MacDonald v. Wainwright Unit TDCJ-CID

IN THE UNITED STATES DISTRICT COURT August 05, 2025

FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

JOHNATHON CHRISTIAN §

MACDONALD, §

TDCJ #02228800 §

§

Petitioner, §

§ CIVIL ACTION NO. H-22-2119

v. §

§

ERIC GUERRERO,1 §

§

Respondent. §

MEMORANDUM OPINION AND ORDER

State inmate Johnathon Christian MacDonald has filed a petition for a writ of habeas corpus

under 28 U.S.C. § 2254, challenging his 2018 Texas conviction and sentence for aggravated sexual

assault of a child. (Docket Entry Nos. 1, 2, 3). MacDonald is represented by counsel. The

respondent has answered and submitted a copy of the state-court record, asserting that the petition

should be denied because the claims lack merit. (Docket Entry Nos. 7, 10). MacDonald has not

responded to the respondent’s answer. Based on the pleadings, the answer, the record, and the

applicable law, the court denies the petition for a writ of habeas corpus. The reasons are explained

below.

1 Bobby Lumpkin was the previous named respondent in this action. Eric Guerrero has succeeded

Lumpkin as Director of the Texas Department of Criminal Justice – Correctional Institutions

Division. Under Rule 25(d) of the Federal Rules of Civil Procedure, Guerrero is automatically substituted

as a party.

I. Background and Procedural History

A. Factual Background

MacDonald challenges his conviction for the aggravated sexual assault of his young

daughter, J.B.2 On direct appeal, the intermediate state court of appeals summarized the relevant

facts presented at trial:

A patrol officer for the Conroe Police Department testified that in May 2017, he

was dispatched to an apartment complex in Montgomery County to investigate a

report of a possible aggravated sexual assault of a child. The officer arrived at the

scene and spoke with T.T., who told him she babysat MacDonald’s daughter, J.B.,

in her apartment along with her own three-year-old son, K.S. She told the officer

that earlier that evening before MacDonald came to pick up J.B., she found her son

naked in the corner of his bedroom with J.B.’s head in his lap.

After the officer interviewed T.T. and took her statement, he then contacted CPS.

The officer told the jury that he took steps to ensure CPS addressed the situation as

soon as possible, because he had concerns about MacDonald’s continued access to

J.B. if the child stayed with MacDonald in his apartment. He testified that a CPS

caseworker met him at MacDonald’s apartment around 4:00 the next morning. The

officer described MacDonald’s demeanor as agitated and defensive when they

explained why they were there. The officer stayed in the bedroom of the apartment

with MacDonald while the CPS caseworker spoke with J.B. in the living room. The

officer testified that after speaking with J.B., the caseworker decided to remove her

from the home. MacDonald then called his mother, J.J.M., to pick up J.B. The

officer returned to the station and prepared his report.

A clinical psychologist from the Harris County Children’s Assessment Center

testified for the State. He explained the general reasons why children often make

delayed outcries rather than reporting abuse immediately. He testified that children

are usually abused by people who are around them and have access to them, who

most often are family members. The psychologist also explained that if a child has

been abused by a family member, they may have both positive and negative

emotions about that person; they may love the individual but hate the fact that they

have been abused.

Detective Bret Irvine with the Conroe Police Department also testified. Once

assigned the case, he reviewed the patrol officer’s report. The detective told the

jury he then contacted the CPS caseworker to schedule a forensic interview for J.B.,

which he observed from a separate room. During the interview, he wanted to

corroborate the information T.T. provided and some of J.B.’s statements about her

2 The court refers to J.B., the victim, and T.T., the outcry witness, by their initials consistent with

the Texas court of appeals opinion in MacDonald’s state case.

interactions with MacDonald. Detective Irvine testified that J.B. provided sensory

details during the forensic interview, which he viewed as significant in the

investigation. The detective also scheduled an appointment for J.B. to see a sexual

assault nurse examiner (SANE). The detective said that J.B.’s grandmother, J.J.M.,

brought her to these appointments; however, he had concerns that J.J.M. was not

being protective of J.B., did not believe the abuse occurred, and might try to

contaminate J.B.’s recall. Detective Irvine testified that CPS eventually removed

J.B. from J.J.M.’s care.

Detective Irvine testified that he also scheduled and observed a forensic interview

for K.S., T.T.’s son. The detective described T.T. as “concerned” and “helpful.”

Detective Irvine testified that T.T. recorded three conversations with J.B. on her

phone, and he had T.T. bring her phone to the police station so they could download

the files.

Detective Irvine also told the jury he interviewed MacDonald, who denied sexually

abusing his daughter and advised Detective Irvine he believed his daughter was

lying. The detective described MacDonald as “very emotional” during the

interview. At the conclusion of the interview, MacDonald provided a written

statement again denying any inappropriate contact with his daughter. Detective

Irvine explained that the police did not collect any clothing or evidence from the

apartment because they were not provided a timeline for when the last incident of

abuse may have occurred and therefore, had no idea what clothing they would need

to seize. The detective testified that when he reviewed the SANE’s report, the

history provided by J.B. was consistent with what she said in the forensic interview,

and he applied for an arrest warrant.

The SANE testified regarding her examination of J.B. She conducted a medical

exam on J.B. a few weeks after the incident was reported. A redacted copy of her

report was admitted as evidence at trial. The SANE testified regarding the contents

of her report, which contained quoted language from J.B. regarding her father

assaulting her anally with his sexual organ. The SANE noted that J.B. had excellent

verbal skills for her age. The SANE testified that she did not find any evidence of

injury or trauma and explained why that is not uncommon. On cross-examination,

the SANE confirmed that the only information she had regarding anal penetration

came from J.B.

The forensic interviewer testified as the outcry witness in this case. She explained

that J.B. could not provide a full event narrative, which was consistent with the

child’s age. The interviewer testified that J.B. could answer some open-ended

questions, knew the difference between the truth and a lie, and promised to tell the

truth. She testified that she asked J.B. what she liked about her dad, and J.B.

responded “his lovins.” The interviewer then asked J.B. to tell her about her dad’s

“lovins,” and she responded that he kisses her on the tongue. The forensic

interviewer told the jury how J.B. described her father sexually assaulting her,

which was consistent with the description contained in the SANE’s report. The

interviewer also testified regarding the sensory details J.B. provided.

Following a hearing outside the jury’s presence, the trial judge ruled J.B. was

competent to testify. J.B. testified and described how her dad sexually assaulted

her. J.B.’s description of the abuse was similar to the information contained in the

SANE’s report and the outcry witness’s testimony. During J.B.’s testimony, J.B.

circled the male genitalia and an anus on anatomically correct drawings. J.B. said

that MacDonald told her not to scream, and she provided sensory details when

asked why she screamed. She said this was not something that was pretend; it was

real.

T.T., J.B.’s babysitter, also testified. T.T. testified she babysat J.B. for about six

months. T.T. contacted police because something happened with J.B. and her son

that concerned her. She testified she had been folding laundry and went to check

on J.B. and her son, K.S. T.T. testified that her son was naked from the waist down,

and J.B. had her head in his lap. After T.T. separated the children and spoke with

J.B. about what happened, T.T. had concerns about MacDonald. Later that night,

T.T. used her phone and recorded her conversations with J.B. After these

conversations, T.T. spoke with her husband, and they decided to call the police.

The State sought to admit these recordings, but the defense objected based on

hearsay, which the trial court initially sustained. However, on cross-examination,

the defense questioned T.T. about whether she was a forensic interviewer and

implied that T.T. coached J.B. The State again sought to admit the recordings,

arguing that the defense had opened the door during its cross-examination. At that

point, the trial court admitted the recordings over defense objection, noting that the

defense “opened the door.” The State played T.T.’s recordings for the jury in which

J.B. is heard calling her dad a “meanie head,” explaining that she sucked on her

daddy’s sexual organ and had learned it from him. T.T. denied telling J.B. what to

say.

