Petition for Writ of Certiorari — Kevin Terrell Tatum, Petitioner v. Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division

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Case: 17-20787

Document: 00514709704 Page: 1 Date Piled: 11/05/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-20787

KEVIN TERRELL TATUM,

Petitioner-Appellant

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee

Appeal from the United States District Court

for the Southern District of Texas

ORDER:

Kevin Terrell Tatum, Texas prisoner # 1409740, moves this court for a

certificate of appealability (COA) to appeal the denial of his 28 U.S.C. § 2254

application, wherein he sought to challenge his conviction of murder in

violation of Texas Penal Code Annotated § 19.02(b). Citing an affidavit of a

recanting witness, he argues that the evidence shows that he acted in selfdefense or in sudden passion. He further argues that his trial counsel was

ineffective for failing to raise the issue of sudden passion in mitigation, for

failing to adequately investigate the case and interview witnesses who could

have corroborated his self-defense argument, and for failing to make certain

objections at trial. He does not brief the other claims he raised in his § 2254

application and has, therefore, abandoned them. See Hughes v. Johnson, 191

Case: 17-20787

Document: 00514709704 Page: 2 Date Filed: 11/05/2018

No. 17-20787

F.3d 607, 613 (5th Cir. 1999); Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.

1993).

To obtain a COA, a prisoner must make "a substantial showing of the

denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel,

529 U.S. 473, 483-84 (2000). An applicant satisfies the COA standard "by

demonstrating that jurists of reason could disagree with the district court's

resolution of his constitutional claims or that jurists could conclude the issues

presented are adequate to deserve encouragement to proceed further." MillerEl v. Cockrell, 537 U.S. 322, 327 (2003).

Tatum fails to make the requisite showing. Consequently, his motion for

a COA is DENIED.

I __+,

- ~t

JAMES C. HO

UNITED STATES CIRCUIT JUDGE

A True Copy

Certified order issued Nov 05, 2018

Clerk,

w. £1(A

S. Court of

peals, Fifth Circuit

Case: 17-20787

Document: 09514768717 Page: 1 Date Filed: 12/20/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-20787

KEVIN TERRELL TATUM,

Petitioner Appellant

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent Appellee

Appeal from the United States District Court

for the Southern District of Texas

Before SOUTHWICK, HAYNES and HO, Circuit Judges.

PER CURIAM:

A member of this panel previously denied appellant's motion for

certificate of appealability. The panel has considered appellant's motion for

reconsideration. IT IS ORDERED that the motion is DENIED.

United States District Court

Southern District of Texas

ENTERED

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

KEVIN TERRELL TATUN,

LORIE DAVIS, DIRECTOR,

TEXAS DEPARTMENT OF CPIM.NAL

JUSTICE, CORRECTIONAL

INSTITUTIONS DIVISION,

Petitioner,

Respondent.

November 30, 2017

David J. Bradley, Clerk

CIVIL ACTION NO. H-14-1735

FINAL JUDGMENT

It is ORDERED and ADJUDGED for the reasons set forth in this

Court's separate Order Adopting Recommendation of the Magistrate

Judge, and the Memorandum and Recommendation of the Magistrate

Judge filed on September 6, 2017, which Memorandum and

Recommendation, with the clarification made in the accompanying

Order, is adopted as the opinion of this Court, that Respondent's

Motion for Summary Judgment (Document No. 47) is GRANTED,

Petitioner's Federal Application and Supplemental Application for

Writ of Habeas Corpus (Document Nos. 1 and 43) are DENIED, and this

case is DISMISSED WITH PREJUDICE. It is further

ORDERED that a Certificate of Appealability is DENIED.

This is a FINAL JUDGMENT.

The Clerk will enter this Order and send copies to all parties

of record.

SIGNED at Houston, Texas, on this

day of November, 2017,

I Jo,

..4

WG WERLEIN, JR. ' V

tJNITETATES DISTRICT JUDGE

1AA.

Case 4:14-cv-01735 Document 62 Filed on 11/30/17 in TXSD Page 1 of 4

United States District Court

Southern District of Texas

ENTERED

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

November 30, 2017

David J. Bradley, Clerk

HOUSTON DIVISION

KEVIN TERRELL TATUM,

Petitioner,

LORIE DAVIS, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, CORRECTIONAL

INSTITUTIONS DIVISION,

CIVIL ACTION NO. H-14-1735

Respondent.

ORDER ADOPTING RECOMMENDATION

OF THE MAGISTRATE JUDGE

Pending is Respondent's Motion for Summary Judgment (Document

No. 47) against Petitioner's Federal Application for Writ of Habeas

Corpus (Document No. 1) and Supplemental Application for Writ of

Habeas Corpus (Document No. 43). The Court has received from the

Magistrate Judge a Memorandum and Recommendation recommending that

Respondent's Motion for Summary Judgment be GRANTED, and that

Petitioner's Application and Supplemental Application for Writ of

Habeas Corpus be DENIED and DISMISSED with prejudice.

Both

Respondent and Petitioner have filed Objections (Document Nos. 55

& 61) to the Memorandum and Recommendation. The Court has made a

de novo determination of Respondent's Motion for Summary Judgment,

Petitioner's Response, Petitioner's Application and Supplemental

Application for Writ of Habeas Corpus, the Memorandum and

Recommendation, and both sides' Objections. Having done so, a

Case 4:14-cv-01735 Document 62 Filed on 11/30/17 in TXSD Page 2 of 4

small clarification on the Memorandum and Recommendation, based on

the record, is appropriate.

