finding), on habeas review, this does not suffice to supersede the trial court’s factual

determination. Wood, 558 U.S. at 301; Rice v. Collins, 546 U.S. 333, 341-42 (2006).

In addition, § 2254(e)(1) provides that a federal habeas petitioner challenging state court

factual findings must establish by clear and convincing evidence that the state court’s findings

were erroneous. Schriro, 550 U.S. at 473-74 (“AEDPA also requires federal habeas courts to

presume the correctness of state courts’ factual findings unless applicants rebut this presumption

with ‘clear and convincing evidence.’”); Rice, 546 U.S. 333, 338-39 (2006) (“State-court factual

findings, moreover, are presumed correct; the petitioner has the burden of rebutting the

presumption by ‘clear and convincing evidence.’”); Miller-El v. Dretke, 545 U.S. 231, 240 (2005)

(“[W]e presume the Texas court’s factual findings to be sound unless Miller-El rebuts the

‘presumption of correctness by clear and convincing evidence.’”); 28 U.S.C. §2254(e)(1). It

remains unclear at this juncture whether § 2254(e)(1) applies in every case presenting a challenge

to a state court’s factual findings under § 2254(d)(2). See Wood, 558 U.S. at 300-01 (choosing not

to resolve the issue of § 2254(e)(1)’s possible application to all challenges to a state court’s factual

findings); Rice, 546 U.S. at 339 (likewise refusing to resolve the Circuit split regarding the

application of § 2254(e)(1)).

The deference to which state-court factual findings are entitled under AEDPA does not

imply an abandonment or abdication of federal judicial review. See Miller-El, 545 U.S. at 240

(the standard is “demanding but not insatiable”); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)

(“Even in the context of federal habeas, deference does not imply abandonment or abdication of

judicial review. Deference does not by definition preclude relief.”).

Before a federal court may grant a state prisoner habeas corpus relief on a claim that was

adjudicated on the merits in state court, the petitioner must not only satisfy the requirements of

AEDPA but must also convince the court that the error committed by the state court during its

adjudication of the petitioner’s criminal case was not harmless within the meaning of Brecht v.

Abrahamson, 507 U.S. 619 (1993). Brown v. Davenport, 596 U.S. 118, 122 (2022). In Shinn v.

Jenkins, 596 U.S. 366, 378 (2022), the Supreme Court held that when a federal habeas petitioner

has properly exhausted state court remedies on a federal constitutional claim through direct appeal

or a state habeas corpus proceeding, federal habeas review of that claim is circumscribed in that

the federal court is limited to reviewing the record before the state court that resolved the claim on

the merits and the petitioner must establish that, under Supreme Court precedent, no fair-minded

jurist could have reached the same result as the state court. See also Shoop v. Twyford, 596 U.S.

811, 819-20 (2022) (where a petitioner failed to develop the factual bases for his claims in state

court, he is entitled to present new evidence in support of his claims before the federal habeas court

only in the two limited circumstances outlined in Section 2254(e)(2)); Shinn, 596 U.S. at 371

(holding the same).

Absent a showing that there is an absence of available state corrective process or that

circumstances exist that render such process ineffective to protect the rights of a petitioner, this

Court is statutorily precluded from granting federal habeas corpus relief on any claim that has not

been fairly presented to the state courts. Davila v. Davis, 582 U.S. 521, 527 (2017) (the exhaustion

requirement is designed to avoid the unseemly result of a federal court upsetting a state court

conviction without first affording the state courts an opportunity to correct a constitutional

violation); 28 U.S.C. § 2254(b)(1). Nonetheless, this Court is authorized to deny federal habeas

relief on the merits notwithstanding a petitioner’s failure to exhaust available state court remedies.

See Rhines v. Weber, 544 U.S. 269, 277 (2005) (a federal habeas court abuses its discretion if it

grants a petitioner a stay when his unexhausted claims are plainly meritless); 28 U.S.C. §

2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits,

notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the

State.”).

If the state courts failed to adjudicate a claim on the merits that Perez now presents to this

Court (such as claims (1) the state courts summarily dismissed under the Texas writ-abuse statute

or Texas rules of procedural default or (2) which Perez failed to fairly present to the state courts),

then this Court’s review of the unadjudicated claim is de novo. See Porter v. McCollum, 558 U.S.

30, 39 (2009) (de novo review of the allegedly deficient performance of petitioner’s trial counsel

was necessary because the state court failed to address the prejudice prong of Strickland); Rompilla

v. Beard, 545 U. S. 374, 390 (2005) (de novo review of the prejudice prong of Strickland was

required where the state court rested its rejection of an ineffective assistance claim on the deficient

performance prong and never addressed the issue of prejudice); Wiggins, 539 U.S. at 534 (same).

III. INEFFECTIVE ASSISTANCE CLAIMS

A. Overview of the Claims

In his federal habeas petition Perez Argues that his trial counsel rendered ineffective

assistance by (1) failing to emphasize that Perez’s confessions were rendered involuntary due to

the coercive nature of the complaining witness’s threats to commit suicide if Perez failed to turn

himself in and confess; (2) failing to assert that Perez was mentally incompetent during plea

negotiations with the prosecution; (3) failing to question further on voir dire a venire member who

had two family members who had been sexually abused for the purpose of making a possible

challenge for cause or peremptory strike; and (4) making statements identifying himself as “the

State” and eliciting testimony from a witness which established elements of the prosecution’s

case.

B. State Court Disposition

Perez fairly presented the same four ineffective assistance complaints as his first through

fourth claims in his state habeas application. The TCCA rejected those claims on the merits when

it denied Perez state habeas relief. The state habeas trial court made express factual findings that

(1) both of the affidavits submitted by Perez’s trial counsel (attorneys Hase and Purselley) were

credible; (2) there was no evidence the performance of Perez’s trial counsel fell below an objective

level of reasonableness; and (3) there was no evidence the outcome of Perez’s trial would have

been any different but for the alleged deficient performance of either of his trial counsel.9 The

state habeas trial court also concluded that Perez had failed to prove either that (1) his trial counsel

should have argued that Perez’s confession was involuntary due to the suicidal threats of Perez’s

9 State Habeas Trial Court’s findings, of fact, conclusions of law, and recommendation (henceforth “FFCL”),

at ¶¶ 50-53, p. 9 (ECF no. 10-25, at p. 130).

niece; (2) he was not competent to engage in plea negotiations; (3) his trial counsel’s voir dire of

venire member (and later juror) Forbes was constitutionally deficient; (4) defense attorney

Purselley’s decision to question the victim and forensic interviewer regarding the location where

the alleged abuse took place was reasonably intended to help establish that the crimes with which

Perez was charged took place when he was still a juvenile and not an adult; (5) Perez failed to

show there was a reasonable probability that (a) his confession could have been ruled involuntary

based on the victim’s suicidal threats, (b) the outcome of Perez’s plea negotiations would have

been different had Perez’s trial counsel acted differently, (c) the outcome of Perez’s trial would

have been different had his trial counsel asked venire member Forbes additional voir dire

questions; and (d) the outcome of Perez’s trial would have been any different had attorney