An expert in memory recall and how memories are formed testified for the defense.

He explained that a young child’s memory capability is considerably limited when

compared to that of older children and adults. The expert testified that it was

possible for children who viewed pornography to confuse that with something that

happened to them.

MacDonald testified at trial and denied molesting his daughter, having anal sex

with her, or touching her inappropriately. He said that CPS removed J.B. from her

mother in February of 2015 and placed J.B. with him. MacDonald testified that

J.B. lived with him primarily from June 2015 through May 2017. He told the jury

he believed his daughter lied about him.

MacDonald v. State, No. 09-18-00399-CR, 2020 WL 1036443, at *1–3 (Tex. App.—Beaumont

Mar. 4, 2020, pet. ref’d) (internal footnotes omitted).

B. The State Court Proceedings

MacDonald was indicted in September 2017 in Cause Number 17-06-7133 for aggravated

sexual assault of a child in violation of Texas Penal Code § 22.021(f)(1). (See Docket Entry No.

7-1 at 26; Docket Entry No. 1 at 1). After a trial in 2018, a jury found him guilty as charged in the

indictment. (See Docket Entry No. 7-1 at 132; Docket Entry No. 1 at 1–2); see also MacDonald,

2020 WL 1036443, at *1. He was sentenced to 45 years in prison. (See Docket Entry No. 7-1 at

137; Docket Entry No. 1 at 1).

MacDonald filed a direct appeal of his conviction. In March 2020, the Ninth Court of

Appeals affirmed MacDonald’s conviction, and in July 2020, the Texas Court of Criminal Appeals

refused his petition for discretionary review. See MacDonald, 2020 WL 1036443, at *1; (Docket

Entry No. 7-11).

MacDonald submitted a state application for a writ of habeas corpus in October 2021. (See

Docket Entry No. 7-22 at 46). The state district court judge ordered MacDonald’s trial attorneys,

Ms. Robbie Barker and Mr. Jerrod Walker, to submit affidavits responding to MacDonald’s claims

of ineffective assistance of counsel. (See Docket Entry No. 7-23 at 15–17). Ms. Barker complied

as ordered. (See id. at 23–25). In March of 2022, the state district court judge issued an order on

the state habeas application, recommending that relief be denied. (Id. at 42–44).

In June 2022, the Texas Court of Criminal Appeals denied the application, without written

order, on the findings of trial court without a hearing and on the court’s independent review of the

record. (Docket Entry No. 7-20).

C. Petitioner’s Federal Habeas Petition

MacDonald’s federal habeas petition asserts the following claims:

(1) trial counsel provided ineffective assistance by failing to interview and present

witnesses;

(2) trial counsel provided ineffective assistance by failing to investigate and present

an alternative perpetrator theory of defense; and

(3) the evidence was insufficient to support his conviction.

(Docket Entry No. 1).

The respondent has filed an answer in response to the § 2254 petition, arguing that

MacDonald’s claims lack merit. (Docket Entry No. 10). MacDonald has not responded.

II. The Applicable Legal Standards

A. The Antiterrorism and Effective Death Penalty Act

This federal petition for habeas corpus is governed by the applicable provisions of the

Antiterrorism and Effective Death Penalty Act (AEDPA). See Woodford v. Garceau, 538 U.S.

202, 205–08 (2003). Under the AEDPA, federal habeas relief based upon claims that were

adjudicated on the merits by the state courts cannot be granted unless the state court’s decision (1)

“was contrary to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States” or (2) “was based on an unreasonable

determination of the facts in light of the evidence presented in the State court proceeding.” 28

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

Thaler, 682 F.3d 364, 372–73 (5th Cir. 2012) (same). “A state court’s decision is deemed contrary

to clearly established federal law if it reaches a legal conclusion in direct conflict with a prior

decision of the Supreme Court or if it reaches a different conclusion than the Supreme Court based

on materially indistinguishable facts.” Gray v. Epps, 616 F.3d 436, 439 (5th Cir. 2010) (citing

Williams v. Taylor, 529 U.S. 362, 404–08 (2002)). To constitute an “unreasonable application of”

clearly established federal law, a state court’s holding “must be objectively unreasonable, not

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

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

is required to ‘show that the state court’s ruling on the claim being presented in federal court was

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

law beyond any possibility for fairminded disagreement.’” Id. (quoting Harrington v. Richter, 562

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

Where a claim concerns a question of fact, the AEDPA precludes federal habeas relief

unless the state court’s adjudication of the merits was based on an “unreasonable determination of

the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d)(2);

see also Martinez v. Caldwell, 644 F.3d 238, 241–42 (5th Cir. 2011). A state court’s factual

determinations are “presumed to be correct” unless the petitioner rebuts those findings with “clear

and convincing evidence.” 28 U.S.C. § 2254(e)(1). This presumption of correctness extends not

only to express factual findings, but also to implicit or “unarticulated findings which are necessary

to the state court’s conclusion of mixed law and fact.’” Murphy v. Davis, 901 F.3d 578, 597 (5th

Cir. 2018) (quoting Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir. 2001)). A federal habeas

court “may not characterize these state-court factual determinations as unreasonable ‘merely

because [it] would have reached a different conclusion in the first instance.’” Brumfield v. Cain,

576 U.S. 305, 313–14 (2015) (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)). “Instead,

§ 2254(d)(2) requires that [a federal court] accord the state trial court substantial deference.” Id.

This court may consider only the factual record that was before the state court in determining the

reasonableness of that court’s findings and conclusions. Cullen v. Pinholster, 563 U.S. 170, 180–

81 (2011).

When a claim challenges a mixed question of fact and law, the state court’s determinations

are entitled to deference “unless the findings were ‘contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court.’” Martinez,

644 F.3d at 242 (quoting § 2254(d)(1)). Generally, federal courts presume that “[w]here there has

been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding

that judgment or rejecting that same claim rest upon the same ground.” Ylst v. Nunnemaker, 501

U.S. 797, 803 (1991); see also Jackson v. Johnson, 194 F.3d 641, 651 (5th Cir. 1999) (“When

faced with a silent or ambiguous state habeas decision, the federal court should ‘look through’ to

the last clear state decision on the matter.”). When, however, “a state court’s decision is

unaccompanied by an explanation,” and the lower courts did not issue a reasoned opinion, “the

habeas petitioner’s burden still must be met by showing there was no reasonable basis for the state

court to deny relief.” Harrington, 562 U.S. at 98; see also Salts v. Epps, 676 F.3d 468, 480 n.46

(5th Cir. 2012) (“[W]here a state court summarily denies a petitioner’s motion, and provides no

statement of its reasons, ‘the habeas petitioner’s burden still must be met by showing there was no

reasonable basis for the state court to deny relief.’”) (quoting Harrington, 562 U.S. at 98).

B. The Summary Judgment Standard in Habeas Corpus Proceedings

“As a general principle, Rule 56 of the Federal Rules of Civil Procedure, relating to

summary judgment, applies with equal force in the context of habeas corpus cases.” Clark v.

Johnson, 202 F.3d 760, 764 (5th Cir. 2000) (citing Rule 11 of the Rules Governing § 2254 Cases

in the United States District Courts and Fed. R. Civ. P. 81(a)(2)). In ordinary civil cases a district

judge considering a motion for summary judgment is required to construe the facts in the case in

the light most favorable to the nonmoving party. See Tolan v. Cotton, 572 U.S. 650, 657 (2014).

The AEDPA, however, modifies summary judgment principles in the habeas context, and Rule 56

“applies only to the extent that it does not conflict with the habeas rules.” Smith v. Cockrell, 311

F.3d 661, 668 (5th Cir. 2002), overruled on other grounds by Tennard v. Dretke, 542 U.S. 274

(2004). “Therefore, § 2254(e)(1)—which mandates that findings of fact made by a state court are

‘presumed to be correct’—overrides the ordinary rule that, in a summary judgment proceeding, all

disputed facts must be construed in the light most favorable to the nonmoving party.” Id.