In the second (middle) paragraph on page 15 of the Memorandum

and Recommendation, the Magistrate Judge states that Tatum's

assertion in his "second" state application (as the State describes

it), which was filed June 25, 2012, was "predicated on a June 2013

affidavit from Charlie Ivory." Obviously, those dates are

inconsistent. Tatum filed the so-called "second" state application

on June 25, 2012, not intending it (as the Magistrate Judge

correctly observed) as a separate application but, as Tatum

expressly stated in the document, as adding "'supplemental' points

to previously filed writ [of August 31, 20091 that is still pending

and not yet resolved." Document No. 48-1, at 3. A year later-with the June 2009 state application still pending--Tatum procured

the June 30, 2013 Affidavit of Charlie Ivory, who largely renounced

his trial testimony against Tatum and presented an account

favorable to Tatum. On September 5, 2013, still with the June 2009

state petition pending, Tatum further supplemented the State

petition by filing the Ivory Affidavit as an attachment to what he

denominated his Response to State's Original Answer and Proposed

Order (Document No. 48-1, at 71 of 115, and Affidavit at 81-83 of

115)

When Tatum supplemented his still-pending 2009 petition with

Ivory's 2013 Affidavit, Tatum then advanced his argument of actual

innocence.

The foregoing clarification of sequential dates

Case 4:14-cv-01735 Document 62 Filed on 11/30/17 in TXSD Page 3 of 4

replaces the statement made on page 15 of the Memorandum and

Recommendation referred to in the first sentence of this paragraph.

With the foregoing clarification, the Court is of the opinion

that the findings and recommendations of the Magistrate Judge are

correct and should be and hereby are accepted by the Court in their

entirety. Accordingly,

It is ORDERED and ADJUDGED for the reasons set forth in the

Memorandum and Recommendation of the United States Magistrate Judge

filed on September 6, 2017 which, with the clarification made

above, is adopted in its entirety as the opinion of this Court,

that Respondent's Motion for Summary Judgment (Document No. 47) is

GRANTED, and Petitioner's Application and Supplemental Application

for Writ of Habeas Corpus (Document Nos. 1 and 43) are DENIED and

DISMISSED with prejudice. It is further

ORDERED that a certificate of appealability is DENIED. A

certificate of appealability from a habeas corpus proceeding will

not issue unless the petitioner makes "a substantial showing of the

denial of a constitutional right." 28 U.S.C. § 2253(c) (2). This

standard "includes showing 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." Slack

v. McDaniel, 120 S. Ct. 1595, 1603-1604 (2000) (internal quotations

and citations omitted). Stated differently, where the claims have

been dismissed on the rñerfts, the petitioner must demonstrate that -

Case 4:14-cv-01735 Document 62 Filed on 11/30/17 in TXSD Page 4 of 4

reasonable jurists would find the district court's assessment of

the constitutional claims debatable or wrong.

Id. at 1604;

Beazley v. Johnson, 242 F.3d 248, 263 (5th Cirj, cert. denied, 122

S.Ct. 329 (2001).

When the claims have been dismissed on

procedural grounds, the petitioner must show that "jurists of

reason would find it debatable whether the petition states a valid

claim of the denial of constitutional right and that jurists of

reason would find it debatable whether the district court was

correct in its procedural ruling." Slack, 120 S. Ct. at 1604. A

district court may deny a certificate of appealability sua sponte,

without requiring further briefing or argument.

Alexander v.

Johnson, 211 F.3d 895, 898 (5th Cir. 2000)

For the reasons set forth in the Memorandum and

Recommendation, the Court determines that Petitioner has not made

a substantial showing of the denial of a constitutional right, and

that reasonable jurists would not debate the correctness of either

the substantive or procedural rulings.

The Clerk will enter this Order and send copies to all parties

of record.

Signed at Houston, Texas on this'no day of November, 2017.

(EEING WERLEIN, Jk.Cl

DISTRICT JUDGE

UNITE' STATES

Case 4:14-cv-01735 Document 54 Filed on 09/06/17 in TXSD Page 1 of 38

United States District Court

Southern District of Texas

ENTERED

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

KEVIN TERRELL TATUM,.

September 06, 2017

David J. Bradley, Clerk

Petitioner,

CIVIL ACTION NO. H-14-1735

WILLIAM STEPHENS, DIRECTOR, TEXAS §

DEPARTMENT OF CRIMINAL

JUSTICE, CORRECTIONAL

INSTITUTIONS DIVISION,

Respondent.

MEMORANDUM AND RECOMMENDATION GRANTING

RESPONDENT'S MOTION FOR SUMMARY JUDGMENT

Before the Magistrate Judge in this proceeding brought pursuant to 28 U.S.C. § 2254 is

Respondent's Motion for Summary Judgment (Document No. 47) against Petitioner's Federal

Application for Writ of Habeas Corpus (Document No. 1) and Supplement thereto (Document No.

43). Having considered Respondent's Motion for Summary Judgment, Petitioner's Traverse in

response (Document No. 51), the claims raised by Petitioner in his § 2254 Application and

Supplemental § 2254 Application, the state court records, and the applicable law, the Magistrate

Judge RECOMMENDS, for the reasons set forth below, that Respondent's Motion for Summary

Judgment (Document No. 47) be GRANTED, that Petitioner's Federal Application for Writ of

Habeas Corpus and Supplemental Application (Document Nos. 1 & 43) be DENIED, and that this

case be DISMISSED WITH PREJUDICE.