Purselley not asked Perez’s victim and forensic interviewer about the location where some of the

sexual abuse took place; and (6) Perez’s ineffective assistance claims all failed to satisfy the

prejudice prong of Strickland.10

C. Clearly Established Federal Law

Insofar as Perez relies upon the ABA’s Guidelines as setting the appropriate standard for

federal habeas review of a state trial counsel’s performance, those recommendations for the

performance of trial counsel do not set forth the operative standard of judicial review for the

performance of trial counsel. Bobby v. Van Hook, 558 U.S. 4, 8 (2009) (the ABA Guidelines are

“only guides” to what reasonableness means, not its definition); Druery v. Thaler, 647 F.3d 535,

541 n.2 (5th Cir. 2011) (“Best practices urged by the ABA do not necessarily track the contours

of the Sixth Amendment. Consequently, the guidelines do not function as ‘inexorable commands’

with which all capital defense counsel ‘must fully comply.’”).

10 FFCL, ¶¶ 8-13 & 15-21, pp. 11-12 (ECF No. 10-25, at pp. 132-33).

No particular set of detailed rules for counsel’s conduct can satisfactorily

take account of the variety of circumstances faced by defense counsel or the range

of legitimate decisions regarding how best to represent a criminal defendant. Any

such set of rules would interfere with the constitutionally protected independence

of counsel and restrict the wide latitude counsel must have in making tactical

decisions.

Strickland v. Washington, 466 U.S. 668, 688-89 (1984).

The constitutional standard for determining whether a criminal defendant has been denied

the effective assistance of trial counsel, as guaranteed by the Sixth Amendment, was announced

by the Supreme Court in Strickland, 466 U.S. at 687:

A convicted defendant’s claim that counsel’s assistance was so defective as

to require reversal of a conviction or death sentence has two components. First, the

defendant must show that counsel’s performance was deficient. This requires

showing that counsel made errors so serious that counsel was not functioning as the

“counsel” guaranteed the defendant by the Sixth Amendment. Second, the

defendant must show that the deficient performance prejudiced the defense. This

requires showing that counsel’s errors were so serious as to deprive the defendant

of a fair trial, a trial whose result is reliable.

To satisfy the first prong of Strickland, a convicted defendant must show that counsel’s

representation “fell below an objective standard of reasonableness.” Wiggins v. Smith, 539 U.S.

510, 521 (2003); Williams v. Taylor, 529 U.S. 362, 390-91 (2000). In so doing, a convicted

defendant has the burden of proof and must overcome a strong presumption that the conduct of his

trial counsel “falls within [a] wide range of reasonable professional assistance.” Strickland, 466

U.S. at 689. “No particular set of detailed rules for counsel’s conduct can satisfactorily take

account of the variety of circumstances faced by defense counsel or the range of legitimate

decisions regarding how best to represent a criminal defendant.” Bobby, 558 U.S. at 7 (quoting

Strickland, 466 U.S. at 688-89). Under the well-settled Strickland standard, the Supreme Court

recognizes a strong presumption that counsel rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment. See Wiggins, 539 U.S. at 523; Bell

v. Cone, 535 U.S. 685, 698 (2002); Strickland, 466 U.S. at 690.

To satisfy the “prejudice” prong, a convicted defendant must establish a reasonable

probability that, but for the objectively unreasonable misconduct of his counsel, the result of the

proceeding would have been different. Wiggins, 539 U.S. at 534; Strickland, 466 U.S. at 694. A

reasonable probability is a probability sufficient to undermine confidence in the outcome of the

proceeding. Thornell v. Jones, 602 U.S. 154, 163-64 (2024) (quoting Pinholster, 563 U.S. at 189;

Strickland, 466 U.S. at 694. “This requires a substantial, not just conceivable, likelihood of a

different result.” Jones, 602 U.S. at 163; Pinholster, 563 U.S. at 189. This standard does not

require a defendant to show that it is more likely than not that adequate representation would have

led to a better result, but “[t]he difference” should matter “only in the rarest case.” Jones, 602 U.S.

at 163-64 (quoting Strickland, 466 U.S. at 697). To determine whether a prisoner satisfies this

standard, a court must “consider the totality of the evidence before the judge or jury”—both

mitigating and aggravating. Jones, 602 U.S. at 164 (quoting Strickland, 466 U.S. at 695).

In instances in which the state courts failed to adjudicate either prong of the Strickland test

(such as those complaints the state courts summarily dismissed under the Texas writ-abuse statute

or which the petitioner failed to fairly present to the state courts), this Court’s review of the un-

adjudicated prong is de novo. See Porter v. McCollum, 558 U.S. 30, 39 (2009); Rompilla v. Beard,

545 U. S. 374, 390 (2005).

Under the AEDPA’s deferential standard of review, claims of ineffective assistance

adjudicated on the merits by a state court are entitled to a doubly deferential form of federal habeas

review. The AEDPA, by setting forth necessary predicates before state-court judgments may be

set aside, “erects a formidable barrier to federal habeas relief for prisoners whose claims have been

adjudicated in state court.” Burt v. Titlow, 571 U.S. 12, 19 (2013). Under 28 U.S.C. § 2254(d)(1),

“‘a state prisoner must show that the state court’s ruling on the claim being presented in federal

court was so lacking in justification that there was an error well understood and comprehended in

existing law beyond any possibility for fairminded disagreement.’” White v. Wheeler, 577 U.S.

73, 77 (2015) (quoting White v. Woodall, 572 U.S. 415, 419-20 (2014)); Harrington v. Richter,

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

The pivotal question is whether the state court’s application of the

Strickland standard was unreasonable. This is different from asking whether

defense counsel’s performance fell below Strickland’s standard. Were that the

inquiry, the analysis would be no different than if, for example, this Court were

adjudicating a Strickland claim on direct review of a criminal conviction in a United

States district court. Under AEDPA, though, it is a necessary premise that the two

questions are different. For purposes of § 2254(d)(1), “an unreasonable application

of federal law is different from an incorrect application of federal law.” A state

court must be granted a deference and latitude that are not in operation when the

case involves review under the Strickland standard itself.

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. And as this Court has explained, “[E]valuating whether

a rule application was unreasonable requires considering the rule’s specificity. The

more general the rule, the more leeway courts have in reaching outcomes in case-

by-case determinations. “[I]t is not an unreasonable application of clearly

established Federal law for a state court to decline to apply a specific legal rule that

has not been squarely established by this Court.”

Harrington, 562 U. S. at 101 (Citations omitted).

D. AEDPA Review

Because the TCCA rejected all of Perez’s ineffective assistance claims on the merits in the

course of his state habeas proceeding, the highly deferential AEDPA standard of review applies to

all of his ineffective assistance claims herein.

