# Gormley

> District Court, S.D. Texas · January 30, 2026

URL: https://www.frixlaw.com/law-library/cases/11252251

## Case

- **Full name:** Martin Joseph Gormley, III v. Eric Guerrero
- **Court:** District Court, S.D. Texas
- **Decided:** January 30, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT February 04, 2026
FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
HOUSTON DIVISION
MARTIN JOSEPH GORMLEY, III, §
§
Petitioner, §
V. CIVIL ACTION NO. H-22-4087
ERIC GUERRERO,
Respondent.
MEMORANDUM ORDER AND OPINION
Petitioner, a state inmate proceeding pro se, filed a habeas petition under 28 U.S.C.
§ 2254 challenging his conviction for super aggravated sexual assault of a child under the age
of six. Respondent filed an answer, which the Court construed as a motion to dismiss.
(Docket Entry No. 18.) Petitioner filed a response. (Docket Entry No. 31.)
Having considered the petition, the motion to dismiss, the response, the record, and
the applicable law, the Court GRANTS the motion to dismiss and DISMISSES this lawsuit
for the reasons shown below.
I. BACKGROUND AND CLAIMS
A jury found petitioner guilty of super aggravated sexual assault of a child under the
age of six in Harris County, Texas, and sentenced him to a forty-four-year term of
imprisonment in 2016. The conviction was affirmed on direct appeal. State v. Gormley, No.
01-16-00717-CR, 2017 WL 5494627 (Tex. App.—Houston [1st Dist.] Nov. 16, 2017) (pet.
ref'd). Petitioner was granted leave to file an out-of-time petition for discretionary review,

and discretionary review was denied in 2021. Petitioner’s application for state habeas relief
was denied by the Texas Court of Criminal Appeals without a written order on October 12,
2022, and petitioner timely filed the pending federal habeas petition.
Petitioner raises the following claims for federal habeas relief:
1. Trial counsel was ineffective in
a. failing to object to the designation of Dr. Pham as an expert witness;
b. failing to conduct adequate pretrial investigation and failing to locate
an expert witness;
c. failing to request a curative instruction and move for a mistrial after the
trial court sustained his objection to certain evidence;
d. failing to request a hearing under Texas Code of Criminal Procedure
Art. 38.072;
e. waiving petitioner’s right to confrontation of the complainant; and
f. failing to call an expert witness to rebut the State’s “pseudoscientific”
propositions.
2. The prosecution committed prosecutorial misconduct by knowingly presenting
false testimony; and
3. Appellate counsel was ineffective in failing to raise a confrontation issue.
Respondent argues that these claims have no merit and should be dismissed.
Il. FACTUAL BACKGROUND
The intermediate state court of appeals set forth the following statement of facts in its
opinion affirming petitioner’s conviction:

Gormley lived with his girlfriend, Sharon, and Sharon’s daughter, Donna, who
was three years old at the time of the incident (both names are pseudonyms).
Gormley was unemployed in September 2014 and was babysitting Donna
while her mother was at work. One afternoon, Gormley called Sharon and
asked her to come home because Donna’s vagina was injured. When Sharon
arrived, she saw “blood everywhere.” Donna was lying on the couch. She was
shaking and appeared lethargic. Gormley told Sharon that he thought Donna
had fallen off of a chair, but Sharon found no blood near the chair. Gormley
stated that, although he had not seen the child hurt herself because he was
vacuuming in another room, Donna approached him and told him that she fell
on a dinette chair that had been pulled up to a bar counter.
Sharon and Gormley took Donna to the emergency room. Sharon contacted her
mother, who immediately headed to the hospital to meet them. When Sharon’s
mother arrived, Gormley was no longer in the room with Donna and Sharon.
In Sharon’s presence, Donna told her grandmother that Gormley “hurt my pee
pee,” meaning her vagina. Sharon’s mother notified the nurse of Donna’s
statement.
Dr. Minh Pham, the emergency room physician, testified that after examining
Donna, he concluded that Donna had a one-centimeter tear in her vaginal area
consistent with a penetrating injury and recommended referral to a specialist
for further examination and treatment. Police arranged for Donna to be
transferred by ambulance to Memorial Hermann to see a specialist and
undergo an examination by a SANE (sexual assault nurse examiner) nurse.
The SANE nurse found a tear and bruising on Donna’s labia minora near the
hymen. Testing did not show Gormley’s semen on Donna’s body, but his DNA
could not be excluded as a contributor to one of the mixtures of blood and
bodily fluid found on her clothing and diaper.
At trial, Dr. Pham stated that the injury to Donna’s vagina was inconsistent
with a fall, as there was no bruising or other injuries on her body. He testified
that Donna’s vaginal injury was consistent with penetration of some sort.
Gormley, 2017 WL 5494627, *1.