Case 4:14-cv-01735 Document 54 Filed on 09/06/17 in TXSD Page 2 of 38

Introduction and Procedural History

Kevin Terre!! Tatum ("Tatum") is currently incarcerated in Texas Department of Criminal

Justice, Correctional Institutions Division (TDCJ-CID), as a result of a 2006 murder conviction in

the 179'District Court of Harris County, Texas, cause no. 1042008, for which he was sentenced to

forty-five (45) years imprisonment. Tatum was charged by indictment with that offense on

December 9, 2005, with the Indictment alleging:

• KEVIN TERRELL TATUM, hereafter styled the Defendant, heretofore on or

about SEPTEMBER 28, 2005, did then and there unlawfully, intentionally and

knowingly cause the death of BONNIE MOCK, hereinafter called the Complaint, by

SHOOTING THE COMPLAINANT WITH A DEADLY WEAPON, NAMELY, A

FIREARM.

It is further presented that in Harris County, Texas, KEVIN TERRELL

TATUM, hereinafter styled the Defendant, heretofore on or about SEPTEMBER 28,

2005, did then and there unlawfully, intend to cause serious bodily injury to BONNIE

MOCK, hereinafter called the Complainant, and did cause the death of the

Complainant by intentionally and knowingly committing an act clearly dangerous to

human life, namely BY SHOOTING THE COMPLAINANT WITH A DEADLY

WEAPON, TO WIT: A FIREARM.

Tatum pled not guilty and proceeded to trial. On December 8, 2006, a jury found Tatum guilty, and

he was thereafter sentenced by the jury, following a punishment hearing, to forty-five years

incarceration.

Tatum appealed his conviction, with his appointed appellate counsel, Patti Sedita, filing an

Anders brief, and Tatum himself filing a separate brief. On August 29, 2008, Texas' First Court of

Appeals affirmed the conviction in an unpublished opinion. Tatum v. State, No. 01-06-01190-CR.

Tatum's petition for discretionary review was then refused by the Texas Court of Criminal Appeals

on March 11, 2009. Tatum did not file a petition for writ of certiorari, and his conviction therefore

became final on or about June 9, 2009

Case 4:14-cv-01735 Document 54 Filed on 09/06/17 in TXSD Page 3 of 38

On August 31, 2009, Tatum filed a state application for writ of habeas corpus. That

application was initially denied without written order on March 19, 2014, but was, upon

reconsideration, dismissed on April 15, 2015, as "noncompliant with the Rules of Appellate

Procedure." Tatum's subsequent state application for writ of habeas corpus, filed on or about June

25, 2012, was denied by the Texas Court of Criminal Appeals without written order on October 5,

2016, on the findings of the trial court without a hearing. This § 2254 proceeding, which was filed

by Tatum on or about June 18, 2014, after his first state application for writ of habeas corpus had

been initially denied, was stayed to allow the state courts to consider claims Tatum had attempted

to add to his first state application for writ of habeas corpus (Document No. 14). Briefing was then

"re-opened" to allow Respondent to conform its responsive pleading to Tatum's claims and address

the ruling by the Texas Court of Criminal Appeals on Tatum's "second" state application for writ

of habeas corpus (Document No. 38). Thereafter, Tatum filed a Supplemental § 2254 Application

(Document No. 43), and Respondent filed a Motion for Summary Judgment (Document No. 47).

This § 2254 proceeding is ripe for ruling.

II.

Factual and Evidentiary Background

The murder charge, of which Tatum was convicted, arose from a shooting outside of a club

on September 28, 2005. There was no dispute that Tatum shot the Complaint, Bonnie Mock, in the

leg, and that Mock died of his injuries. The only dispute at trial was Tatum's state of mind, with

the defense being that Tatum shot Mock in self-defense, after feeling threatened by Mock and a

group of others.

The facts and circumstances leading up to the offense are generally not in dispute. Tatum

Case 4:14-cv-01735 Document 54 Filed on 09/06/17 in TXSD Page 4 of 38

and Charlie Ivory grew up in the same, or bordering neighborhoods, and had attended elementary,

middle and high schools together. They knew each other, but were not friends. Tatum and Ivory

each had a child by the same woman, and they, at times, either dated or were "friends" with, the

same women. Ostensibly because of this, there was animosity between the two in the month or so

prior to the offense, with heated telephone calls between them about planning a "fight." No definite

plans for a fight were made. Instead, Tatum and Ivory ran into each other unexpectedly outside of

a nightclub, the Surf Shack, in the early morning hours on September 28, 2005. More talk of

fighting ensued, with Ivory testifying at trial that he agreed to fight Tatum behind the club. Both

Tatum and Ivory had friends present when they went behind the club to fight, but Ivory insisted that

the fight be one-on-one. It is what happened next that is in dispute.

Ivory testified at trial that Tatum walked away from him and got in his car, which was parked

nearby. Ivory and his friends followed, walking after Tatum's car as he drove slowly through the

parking lot, with Ivory yelling at Tatum get out of the car and fight. The yelling and mention of a

fight attracted the attention of others in the parking lot. According to Ivory, when Tatum' s car was

about three yards from the entrance/exit of the parking lot, a mutual acquaintance of his and Tatum' s,

Bonnie Mock, approached him, and then approached Tatum in his car, to ask what was going on.