1. Failing to Assert the Victim’s Suicidal Threats Rendered Perez’s Confession

Involuntary

a. The Complaint

Perez argues in his first ground for federal habeas relief that his trial counsel should have

emphasized the fact that the complaining witness, Perez’s niece, threatened to commit suicide

unless Perez turned himself in and confessed that he had sexually abused her for many years, He

contends his trial court erred in emphasizing, instead, that Perez was suffering from a mental illness

(depression) at the time Perez made his confessions to police.

b. State Court Findings and Conclusions

On direct appeal, the Texas Court of Appeals pointed out in a footnote in its opinion

affirming Perez’s conviction and sentence that because Perez alleged no coercive misconduct on

the part of any law enforcement officer in regard to Perez’s confessions, Perez had no arguable

constitutional due process complaint arising from the fact his niece, i.e., his victim, had threatened

to harm herself unless Perez turned himself in and confessed to what he had done. Perez, 2020

WL 6788196, *6 n.6 (“coercive police activity is a necessary predicate to the finding that a

confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth

Amendment.” (quoting Colorado v. Connelly, 479 U.S. 157, 167 (1986)).

The state habeas court made findings of fact and conclusions of law in the course of Perez’s

state habeas corpus proceeding that there was nothing objectively unreasonable, or “prejudicial”

within the meaning of Strickland, about his trial counsels’ failure to argue that Perez’s confession

was rendered involuntary because it was the result of Perez’s victim threatening to kill herself.11

11 FFCL, ¶¶ 27-28 & ¶¶ 52-52, pp. 7 & 9 [ECF No. 1025, at pp. 128 & 130] and ¶¶ 8 & 15, p. 11 [ECF No.

10-25, at p. 132].

c. Analysis

Both the Texas Court of Appeals in its opinion affirming Perez’s conviction and sentence

and the state habeas trial court in its conclusions of law in Perez’s state habeas proceeding correctly

concluded that Perez’s complaint that his confession was rendered involuntary by his victim’s

threat to commit suicide was constitutionally invalid. Thus, the premise underlying this ineffective

assistance claim is fallacious and without arguable merit.

Due process precludes admission of a confession where a defendant’s will is overborne by

the circumstances of the interrogation. See Schneckloth v. Bustamante, 412 U.S. 218, 226 (1973).

Custodial police interrogation entails inherently compelling pressures and coercive aspects. See

J.D.B. v. North Carolina, 564 U.S. 261, 268-70 (2011); Dickerson v. United States, 530 U.S. 428,

435 (2000) (“police interrogation, by its very nature, isolates and pressures the individual”);

Miranda v. Arizona, 384 U.S. 436, 439 (1966) (holding the coercion inherent in custodial

interrogation blurs the line between voluntary and involuntary statements and heightens the risk

that an individual will not be accorded his privilege against self-incrimination).

But, absent coercive police conduct causally related to a defendant’s confession, there is

no basis for concluding that any state actor has deprived a criminal defendant of due process of

law. See Colorado v. Connelly, 479 U.S. 157, 164 (1986). A defendant’s mental condition, by

itself and apart from its relation to official coercion, does not dispose of the inquiry into

constitutional voluntariness. See id. And the record here contains no fact-specific allegation, much

less any evidence, establishing that any state agent applied any coercive device, tactic, or

maneuver to compel Perez to consent against his will to be interviewed by either Detective Tenorio

or officer Vasquez. Perez did not allege any facts, and furnished the state courts with no evidence,

showing that his victim’s threats to harm herself were made at the behest of, or in conjunction

with, any effort by a state actor to compel Perez to confess.

It is well-settled in this Circuit that a failure to make a futile or meritless objection or

motion or the failure to raise a meritless claim cannot form the basis for a finding of deficient

performance under Strickland. See Guidry v. Lumpkin, 2 F.4th 472, 491 (5th Cir. 2021) (defense

counsel cannot be ineffective for failure to raise a meritless claim), cert. denied, 143 S. Ct. 1212

(2022); Evans v. Davis, 875 F.3d 210, 219 (5th Cir. 2017) (“Obviously, counsel is not deficient

for failing to make meritless suppression motions.”); Segundo v. Davis, 831 F.3d 345, 350-51 (5th

Cir. 2016) (counsel not ineffective for filing to raise a meritless claim); Reed v. Stephens, 739 F.3d

753, 778 (5th Cir. 2014) (failure to assert a meritless objection is not grounds for deficient

performance (citing Clark v. Thaler, 673 F.3d 410, 427 (5th Cir. 2012)); Roberts v. Thaler, 681

F.3d 597, 612 (5th Cir. 2012) (failure to lodge futile objections does not qualify as ineffective

assistance).

Perez’s contention that his confessions were rendered involuntary by virtue of his victim’s

threats to kill herself is without arguable merit. There was nothing objectively unreasonable with

the decision by Perez’s trial counsel not to make a futile, meritless, legal argument. The state

habeas court reasonably concluded this ineffective assistance claim failed to satisfy the deficient

performance prong of Strickland.

Likewise, the state habeas court reasonably concluded this ineffective assistance complaint

failed to satisfy the prejudice prong of Strickland. See Young v. Davis, 835 F.3d 520, 528 n.36

(5th Cir. 2016) (failure to raise a meritless claim did not prejudice defendant within the meaning

of Strickland); Garza v. Stephens, 738 F.3d 559, 677 (5th Cir. 2013) (failure to attempt to introduce

inadmissible evidence did not prejudice the defendant); Paredes v. Quarterman, 574 F.3d 281,

291 (5th Cir. 2009) (failure to make a meritless objection did not prejudice defendant); United

States v. Kimler, 167 F.3d 889, 873 (5th Cir. 1999) (failure to raise a meritless argument was not

prejudicial because the outcome of the proceeding would not have been different had the attorney

raised the issue); Teague v. Scott, 60 F.3d 1167, 1174 (5th Cir. 1995) (state appellate counsel’s

failure to raise a claim on direct appeal that lacked merit did not prejudice the defendant under

Strickland); Smith v. Puckett, 907 F.2d 581, 585 (5th Cir. 1990) (failure to challenge identification

procedure did not prejudice defendant where there was no evidence the identification procedure

was suggestive).

For the foregoing reasons, the state habeas court’s denial on the merits of Perez’s first claim

herein (which corresponds with his first claim in his state habeas application) was neither contrary

to, nor involved an unreasonable application of, clearly established Federal law, as determined by

the Supreme Court of the United States, nor resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence presented in Perez’s trial, state

direct appeal, and state habeas proceedings. Under the AEDPA, Perez’s first claim herein does

not warrant federal habeas corpus relief.