MacDonald is represented by counsel. His habeas petition is therefore not afforded the

benefit of liberal construction given to self-represented litigants. See Hernandez v. Thaler, 630

F.3d 420, 426 (5th Cir. 2011) (“The filings of a federal habeas petitioner who is proceeding pro se

are entitled to the benefit of liberal construction.”) (citations omitted); Melancon v. Kaylo, 259

F.3d 401, 407 (5th Cir. 2001) (“[Petitioner]’s pro se application for habeas relief is entitled to

liberal construction.”) (citations omitted); Haines v. Kerner, 404 U.S. 519, 520 (1972).

III. Discussion

A. The claim that the evidence was insufficient.

MacDonald contends that the evidence at trial was insufficient to support his conviction.

MacDonald provides no factual allegations in support of this claim. The entirety of his argument

is that “[t]he evidence adduced by the prosecutor was insufficient to prove each and every element

of the charged offense beyond a reasonable doubt.” (Docket Entry No. 1 at 12). MacDonald raised

this insufficiency-of-the-evidence claim on direct appeal, without success.

“[T]he Due Process Clause protects the accused against conviction except upon proof

beyond a reasonable doubt of every fact necessary to constitute the crime with which he is

charged.” United States v. Davis, 735 F.3d 194, 198 (5th Cir. 2013) (quoting In re Winship, 397

U.S. 358, 364 (1970)). A federal habeas court reviewing a state-court conviction analyzes a

challenge to the legal sufficiency of the evidence under Jackson v. Virginia, 44 3 U.S. 307 (1979),

which reflects the federal constitutional due process standard. See Woods v. Cockrell, 307 F.3d

353, 358 (5th Cir. 2002). The federal court must determine “whether, after viewing the evidence

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

essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319. “Jackson

claims face a high bar in federal habeas proceedings because they are subject to two layers of

judicial deference.” Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam). A federal habeas

court questions only whether the state court’s assessment of the Jackson standard was

unreasonable. See id.; 28 U.S.C. § 2254(d)(l). Together, Jackson and the AEDPA create a “double

dose of deference that can rarely be surmounted.” Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir.

2011).

The state court of appeals applied the Jackson standard to MacDonald’s claim and

concluded that there was sufficient evidence to support his conviction for aggravated sexual

assault. The state court explained:

We first address MacDonald’s third issue, in which he contends the evidence was

legally insufficient to prove beyond a reasonable doubt that he was the perpetrator

of the crime. When evaluating the legal sufficiency of the evidence, we view all

the evidence in the light most favorable to the verdict to determine whether any

rational factfinder could have found the essential elements of the offense beyond a

reasonable doubt. Brooks v. State, 323 S.W.3d 893, 902 n.19 (Tex. Crim. App.

2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hooper v. State, 214

S.W.3d 9, 13 (Tex. Crim. App. 2007). The jury is the sole judge of the witnesses’

credibility and weight to be given their testimony. Tate v. State, 500 S.W.3d 410,

413 (Tex. Crim. App. 2016). We defer to the jury’s responsibility to fairly resolve

conflicts in the testimony, weigh the evidence, and draw reasonable inferences from

basic facts to ultimate facts. See Hooper, 214 S.W.3d at 13. We presume that the

jury resolved conflicting inferences in favor of the verdict. See Brooks, 323 S.W.3d

at 889 n.13; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). “[We]

must evaluate all of the evidence in the record, both direct and circumstantial,

whether admissible or inadmissible.” Dewberry v. State, 4 S.W.3d 735, 740 (Tex.

Crim. App. 1999) (citation omitted).

Texas Penal Code Section 22.021 provides that a person commits aggravated sexual

assault if he intentionally or knowingly causes the penetration of the anus of a child

by any means or causes the anus of the child to contact the sexual organ of another

person, including the actor, and the victim is under the age of fourteen. See Tex.

Penal Code Ann. § 22.021(a)(1)(B)(i), (a)(2)(B). A child victim’s testimony alone

is sufficient to support a conviction for aggravated sexual assault. See Tex. Code

Crim. Proc. Ann. art. 38.07(a), (b)(1). Furthermore, testimony regarding a child

victim’s outcry statement alone can be sufficient to support a conviction for

aggravated sexual assault. Tear v. State, 74 S.W.3d 555, 560 (Tex. App.—Dallas

2002, pet. ref’d).

Here, the jury had the benefit of both the victim’s testimony and outcry witness

testimony. The child victim, J.B., testified that her father put his sexual organ in

her anus, and the outcry witness provided similar testimony. Viewing the evidence

in the light most favorable to the verdict and deferring to the jury’s decision on the

weight and credibility of the testimony, we conclude that a reasonable factfinder

could have found MacDonald guilty of the aggravated sexual assault of J.B. beyond

a reasonable doubt. See id.; see also Tex. Code Crim. Proc. Ann. art. 38.07(a),

(b)(1); Tate, 500 S.W.3d at 413; Brooks, 323 S.W.3d at 902 n.19; Clayton, 235

S.W.3d at 778; Hooper, 214 S.W.3d at 13. We overrule MacDonald's third issue.

MacDonald, 2020 WL 1036443, at *3–4 (internal footnotes omitted).

As noted by the state court, there were several pieces of evidence that the jury could have

relied on to find MacDonald guilty of the offense charged. J.B. testified that MacDonald put his

penis in her anus (see Docket Entry No. 7-5 at 46–63) and during the testimony of T.T., the outcry

witness, audio recordings of conversations between T.T. and J.B. were played (see id. at 79–103).

MacDonald does not offer any argument in support of this claim, let alone refute any of the state

court’s findings of fact, which are presumed correct on federal habeas review. See 28 U.S.C. §

2254(e)(1); Sumner v. Mata, 449 U.S. 539, 547 (1981) (observing that the presumption of

correctness “applies to factual determinations made by state courts, whether the court be a trial

court or an appellate court”). Under these circumstances, the state court’s well-reasoned opinion

is entitled to “great weight” on federal habeas review. Parker v. Procunier, 763 F.2d 665, 666

(5th Cir. 1985) (citing Jackson, 443 U.S. at 310 n.15); see also Callins v. Collins, 998 F.2d 269,

276 (5th Cir. 1993) (“Where a state appellate court has conducted a thoughtful review of the

evidence . . . its determination is entitled to great deference.”).

To the extent that MacDonald asks this court to reweigh the evidence and decide if the

jury’s decision was correct, he asks for relief “beyond the scope of review” permitted under

Jackson. See Schlup v. Delo, 513 U.S. 298, 330 (1995). A federal habeas court may not substitute

its view of the evidence for that of the fact-finder. See Weeks v. Scott, 55 F.3d 1059, 1062 (5th

Cir. 1995) (citation omitted). “All credibility choices and conflicting inferences are to be resolved

in favor of the verdict.” Ramirez v. Dretke, 398 F.3d 691, 695 (5th Cir. 2005) (citation omitted).

Viewing all of the evidence under the doubly deferential standard that applies on federal

habeas review, MacDonald fails to show that the state court’s decision was objectively

unreasonable or that he is entitled to relief on this claim.

B. The claim of ineffective assistance of counsel.

Ineffective assistance of counsel claims are analyzed under Strickland v. Washington, 466

U.S. 668 (1984). To prevail under Strickland, a petitioner must demonstrate both constitutionally

deficient performance by counsel and actual prejudice to the defense as a result. See Strickland,

466 U.S. at 687. “Unless a [petitioner] makes both showings, it cannot be said that the conviction

. . . resulted from a breakdown in the adversary process that rendered the result unreliable.” Id.

Failing to show either deficient performance or prejudice is fatal to an ineffective assistance claim.