I. STANDARD OF REVIEW
This petition is governed by provisions of the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). Under AEDPA, federal habeas relief cannot be granted
on legal issues adjudicated on the merits in state court unless the state adjudication was
contrary to clearly established federal law as determined by the Supreme Court of the United
States, or involved an unreasonable application of clearly established federal law as
determined by the Supreme Court. Harrington v. Richter, 562 U.S. 86, 98-99 (2011);
Williams v. Taylor, 529 U.S. 362, 404—05 (2000); 28 U.S.C. §§ 2254(d)(1), (2). A state court
decision is contrary to federal precedent if it applies a rule that contradicts the governing law
set forth by the Supreme Court, or if it confronts a set of facts that are materially
indistinguishable from such a decision and arrives at a result different from the Supreme
Court’s precedent. Early v. Packer, 537 U.S. 3, 7-8 (2002).
However, “even a strong case for relief does not mean the state court’s contrary
conclusion was unreasonable.” Richter, 562 U.S. at 102. As stated by the Supreme Court
in Richter,
If this standard is difficult to meet, that is because it was meant to be. As
amended by AEDPA, § 2254(d) stops short of imposing a complete bar on
federal court relitigation of claims already rejected in state proceedings. It
preserves authority to issue the writ in cases where there is no possibility
fairminded jurists could disagree that the state court’s decision conflicts with
this Court’s precedents. It goes no farther. Section 2254(d) reflects the view
that habeas corpus is a “guard against extreme malfunctions in the state
criminal justice systems,” not a substitute for ordinary error correction through
appeal.

Id. at 102-103 (emphasis added; internal citations omitted).
The AEDPA affords deference to a state court’s resolution of factual issues. Under
28 U.S.C. § 2254(d)(2), a decision adjudicated on the merits in a state court and based on a
factual determination will not be overturned on factual grounds unless it is objectively
unreasonable in light of the evidence presented in the state court proceeding. Miller—El v.
Cockrell, 537 U.S. 322, 343 (2003). A federal habeas court must presume the underlying
factual determination of the state court to be correct, unless the petitioner rebuts the
presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see
also Miller—El, 537 U.S. at 330-31. 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 conclusions of mixed law and fact. Murphy v. Davis, 901 F.3d 578, 597
(Sth Cir. 2018).
IV. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
A. Legal Standard
In order to establish ineffective assistance of trial counsel, a petitioner must prove that
counsel’s performance was deficient and that the deficient performance prejudiced
petitioner’s defense. Strickland v. Washington, 466 U.S. 668, 689-92 (1984). Because a
petitioner must prove both deficient performance and prejudice, failure to prove either will
be fatal to his claim. Johnson v. Scott, 68 F.3d 106, 109 (Sth Cir. 1995).

Judicial scrutiny of counsel’s performance is highly deferential. Strickland, 466 U.S.
at 689. As a result, there is a strong presumption that counsel rendered reasonable,
professional assistance, and that the challenged conduct was the result of a reasoned trial
strategy. Id.; United States v. Fields, 565 F.3d 290, 294 (Sth Cir. 2009). To overcome the
presumption that counsel provided reasonably effective assistance, a petitioner must prove
his attorney’s performance was objectively unreasonable in light of the facts of the
petitioner’s case, viewed as of the time of the attorney’s conduct. Strickland, 466 U.S. at
689-90; Fields, 565 F.3d at 294. This means a petitioner must overcome both the strong
presumption that counsel’s conduct fell within the “wide range of reasonable professional
assistance,” and that “under the circumstances, the challenged action might be considered
sound trial strategy.” Richter, 562 U.S. at 105.
In addition to proving counsel’s performance was deficient, a petitioner is required
to show prejudice resulting from counsel’s inadequate performance. Strickland, 466 U.S. at
691-92. That is, a petitioner must establish “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Jd. at 694.
Mere allegations of prejudice are insufficient; a petitioner must affirmatively prove, by a
preponderance of the evidence, that he was prejudiced as a result of counsel’s deficient
performance. Armstead v. Scott, 37 F.3d 202, 206 (5th Cir. 1994).

When, as here, a petitioner claims ineffective assistance of counsel, that claim is
subject to both AEDPA’s deferential standard and the substantive framework established in
Strickland. The result is a review that is “doubly deferential,” applying first to the state
court’s adjudication of the claim and second to counsel’s professional judgment. Knowles
v. Mirzayance, 556 U.S. 111, 123 (2009). “Double deference” requires more than showing
that counsel’s performance was imperfect or that the outcome might have been different.
Richter, 562 U.S. at 112 (“The likelihood of a different result must be substantial, not just
conceivable.”). Thus, “even a strong case for relief does not mean the state court’s contrary
conclusion was unreasonable.” Jd. at 102.
B. Dr. Pham
Petitioner claimed at trial that three-year-old Donna told him she fell on a chair and
hurt herself. However, Donna’s mother testified that Donna was actively bleeding from her
vagina and there was no blood near the chair. Emergency room physician Dr. Pham
examined Donna, found that she was bleeding from her vagina, and testified that Donna’s
injuries were inconsistent with falling from a chair. Dr. Pham was allowed to testify as an
expert witness. Petitioner claims that trial counsel was ineffective in failing to object to the
designation of Dr. Pham as an expert witness, in that Dr. Pham was not an expert in pediatric
gynecology or sexual assault and had no experience in chair-related pediatric vaginal injuries.

Petitioner argued on direct appeal that Dr. Pham was improperly allowed to testify as
an expert witness, but the argument was rejected by the intermediate state appellate court:
Gormley contends that the trial court erred in admitting Dr. Pham’s opinion
that a fall could not have caused Donna’s injury because (1) Dr. Pham was
unqualified to render an opinion about whether a chair was involved in
Donna’s accident and the way Donna may have fallen, and (2) he improperly
relied on speculation in forming his opinion.