2. Failing to Assert Perez was Mentally Incompetent During Plea Negotiations

a. The Complaint

In his second ineffective assistance claim herein, Perez argues that his trial counsel should

have argued that Perez was not mentally competent throughout the time frame in which Perez

refused to accept the prosecution’s settlement offers.

b. State Court Findings and Conclusions

As explained in Section I.A. above, the Texas Court of Appeals reviewed the record from

Perez’s trial court proceedings and concluded that (1) two months after he gave his confession,

Perez was evaluated and found to be competent to stand trial despite his depression; (2) a month

later, Dr. Norman concluded Perez was incompetent to stand trial; (3) a year later, the mental

health professionals at the facility where Perez had been committed reported Perez was still

incompetent to stand trial; (4) a month or so later, however, the trial court determined Perez was

competent to stand trial; and (5) Perez did not stand trial for almost another year, i.e., in April

2019. Perez, 2020 WL 6788196, *2.

Perez’s trial counsel (i.e., attorneys Hase and Purselley) furnished the state habeas court

with affidavits. Attorney Hase stated in his affidavit, in pertinent part, that (1) Perez was fully able

to communicate with attorney Hase on May 30, 2018, less than 30 days after Perez had been

declared competent by a mental health professional; (2) attorney Hase met with Perez multiple

times in June 2018 to discuss the prosecution’s plea offer and, later the same month, wrote Perez

a letter further elaborating on the plea offer; (3) attorney Hase met with Perez multiple times in

July 2018 and again in August, September, and October 2018, during which Perez was able to

discuss his case; (4) during an October 8, 2018 meeting between attorney Hase and Perez in the

courtroom, Perez reviewed the forensic interview of the victim; (5) during an October 16, 2018

meeting between attorney Hase and Perez, Perez instructed Hase to make the prosecution a

counter-offer regarding the plea bargain offer Hase had previously discussed with Perez; (6) later

the same day Perez communicated to Hase that he wanted to change his plea to not guilty by reason

of insanity; (7) Hase then requested and obtained a new mental health evaluation from a court-

appointed defense expert; (8) the court-appointed psychologist reported to Hase that Perez did not

meet the legal definition of insanity at the time of his offense; (9) Hase continued to discuss the

case with Perez, meeting multiple times in November 2018, including discussing Perez’s desire to

plead to a ten-year sentence; (10) in December 2018, Perez requested and obtained a meeting with

the trial judge, who explained to Perez that double jeopardy principles did not apply to the charges

against Perez; (11) Perez then suggested to the trial judge that he might waive a jury trial but the

prosecution explained that the prosecution would not waive a jury trial; (12) Perez rejected the

prosecution’s offer of a thirty-year sentence; and (13) attorney Purselley, a former prosecutor,

joined the defense team in February 2019.12 In his affidavit, attorney Purselley stated, in part, that

Perez “was attentive and engaged in his defense and provided his input at various times during the

trial.”13

The state habeas trial court expressly found that Perez had failed to present any evidence

to support his claim that he did not have the ability to make a rational and informed decision to

accept a plea after he was found competent to stand trial.14 The state habeas trial court concluded

that (1) Perez failed to prove he was not competent during the plea bargain process; (2) Perez failed

to show that his trial counsels’ representation fell below an objective standard of reasonableness;

and (3) Perez failed to show there is a reasonable likelihood that the result of his trial would have

been different had counsel acted differently during the plea bargain process.15

c. Analysis

Having reviewed the entirety of the state court records from Perez’s trial, direct appeal,

and state habeas corpus proceedings, this Court concludes the state habeas court’s factual finding

that Perez presented no evidence showing that he was mentally incompetent during plea

negotiations is fully supported by the record before that court, specifically the affidavit of attorney

12 Hase affidavit at pp. 2-6 [ECF No. 10-25, at pp. 114-19].

13 Purselley affidavit, at p. 2 [ECF No. 10-25, at p. 109].

14 FFCL, ¶ 30, p. 7 [ECF No. 10-25, p. 128].

15 FFCL, ¶¶ 9, 13, 16, 21, pp. 11-12 [ECF No. 10-25, pp. 132-33].

Hase. Perez offered the state habeas court no specific facts, much less any evidence, showing that

he was mentally incompetent during the many months of 2018 during which the parties attempted

unsuccessfully to negotiate a plea bargain. Attorney Hase’s affidavit detailed months of

conferences with Perez. Nothing in that affidavit suggested Perez was in any way unable to fully

comprehend and respond to the plea bargains offered by the prosecution. On the contrary, attorney

Hase described Perez as making a counteroffer to the prosecution, raising a possible a double

jeopardy claim, and suggesting the possibility of waiving a jury trial. Perez does not attempt to

contradict or refute the factual accuracy of attorney Hase’s description of Perez’s actions during

the plea negotiations. Perez’s behavior, as described by attorney Hase, fully supported the state

habeas court’s finding that Perez failed to present any controverting evidence to that court on this

point.

Simply put, Perez fails to allege any specific facts in his pleadings in this Court which cast

any doubt on his mental competency during the plea bargain process. Perez’s conclusory assertion

that he was not competent during the plea bargain process is refuted by the highly detailed account

of those negotiations contained in attorney Hase’s affidavit. Conclusory assertions of ineffective

assistance will not support a claim of ineffective assistance of counsel.

Rule 2(c)(2) of the Rules Governing Section 2254 Cases in the United States District

Courts requires that the petition “state the facts supporting each ground.” This is very different

from the “notice pleading” requirement of Rule 8, FED. R. CIV. P. See Murphy v. Dretke, 416 F.3d

427, 436-38 (5th Cir. 2005) (holding generic reference to individual voir dire of entire jury venire

insufficient to support a Batson claim (citing Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990)

(conclusory allegations fail to establish a valid claim of ineffective assistance of counsel)); and

Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983) (conclusory allegations do not raise a

constitutional issue in a habeas proceeding)). The Fifth Circuit has reaffirmed this rule in a wide

variety of contexts. See, e.g., Fahle v. Cornyn, 231 F.3d 193, 196-97 (5th Cir. 2000) (conclusory

due process allegations that petitioner was denied the presumption of innocence insufficient to

support claims for federal habeas relief); Little v. Johnson, 162 F.3d 855, 862 (5th Cir. 1998)

(conclusory assertions regarding alleged destruction of exculpatory evidence failed to show State

destroyed the evidence in bad faith, i.e., with knowledge of its exculpatory value); Perillo v.

Johnson, 79 F.3d 441, 444 (5th Cir. 1996) (“A habeas petitioner must make specific allegations;

‘conclusory allegations unsupported by specific facts’ or ‘contentions that in the face of the record

are wholly incredible’ will not entitle one to discovery or a hearing.” (quoting Blackledge v.

Allison. 431 U.S. 63, 74 (1977)).

It is well-settled in this Circuit that conclusory allegations will not support a claim of

ineffective assistance of counsel. See Harper v. Lumpkin, 64 F.4th 684, 691-92 (5th Cir. 2023);

United States v. Demik, 489 F.3d 644, 646 (5th Cir. 2007); Collier v. Cockrell, 300 F.3d 577, 587

(5th Cir. 2002); Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000); Barnard v. Collins, 958 F.2d

634, 642 n.11 (5th Cir. 1992).