See id.; Green v. Johnson, 160 F.3d 1029, 1035 (5th Cir. 1998). “Like AEDPA, Strickland

establishes a deferential standard,” and in order to prevail on an ineffective assistance of counsel

claim in a § 2254 proceeding, a petitioner “must prove both that his counsel’s performance was

objectively deficient and that his counsel’s deficiency prejudiced him, and that no reasonable jurist

could conclude otherwise.” Williams v. Thaler, 684 F.3d 597, 604 (5th Cir. 2012); see also

Harrington, 562 U.S. at 105 (“When § 2254(d) applies, the question is not whether counsel’s

actions were reasonable. The question is whether there is any reasonable argument that counsel

satisfied Strickland’s deferential standard.”).

To demonstrate deficient performance, the petitioner “must show that counsel’s

representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688;

see also Harrington, 562 U.S. at 105 (“The question is whether an attorney’s representation

amounted to incompetence under ‘prevailing professional norms,’ not whether it deviated from

best practices or most common custom.”) (citing Strickland, 466 U.S. at 690). This is a “highly

deferential” inquiry, in which “counsel is strongly presumed to have rendered adequate assistance”

and that the challenged conduct was the product of reasoned trial strategy. Strickland, 466 U.S. at

689–90; see also Pape v. Thaler, 645 F.3d 281, 292 (5th Cir. 2011). To overcome this

presumption, a petitioner must identify counsel’s acts or omissions that did not result from

reasonable professional judgment. Strickland, 466 U.S. at 690. Counsel’s error, even if

professionally unreasonable, does not warrant setting aside a conviction if the error had no effect

on the outcome. Id. at 691 (citation omitted). To establish prejudice, the 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.” Id. at 694. “In short, a petitioner cannot demonstrate

prejudice by showing that, but for counsel’s deficient performance, he would have been entitled

to a new trial under state law. Rather, a petitioner must also demonstrate that counsel’s deficient

performance rendered the result of his trial unreliable or the proceeding fundamentally unfair.”

Green, 160 F.3d at 1043 (internal citation omitted).

The state habeas court considered and rejected MacDonald’s ineffective assistance of

counsel claims. “[T]he test for federal habeas purposes is not whether [the petitioner] made [the

showing required by Strickland].” Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir. 2003).

“Instead, the test is whether the state court’s decision—that [the petitioner] did not make the

Strickland-showing—was contrary to, or an unreasonable application of, the standards, provided

by the clearly established federal law (Strickland), for succeeding on his IAC claim.” Id. A

petitioner’s conclusory allegations of ineffective assistance of counsel will fail to rebut a state

court’s finding that his counsel was not deficient or that he was not prejudiced by his counsel’s

performance. See Ross v. Estelle, 694 F.2d 1008, 1011–12 (5th Cir. 1983). “An assertion is

conclusory if it relies on inferences without also setting forth the facts that support those

inferences.” Favela v. Collier, No. 22-40415, 91 F.4th 1210, 1213 (5th Cir. Jan. 31, 2024) (citing

Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 898–99 (1990) and Black’s Law Dictionary (11th ed.

2019)).

1. The claim of counsel’s failure to investigate an alternative perpetrator

theory of defense.

MacDonald argues that trial counsel failed to investigate an alternative perpetrator theory

of defense. (Docket Entry No. 1 at 9). MacDonald asserts that on May 5, 2017, a Conroe police

officer, Michael Carey, was dispatched to an apartment where he spoke with T.T. (Id.). T.T.

raised the issue of possible sexual abuse of J.B. (Id.). MacDonald was interviewed by Carey and

a case worker with Child Protective Services interviewed J.B. (Id.). In his federal petition

MacDonald alleges that

Information was conveyed to Officer Carey regarding abuse of [J.B.] by her

maternal grandfather . . . who had been released from prison. [J.B.] and

[MacDonald] conveyed the information to Officer Carey, and substantial evidence

of that was in Carey’s report. At trial, defense counsel began questioning

[MacDonald] regarding the grandfather . . . but was precluded continuing the

questioning when the prosecutor asserted that the state had filed a motion in limine

to prevent questioning as to an alternative perpetrator theory. Subsequent to the

trial [MacDonald] asked the District Court for a copy of the motion in limine and

was informed no such motion was in the file of the case. Assuming the state failed

to file a formal motion in limine the trial court was in error stating that such motion

had been granted. Defense counsel should have objected. Alternatively, had the

state filed such motion and it had been granted defense counsel should have

objected to the granting of the motion. Prior to trial Julya McDonald had

information from [J.B.] that she was being abused by [her grandfather].

[MacDonald] believes in good faith that CPS records reflect sexual abuse issues

existed in [the victim’s mother’s] family, which involved [J.B.]’s mother. Defense

counsel failed to conduct any investigation into such matters although brought to

defense counsel’s attention by [MacDonald]. [The grandfather] was subpoenaed

for [MacDonald]’s trial but was never called to testify. No CPS record of [the

victim’s mother’s] family were investigated, no motion file [sic] with the trial court

to cause their production. No bill of exception was made to obtain and preserve

testimony from [MacDonald] that was prevented by the state’s motion in limine if

the state had filed a written motion and it had been granted by the trial court.

Defense counsel(s) should have investigated the alternative perpetrator theory,

obtained evidence in support, noticed the state of the defense, and presented the

defense at trial. As noted in ground one defense counsels failed to interview a

number of defense witnesses who had information suggesting an alternative

perpetrator(s).

(Id. at 9–11) (internal citations to the record omitted).

On direct appeal MacDonald argued that the trial court erred by denying admission of

alternative perpetrator evidence. See MacDonald, 2020 WL 1036443, at *4. In rejecting

MacDonald’s argument, the appeals court explained:

A. Alternative Perpetrator Evidence

In support of his first issue, MacDonald essentially makes two arguments. First, he

contends he established the requisite nexus between the alternate perpetrator and

the offense. Second, he claims that the nexus requirement and Rule 403 balancing

are unconstitutional as applied.

1. Nexus Requirement

“Relevant evidence” is evidence generally admissible and is defined as evidence

that has “any tendency to make a fact more or less probable than it would be without

the evidence; and ... the fact is of consequence in determining the action.” Tex. R.

Evid. 401. Texas Rule of Evidence 403, on the other hand, provides that “[t]he

court may exclude relevant evidence if its probative value is substantially

outweighed by a danger of ... unfair prejudice, confusing the issues, [or] misleading

the jury[.]” Id. 403 (emphasis added). To be admissible, alleged alternative

perpetrator evidence must be sufficient, alone or in combination with other

evidence in the record, to show a nexus between the crime charged and the alleged

alternative perpetrator. Wiley v. State, 74 S.W.3d 399, 406 (Tex. Crim. App. 2002).

Evidentiary rulings rarely rise to the level of denying the constitutional right to

present a meaningful defense. Potier v. State, 68 S.W.3d 657, 659 (Tex. Crim.

App. 2002). “The alternative perpetrator defense typically arises in ‘who done it’

cases where the complaining witness does not know [her] attacker.” Ex Parte

Huddlestun, 505 S.W.3d 646, 661 (Tex. App.—Texarkana 2016, pet. ref’d).