We review a trial court’s decision to admit expert testimony for an abuse of
discretion. A trial court abuses its discretion when its decision lies outside the
zone of reasonable disagreement.
The trial court may admit expert testimony if (1) the witness is qualified as an
expert by knowledge, skill, experience, training, or education, and (2) the
expert’s “scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue.” TEX.
R. Evip. 702. The trial court must be satisfied that (1) the witness qualifies as
an expert by reason of her knowledge, skill, experience, training, or education;
(2) the subject matter is an appropriate one for expert testimony; and (3)
admitting the expert testimony will actually assist the factfinder in deciding the
case. Davis v. State, 329 8.W.3d 798, 813 (Tex. Crim. App. 2010). “These
conditions are commonly referred to as (1) qualification, (2) reliability, and (3)
relevance.” Id.
The Texas Court of Criminal Appeals has interpreted Rule 702 “to require a
proponent to prove by clear and convincing evidence that the proffered
testimony is reliable and helpful to the jury in deciding the ultimate issue.” We
examine the trial court’s ruling under these standards.
Dr. Pham testified:
Q. What was it about the injury that made you feel there was more to the
story?
A. Because a fall on a chair does not have this type of injury.

Q. And that—
DEFENSECOUNSEL: — Your Honor, I’m going to object. Unless he knows
what kind of chair, this is speculation.
THE COURT: Overruled. Admitted as expert testimony.
Gormley first claims that because Dr. Pham is not an expert in pediatric
gynecology, he is not qualified to opine that a chair does not cause the type of
injury suffered by Donna. Dr. Pham’s lack of specialization in gynecology,
however, does not render him unqualified to testify concerning the types of
injuries that typically result from a fall. Dr. Pham is a board-certified
emergency physician with approximately 15 years’ experience in emergency
medicine. In his practice, he “takes care of any emergency that comes through
the door,” and has seen “anything from simple ankle sprains to fractured
vertebrae, .. . lacerations, .. . heart attacks, strokes, all sorts.” Before treating
Donna, Dr. Pham had referred approximately nine to twelve patients to
undergo SANE examinations, two of whom were children and had all sorts of
lacerations. The evidence establishes that Dr. Pham has the knowledge, skill,
and experience qualifying him to render an opinion as to the nature of Donna’s
injury and likely causes and to rule out a fall from a chair as a possible cause
of the injury.
Gormley next claims that the trial court should have excluded Dr. Pham’s
testimony as speculative because he did not have sufficient information
concerning the nature of the fall and the type of the chair allegedly involved
in the incident. If an expert does not tie the facts of a case to his expert
opinion, then the testimony is not admissible.
Dr. Pham tied his opinion to the facts of the case. He based his opinion on his
physical examination of Donna. In addition, he “discussed the whole story”
with both Gormley and the mother, taking a history of the reported events and
confirming that the SANE nurse also received this information. Gormley
argues that Dr. Pham could not have known all of the details about the chair
as Gormley described them to the jury, but the trial court was entitled to credit
the physician’s testimony that he had elicited Gormley’s statement about how
the accident happened. Based on a physical examination of Donna, Dr. Pham
diagnosed the specific injuries that Donna sustained. Dr. Pham explained the
basis for his opinion, including his discovery of a small laceration inside the
vaginal area, where injury to a child is very unusual. He further observed that

if Donna had been injured from a fall, then there would have been bruising
everywhere around that area, not just inside the vaginal area. Based on the
reported history, the assessment, and the physical examination, Dr. Pham
excluded the possibility that Donna injured herself by falling from a chair.
Because Dr. Pham tied his opinion to the relevant facts adduced at trial, we
hold that the trial court did not abuse its discretion in admitting his opinion that
the laceration was not caused by a fall.
Gormley, at *1—*2 (citations partially omitted, headings omitted). Thus, the intermediate
state appellate court held that the trial court did not abuse its discretion in admitting Dr.
Pham’s testimony as expert witness testimony.
Petitioner reurged his arguments on state collateral review and raised claims for
ineffective assistance of counsel, but the Texas Court of Criminal Appeals denied relief
without a written order. This constituted a denial of petitioner’s claims on the merits. See
Singleton v. Johnson, 178 F.3d 381, 384 (Sth Cir. 1999). The state trial court did not make
findings of fact or conclusions of law.
Petitioner undertakes a two-pronged approach to his habeas claims in the instant
proceeding. First, he repeats verbatim the arguments he made in state court, quoting at
length from the trial record and voicing his disagreements with the testimony. Second, he
relies on an affidavit submitted on state collateral review by private medicolegal consultant
Harry J. Bonnell, M.D. Neither of these approaches moves petitioner past the exacting
AEDPA standards. As to the first prong of his arguments, petitioner’s disagreement with the
evidence and rulings does not constitute clear and convincing evidence that rebuts the
presumption of correctness, and warrants no federal habeas relief.