Mock, who was in front of Ivory at the time, was shot by Tatum from his car. Tatum also shot at and

hit Ivory, and one of Ivory's cousins, Charles Page. Mock died of his injuries. Ivory and Page were

treated at the hospital and released. Tatum left the scene following the shooting, called 911 to report

that he had heard shooting from everywhere at the club's parking lot, and turned himself in to

authorities a week later.

The State's evidence consisted of the testimony of Ivory that the only weapon fired at the

Case 4:14-cv-01735 Document 54 Filed on 09/06/17 in TXSD Page 5 of 38

scene was Tatum's, that he saw no one else with a weapon, that Mock was not acting aggressively,

and that Mock did not try to pull Tatum out of his car, did not yank the door to Tatum's car open,

and did not break any windows in Tatum's car. Two witnesses at the scene, Kim Boyd and Tameka

Hall, neither of whom knew any of the participants, testified at they heard Bonnie Mock mention a

"fight" and saw him run off towards the crowd that was gathering in the parking lot. They both also

testified that when they were in their car, trying to exit the parking lot, Tatum's car was directly in

front of them, they saw Bonnie Mock approach Tatum in his car, with his hands in the air, and ask

"what's up," and then saw Tatum open the driver's side door, put his left foot out of the car, and start

shooting. Mock was hit and fell to the ground. According to both Kim Boyd and Tameka Hall, they

saw no one (other than Tatum) with a gun, no shots were fired at the scene prior to the shots fired

by Tatum, and they saw no one throwing bottles at Tatum's car, no one shooting at Tatum's car, and

no one threatening Tatum. Kim Boyd also testified that Mock was not acting aggressively, and that

there was no car in front of Tatum's preventing him from leaving the parking lot before the shooting.

Another witness, Chentera Willis, who knew both Tatum and Mock, testified at trial that she also

saw Bonnie Mock approach Tatum's car with his hands up and ask "what's up," and saw the driver

of the car open the door and start shooting. She didn't see any cars in front of Tatum's at the time

of the shooting, and there were no shots fired before Tatum's. Evidence collected at the scene

consisted of five spent shell casings, all from the same gun. There was no damage to Tatum's car.

In support of his self-defense defense, Tatum testified along with two other witnesses,

Christopher Alexander and Ashley Perry. Alexander testified that he and Tatum were being

followed aggressively by Ivory and his friends, Tatum was nervous and panicking when he got into

his car and headed toward the parking lot exit, he heard a glass bottle breaking somewhere, a dark

Case 4:14-cv-01735 Document 54 Filed on 09/06/17 in TXSD Page 6 of 38

colored car pulled in front of Tatum's car near the exit, blocking them in, and a guy got out of the

car and started punching the window of Tatum;'s car, saying "what's up." The driver's side door

of Tatum's car then came open and he heard shots. Perry, similarly, testified that she saw a group

of people following Tatum, acting as if they wanted to fight, that Tatum and Alexander got in

Tatum's car and were pursued through the parking lot by several people, including someone who

was walking alongside the car, beating on it and yelling for Tatum to get out of the car, that a black

car stopped in front of Tatum's near the exit and one of the occupants of that car "lifted up his shirt,"

and was beating on Tatum's car and grabbing the door before she heard shots being fired.

Tatum testified in his own defense that he "seen a weapon," heard bottles of glass thrown

towards his car, "seen a gunshot," and that he was in fear for this life as he drove through the parking

lot toward the exit. At the exit, a car was blocking his from leaving the parking lot, and a guy ran

up to his car and started punching his window, trying to break out the glass, and reached for and

yanked on the driver's side door, causing it to open. According to Tatum, he grabbed the weapon

he kept in his car and started shooting, but did not intend to kill anyone.

Most of the jury charge was devoted to the following instructions on self-defense:

Upon the law of self-defense, you are instructed that a person is justified in

using force against another when and to the degree he reasonably believes the force

is immediately necessary to protect himself against the other person's use or

attempted use of unlawful force. The use of force against another is not justified in

response to verbal provocation alone.

A person is justified in using deadly force against another if he would be

justified in using force against the other in the first place, as above set out, and when

he reasonably believes that deadly force is immediately necessary to protect himself

against the other person's use or attempted use of unlawful deadly force, and if a

reasonable person in the defendant's situation would not have retreated.

By the term "reasonable belief" as used herein is meant a belief that would

be held by an ordinary and prudent person in the same circumstances as the

Ell

Case 4:14-cv-01735 Document 54 Filed on 09/06/17 in TXSD Page 7 of 38

defendant.

By the term "deadly force" is meant force that is intended or known by the

persons using it to cause, or in the manner of its use or intended use is capable of

causing, death or serious bodily injury.

When a person is attacked with unlawful deadly force, or he reasonably

believes he is under attack or attempted attack with unlawful deadly force, and there

is created in the mind of such person a reasonable expectation or fear of death or

serious bodily injury, then the law excuses or justifies such person in resorting to

deadly force by any means at his command to the degree that he reasonably believes

immediately necessary, viewed from his standpoint at the time, to protect himself

from such attack or attempted attack. And it is not necessary that there be an actual

attack or attempted attack, as a person has a right to defend his life and person from

apparent danger as fully and to the sane extent as he would have had the danger been

real, provided that he acted upon a reasonable apprehension of danger, as it appeared

to him from his standpoint at the time, and that he reasonably believed such deadly

force was immediately necessary to protect himself against the other person's use or

attempted use of unlawful deadly force.