The defense sought to admit evidence that J.B. made a statement to the SANE

regarding her grandfather touching her private area, specifically that “[h]e touched

my tee tee. With his hand. He used toilet paper on his hand to wipe me.” This

statement bears no resemblance to the act the State charged MacDonald with. In

the excluded statements, J.B. does not accuse her grandfather of using his sexual

organ to touch her anus. Instead, she mentions that he touched her private area with

toilet paper to wipe her. The proffered alternative perpetrator evidence was not

sufficient on its own or in combination with other evidence to establish a nexus

between the crime charged and J.B.’s grandfather. Wiley, 74 S.W.3d at 406;

Michaelwicz v. State, 186 S.W.3d 601, 617 (Tex. App.—Austin 2006, pet. ref’d);

Martinez v. State, 212 S.W.3d 411, 424 (Tex. App.—Austin 2006, pet. ref’d)

(concluding exclusion of evidence was proper when alternative perpetrator

evidence failed to establish a connection between the complainant’s brother and the

abuse alleged and any suggestion the brother was an alternative perpetrator was

“meager and speculative”). The absence of the requisite nexus is especially true

when J.B. positively identified her father, rather than a stranger, as the one who

penetrated her anus with his sexual organ. See Huddlestun, 505 S.W.3d at 661;

Ramirez v. State, No.14-05-00435-CR, 2006 WL 2345952, at *4 (Tex. App.—

Houston [14th Dist.] Aug. 15, 2006, no pet.) (mem. op., not designated for

publication) (noting that the absence of a nexus was especially true when the victim

testified with certainty her father “did these things,” even though she lived with

other different male adults).

Even if true, J.B.’s statement does not link her grandfather to the offenses for which

MacDonald was tried or even establish that the grandfather committed a crime. See

Wiley, 74 S.W.3d at 406–07; Ruiz v. State, 272 S.W.3d 819, 830 (Tex. App.—

Austin 2008, no pet.) (noting that allegations of abuse against a grandfather, even

if true, “would not bear on whether appellant also abused her”); Michaelwicz, 186

S.W.3d at 617. MacDonald does not point to any evidence showing the grandfather

engaged in the conduct described in the indictment. Likewise, the trial court could

have reasonably concluded that the statements made about the grandfather were not

relevant to whether MacDonald committed the sexual assault against J.B. as alleged

in the indictment, as they bore no resemblance to the crime charged. See Tex. R.

Evid. 401. Because we have concluded the trial court did not err in excluding the

alternative perpetrator evidence, we need not determine if the exclusion of that

evidence prevented appellant from presenting a meaningful defense. See Garcia v.

State, 397 S.W.3d 860, 864 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d)

(citing Ray v. State, 178 S.W.3d 833, 835 (Tex. Crim. App. 2005)).

2. Unconstitutional as Applied

“As applied” constitutional challenges are subject to the error preservation

requirement and must be objected to at trial. Reynolds v. State, 423 S.W.3d 377,

383 (Tex. Crim. App. 2014). Although MacDonald sought to admit alternative

perpetrator evidence, he never raised a constitutional objection or pointed out to the

trial court that the exclusion of the evidence prevented him from putting on a

meaningful defense. MacDonald failed to preserve his “as applied” constitutional

challenge. See id.

We overrule MacDonald’s first issue.

MacDonald, 2020 WL 1036443, at *4–6 (internal footnotes omitted).

MacDonald presented this claim in his state habeas application. As part of the state habeas

proceeding, the state district court judge instructed MacDonald’s trial attorneys to answer the

following question: “Did you consider raising a defense that a person other than the applicant

committed the charged offense? If so, what witnesses did you interview and what evidence did

you review in preparation for raising this defense? What efforts did you make to raise this defense?

Please explain fully.”

(Docket Entry No. 7-23 at 16).

Ms. Barker filed the following affidavit in response:

Yes, we attempted to raise the defense that another person committed the offense.

I interviewed the outcry witness [T.T.], CPS worker, the grandfather Keith

Bergman (twice), the uncle Bergman (c/w lived with both the grandfather and uncle

for a time), daycare teacher to see what she knew about the grandfather or any other

outcrys, defense SANE nurse for insight into State’s SANE nurse and report,

memory expert, and attempted to contact grandfather’s ex-wife.

I reviewed the offense reports, statements, CPS records, forensic interview DVD,

recording of the outcry from babysitter/outcry witness, criminal history of

grandfather and uncle, SANE report.

Attempted to raise this defense several times during trial through the relevant

witnesses but court would not allow that line of questioning nor any evidence of an

alternate perpetrator.

(Id. at 25).

The state habeas judge rejected MacDonald’s ineffective assistance of counsel claim. (See

id. at 42–44). The state habeas judge found that MacDonald “failed to present evidence that his

attorneys should have raised at trial that would have established a nexus between the charged

conduct and an alternative perpetrator.” (Id. at 43).

The record reflects that MacDonald’s defense attorney did try to argue an alternative

perpetrator at trial, but the trial court did not allow the introduction of alternative perpetrator

evidence or questioning. Counsel is not deficient for trying to make an argument that the trial

judge does not allow. See, e.g., Mahmood v. United States, Civil Action No. 6:18cv489, 2020 WL

2758791, at *20 (E.D. Tex. Apr. 29, 2020) (“[C]ounsel cannot be ineffective for failing to do

something he actually did . . . .”), report and recommendation adopted, No. 6:13cr32, 2020 WL

2747245 (E.D. Tex. May 27, 2020); Harris v. United States, No. CR G-03-14, 2011 WL 13308162,

at *5 (S.D. Tex. Nov. 16, 2011) (“Each of the arguments [the petitioner] claims counsel failed to

make are contained in the motions to suppress evidence, which counsel filed on [the petitioner’s]

behalf. These motions were considered and denied by the trial court. [The petitioner] cannot now

claim counsel was ineffective for failing to make arguments that counsel actually made.”).

Moreover, the court of appeals specifically found that the trial court did not err in excluding the

alternative perpetrator evidence.

MacDonald has failed to show that the state courts’ determination was contrary to, or

involved an unreasonable application of, Strickland, or that the decision involved an unreasonable

determination of the facts based on the evidence in the record. No basis for habeas relief is shown,

and the respondent is entitled to dismissal of this claim.

2. The claim of counsel’s failure to call witnesses.

MacDonald argues that his trial counsel “failed to conduct a reasonable amount of pretrial

investigation, including seeking out, contacting, interviewing and securing the trial testimonies”

at the guilt/innocence phase of the trial of Julya MacDonald, Sandra Mobley, Melody Mobley,

Jeanette Billot, Robert K. Radakovich, and Justin MacDonald.3 (Docket Entry No. 1 at 5).

MacDonald also argues that defense counsel failed to adequately prepare the defense witnesses—

Billot, Radakovich, and Justin—who did testify at the punishment phase. (Id. at 7).

“[C]omplaints of uncalled witnesses are not favored in federal habeas corpus review

because the presentation of testimonial evidence is a matter of trial strategy and because allegations

of what a witness would have stated are largely speculative.” Day v. Quarterman, 566 F.3d 527,

538 (5th Cir. 2009) (citation omitted); see also Evans v. Cockrell, 285 F.3d 370, 377 (5th Cir.

2002). “[T]o prevail on an ineffective assistance claim based on counsel’s failure to call a witness,

the petitioner must name the witness, demonstrate that the witness was available to testify and

would have done so, set out the content of the witness’s proposed testimony, and show that the

testimony would have been favorable to a particular defense.” Day, 566 F.3d at 538 (citation

omitted).

MacDonald presented this claim in his state habeas application. As part of the state habeas

proceeding, the state district court judge instructed MacDonald’s trial attorneys to answer the

following relevant questions:

(1) Please describe the steps you took to prepare for the applicant’s trial. What

witnesses did you interview? What defensive theories did you consider raising?

Please explain fully.

(2) Did you consider calling witnesses to testify that the applicant did not have the

character to commit the charged offense? If not, why not? Did you consider calling

3 Because several of these individuals share the same last name, the court refers to Julya MacDonald

as Julya, Sandra Mobley as Sandra, Melody Mobley as Melody, and Justin MacDonald as Justin.

witnesses to testify about the applicant’s character for truthfulness? If not, why

not? Please explain fully?

(3) Please describe the witnesses you interviewed in preparation for the punishment

phase of trial. Were there witnesses you interviewed that you decided not to call?

If so, why did you choose not to call them? Please explain fully.

(4) Did you tell Julya MacDonald, the applicant’s mother, that you did not expect

the applicant’s trial to proceed to punishment and that you were unprepared for the

punishment phase?

(Docket Entry No. 7-23 at 16).