10

As to the second prong, petitioner’s reliance on Bonnell’s affidavit affords him no
basis for federal habeas relief. Petitioner strongly faults Dr. Pham and pediatric SANES
nurse Ferrell — medical practitioners who examined Donna following the sexual assault — for
not being pediatric gynecologists, child sexual assault experts (as to Dr. Pham), or having
experience in chair-related pediatric vaginal injuries. However, Bonnell himself is subject
to these very same objections. Moreover, while he may be qualified to testify as an expert
in certain subject matters, the Court does not presume that Bonnell, a forensic pathologist by
training and experience, is qualified to render an opinion as to the facts of this case.
Petitioner does not show that Bonnell has sufficient experience, education, or training to
offer expert testimony as to pediatric sexual assault or chair-related pediatric injuries, or that
his opinions in those areas would have an adequate basis in medical science. See Pedraza
v. Davis, No. 2:17-CV-190-Z-BR, 2020 WL 4698325, at *1 (N.D. Tex. Aug. 13, 2020)
(“Petitioner did not show that Dr. Bonnell has adequate experience and training to offer such
expert testimony as to sexual assault and abuse of children, or that such opinions provide the
Court with an adequate basis in medical science.”); see also Salinas v. City of San Jose, No.
C-09-04410-RS, 2010 WL 725803, at *1 (N.D. Cal. 2010) (unpublished) (finding “that Dr.
Bonnell’s significant experience in forensic pathology does not include substantial
experience with [tasers], either in the context of autopsies he performed or otherwise.”).
Moreover, Bonnell did not testify that, in his medical opinion, Donna had not been
sexually assaulted or that her vaginal trauma had been caused by falling on a chair. (Docket

11

Entry No. 20-24, pp. 110-11.) To the contrary, he provided no medical opinions whatsoever
in his affidavit. In lieu of medical opinions, Bonnell set forth observations and comments
culled directly from his review of the court clerk’s records and trial transcripts. These are
set forth below, followed by the Court’s analysis as to each:

— that Dr. Pham “was hardly an expert” in child and sexual abuse. /d., p. 110.
The Court notes that the state trial court did not find that Dr.
Pham was an expert in child and sexual abuse. Dr. Pham
testified that Donna’s vaginal injuries, in absence of other
external injuries, could not have been caused by falling on a
chair. The intermediate state appellate court held that “Dr.
Pham’s lack of specialization in gynecology, however, does not
render him unqualified to testify concerning the types of injuries
that typically result from a fall.” Bonnell’s comment that Dr.
Pham “was hardly an expert” is little more than his personal
disagreement with the trial and intermediate state appellate
courts’ determinations that Dr. Pham properly testified as an
expert witness, and provides no basis for granting federal habeas
relief.
—that Dr. Pham did not perform an internal vaginal examination yet described
external vaginal bruising and an internal vaginal laceration. Jd.
The Court notes that this evidence was presented to the jury, and
any credibility issues or inconsistencies in the evidence were for
the jury to weigh and determine. Bonnell proffers no medical
opinion that Donna was not sexually assaulted and that her
injuries were straddle injuries caused by falling from a chair.
Bonnell’s reiteration of Dr. Pham’s testimony provides no basis
for granting habeas relief.

— that Dr. Pham “describes an abrasion contusion of [Donna’s] groin and says
that a fall should have bruising but said this was not a fall.” Jd.

12

The Court again notes that this evidence was presented to the
jury, and any credibility issues or inconsistencies in the evidence
were for the jury to weigh and determine. Bonnell proffers no
medical opinion that Donna was not sexually assaulted and that
her injuries were straddle injuries caused by falling from a chair.
Bonnell’s reiteration of Dr. Pham’s testimony provides no basis
for granting habeas relief.

— that Dr. Pham “states that a fall on a chair does not cause this type of injury
without having examined the injury or seeing the suspect chair which has
wheels and could easily cause a child standing on it to fall awkwardly and
suffer a straddle injury on the chair’s back or arm.” Jd.
The Court notes that Dr. Pham testified that he examined Donna
following the sexual assault and presented his findings to the
jury. Any credibility issues or inconsistencies in the evidence
were for the jury to weigh and determine. Bonnell proffers no
medical opinion that Donna was not sexually assaulted and that
her injuries were straddle injuries caused by falling from a chair.
Bonnell, too, did not see the chair, and his speculation that the
chair could easily cause a child to fall awkwardly and sustain a
straddle injury provides no basis for habeas relief.

— that DNA expert Foley “incorrectly states that DNA is found in every cell in
the body. DNA is not found in red blood cells. His DNA analysis excludes
the defendant in every sample tested except possibly the external tab of the
diaper which would be handled during any diaper change nor can it be sure
that the diaper tested was on at the time of the incident since the mother
admitted that the child did not need a diaper and that she put one on only after
coming home for the child.” Jd.
Bonnell’s comment that Foley incorrectly testified that DNA is
found in every cell provides no support for petitioner’s
ineffective assistance claim. Petitioner does not show that, but
for counsel’s failure to rebut Foley’s statement, the results of the
trial would have been different. Bonnell proffers no opinion
that Foley’s DNA analyses were wrong. Moreover, the DNA
analysis of the diaper tab was presented to the jury, and any
weight to be given it was for the jury. Bonnell’s comments
provide no basis for habeas relief.

13

— that “SANE nurse Farrell [sic] has created novel ideas of biomechanics,
which are refuted by scientific facts. [S]he testifies that with a fall, labia
majora must hit first; actually, the most likely initial impact sight [sic] is the
groin or inner thigh unless the legs are spread widely to expose the labia.” Jd.
The record shows that the SANE nurse’s correct surname is
Ferrell. Bonnell presents no scientific or medical testimony
refuting Ferrell’s testimony, and provides no support for his
comment regarding the most likely initial impact site for a chair
fall. Bonnell proffers no medical opinion that Donna was not
sexually assaulted and that her injuries were straddle injuries
caused by falling from a chair. His comments are conclusory
speculation that provide no basis for habeas relief.