Perez has failed to present this Court with any fact specific allegations, much less clear and

convincing evidence, showing the state habeas court’s factual finding was erroneous. Thus, under

Section 2254(e)(1), that finding binds this federal habeas court. Schriro, 550 U.S. at 473-74

(“AEDPA also requires federal habeas courts to presume the correctness of state courts’ factual

findings unless applicants rebut this presumption with ‘clear and convincing evidence.’”); Rice,

546 U.S. 333, 338-39 (2006) (“State-court factual findings, moreover, are presumed correct; the

petitioner has the burden of rebutting the presumption by ‘clear and convincing evidence.’”);

Miller-El, 545 U.S. at 240 (“[W]e presume the Texas court’s factual findings to be sound unless

Miller-El rebuts the ‘presumption of correctness by clear and convincing evidence.’”); 28 U.S.C.

§2254(e)(1).

As explained above, the failure of a trial counsel to make a meritless argument is neither

deficient performance nor prejudicial within the meaning of Strickland. Guidry, 2 F.4th at 491

(5th Cir. 2021) (defense counsel cannot be ineffective for failure to raise a meritless claim); Young,

835 F.3d at 528 n.36 (failure to raise a meritless claim did not prejudice defendant within the

meaning of Strickland). Under such circumstances, the state habeas court reasonably concluded

that Perez’s second ineffective assistance claim failed to satisfy either prong of Strickland.

For the foregoing reasons, the state habeas court’s denial on the merits of Perez’s second

claim herein (which corresponds with his second claim in his state habeas application) was neither

contrary to, nor involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States, nor resulted in a decision that was based

on an unreasonable determination of the facts in light of the evidence presented in Perez’s trial,

state direct appeal, and state habeas proceedings. Under the AEDPA, Perez’s second claim herein

does not warrant federal habeas corpus relief.

3. Failing to Question Further on Voir Dire, Challenge for Cause, or Peremptorily

Strike Venire Member Forbes

a. The Complaint

In his third ineffective assistance claim herein, Perez argues that because venire member

Forbes disclosed during voir dire that she had two sisters who had been sexually abused, his trial

counsel should have either questioned venire member Forbes further during voir dire (with an eye

toward making a challenge for cause) or used a peremptory strike against this venire member.

b. State Court Findings and Conclusions

In his affidavit, in pertinent part, attorney Hase stated that (1) he and co-counsel Purselley

reviewed the juror questionnaires filled out by the venire members with Perez; (2) Perez also was

present and heard the voir dire questioning of the venire members; (3) he and Purselley conferred

with Perez regarding the defense’s peremptory challenges; (4) Perez never requested that venire

member Forbes be stricken peremptorily; and (5) venire member Forbes gave multiple

questionnaire answers which Hase believed made her a potentially favorable juror, including the

fact she ranked rehabilitation first among the goals of the criminal justice system and she indicated

that she would evaluate the credibility of a child witness under the same standard as that of an

adult witness.16

The state habeas trial court made express factual findings that (1) venire member Forbes

indicated that she strongly believed in the presumption of innocence; (2) venire member Forbes

indicated that two of her older sisters had been sexually abused but she had no knowledge of same

at the time; (3) venire member Forbes indicated that she believed rehabilitation was the primary

goal of the criminal justice system and that she would give a child’s testimony the same weight as

that of an adult; (4) Perez never indicated to his defense counsel that he wanted venire member

Forbes stricken peremptorily; (5) there was no credible evidence that further question of venire

member Forbes would have demonstrated that she was subject to a challenge for cause; and (6)

there was no credible evidence that defense counsels’ decision not to use a peremptory challenge

against venire member Forbes was deficient performance.17 The state habeas trial court concluded

(1) Perez failed to prove that his counsel’s voir dire of venire member Forbes constituted deficient

16 ECF no. 10-25, at pp, 116-17.

17 FFCL, ¶¶ 31-39, pp. 6-7 [ECF no. 10-25, at pp. 127-28].

performance; and (2) Perez failed to prove there was a reasonable probability of a different result

to his trial had his trial counsel either asked venire member Forbes additional questions during voir

dire or used a peremptory challenge on venire member Forbes.18

c. Analysis

Perez failed to present the state habeas court with an affidavit or any other evidence

controverting the factual accuracy of the affidavit of attorney Hase. Likewise, Prez failed to

present the state habeas court with any specific facts showing that the decisions by Perez’s defense

counsel not to question venire member Forbes further during voir dire, not to challenge venire

member Forbes for cause, and not to employ a peremptory challenge against venire member Forbes

caused the performance of said counsel to fall outside the broad range of objectively reasonable

trial strategy. This Court finds no clear and convincing evidence currently exists in the record

which casts any doubt on the accuracy of the state habeas court’s factual findings.

The selection of a jury is more of an art than a science. Romero v. Lynaugh, 884 F.2d 871,

878 (5th Cir. 1989) (recognizing that “the selection of a jury is, inevitably, a call upon experience

and intuition” where trial counsel “must draw upon his own insight and empathic abilities”). A

trial counsel’s actions during voir dire are considered to be a matter of trial strategy; such decisions

cannot be the basis for an IAC claim unless trial counsel’s tactics are shown to be so ill-chosen

that they permeate the entire trial with obvious unfairness. Teague v. Scott, 60 F.3d 1167, 1172

(5th Cir. 1995). As for the bias of a prospective juror, such does not constitutionally disqualify

him or her from sitting on a case “if the juror can lay aside his impression or opinion and render a

verdict based on the evidence presented in court.” Irvin v. Dowd, 366 U.S. 717, 722 (1961). As

explained below, Perez has not alleged any specific facts which demonstrate venire member

18 FFCL, ¶¶ 10, 17 & 18, pp. 11-12 [ECF no. 10-25, at pp. 132-33].

Forbes possessed constitutionally disqualifying bias. Nor has Perez alleged any specific facts

showing that the existence of disqualifying bias could have been disclosed through additional voir

dire questioning of venire member Forbes. As explained above, conclusory assertions will not

support a finding of ineffective assistance. See Harper, 64 F.4th at 691-92; Demik, 489 F.3d at

646; Collier, 300 F.3d at 587; Miller, 200 F.3d at 282; Barnard, 958 F.2d at 642 n.11.

Perez’s trial counsel listed objectively reasonable reasons (i.e., her juror questionnaire and

voir dire answers) for believing that venire member Forbes could be favorably disposed toward

the defense, thus making her a potentially better choice for a juror than other members of the jury

venire.