Ms. Barker filed the following affidavit in response:

[Question] 1: . . .

Preparation: I reviewed all offense reports, statements, CPS records, SANE report.

I viewed the forensic interview twice and transcribed and reviewed the outcry

recording. I identified witnesses from discovery. Met with defendant several times.

Interviewed defendant’s mother several times. Requested detailed timeline of

events and witnesses from defendant. Reviewed timeline. Discussed hiring

investigator with defendant. Defendant’s mother wanted me to use an investigator

that she knew and defendant agreed so that investigator was hired. That

investigator closed his business so I then hired another investigator. Hired defense

expert SANE nurse and discussed results of exam and strategy. Hired memory

expert and discussed case, strategy, and testimony. Interviewed outcry witness

[T.T.], CPS worker, daycare teacher, complaining witness’ (c/w) grandfather Keith

Bergman, c/w uncle Bergman, defendant’s college instructor Mr. Radacovich,

defendant’s mother, attempted to interview c/w mother and grandmother but was

unsuccessful in reaching them. Discussed interviews of witnesses with defendant

and decided that the daycare teacher would not benefit defendant, that the

defendant’s instructor would be a good punishment witness, and that even though

there were concerns about defendant’s mother testifying, she could testify at both

portions of the trial. However, he could change his mind at any point prior to calling

her as a witness. I identified and outlined specific issues from discovery. Discussed

strategy with defendant. Drafted questions for State witnesses and defense

witnesses. Drafted voir dire. Met with co-counsel to discuss strategy, witnesses,

and trial procedure.

Witness Interviews: Witnesses Interviewed: Interviewed outcry witness [T.T.],

CPS worker, daycare teacher, c/w grandfather Keith Bergman, c/w uncle Bergman.

Defendant’s college instructor Mr. Radacovich, defendant’s mother Julya

MacDonald, attempted to interview c/w mother and grandmother but was

unsuccessful in reaching them. Also interviewed defense nurse expert and memory

expert. Defendant’s mother brought two additional potential witnesses to court on

the second day of the punishment and told me that she wanted them to testify, I

asked defendant if he wanted them to testify and he said he was fine with them

testifying. Once he agreed, I explained the process and interviewed them to see

how they would answer the questions I would ask and the ones the prosecutor

would possibly ask.

Defense Theories:

a. Didn’t Happen—Focus was on the age of the c/w, her memory, and transposing

sexual acts of mother and boyfriend that she witnessed onto herself when they lived

in the travel trailer together. Expert testified as to how this could happen. Also,

there were no physical injuries.

b. If Happened, Grandfather Did It—Attempted to introduce evidence of c/w

stating grandfather touched her privates through appropriate witnesses. She made

these comments to the forensic interviewer, SANE nurse, and the outcry witness.

The court would not allow us to present the alternate perpetrator evidence.

[Question] 2: . . .

Yes, I discussed with the defendant who he thought would be good witnesses for

him. There were two witnesses, his mother and his instructor. We decided that the

instructor would be a good punishment witness because he only had knowledge of

defendant’s successes at school and his potential contributions to society. We had

his mother lined up to testify but defendant decided it would be better not to call

her during the guilt/innocence phase. The defendant and I were in Mr. Walker’s

office during lunch prior to the State resting its case. We again discussed the fact

that his mother and father were accused of and arrested for sexual assault of a child

in their home when defendant was growing up. I explained that his mother was not

convicted of the offense and that the State can’t just bring that up. The defendant

was concerned that his mother’s testimony could be unpredictable and didn’t want

that information to come out during his trial. The defendant told me that he thought

it would be better if she did not testify during guilt/innocence phase.

I did not consider calling witnesses specifically for testimony on the defendant’s

truthfulness. This was a sexual assault of a child case and not a theft or fraud type

case.

[Question] 3: . . .

Witnesses interviewed for punishment

Julya MacDonald, daycare teacher, and college instructor Radakovich are the

witnesses that l remember were interviewed to testify at punishment.

Justin MacDonald and Jeanette Billiot were added with a brief explanation of the

process and question/answer interview.

I decided not to call the daycare teacher at either phase because her testimony would

not have benefited the defendant. I don’t recall having a witness lined-up but not

calling for punishment phase.

[Question] 4: . . .

At no time did I ever tell Julya MacDonald that I did not expect the applicant’s trial

to proceed to punishment nor did I tell her that I was unprepared for the punishment

phase.

(Docket Entry No. 7-23 at 23–25).

The state habeas judge rejected MacDonald’s ineffective assistance of counsel claims. (See

id. at 42–44). In reaching this conclusion, the court made the following relevant findings and

conclusions:

FINDINGS OF FACT

1. The applicant was charged by indictment with aggravated sexual assault of a

child. The applicant pleaded not guilty, but a jury found him guilty as charged.

After hearing additional evidence, this Court sentenced the applicant to

imprisonment for forty-five years.

2. The court of appeals affirmed this Court’s judgment, which is now final. See

MacDonald v. State, No. 09-18-00399-CR, 2020 WL 1036443, at *6 (Tex. App.—

Beaumont Mar. 4, 2020, pet. refd) (mem. op., not designated for publication).

3. On October 11, 2021, the applicant filed his first application for a writ of habeas

corpus pursuant to article 11.07 of the Code of Criminal Procedure in the above-

numbered cause, asserting in two grounds for relief that he received ineffective

assistance of trial counsel.

4. The Court is familiar with the performance of the applicant’s attorneys, Robbie

Barker and Jarrod Walker, who have long practiced in the courts of Montgomery

County and are well qualified to represent defendants in criminal cases.

5. Barker has submitted a credible affidavit in answer to the· applicant’s claims of

deficient performance.

6. Julya MacDonald’s claim that Barker indicated she was unprepared for the

punishment phase of trial is not credible.

7. Julya MacDonald’s claim that Barker did not interview her prior to trial is not

credible.

8. Julya MacDonald’s affidavit testimony about what J.B. told her would be

inadmissible as hearsay at trial.

9. Barker conducted a thorough pre-trial investigation and interviewed numerous

witnesses, including Julya MacDonald and Robert Radakovich.

10. Barker made a reasonable, strategic decision about what witnesses to call at

both phases of trial.

11. Barker made a reasonable, strategic decision, in conjunction with the applicant,

not to call Julya MacDonald at the guilt phase of trial.

12. The applicant has failed to present evidence that his attorneys should have

raised at trial that would have established a nexus between the charged conduct and

an alternative perpetrator.

CONCLUSIONS OF LAW

1. There remain no previously unresolved issues of fact material to the legality of

the applicant’s conviction and sentence, and an evidentiary hearing is not required.

2. The applicant has failed to prove by a preponderance of the evidence that he was

denied his right to the effective assistance of counsel. See Strickland v.

Washington, 466 U.S. 668, 669 (1984).

(Id. at 42–44). The state habeas court denied relief. (Id. at 44).

This court examines the specific allegations related to each of the individuals MacDonald

argues should have been called to testify at trial.

a. Julya McDonald

Julya is MacDonald’s mother.4 MacDonald has submitted a sworn statement from Julya,

which was also submitted as part of the state habeas proceeding. (See Docket Entry No. 7-22 at

79–81; Docket Entry No. 2 at 2–4). In her affidavit, Julya states that she was not called to testify

at the guilt/innocence phase of the trial, despite being available and willing to do so. (Docket Entry

No. 7-22 at 79–81; Docket Entry No. 2 at 2–4). She states that neither of MacDonald’s defense

attorneys interviewed her before trial or talked with her about testifying at the guilt/innocence

4 The petition spells Julya’s last name as “McDonald” but it appears that her last name is spelled

the same as the petitioner’s—“MacDonald.”

phase of trial. (Docket Entry No. 7-22 at 79–81; Docket Entry No. 2 at 2–4). She declares that

had she been called to testify during the guilt/innocence phase of trial, she would have testified

that on one occasion J.B. told her that “pa pa is mean”—referring to J.B.’s maternal grandfather.