~ that “She falsely states that because of the head/neck flexibility, the child
must fall to the right or left; this is obviously absurd as the neck has very little
lateral bending motion but the weight of the head will cause the neck to flex
forward or possibly backward, NOT to the side. Two biomechanics experts
with PhD’s have confirmed this.” /d., pp. 110-11 (original emphasis).
The Court notes that Bonnell is not a biomechanics expert, nor
does he support his comment with confirmation from
biomechanics experts. Bonnell proffers no medical opinion that
Donna was not sexually assaulted and that her injuries were
straddle injuries caused by falling from a chair. Bonnell’s
comment that Ferrell’s testimony was “obviously absurd” is
conclusory, unsupported, and provides no basis for habeas relief.

— that “Dr. Pham mislead the jury by lying and Nurse Farrell [sic] did the same
with her creative biomechanics; neither apparently ever considered the
diagnosis of a straddle in jury [sic], [sic] The defense attorney was not
prepared to cross-examine either witness on this inaccurate testimony, which
bordered on perjury.” Jd., p. 111.
Bonnell’s comment that Dr. Pham and SANE nurse Ferrell lied
to the jury ifnot perjured themselves is conclusory, speculative,
and unsupported. Bonnell proffers no basis for speculating as
to what any witness did, or did not, consider or whether defense
counsel was, or was not, prepared for cross-examination of the

14

witnesses. Bonnell proffers no medical opinion that Donna was
not sexually assaulted and that her injuries were straddle injuries
caused by falling from a chair. Bonnell’s comments provide no
basis for habeas relief.
—that “Had he [sic] consulted with a true expert, such as a forensic pathologist,
he [sic] would have been prepared to attack this inaccurate testimony.” Jd.
Bonnell’s insinuation that defense counsel — who was a woman
~ was unprepared to cross-examine witnesses is conclusory,
speculative, and unsupported. His comment provides no basis
for habeas relief.
In short, Bonnell’s affidavit presents no medical opinions and provides no basis for
granting habeas relief in this case. Petitioner submitted a copy of Bonnell’s affidavit in his
application for state habeas relief, and the Texas Court of Criminal Appeals denied the
application on the merits.
Petitioner does not show that, had counsel objected to Dr. Pham as an expert witness,
the objection would have been granted. He further does not establish that, but for counsel’s
failure to object to Dr. Pham as an expert witness, there is a reasonable probability that the
result of his trial would have been different.
Petitioner fails to show that the state courts’ determination was contrary to, or
involved an unreasonable application of, Strickland or was an unreasonable determination
of the facts based on the evidence in the record. Respondent is entitled to dismissal of this
claim.

15

C. Pretrial Investigation
Petitioner contends that trial counsel was ineffective in failing to conduct an adequate
pretrial investigation and failing to locate an expert witness to rebut the State’s evidence of
sexual penetration.
To provide effective assistance during the pretrial stages, trial counsel must “conduct
a reasonable amount of pretrial investigation.” Nealy v. Cabana, 764 F.2d 1173, 1177 (Sth
Cir. 1985); Bower v. Quarterman, 497 F.3d 459, 468 (5th Cir. 2007) (“An attorney has a duty
to independently investigate the charges against his client.”). To prevail on a habeas claim
regarding a failure to conduct an investigation, a petitioner must point to specific evidence
that would have been uncovered by a more thorough investigation. Nealy, 764 F.2d at 1178.
A “failure to investigate can be constitutionally deficient only if it resulted in the exclusion
of competent evidence.” United States v. Drones, 218 F.3d 496, 502 (Sth Cir. 2000).
Petitioner does not direct the Court to any competent evidence that additional
investigation would have uncovered. Rather, his assertions of what counsel would have
discovered are conclusory, speculative, and unsupported in the record. As such, petitioner
has not demonstrated that trial counsel’s investigation was deficient.
Moreover, petitioner fails to meet his burden of proof as to uncalled expert witnesses.
To prevail on a claim that counsel failed to call a witness, a 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

16

been favorable to a particular defense.” Day v. Quarterman, 566 F.3d 527, 538 (Sth Cir.
2009). “Complaints of uncalled witnesses are not favored, because the presentation of
testimonial evidence is a matter of trial strategy and because allegations of what a witness
would have testified are largely speculative.” Boyd v. Estelle, 661 F.2d 388, 390 (Sth Cir.
1981) (citations omitted).
Petitioner argues that Bonnell was available to testify at trial and that he would have
testified in conformity with his affidavit. However, as noted earlier by the Court, petitioner
does not show that Bonnell is qualified to testify as an expert as to Donna’s injuries and their
medically probable causation. Even so, Bonnell’s affidavit proffers no expert witness
testimony as to Donna’s injuries or other exculpatory evidence. His observations and
comments reiterate evidence or inconsistencies in the evidence that were already before the
jury or that are conclusory, speculative, and unsupported. Petitioner does not show that, but
for trial counsel’s failure to present Bonnell as an expert witness, there is a reasonable
probability that the result of his trial would have been different.
Petitioner fails to show that the state courts’ determination was contrary to, or
involved an unreasonable application of, Strickland or was an unreasonable determination
of the facts based on the evidence in the record. Respondent is entitled to dismissal of this
claim.