Perez’s naked assertion that venire member Forbes was constitutionally disqualified as

biased is meritless. At no point during their voir dire examination did Forbes that she was unable

to set aside their personal relationships with family members who had been sexually abused and

render a verdict based solely on the evidence presented at trial and the law as instructed by the trial

court. This is all the Constitution requires from potential jurors. Irvin, 366 U.S. at 722. Under

such circumstances, the TCCA could reasonably have concluded during Perez’s state habeas

proceeding that there was nothing objectively unreasonable with the decision by Perez’s trial

counsel not to raise a challenge for cause to, or peremptorily strike, venire member Forbes. The

TCCA could also have reasonably concluded Perez was not prejudiced within the meaning of

Strickland by his trial counsel’s failure to challenge venire member Forbes for cause, questions

Forbes more about her sisters’ experiences, or failing to exercise a peremptory challenge against

Forbes. As explained above in Section I, the evidence of Perez’s guilt was overwhelming. Perez

furnished the jury in his own words with overwhelming evidence of the essential elements of the

offenses with which he had been charged.

Insofar as Perez suggests that venire member Forbes was implicitly biased against him,

Perez misperceives the standard for evaluating a potential juror for bias and for disqualification of

a venire member for cause. Likewise, insofar as Perez contends that he was entitled to a jury

venire or jury that was totally ignorant of the facts of his case prior to trial and totally unfamiliar

with any person who had ever been the victim of child sexual abuse, he is in error. Pretrial

ignorance of the facts of a case by jurors is not the standard for determining whether a defendant

has been afforded his constitutional right to an impartial jury. See Tsarnaev v. United States, 142

S. Ct. 1024, 1034 (2022) (“The right to an ‘impartial’ jury ‘does not require ignorance.’” (citing

Skilling v. United States, 561 U.S. 358, 381 (2010)). Notorious crimes are, almost as a matter of

necessity, brought to the attention of those informed citizens who are best fitted for jury duty.

Tsarnaev, 142 S. Ct. at 1034 (citing Reynolds v. United States, 98 U.S. 145, 155-56 (1879)). A

trial court protects the defendant’s Sixth Amendment right to an impartial jury by ensuring that

jurors have no bias or prejudice that would prevent them from returning a verdict according to the

law and evidence. Tsarnaev, 142 S. Ct. at 1034 (citing Connors v. United States, 158 U.S. 408,

413 (1895)).

Perez obliquely argues this Court should imply the existence of disqualifying bias because

of Forbes’s familial relationships with two persons who had been the victims of sexual abuse. The

Fifth Circuit, which adopted a rule regarding implicit bias in Brooks v. Dretke, 444 F.3d 328, 331

(5th Cir. 2006), has explained its doctrine of implied bias as follows:

Implied bias . . . exists when “no reasonable person could not be affected

in his actions as a juror.” Brooks, 444 F.3d at 331. In these extreme situations, “the

Constitution refuses to accept any assurances to the contrary.” Id. In other words,

“[w]here a juror has a close connection to the circumstances at hand ... bias may be

presumed as a matter of law.” Buckner, 945 F.3d at 910 (citing Brooks, 444 F.3d at

330).

Smith v. Phillips is the leading Supreme Court case considering a claim of

implied juror bias. 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982); see also

Remmer v. United States, 350 U.S. 377, 76 S.Ct. 425, 100 L.Ed. 435 (1956);

Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954). The

Court in Smith declined to presume bias as a matter of law when a juror in a murder

trial applied for a job in the district attorney's office, a fact not disclosed until after

the conviction. Smith, 455 U.S. at 213, 221, 102 S.Ct. 940. In a concurring opinion,

Justice O'Connor clarified that despite the Court's holding, there are “some extreme

situations that would justify a finding of implied bias” and outlined three such

examples:

... a revelation that the juror is an actual employee of the prosecuting

agency, that the juror is a close relative of one of the participants in

the trial or the criminal transaction, or that the juror was a witness

or somehow involved in the criminal transaction.

Id. at 222 (O'Connor, J., concurring). When considering claims of implied juror

bias, this court routinely looks to the examples in Justice O’Connor’s concurrence.

E.g., Buckner, 945 F.3d at 912–14; Uranga v. Davis, 893 F.3d 282, 288–89 (5th

Cir. 2018); Morales v. Thaler, 714 F.3d 295, 299 (5th Cir. 2013); Brooks, 444 F.3d

at 30-31; Solis v. Cockrell, 342 F.3d 392, 396 (5th Cir. 2003); Andrews v. Collins,

21 F.3d 612, 620 (5th Cir. 1994); United States v. Scott, 854 F.2d 697, 699 (5th Cir.

1988).

Craaybeek v. Lumpkin, 855 F. App’x 943, 946-47 (5th Cir. June 17, 2021).

Like the juror in Craaybeek whom the Fifth Circuit determined was not subject to the

implied bias doctrine (the juror in that case was a former law enforcement officer), Forbes was not

employed by the prosecuting agency; Forbes did not have a close relative who was a participant

in Perez’s trial or involved in the criminal transaction; and Forbes was not a witness or otherwise

involved in the criminal transaction. The juror found to be implicitly biased in Brooks was arrested

for carrying a handgun into the courthouse on the first day of the punishment phase of Brooks’

capital murder trial. Perez alleges no facts showing that at the time of Perez’s trial Forbes was

subject to the same or similar legal proceedings as the juror in Brooks.19 Thus, the Fifth Circuit’s

doctrine of implied bias has no application to Forbes.

19 In Brooks, a Bexar County jury convicted the defendant of capital murder for his role in a robbery/fatal

shooting in the course of an illicit marijuana sale. More specifically, during a weekend recess at the conclusion of the

guilt-innocence phase of Brooks’ trial, the state trial court allowed jurors to return to their homes. One of the jurors

was a traveling salesman who spent that weekend traveling his route through South Texas. He carried a handgun with

him for personal security reasons and kept it in a valise in which he kept business-related documents. The juror later

testified he forgot to remove his handgun, which he had in his valise, when he returned home on Sunday. The

following Monday morning, when the juror brought the valise with him into the courthouse, he was detained by

A trial judge’s appraisal of potential bias among prospective jurors is entitled to

considerable deference because it is influenced by a host of factors impossible to capture fully in

the record, such as the prospective juror's inflection, sincerity, demeanor, candor, body language,

and apprehension of duty. See Tsarnaev, 142 S. Ct. at 1034 (citing Skilling, 561 U.S. at 386).

Logically, the same deference is due a trial counsel’s subjective evaluation of the demeanor of

potential jurors. Romero, 884 F.2d at 878 (recognizing that “the selection of a jury is, inevitably,

a call upon experience and intuition” where trial counsel “must draw upon his own insight and

empathic abilities”). Perez does not allege any specific facts which establish that the conduct of

his trial counsel during jury selection was objectively unreasonable.

Perez has failed to overcome the presumption that the strategic decisions of trial counsel

during jury selection fell outside the broad range of objectively reasonable legal representation.

Forbes gave juror questionnaire answers and voir dire answers from which Perez’s trial counsel

could reasonably have believed Forbes would be favorably disposed toward the defense, or at least

more favorably disposed toward the defense than some of the other venire members.