In determining the existence of real or apparent danger, you should consider.

all the facts and circumstances in the case in evidence before you, together with all

relevant facts and circumstances going to show the condition of the mind of the

defendant at the time of the occurrence in question, and in considering such

circumstances, you should place yourself in the defendant's position at that time and

view them from his standpoint alone.

You are instructed that you may consider all relevant facts and circumstance

surrounding the offense, if any, and the previous relationship existing between the

accused and Bonnie Mock, together with all relevant facts and circumstances going

to show the condition of the mind of the accused at the time of the offense, if any.

Therefore, if you find from the evidence beyond a reasonable doubt that the

defendant, Kevin Terrell Tatum, did cause the death of Bonnie Mock, by shooting

Bonnie Mock with a deadly weapon, namely, a firearm, as alleged, but you further

find from the evidence, as viewed from the standpoint of the defendant at the time,

that from the words or conduct, or both of Bonnie Mock it reasonably appeared to the

defendant that his life or person was in danger and there was created in his mind a

reasonable expectation or fear of death or serious bodily injury from the use of

unlawful deadly force at the hands of Bonnie Mock, and that acting under such

apprehension and reasonably believing that the use of deadly force in his part was

immediately necessary to protect himself against Bonnie Mock's use or attempted

use of unlawful deadly force, he shot Bonnie Mock and that a reasonable person in

the defendant's situation would not have retreated, then you should acquit the

- - -

Case 4:14-cv-01735 Document 54 Filed on 09/06/17 in TXSD Page 8 of 38

defendant on the grounds of self-defense; or if you have a reasonable doubt as to

whether or not the defendant was acting in self-defense on said occasion and under

the circumstances, then you should give the defendant the benefit of that doubt and

say by your verdict, not guilty.

If you find from the evidence beyond a reasonable doubt that at the time and

place in question the defendant did not reasonably believe that he was in danger of

death or serious bodily injury, or that a reasonable person in the defendant's situation

would have retreated before using deadly force against Bonnie Mock, or that the

defendant, under the circumstances as viewed by him from his standpoint a the time,

did not reasonably believe that the degree of force actually used by him was

immediately necessary to protect himself against Bonnie Mock's use or attempted

use of unlawful deadly force, then you should find against the defendant on the issue

of self-defense.

Jury Charge at 3-5 (Document No. 8-5 at 442-44). During deliberations, the jury asked for and were

provided excerpts of the testimony from Kim Boyd and Tameka Hall about whether there was any

car in front of Tatum's at the parking lot exit at the time of the shooting. The jury thereafter found

Tatum guilty of murder and assessed his punishment at forty-five years imprisonment.

III.

Claims

Through both his initial § 2254 Application (Document No. 1) and his Supplemental

Application (Document No. 43) Tatum raises the following claims challenging his murder

conviction:

that a newly secured affidavit of a witness (Charlie Ivory) establishes his

actual innocence of the murder offense;

that there is legally insufficient evidence to support his conviction for murder;

that his trial counsel, Fred Reynolds, was ineffective for: (a) failing to pursue

a lesser included offense based on sudden passion; (b) failing to present

mitigating evidence at the punishment stage on sudden passion; (c) failing to

properly investigate the offense; and (d) failing to object, on various grounds,

during voir dire, the guilt-innocence stage, the punishment stage, and during

closing arguments;

Case 4:14-cv-01735 Document 54 Filed on 09/06/17 in TXSD Page 9 of 38

that his appellate counsel, Patti Sedita, was ineffective for: (a) filing an

Anders brief; and (2) failing to raise challenges to the sufficiency of the

evidence, trial counsel's effectiveness, and the State's inadequate and unfair

investigation of the offense;

that he was denied due process by the State's inadequate investigation;

that the State suppressed favorable evidence about his attempts to

avoid/flee/escape the confrontation with the decedent; and

that he was denied due process and a fair trial by virtue of the prosecutor's

commitment questions during voir dire.

In a lengthy and comprehensive Motion for Summary Judgment, Respondent argues that all of

Tatum's claims are time-barred, that many of Tatum's claims are unexhausted and procedurally

barred from review, and that no relief is available to Tatum on the merits of any of his claims.

IV.

Standards of Review

Statute of Limitations

Pursuant to 28 U.S.C. § 2244(d), § 2254 applicants are subject to a one year limitations

period as follows:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas

corpus by a person in custody pursuant to the judgment of a State Court. The

limitation period shall run from the latest of-the date on which the judgment became final by the conclusion of direct

review or the expiration of the time for seeking such review;

the date on which the impediment to filing an application created by

State action in violation of the Constitution or laws of the United States is

removed, if the applicant was prevented from filing by such State action;

the date on which the constitutional right asserted was initially

recognized by the Supreme Court, if the right has been newly recognized by

the Supreme Court and made retroactively applicable to cases on collateral

review;_ or

Case 4:14-cv-01735 Document 54 Filed on 09/06/17 in TXSD Page 10 of 38

(D) the date on which the factual predicate of the claim or claims presented

could have been discovered through the exercise of due diligence.

(2) The time during which a properly filed application for State post-conviction or

other collateral review with respect to the pertinent judgment or claim is pending

shall not be counted toward any period of limitation under this subsection.