17

D. Failure to Move for Mistrial
Petitioner next argues that trial counsel was ineffective in failing raise a complete
objection to Dr. Pham’s testimony that “a child does not lie.” He admits that counsel
objected to the testimony and that the objection was sustained, but contends that counsel
should have also moved for a curative instruction and a mistrial.
The intermediate state appellate court addressed and rejected petitioner’s argument
on direct appeal, as follows:
Finally, Gormley claims his trial counsel was deficient for failing to request
additional relief after the trial court sustained counsel’s objection to Dr.
Pham’s statement on the first day of trial that “children do not lie.” This
statement came on the heels of Dr. Pham’s testimony relating to his medical
treatment decisions, in particular, his decision to refer Donna for a SANE
exam and treatment by a gynecological specialist. The trial court sustained
defense counsel’s objection to this testimony and instructed the jury to
disregard it.'
On the second day of trial, the SANE nurse testified in detail about Donna’s
examination and her opinion that Donna’s injuries were consistent with that
of a non-accidental penetrating injury, confirming Dr. Pham’s opinion. Both
the SANE nurse and Dr. Pham concluded that Donna’s injuries were not
consistent with Gormley’s account that Donna injured herself by falling from
a chair. Based on the amount and the strength of the evidence in favor of the
Jury’s verdict, Gormley has not demonstrated that the outcome of a new trial
would have been different had his counsel pursued a mistrial.
Id. at *5—*6 (citations omitted, emphasis added).

'The record shows that the trial court sustained trial counsel’s objection to Dr. Pham’s
statement, but it does not show that the court instructed the jury to disregard it. (Docket Entry
No. 20-4, p. 32.) However, the Court does not find that this factual error requires the granting of
habeas relief, in that the intermediate appellate court reasonably found that petitioner failed to
establish prejudice under Strickland.
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Though counsel did not request an instruction to disregard or move for a mistrial,
petitioner does not demonstrate that, had counsel requested a mistrial, it would have been
granted. Even so, the intermediate state appellate court affirmatively found that, based on
the amount and strength of the evidence supporting the jury’s verdict, petitioner did not show
that the outcome of a new trial would have been different. The Court does not find this
determination to be objectively unreasonable, and deficient performance and prejudice under
Strickland are not shown.
Petitioner fails to show that the state courts’ determination was contrary to, or
involved an unreasonable application of, Strickland or was an unreasonable determination
of the facts based on the evidence in the record. Respondent is entitled to dismissal of this
claim.
E. Outcry Hearing
Petitioner alleges that trial counsel was ineffective in failing to object to outcry
testimony and not requesting a hearing under Texas Code of Criminal Procedure Art. 38.072.
Petitioner raised this claim on direct appeal and it was denied by the Texas Court of Criminal
Appeals, as follows:
Gormley first argues that his counsel was deficient in failing to secure a
hearing on Donna’s outcry statement to her grandmother pursuant to article
38.072 of the Code of Criminal Procedure. The outcry statute creates a hearsay
exception for a child-complainant’s out-of-court “statements” that “describe
the alleged offense,” so long as those statements were made “to the first [adult]
person... to whom the child . . . made a statement about the offense.” See
TEX. CODE CRIM. PROC. art. 38.072, § 2(a)(1)-(3). The statute thus permits the

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“first person” to whom the child made a “statement about the offense” to
testify regarding the statements’ contents.
Before the trial court may admit an “outcry statement,” the party intending to
offer the statement must notify the adverse party, provide the name of the
witness, and provide the adverse party with a written summary of the
statement. TEX. CODE CRIM. PROC. art. 38.072[.] To admit the statement, the
trial court, after conducting a hearing outside the presence of the jury, must
find that the statement is reliable based on the time, content, and circumstances
surrounding its utterance. TEX. CODE CRIM. PROC. art. 38.072(b)(2)[.]
The record shows that Donna made her outcry statement, that Gormley “hurt
my pee pee,” in a patient room at the emergency center in the presence of her
mother and grandmother. The grandmother informed the attending nurse of
Donna’s statement, who recorded it in her notes.
Sharon testified to her daughter’s outcry statement. The State identified Sharon
as a witness through whom it intended to offer Donna’s outcry statement.
Because Donna first made the statement to both Sharon and her grandmother,
Sharon is a proper outcry witness. See TEX. CODE CRIM. PROC. art. 38.072.
The State agreed not to call the grandmother as a witness after defense counsel
objected based on the prohibition against more than one outcry witness per
event. Because defense counsel succeeded in preventing the grandmother
from testifying, a hearing on whether the grandmother was an outcry witness
was unnecessary. Gormley thus has failed to show ineffective assistance on
this ground.
* *

Third, Gormley claims that his counsel was deficient in failing to object to
testimony about Donna’s outcry statement to her grandmother. As noted
above, the record belies this claim. The outcry statement came into evidence
through a proper witness, and the jury did not hear from the other possible
outcry witness. Defense counsel persisted in objecting to the prosecutor’s
questions to the Children’s Assessment Center (CAC) interviewer that sought
to elicit a repetition of Donna’s outcry statement and was successful in
preventing the statement’s admission through that avenue. Absent any
evidence to the contrary, counsel is presumed to have acted in a reasonably
effective manner. See Strickland, 466 U.S. at 689.