(Docket Entry No. 7-22 at 79–81; Docket Entry No. 2 at 2–4). Julya asked J.B. what she meant

by that statement and J.B. replied that “Pa Pa hurts me, he ties me up.” (Docket Entry No. 7-22 at

79–81; Docket Entry No. 2 at 2–4). Julya states that she told the CPS investigator, Brooke Hudson,

about what J.B. told her, and that to her knowledge, CPS did not investigate the matter. (Docket

Entry No. 7-22 at 79–81; Docket Entry No. 2 at 2–4). Julya also declares that on several occasions

when J.B. would return to MacDonald’s home after visiting with J.B.’s mother, J.B. would have

“rashes, blisters and some bleeding in her private parts.” (Docket Entry No. 7-22 at 79–81; Docket

Entry No. 2 at 2–4). Julya states that she told Ms. Barker about this the day before the trial began.

(Docket Entry No. 7-22 at 79–81; Docket Entry No. 2 at 2–4). Julya further alleges that J.B. “did

not act the same” after being taken to San Antonio by J.B.’s mother. (Docket Entry No. 7-22 at

79–81; Docket Entry No. 2 at 2–4). Specifically, Julya states that J.B. would “show her panties to

everyone in an unladylike manner,” she would attempt to kiss MacDonald and others with her

tongue out, and she told Julya “Look at my boobie. I got boobies, like my mom has got.” (Docket

Entry No. 7-22 at 79–81; Docket Entry No. 2 at 2–4).

To the extent MacDonald is arguing that Julya’s testimony at the guilt/innocence phase of

trial would have supported an alternative perpetrator defense—as discussed above—the state

appeals court held that the trial court did not err in excluding the alternative perpetrator evidence.

Much if not all of Julya’s proposed testimony at the guilt/innocence phase concerns matters that

the trial court excluded. Counsel did not perform deficiently by not calling a witness who would

have testified to matters that the trial court had deemed were excluded.

Moreover, MacDonald himself decided that he did not want Julya to testify during the

guilt/innocence phase of trial. In the affidavit submitted as part of the state habeas proceeding,

Ms. Barker explained that Julya was “linked up” to testify during the guilt/innocence phase but

that MacDonald told her that he thought it would be better if Julya did not testify. MacDonald

was concerned that Julya’s testimony could be unpredictable and he did not want the information

coming out at trial that Julya and his father were arrested for sexual assault of a child in their home,

despite Ms. Barker telling McDonald that the State could not “just bring that up” because Julya

was not convicted of a crime. MacDonald has not submitted any evidence disputing Ms. Barker’s

affidavit.

MacDonald has failed to show that the state courts’ determination was contrary to, or

involved an unreasonable application of, Strickland, or that the decision involved an unreasonable

determination of the facts based on the evidence in the record. No basis for habeas relief is shown,

and the respondent is entitled to dismissal of this claim.

b. Sandra Mobley, Melody Mobley, Jeanette Billot, Robert

Radakovich, and Justin MacDonald

Sandra is MacDonald’s grandmother. MacDonald has submitted a sworn statement from

Sandra, which was also submitted as part of the state habeas proceeding. (See Docket Entry No.

7-22 at 82–83; Docket Entry No. 2 at 5–6). In her affidavit, Sandra states that she would have

testified during the guilt/innocence and the punishment phases of trial to J.B. having an

abnormality of her genitals and behavior changes she noticed in J.B. when she returned from a trip

to San Antonio with J.B.’s mother. (See Docket Entry No. 7-22 at 82–83; Docket Entry No. 2 at

5–6). She also would have testified that MacDonald was a truthful person and of good character.

(See Docket Entry No. 7-22 at 82–83; Docket Entry No. 2 at 5–6). She states in her affidavit that

no attorney representing MacDonald spoke to her about information she had regarding MacDonald

or his daughter, J.B. (See Docket Entry No. 7-22 at 82–83; Docket Entry No. 2 at 5–6).

Melody is MacDonald’s aunt. MacDonald has submitted a sworn statement from Melody,

which was also submitted as part of the state habeas proceeding. (See Docket Entry No. 7-23 at

1–2; Docket Entry No. 2 at 7–8). In her affidavit, Melody states that she would have testified

during the guilt/innocence and the punishment phases of trial that J.B. once confused receiving a

spanking “in” her butt with receiving one “on” her butt, which lead Melody to believe that J.B.

was confused about human anatomy generally. (See Docket Entry No. 7-23 at 1–2; Docket Entry

No. 2 at 7–8). She claims that she tried to share this information with one of MacDonald’s

attorneys, but the attorney showed “no interest.” (See Docket Entry No. 7-23 at 1–2; Docket Entry

No. 2 at 7–8). She also would have testified that MacDonald was always a truthful person with

her and was of good character in her opinion. (See Docket Entry No. 7-23 at 1–2; Docket Entry

No. 2 at 7–8). She says that no attorney representing MacDonald spoke to her about information

she had regarding MacDonald or his daughter, J.B. (See Docket Entry No. 7-23 at 1–2; Docket

Entry No. 2 at 7–8).

Jeanette Billot5 was MacDonald’s neighbor in the same apartment complex. MacDonald

has submitted a sworn statement from Billot, which was also submitted as part of the state habeas

proceeding. (See Docket Entry No. 7-23 at 3–4; Docket Entry No. 2 at 9–10). Billot testified

during the punishment phase of trial. In her affidavit, Billot says that she would have testified

during the guilt/innocence phase of trial that MacDonald was truthful person and of good moral

character. (See Docket Entry No. 7-23 at 3–4; Docket Entry No. 2 at 9–10). She also would have

testified that J.B. acted like a normal child and she never gave “any indication by her manor [sic]

5 Billot was known as Jeanette Davis at the time of the trial. (See Docket Entry No. 7-7 at 53).

or otherwise” that she was being mistreated. (See Docket Entry No. 7-23 at 3–4; Docket Entry

No. 2 at 9–10). She would have testified that J.B. was “comfortable” around her husband and did

not exhibit any fear of men. (See Docket Entry No. 7-23 at 3–4; Docket Entry No. 2 at 9–10).

Billot states that she came to court before the start of the punishment phase of trial, at Julya’s

request. (See Docket Entry No. 7-23 at 3–4; Docket Entry No. 2 at 9–10). Billot says Ms. Barker

did not interview her about information she may have had concerning MacDonald or J.B., or

prepare her for testifying at the punishment phase of trial. (See Docket Entry No. 7-23 at 3–4;

Docket Entry No. 2 at 9–10).

Robert Radakovich is a professor of machining at Lone Star College, and MacDonald was

one of his students. MacDonald has submitted a sworn statement from Radakovich, which was

also submitted as part of the state habeas proceeding. (See Docket Entry No. 7-23 at 5–6; Docket

Entry No. 2 at 11–12). Radakovich testified during the punishment phase of trial. (See Docket

Entry No. 7-23 at 5–6; Docket Entry No. 2 at 11–12). In his affidavit, Radakovich says that he

would have testified during the guilt/innocence phase of trial that MacDonald was a truthful

person. (See Docket Entry No. 7-23 at 5–6; Docket Entry No. 2 at 11–12). Radakovich states that

Ms. Barker called him one or two days before trial started. (See Docket Entry No. 7-23 at 5–6;

Docket Entry No. 2 at 11–12). The conversation was brief and that no specifics were discussed

regarding the testimony he was going to give. (See Docket Entry No. 7-23 at 5–6; Docket Entry

No. 2 at 11–12). Julya asked Radakovich to testify during the punishment phase. (See Docket

Entry No. 7-23 at 5–6; Docket Entry No. 2 at 11–12).