Where a state post-conviction proceeding has been dismissed as not properly filed, the tolling

provisions in § 2244(d)(2) do not apply. Wickware v. Thaler, 404 F.App'x 856, 858 (5th Cir. 2010);

Davis v. Quarterman, 342 F.App'x 952, 953 (5th Cir, 2009).

Exhaustion and related Procedural Bar

Federal habeas corpus petitioners are required to exhaust their available state law remedies.

Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993). In order to exhaust state law remedies, Texas

prisoners must fairly present their claims to the highest state court, the Texas Court of Criminal

Appeals, TEX. CODE CRIM. PROC. ANN. art. 44.45, through a petition for discretionary review and/or

a state application for writ of habeas corpus. TEX. R. APP. P. 68; TEX. CODE CRIM. PROC. ANN. art.

11.07, et seq. "It is not enough that all the facts necessary to support the federal claim were before

the state courts or that a somewhat similar state-law claim was made." Ex Parte Wilder, 274 F.3d

255, 259-260 (5th Cir. 2001) (quoting Anderson v. Harless, 459 U.S. 4, 6 (1982)). Rather, the

petitioner must have presented the highest state court with the same claim, the same factual basis for

the claim, and the same legal theory in order to meet the exhaustion requirement. Id. "[F]leeting

reference to the federal constitution," especially when such reference is not accompanied by any

federal case law authority, generally does not suffice to "alert and afford a state court the opportunity

to address an alleged violation of federal rights," and that "vague references to such expansive

concepts as due process and fair trial" in a state court proceeding will not satisfy the exhaustion

requirement. Id. at 260.

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When unexhausted claims are contained in a § 2254 application, and when such claims, if

the petitioner tried to exhaust them in state court, "would be barred by the abuse-of-the-writ doctrine

of Article 11.071 of the Texas Code of Criminal Procedure," the claims should be dismissed with

prejudice as procedurally barred. Horsley v. Johnson, 197 F.3d 134, 137 (5th Cir. 1999); see also

Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997) ("A procedural default also occurs when a

prisoner fails to exhaust available state remedies and 'the court to which the petitioner would be

required to present his claims in order to meet the exhaustion requirement would now find the claims

procedurally barred."), cert. denied, 523 U.S. 1139 (1998). Only when the petitioner makes a

colorable showing that his unexhausted claims would be considered on the merits by the state courts

if he attempted to exhaust them, should the claims be dismissed without prejudice. Horsley, 197

F.3d at 136-137.

Merits Review under § 2254(d)

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), when a claim

presented in a federal habeas corpus proceeding has already been adjudicated on the merits in a state

proceeding, federal review is limited. 28 U.S.C. § 2254(d) provides:

(d) An application for writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect to any

claim that was adjudicated on the merits in State court proceedings unless the

adjudication of the claim

resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the

State court proceeding.

"For purposes of 28 U.S.C. § 2254(d)(1), clearly established law as determined by [the Supreme]

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Court 'refers to the holdings, as opposed to the dicta, of th[e] Court's decisions as of the time of the

relevant state-court decision." Yarborough v. Alvarado, 541 U.S. 652, 660-61 (2004) (quoting

Williams v. Taylor, 529 U.S. 362, 412 (2000)).

"[A] decision by a state court is 'contrary to' [the United States Supreme Court's] clearly

established law if it 'applies a rule that contradicts the governing law set forth in [Supreme Court]

cases' or if it 'confronts a set of facts that are materially indistinguishable from a decision of [the

Supreme Court] and nevertheless arrives at a result different from [its] precedent." Price v. Vincent,

538 U.S. 634,640 (2003) (quoting Williams, 529 U.S. at 405-406). A state court decision involves

an "unreasonable application of' clearly established federal law "if the state court identifies the

correct governing legal principle from the Supreme Court's decision but unreasonably applies that

principle to the facts of the prisoner's case." Williams, 529 U.S. at 413. "State-court decisions are

measured against [the Supreme Court's] precedents as of 'the time the state court renders its

decision." Cullen v. Pinholster, 563 U.S. 170, 182 (2011) (quoting Lockyer v. Andrade, 538 U.S.

63, 71-72 (2003)). Similarly, state court decisions are reviewed under § 2254(d) by reference to the

facts that were before the state court at the time. Id. ("It would be strange to ask federal courts to

analyze whether a state court adjudication resulted in a decision that unreasonably applied federal

law to facts not before the state court.")

For factual issues, "the AEDPA precludes federal habeas relief unless the state court's

decision on 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) (2000). "[A] state-court

factual determination is not unreasonable merely because the federal habeas court would have

reached a different conclusion in the first instance." Wood v. Allen, 558 U.S. 290, 301 (2010).

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Instead, factual determinations made by state courts carry a presumption of correctness and federal

courts on habeas review are bound by them unless there is clear and convincing evidence to the

contrary. 28 U.S.C. § 2254(e)(1) (2000). Smith v. Cockrell, 311 F.3d 661, 667 (5th Cir. 2002), cert.

dism'd, 541 U.S. 913 (2004).

Under § 2254(d), once a federal constitutional claim has been adjudicated by a state court,

a federal court cannot conduct an independent review of that claim in a federal habeas corpus

proceeding. Harrington v. Richter, 562 U.S. 86, 102 (2011). Rather, it is for the federal court only

to determine whether the state court's decision was contrary to or involved an unreasonable

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

States, and whether the state court's decision was based on an unreasonable determination of the

facts in light ofthe evidence presented in the state court proceeding. Woodford, 537 U.S. at 27 ("The

federal habeas scheme leaves primary responsibility with the state courts for these judgments and

authorizes federal-court intervention only when a state-court decision is objectively unreasonable.").