The TCCA could reasonably have concluded during Perez’s state habeas proceeding that

this ineffective assistance claim failed to satisfy either prong of Strickland. Accordingly, the

TCCA’s rejection on the merits of Forbes’s third claim herein (which corresponds with his third

claim in his state habeas application) was neither contrary to, nor involved an unreasonable

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

courthouse security and arrested for bringing a weapon into the courthouse. After a hearing outside the presence of

the remaining jurors, the state trial court allowed the punishment phase of Brooks’ capital murder trial to continue

with the juror remaining on the jury. The Fifth Circuit held that this scenario created a situation in which bias favorable

to the prosecution had to be implied. The Fifth Circuit vacated Brooks’ death sentence, holding the prosecution’s

power over the juror presented an intolerable risk to Brooks’ right to an impartial jury. Brooks, 444 F.3d at 331. Perez

alleges no specific facts which indicate venire member Forbes was subject to prosecution for any criminal offense at

the time of Perez’s trial.

States, nor resulted in a decision that was based on an unreasonable determination of the facts in

light of the evidence presented in Perez’s trial, state direct appeal, and state habeas proceedings.

Under the AEDPA, Perez’s third claim herein does not warrant federal habeas corpus relief.

4. Questioning the Victim Re the Location of the Offense

a. The Complaint

In his fourth and final ineffective assistance complaint, Perez argues that his trial co-

counsel rendered ineffective assistance by questioning the complaining witness and forensic

interviewer about the location of some of the acts of sexual abuse detailed in their direct testimony.

Perez argues this line of questions actually helped the prosecution prove its case against Pere.

b. State Court Findings and Conclusions

In his affidavit submitted to the state habeas court, attorney Purselley explained in detail

that (1) while he accidentally referred to himself as “the State” at several points during Perez’s

trial, those misstatements (a) were unintentional, (b) reflected the fact that he had long been a

prosecutor and had only recently begun handling defense work, (c) consistently produced chuckles

from everyone else in the courtroom, and (d) did not in any way result in any confusion about

which party he represented at Perez’s trial; (2) one of the defense’s theories at Perez’s trial was

that all of the acts the complaining witness and forensic interviewer described to the jury took

place when Perez was still a juvenile; (3) his questions to both the complaining witness and

forensic interviewer about the locations of many of the acts described by the complaining witness

were intended to elicit information supporting the defense’s theory that Perez’s acts of sexual

abuse took place when he was still a juvenile and, therefore, could not support the adult charges

against Perez; and (4) his questions about the locations of various acts was consistent with the

defense’s theory of the case and dovetailed with the fact the defense was able to request and obtain

trial court jury instructions directing the jury to disregard any actions of the defendant which took

place while the defendant was still a juvenile.20

The state habeas trial court expressly found that (1) attorney Purselley asked questions

about whether certain acts took place at the victim’s grandmother’s residence because any such

acts would have arguably taken place while Perez was a juvenile; (2) it was, therefore, a reasonable

trial strategy to ask the victim and forensic interviewer for the location of certain acts by Perez;

(3) Purselley’s accidental references to himself as “the State” had no effect on the outcome of the

trial because everyone knew Purselley was representing Perez at trial; (4) Purselley’s affidavit was

credible, as was attorney Hase’s affidavit; and (5) there was no evidence the outcome of Perez’s

trial would have been different but for the alleged misconduct of his trial counsel.21 The state

habeas trial court concluded that Perez’s complaints about the performance of his trial counsel

failed to satisfy either prong of Strickland.22

c. Analysis

The evidence of Perez’s guilt was overwhelming. As explained above, his written and

recorded oral confessions proved the prosecution’s case for it. The complaining witness and

forensic examiner gave trial testimony that confirmed Perez’s confessions.

The efforts of Perez’s trial co-counsel to obtain testimony on cross-examination which

showed that some of the misconduct alleged against Perez had occurred at the residence of the

victim’s grandmother was an objectively reasonable attempt by defense counsel to convince the

jury to disregard at least some of the specific instances of sexual misconduct alleged against Perez.

20 ECF No. 10-25, at p. 109.

21 FFCL ¶¶41-53, at pp. 8-9 [ECF No. 10-25, pp. 129-30].

22 FFCL, ¶¶ 11-21, pp. 12-12 [ECF No. 10-25, at pp. 132-33].

As such, the state habeas court could reasonably have believed that the cross-examination

questioning of the complaining witness and forensic examiner by defense attorney Purselley was

an objectively reasonable part of a reasonable trial strategy. Likewise, the state habeas trial court

could reasonably have concluded that none of Perez’s complaints in his fourth ineffective

assistance claim for state (and federal) habeas relief satisfied the prejudice prong of Strickland.

The TCCA could reasonably have concluded during Perez’s state habeas proceeding that

this ineffective assistance claim failed to satisfy either prong of Strickland. Accordingly, the

TCCA’s rejection on the merits of Forbes’s fourth and final claim herein (which corresponds with

his fourth and final claim in his state habeas application) was neither contrary to, nor involved an

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

of the United States, nor resulted in a decision that was based on an unreasonable determination

of the facts in light of the evidence presented in Perez’s trial, state direct appeal, and state habeas

proceedings. Under the AEDPA, Perez’s fourth claim herein does not warrant federal habeas

corpus relief.

E. Alternatively, No Relief Under De Novo Review

Alternatively, out of an abundance of caution, this Court has undertaken de novo review of

all of Perez’s ineffective assistance claims and concludes none of those claims satisfy the prejudice

prong of Strickland. Perez’s trial counsel ably obtained instructions directing the jury to disregard

any evidence of Perez’s sexual abuse of his niece that took place prior to Perez reaching adulthood.

Still the evidence of Perez’s guilt was overwhelming. His own confessions proved the

prosecution’s case. When evidence of guilt is overwhelming, there is usually no legitimate basis

for a finding of prejudice under Strickland. See Jones, 602 U.S. at 165 (where the aggravating

factors greatly outweigh the mitigating evidence, there may be no reasonable probability of a

different result); Harper, 64 F.4th at 699 (overwhelming evidence made it unlikely erroneous

admission of expert testimony was prejudicial within the meaning of Strickland). Even under a de

novo standard, none of Perez’s ineffective assistance claims warrant federal habeas relief.

IV. REQUEST FOR A FEDERAL EVIDENTIARY HEARING

Perez requests that this Court afford him an evidentiary hearing where he can present new

evidence in support of his claims for federal habeas relief. Insofar as Perez’s claims in this federal

habeas corpus proceeding were disposed of on the merits during the course of his direct appeal or

state habeas corpus proceedings, he is not entitled to a federal evidentiary hearing to develop new

evidence attacking the state appellate or state habeas court’s resolution of his claims unless he can

satisfy 28 U.S.C. § 2254(e)(2). Shinn v. Ramirez, 596 U.S. 366, 371-72 (2022) (in all but the

extraordinary situations listed in § 2254(e)(2), a federal habeas petitioner who failed to develop

facts in state court supporting his claim is not entitled to an evidentiary hearing in federal court).