Justin is MacDonald’s brother. MacDonald has submitted a sworn statement from Justin,

which was also submitted as part of the state habeas proceeding. (See Docket Entry No. 7-23 at

7–8; Docket Entry No. 2 at 13–14). In his affidavit, Justin states that he would have testified

during the guilt/innocence phase of trial that J.B. began trying to kiss him with her tongue out

when J.B. returned from her mother’s house, that J.B. was a happy child, and that McDonald is a

truthful person and of good character. (See Docket Entry No. 7-23 at 7–8; Docket Entry No. 2 at

13–14). For the punishment phase of trial, Justin says that no defense attorney “fully prepared”

him for his testimony. (See Docket Entry No. 7-23 at 7–8; Docket Entry No. 2 at 13–14).

MacDonald fails to overcome the presumption that trial counsel had a valid legal strategy

for not calling Sandra, Melody, Billot, Radakovich, and Justin as character witnesses during the

guilt/innocence phase of the trial. As discussed above, MacDonald’s trial counsel submitted an

affidavit as part of the state habeas proceeding explaining that she did not consider calling

witnesses to testify about MacDonald’s truthfulness, because he was not charged with theft or

fraud, but with the sexual assault of a child. Counsel’s strategic reason as to why she did not

consider calling character witnesses to testify as to MacDonald’s truthfulness was not

unreasonable. Moreover, MacDonald asserts that Melody, Billot, and Radakovich would have

testified solely as character witnesses. “[W]ithout some showing [that] alleged additional

character witnesses actually possessed personal knowledge of admissible evidence, petitioner

cannot show the failure of petitioner’s trial counsel to call any such witness was objectively

unreasonable.” Jasper v. Thaler, 765 F. Supp. 2d 783, 869 (W.D. Tex. 2011) (citing Neal v.

Puckett, 286 F.3d 230, 237 (5th Cir. 2002)), aff’d, 466 F. App’x 429 (5th Cir. 2012).

MacDonald also fails to demonstrate that trial counsel’s strategy not to call Sandra and

Melody during the punishment phase of trial was ill chosen or that counsel’s alleged failure to

adequately prepare the defense witnesses (Billot, Radakovich, and Justin) who testified at the

punishment phase prejudiced MacDonald.

When a petitioner alleges ineffective assistance of counsel in a non-capital sentencing

context, a reviewing court must determine whether there is a reasonable probability that but for

trial counsel’s errors, the petitioner’s sentence would have been significantly less harsh. See

Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir. 1993); Miller v. Dretke, 420 F.3d 356, 362 (5th Cir.

2005). When assessing the prejudice caused by counsel’s failure to present potentially mitigating

evidence, the Fifth Circuit instructs the federal habeas court to “reweigh the evidence in

aggravation against the totality of available mitigating evidence.” Miller, 420 F.3d at 364 (citation

omitted). In doing so, a court may consider: (1) the actual amount of the sentence imposed; (2)

the minimum and maximum sentences possible under the relevant statute or sentencing guidelines;

(3) the relative placement of the sentence actually imposed within that range; (4) and the various

relevant mitigating and aggravating factors that were properly considered by the sentencer. Id. at

365.

MacDonald is not entitled to relief because the state court’s decision that he failed to

establish prejudice under Strickland was not an unreasonable application of clearly established

federal law. MacDonald was convicted of aggravated sexual assault of a child. (See Docket Entry

No. 7-7 at 67–68). The maximum sentence was life in prison and the minimum sentence was 25

years in prison. See Tex. Penal Code § 22.021(f)(1); (Docket Entry No. 7-7 at 67). MacDonald

received a 45-year sentence. During trial, J.B. testified that MacDonald put his sexual organ in

her anus on more than one occasion. (See Docket Entry No. 7-5 at 46–63). The jury also heard

testimony from the outcry witness, T.T. (See id. at 79–103). During the punishment phase, J.B.’s

mother testified about how the abuse continued to affect J.B., including suffering from intense

nightmares, not allowing her mother to clean her private parts, and not wanting to interact with

men. (See Docket Entry No. 7-7 at 8–9). A licensed professional counselor testified that victims

who experience sexual abuse from their father have a harder time developing healthy relationships

with other males and a healthy close relationship with others in general. (Id. at 16–26). During

the punishment phase, the witnesses called by the defense generally testified that MacDonald was

a good student, possesses leadership skills, served in the Army, is a hard worker, is a good father,

and is intelligent. (Id. at 27–33, 35–56). The state habeas court found that MacDonald’s attorney

made a reasonable, strategic decision about what witnesses to call at both phases of trial and

recommended that MacDonald’s ineffective assistance of counsel claims be denied. The Court of

Criminal Appeals denied this ground for review on the findings of trial court without hearing and

on the court’s independent review of the record. The question on federal habeas review is not

whether this court “‘believes the state court’s determination’ under the Strickland standard ‘was

incorrect but whether that determination was unreasonable—a substantially higher

threshold.’” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v.

Landrigan, 550 U.S. 465, 473 (2007)).

In this case, the mitigating factors that MacDonald was a good student, is a hard worker,

served in the military, and is considered trustworthy were relatively minor when compared to the

significant aggravating factor of MacDonald sexually abusing his four-year-old daughter. There

is not a reasonable probability MacDonald would have received a significantly less harsh sentence

if additional character witnesses had testified during the sentencing phase of trial, especially

because these additional character witnesses would have provided similar testimony about

MacDonald’s character as other witnesses who did testify. See Dale v. Quarterman, 553 F.3d 876,

880–81 (5th Cir. 2008) (commenting that “[w]hen a number of people swear to undifferentiated,

verbatim statements, this court justifiably discounts both the statements’ veracity and the intensity

of the sentiments expressed. Although the affidavits suggest that some additional mitigating

evidence could have been produced on [the petitioner’s] behalf, they do not create a reasonable

probability that a sentencing court would have given [the petitioner] a significantly less harsh

sentence had it been apprised of this information.”) (internal citation omitted). MacDonald does

not explain or describe how his attorneys failed to adequately prepare Billot, Radakovich, and

Justin for their testimony, or how more or different preparation would have resulted in MacDonald

receiving a significantly less harsh sentence.

The state habeas courts’ conclusion on this point was not unreasonable. No basis for habeas

relief is shown, and the respondent is entitled to dismissal of this claim.

IV. Certificate of Appealability

MacDonald has not requested a certificate of appealability, but Rule 11 of the Rules

Governing Section 2254 Cases requires a district court to issue or deny a certificate of appealability

when entering a final order that is adverse to the petitioner. See 28 U.S.C. § 2253. A certificate

of appealability will not issue unless the petitioner makes “a substantial showing of the denial of

a constitutional right.” 28 U.S.C. § 2253(c)(2). To warrant a certificate of appealability as to

claims denied on their merits, the petitioner must demonstrate “that reasonable jurists would find

the district court’s assessment of the constitutional claims debatable or wrong.” Tennard v. Dretke,

542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). The petitioner

must show “that reasonable jurists could debate whether (or, for that matter, agree that) 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 v. Cockrell, 537 U.S. 322, 336 (2003)

(quoting Slack, 529 U.S. at 484). When relief is denied based on procedural grounds, a petitioner

must show not only that “jurists of reason would find it debatable whether the petition states a

valid claim of the denial of a constitutional right,” but also that jurists of reason “would find it

debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484.

A district court may deny a certificate of appealability on its own, without requiring further briefing

or argument. See Alexander v. Johnson, 211 F.3d 895, 898 (Sth Cir. 2000).

After carefully considering the record, the court concludes that MacDonald has not met the

requisite showing. There are no grounds to issue a certificate of appealability.

Vv. Conclusion

MacDonald’s petition for a writ of habeas corpus, Docket Entry No. 1, is dismissed with

prejudice. Any pending motions are denied as moot. A certificate of appealability will not issue.

Final judgment is separately entered.

SIGNED on August 5, 2025, at Houston, Texas.

Lee H. Rosenthal

Senior United States District Judge

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