This is true regardless of whether the state court rejected the claims summarily, or with a reasoned

analysis. Cullen, 563 U.S. at 187 ("Section 2254(d) applies even where there has been a summary

denial."). Where a claim has been adjudicated on the merits by the state courts, relief is available

under § 2254(d) only in those situations "where there is no possibility fairminded jurists could

disagree that the state court's decision conflicts with" Supreme Court precedent. Richter, 562 U.S.

at 102.

Whether a federal habeas court would have, or could have, reached a conclusion contrary to

that reached by the state court on an issue is not determinative under § 2254(d). Id. ("even a strong

case for relief does not mean that the state court's contrary conclusion was unreasonable."). In

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addition, the correctness of the state court's decision is not determinative. As instructed by the

Supreme Courtin Wiggins v. Smith, 539 U.S. 510,520 (2003), "[i]n order fora federal court to find

a state court's application of our precedent 'unreasonable,' the state court's decision must have been

more than incorrect or erroneous.

The state court's application must have been 'objectively

unreasonable." (citations omitted); see also Price, 538 U.S. at 641 ("[A] federal habeas court may

not issue the writ simply because that court concludes in its independent judgment that the state court

decision applied [a Supreme Court case] incorrectly. Rather, it is the habeas applicant's burden to

show that the state court applied [that case] to the facts of his case in an objectively unreasonable

manner.") (quoting Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002)). Moreover, it is the state

court's ultimate decision that is to be reviewed for reasonableness, not its reasoning. Neal v. Puckett,

286 F.3d 230, 244-46 (5th Cir. 2002), cert. denied, 537 U.S. 1104 (2003); Pondexter v. Dretke, 346

F.3d 142, 148-9 (5t Cir. 2003), cert. denied, 541 U.S. 1045 (2004). A habeas petitioner can only

overcome § 2254(d)'s bar "by showing that 'there was no reasonable basis" for the state court's

rejection of his claim(s). Cullen, 563 U.S. at 188 (quoting Richter, 562 U.S. at 98)).

Discussion

Limitations

Respondent first argues that all of Tatum's claims are barred by § 2244(d)'s one year statute

of limitations. According to Respondent, because Tatum's conviction was final on or about June

9, 2009, when Tatum did not file a petition for writ of certiorari, and because Tatum's first state

application for writ of habeas corpus was dismissed as improperly filed, the pendency of that

application (from August 31, 2009, through April 15, 2015) did not toll the limitations period under

§ 2244(d)(2) and this § 2254 proceeding, filed in 2014, and all the claims raised in it, are untimely.

Case 4:14-cv-01735 Document 54 Filed on 09/06/17 in TXSD Page 15 of 38

Tatum answers Respondent's limitations argument by reference to McQuiggin v. Perkins,

U.S.

135 S. Ct. 1924(2013), in which the Supreme Court held that actual innocence may

provide a "gateway" for allowing consideration of otherwise time-barred claims. But, it is not the

mere allegation of actual innocence that will open such a "gateway"; instead, a claimant seeking to

avoid a limitations bar must present "evidence of innocence so strong that a court cannot have

confidence in the outcome of the trial." Id. at 1936. In other words, an "actual innocence" exception

to the limitations bar will only be found if the evidence presented by the habeas petitioner

convinces the court that "it is more likely than not that no reasonable juror would have convicted [the

petitioner]." Id. at 1933.

The statute of limitations defense asserted by Respondent mt his case is complicated by two

things: (1) Tatum's filing of his "second" state application for writ of habeas corpus as a

"supplement" to his first; and(2)Tatum's assertion, in his second state application for writ of habeas

corpus, of a claim of actual innocence, which is predicated on a June 2013 affidavit from Charlie

Ivory. It is Tatum's "supplement" argument that is the most straight-forward and compelling.

The record shows that Tatum filed what Respondent characterizes as Tatum's "first" state

application for writ of habeas corpus on August 31, 2009. Before the Texas Court of Criminal

Appeals took any action on that application, Tatum filed, on June 25, 2012, what Respondent

characterizes as Tatum's "second" state application for writ of habeas corpus. That characterization,

by both Respondent and the Texas state courts, supports Respondent's limitations argument and

would necessitate a determination of whether Tatum's actual innocence claim could overcome the

limitations bar under McQuiggin. But the characterization of Tatum's state court filings as two

separate state applications for writ of habeas corpus is contrary to the contents of those filings, see

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Application No. 1042008-B at 3 (Document No. 48-1 at 8) ("The current claims are 'supplemental'

points to previously filed writ that is still pending and not yet resolved."), and contrary to Tatum's

position all along in this case that the June 2012 state court filing was a supplement to, and

continuation of, his first state application for writ of habeas corpus. This Court is not in a position

to disagree with the state courts' characterization of Tatum's state court filings, but it can, and

should, look at the substance of Tatum's state court filings in order to determine whether Tatum's

claims are subject to § 2244(d)'s limitations bar. Considering the substance of those filings, in

which it appears that Tatum was attempting to supplement his initial state application for writ of

habeas corpus, not file a second or successive application, the undersigned concludes that equitable

tolling, at the least, is available to save this § 2254 proceeding from the limitations bar.