Likewise, a federal habeas petitioner is not entitled to an evidentiary hearing for the purpose of

showing that his failure to develop facts in the state court was the result of the ineffective assistance

of his state habeas counsel. Id., 596 U.S. at 381-91.

Under AEDPA, the proper place for development of the facts supporting a federal habeas

claim is the state court. See Harrington, 562 U. S. at 103 (“Section 2254(d) thus complements the

exhaustion requirement and the doctrine of procedural bar to ensure that state proceedings are the

central process, not just a preliminary step for a later federal habeas proceeding.”); Hernandez v.

Johnson, 108 F.3d 554, 558 n.4 (5th Cir. 1997) (holding AEDPA clearly places the burden on a

federal habeas petitioner to raise and litigate as fully as possible his federal claims in state court).

Where a petitioner’s claims have been rejected on the merits, further factual development in federal

court is effectively precluded by virtue of the Supreme Court’s holding in Cullen v. Pinholster,

563 U. S. 170, 181-82 (2011):

We now hold that review under § 2254(d)(1) is limited to the record that

was before the state court that adjudicated the claim on the merits. Section

2254(d)(1) refers, in the past tense, to a state-court adjudication that “resulted in” a

decision that was contrary to, or “involved” an unreasonable application of,

established law. This backward-looking language requires an examination of the

state-court decision at the time it was made. It follows that the record under review

is limited to the record in existence at that same time i.e., the record before the state

court.

Thus, Perez is not entitled to a federal evidentiary hearing on any of his claims which were

rejected on the merits by the state courts, either on direct appeal or during his state habeas corpus

proceedings. Shinn, 596 U.S. at 371; Halprin v. Davis, 911 F.3d 247, 255 (5th Cir. 2018) (“If a

claim has been adjudicated on the merits by a state court, a federal habeas petitioner must

overcome the limitation of § 2254(d)(1) on the record that was before that state court.” (quoting

Cullen, 563 U.S. at 185)). Furthermore, factual development of a claim in federal court is

permissible only when the federal habeas court first determines the new evidence to be developed

could properly be considered in light of the restrictions on evidentiary development imposed by

the AEDPA. Shoop v. Twyford, 596 U.S. 811, 819-21 (2022).

With regard to any new factual allegations, new evidence, or new legal arguments Perez

presents in support of any of the claims for which this Court has undertaken de novo review, he is

likewise not entitled to an evidentiary hearing. In the course of conducting de novo review of

Perez’s claims, except for those assertions that are refuted by the state courts records now before

this Court, this Court has assumed the factual accuracy of (1) all the specific facts alleged by Perez

in support of his claims for relief and (2) any documents he has presented in support of those

claims. Even when the truth of all of Perez’s new factual allegations supporting those claims is

assumed, his claims do not warrant federal habeas relief. See Schriro v. Landrigan, 550 U. S. 465,

474 (2007) (“In deciding whether to grant an evidentiary hearing, a federal court must consider

whether such a hearing could enable an applicant to prove the petition’s factual allegations, which,

if true, would entitle the applicant to federal habeas relief.”). Thus, Perez is not entitled to an

evidentiary hearing in this Court with regard to any of his claims for which this Court has

undertaken de novo review.

V. CERTIFICATE OF APPEALABILITY

Under AEDPA, before a petitioner may appeal the denial of a habeas corpus petition filed

under § 2254, the petitioner must obtain a Certificate of Appealability (“CoA”). Miller-El v.

Johnson, 537 U.S. 322, 335-36 (2003); 28 U.S.C. § 2253(c)(2). Likewise, under AEDPA,

appellate review of a habeas petition is limited to the issues on which a CoA is granted. See

Crutcher v. Cockrell, 301 F.3d 656, 658 n.10 (5th Cir. 2002) (holding a CoA is granted on an

issue-by-issue basis, thereby limiting appellate review to those issues); Lackey v. Johnson, 116

F.3d 149, 151 (5th Cir. 1997) (holding the scope of appellate review of denial of a habeas petition

limited to the issues on which CoA has been granted). In other words, a CoA is granted or denied

on an issue-by-issue basis, thereby limiting appellate review to those issues on which CoA is

granted. Crutcher, 301 F.3d at 658 n.10; 28 U.S.C. § 2253(c)(3).

A CoA will not be granted unless a petitioner makes a substantial showing of the denial of

a constitutional right. Tennard v. Dretke, 542 U.S. 274, 282 (2004); Miller-El v. Johnson, 537

U.S. at 336; Slack v. McDaniel, 529 U.S. 473, 483 (2000); Barefoot v. Estelle, 463 U.S. 880, 893

(1983). To make such a showing, the petitioner need not show he will prevail on the merits but,

rather, must demonstrate that reasonable jurists could debate whether (or, for that matter, agree)

the petition should have been resolved in a different manner or that the issues presented are

adequate to deserve encouragement to proceed further. Tennard, 542 U.S. at 282; Miller-El, 537

U.S. at 336. This Court is required to issue or deny a CoA when it enters a final Order such as this

one adverse to a federal habeas petitioner. Rule 11(a), Rules Governing Section 2254 Cases in the

United States District Courts.

The showing necessary to obtain a CoA on a particular claim is dependent upon the manner

in which the District Court has disposed of a claim. “[W]here a district court has rejected the

constitutional claims on the merits, the showing required to satisfy §2253(c) is straightforward:

The petitioner must demonstrate that reasonable jurists would find the district court’s assessment

of the constitutional claims debatable or wrong.” Miller-El, 537 U.S. at 338 (quoting Slack, 529

U.S. at 484). In a case in which the petitioner wishes to challenge on appeal this Court’s dismissal

of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or

lack of exhaustion, the petitioner must show jurists of reason would find it debatable whether the

petition states a valid claim of the denial of a constitutional right and whether this Court was

correct in its procedural ruling. See Slack, 529 U.S. at 484 (holding when a district court denies a

habeas claim on procedural grounds, without reaching the underlying constitutional claim, a CoA

may issue only when the petitioner shows that reasonable jurists would find it debatable whether

(1) the claim is a valid assertion of the denial of a constitutional right and (2) the district court’s

procedural ruling was correct). This court did not dispose of any of Perez’s federal habeas corpus

claims on procedural grounds. This court addressed the merits of all of Perez’s federal

constitutional claims.

Reasonable minds could not disagree with this Court’s conclusion that, regardless of

whether reviewed under the AEDPA or a de novo standard of review, all of Perez’s complaints of

ineffective assistance by his trial counsel (i.e., claims one, two three, and four) fail to satisfy the

prejudice prong of Strickland. Perez is not entitled to a CoA from this Court.

Accordingly, it hereby ORDERED that (1) all relief requested in either Perez’s original

petition (ECF no. 1) or his Reply Brief (ECF no. 13) is DENIED; (2) Perez is DENIED a

Certificate of Appealability with regard to all of his claims for relief; and (3) all pending motions

are DISMISSED as moot.

SIGNED December 18, 2024.

fy A

LAY LMtey —

UNITED STATES DISTRICT JUDGE

40