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Gormley, at *4—*5 (citations partially omitted).
Petitioner’s disagreement with the state court’s determinations against him provides
no basis for federal habeas relief. Petitioner does not establish that, but for counsel’s failure
to raise this objection and move for a statutory hearing, the result of his trial would have been
different. Deficient performance and prejudice under Strickland are not shown, and habeas
relief is unwarranted.
Petitioner fails to show that the state courts’ determination was contrary to, or
involved an unreasonable application of, Strickland or was an unreasonable determination
of the facts based on the evidence in the record. Respondent is entitled to dismissal of this
claim.
F, Right of Confrontation
Petitioner claims that trial counsel was ineffective in waiving petitioner’s right to
confrontation in that he did not demand that Donna appear in court and testify. Petitioner
raised this claim in his application for state habeas relief; the Texas Court of Criminal
Appeals denied the application without a written order. The state trial court on habeas
review did not make findings of fact and conclusions of law.
Petitioner did not respond to the respondent’s motion to dismiss as to this issue and
respondent’s motion as to the issue is unopposed. (Docket Entry No. 31, p. 9.) Even so,
petitioner’s claim has no merit. Because petitioner frames his argument as a claim for

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ineffective assistance of counsel, petitioner must prove deficient performance and prejudice
under Strickland. He does not satisfy his burden of proof.
Donna’s outcry statement did not implicate petitioner’s right of confrontation as to the
child, as the statement was not testimonial in nature. The Confrontation Clause of the Sixth
Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to
be confronted with the witnesses against him. Ohio v. Clark, 576 U.S. 237, 243 (2015). In
Clark, the Supreme Court of the United States held that the Confrontation Clause prohibits
the introduction of testimonial statements by a non-testifying witness unless the witness is
unavailable to testify, and the defendant had a prior opportunity for cross-examination. Jd.;
see also Crawford v. Washington, 541 U.S. 36, 54 (2004). “[A] statement cannot fall within
the Confrontation Clause unless its primary purpose was testimonial. Where no such primary
purpose exists, the admissibility of a statement is the concern of state and federal rules of
evidence, not the Confrontation Clause.” Clark at 245. “Statements by very young children
will rarely, if ever, implicate the Confrontation Clause.” Jd. at 248. Moreover, statements
made to individuals who are not law enforcement officers are much less likely to be
testimonial. /d. at 246. “In the end, the question is whether, in light of all the circumstances,
viewed objectively, the ‘primary purpose’ of the conversation was to ‘creat[e] an out-of-court
substitute for trial testimony.’” Jd. at 244. Here, three-year-old Donna’s statement to her
mother and grandmother regarding petitioner’s actions was not testimonial in nature, and
petitioner establishes nothing to the contrary. Donna’s statement did not implicate

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petitioner’s confrontation rights, and counsel was not deficient in failing to raise a groundless
motion or objection.
Moreover, a trial counsel’s decisions as to witness presentation is a matter of trial
strategy, and a strong presumption arises that counsel’s conduct falls within the wide range
of reasonable professional assistance. See Galvan v. Cockrell, 293 F.3d 760, 764 (Sth Cir.
2002). Cross-examination of Donna at trial would have carried a risk of her confirming for
the jury that petitioner sexually assaulted her. It would be reasonable trial strategy for trial
counsel to take steps to avoid the risk of presenting evidence harmful to petitioner’s defense.
Additionally, petitioner fails to demonstrate prejudice under Strickland. Petitioner
argues that, because of counsel’s ineffective assistance, the jury was not allowed to hear
“potentially exculpating testimony from the child” and that “it is undisputed and reasonable
to believe that this child’s testimony would have altered the outcome of [my] trial in a
manner favorable to [me].” (Docket Entry No. 1, p. 7.) It is far from undisputed, nor is it
reasonable to assume, that Donna would have testified in petitioner’s favor. Nothing in the
record indicates that Donna’s testimony would have been exculpatory, and petitioner’s
arguments are speculative, unsupported, and warrant no relief.
Petitioner fails to show that the state courts’ determination was contrary to, or
involved an unreasonable application of, Strickland or was an unreasonable determination
of the facts based on the evidence in the record. Respondent is entitled to dismissal of this
claim.

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G. Pseudoscience Rebuttal
Petitioner argues that trial counsel was ineffective in failing to call an expert witness
to rebut the State’s “‘pseudoscientific” propositions. Specifically, he argues that trial counsel
was ineffective in failing to request a continuance to have blood evidence tested and failing
to call Bonnell to rebut the testimony of DNA expert Foley and SANE nurse Ferrell.
The Texas Court of Criminal Appeals denied habeas relief on the merits of these
claims and petitioner does not establish that rejection of the claims was objectively
unreasonable. Petitioner does not demonstrate that, had counsel requested a continuance
during trial to undertake the blood test, that the continuance would have been granted.
Petitioner further fails to show that, had the evidence been tested pursuant to his request, the
results would have been favorable to his defense. Consequently, petitioner does not show
that, but for counsel’s failure to request a continuance to have blood evidence tested, the
result of his trial would have been different.
Plaintiff further fails to show that trial counsel was ineffective in not calling Bonnell
to rebut the testimony of DNA expert Foley and SANE nurse Ferrell. In his affidavit,
Bonnell comments that Foley incorrectly testified that all cells contain DNA, because red
blood cells contain no DNA. Petitioner does not show that, but for counsel’s failure to call
Bonnell to testify that red blood cells do not contain DNA, there is a reasonable probability
that the result of the trial would have been different. Nothing in the record indicates that the
question of red blood cells having DNA was inculpatory, exculpatory, or relevant to a

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material issue. As noted earlier, Bonnell did not present any expert witness testimony in his
affidavit disagreeing with the results of Foley’s DNA analysis, and petitioner does not
establish that Bonnell was qualified to testify as an expert witness as to DNA testing and
analysis. Thus, petitioner does not demonstrate that Bonnell would have presented expert
witness testimony rebutting Foley’s DNA testing analysis and that, but for counsel’s failure
to call Bonnell, there is a reasonable probability that the result of his trial would have been
different. Petitioner fails to establish deficient performance and prejudice under Strickland.
These same deficiencies in proof apply to petitioner’s complaints regarding SANE
nurse Ferrell. Petitioner alleges that, “Putting Dr. Bonnell on the stand to rebut Ferrell’s
misleading statements and demonstrating how the fall happened could have convinced the
jury as to how this happened.” (Docket Entry No. 31, p. 11.) Petitioner’s assertion is
conclusory, speculative, and unsupported in the record. No one saw Donna fall from a chair,
and Bonnell would have no basis for testifying at trial as to how Donna fell. Although
Bonnell disagreed in his affidavit with certain aspects of Ferrell’s testimony, he proffered no
expert testimony supporting his disagreement, nor did petitioner establish that Bonnell was
qualified to present expert witness testimony rebutting Ferrell’s testimony. Thus, petitioner
does not demonstrate that, but for counsel’s failure to call Bonnell, there is a reasonable
probability that the result ofhis trial would have been different. Petitioner does not establish
deficient performance and prejudice under Strickland.

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Petitioner fails to show that the state courts’ determination was contrary to, or
involved an unreasonable application of, Strickland or was an unreasonable determination
of the facts based on the evidence in the record. Respondent is entitled to dismissal of this
claim.
V. PROSECUTORIAL MISCONDUCT
Petitioner next argues that he was denied due process when the prosecution presented
false testimony of Dr. Pham and SANE nurse Ferrell. He contends that this constituted
prosecutorial misconduct in that the prosecution knew or should have known that the medical
testimony was false if not perjured.
It is well established that the prosecution may not knowingly use perjured testimony
or allow perjured testimony to go uncorrected. Napue v. Illinois, 360 U.S. 264, 269 (1959);
Giglio v. United States, 405 U.S. 150, 154 (1972). However, to prove a due process violation
in such a case, a petitioner must demonstrate (1) that the testimony in question was actually
false, (2) that the prosecutor was aware of the perjury, and (3) that the testimony was
material. Faulder v. Johnson, 81 F.3d 515, 519 (Sth Cir. 1996).
Petitioner fails to establish these elements. His assertions of false or perjured
testimony are conclusory and unsupported in the record. To the extent that he relies on
Bonnell’s habeas affidavit as proof that Dr. Pham and SANE nurse Ferrell’s testimonies were
false and perjured, Bonnell’s affidavit provides no such proof. Bonnell’s comments and
observations in his affidavit were not expert witness testimony. Even assuming they were

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expert witness testimony, Bonnell’s disagreement with certain aspects of Dr. Pham and
SANE nurse Ferrell’s testimony did not establish that the testimony was false or perjured or
that the prosecution was aware of any falseness or perjury.
The state court denied habeas relief. Petitioner fails to show that the state court’s
determination was contrary to, or involved an unreasonable application of, federal law or was
an unreasonable determination of the facts based on the evidence in the record. Respondent
is entitled to dismissal of this claim.
VI. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
Petitioner argues that appellate counsel was ineffective in failing to raise a
confrontation issue as to Donna. The Texas Court of Criminal Appeals on state collateral
review denied habeas relief on this issue.
The Court has already determined, supra, that Donna’s statements did not implicate
petitioner’s confrontation rights. Consequently, petitioner does not establish under
Strickland that, but for appellate counsel’s failure to raise the issue on appeal, the result of
the appeal would have been different.
Petitioner fails to show that the state court’s determination was contrary to, or
involved an unreasonable application of, Strickland or was an unreasonable determination
of the facts based on the evidence in the record. Respondent is entitled to dismissal of this
claim.

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VII. EVIDENTIARY HEARING
Under 28 U.S.C. § 2254(e)(2), if a petitioner has failed to develop the factual basis
of a claim in state court proceedings, no evidentiary hearing is required on unless
(A) _ the petitioner shows that the claim relies on —

(i) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable; or
(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
(B) _ the facts underlying the claim would be sufficient to establish by clear
and convincing evidence that but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying
offense.
28 U.S.C. § 2254(e)(2). Petitioner does not meet these requirements and he is not entitled
to an evidentiary hearing.
VIII. CONCLUSION
For the above reasons, respondent’s motion to dismiss (Docket Entry No. 18) is
GRANTED and this lawsuit is DISMISSED WITH PREJUDICE. Any and all pending
motions are DISMISSED AS MOOT. A certificate of appealability is DENIED.
Signed at Houston, Texas, on this the Ss Cady « of January, 2026.

KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11252251. Public record. Not legal advice.