Equitable tolling may, in rare and exceptional circumstances, be available to "preserve a

[party's] claims when strict application of the statute of limitations would be inequitable." Davis v.

Johnson, 158 F.3d 806, 810 (5' Cir. 1998) (quoting Lambert v. United States, 44 F.3d 296, 298 (5th

Cir.1995). "Equitable tolling applies principally where [one party] is actively misled by the [other

party] about the cause of action or is prevented in some extraordinary way from asserting his rights."

See Coleman v. Johnson, 184 F.3d 398,402(5th Cir. 1999) (quoting Rashidi v. American President

Lines, 96 F.3d 124,128 (5th Cir. 1996)). The burden of proving rare and extraordinary circumstance

in support of equitable tolling lies strictly with the petitioner. Alexander v. Cockrell, 294 F.3d 626,

629 (5th Cir. 2002).

Here, two circumstances, which were completely out of Tatum's control, warrant equitable

tolling. First, the Texas Court of Criminal Appeals denied his state application for writ of habeas

corpus on March 19, 2014, but then, sua sponte, over a year later, withdrew that denial and

dismissed-the application as improperly filed. Second, as set forth above, the Texas Court of

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Criminal Appeals addressed and rejected on the merits all of Tatum's "supplemental" claims when

it denied what it had characterized as Tatum's "second" state application for writ of habeas corpus.

Absent that characterization and the sua sponte "dismissal" of the August 31, 2009 filing, this § 2254

proceeding, which was filed by Tatum on or about June 18, 2014, within three months of the Texas

Court of Criminal Appeals' initial "denial" of his state application for writ of habeas corpus, would

undoubtedly be timely. Thus, it is the state court's characterization of Tatum's state court filings,

over which Tatum had no control, that affected Tatum's ability to file a timely § 2254 application.

Under these circumstances, where the record shows that Tatum has pursued his claims diligently,

both in this case and in the state courts, equitable tolling should be available to save Tatum's claims

from the limitations bar in § 2244(d).

VI.

Discussion

Exhaustion and Procedural Bar

Separate, but somewhat related to Respondent's limitations defense, Respondent maintains

that many of Tatum's claims are unexhausted and procedurally barred from review in this

proceeding. According to Respondent, because Tatum's first state application for writ of habeas

corpus was "dismissed," the claims raised therein that were not included in Tatum's petition for

discretionary review have not been fairly presented to the Texas Court of Criminal Appeals, and are

therefore unexhausted and procedurally barred from review. Again, this argument is based on the

Texas Court of Criminal Appeals' characterization of Tatum's state filings as two separate and

successive state applications for writ of habeas corpus.

The record shows that Tátumaised three claims in his petition for discretionary review: that

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his trial counsel was ineffective, that the trial court erred in allowing the prosecutor to ask

"commitment questions" during voir dire, and that his appellate counsel was ineffective. Those

claims, because they were presented to the Texas Court of Criminal Appeals in Tatum's petition for

discretionary review, are exhausted. As for the claims raised by Tatum in his "first" state application

for writ of habeas corpus that were not included in what was considered Tatum's "second" state

application for writ of habeas corpus, such claims have not been fairly presented to, or considered

by, the Texas Court of Criminal Appeals because the "first" application was dismissed. Therefore,

such claims are unexhausted. As for whether such unexhausted claims should be considered

procedurally barred from review in this § 2254 proceeding, it cannot be said with any confidence on

this record whether a subsequent state application for writ of habeas corpus, if one were to be filed

by Tatum, would be dismissed as an abuse of the writ. Moreover, the Texas Court of Criminal

Appeals has already once, sua sponte, reconsidered its ruling in Tatum's state habeas proceeding(s).

On that basis, Tatum's unexhausted claims will be reviewed herein on the merits.

VII.

Discussion

Merits Review

Claims that were considered and rejected by the Texas Court of Criminal Appeals on the

merits are subject to review under § 2254(d). Claims that were not adjudicated by the Texas Court

of Criminal Appeals on the merits are reviewed de novo. Garcia v. Davis, No. 15-70039,

App 'x

2017 WL 3121977 (5th Cir. July 21, 2017) ("a federal court's review of an unexhausted

claim is de novo")

Case 4:14-cv-01735 Document 54 Filed on 09/06/17 in TXSD Page 19 of 38

Actual Innocence Claim (Claim 1)

In his first claim, Tatum maintains that the post-trial affidavit of Charlie Ivory, one of the

State's main witnesses, establishes his "actual innocence" of the murder offense. Ivory states, in that

June 30, 2013, affidavit, as follows:

I was [one] of those present at the scene of the Offense the Applicant, KEVIN

TERRELL TATUM was tried and convicted on, and can speak factually of the

circumstances involved in the case. On September 28, 2005, I, the Complaint, and

others visited a club called the SURF SHACK, located in Houston, Texas, where the

incident occurred. I testified at TATUM's Trial, and was the chief State Witness.

While at the SURF SHACK, I ran into TATUM, and due to a past dispute, I desired

to settle the score by picking a fight with TATUM. I was accompanied with four (4)

of my cousins, whom were urging I fight TATUM. Due to their back-up, I pursued

TATUM to fight with him. TATUM sought to flee from me, and flee the scene, by

getting into his car. While trying to leave the scene, TATUM was pursued and the

Complainant, MOCK sought to open TATUM's car door to drag him out of the car

to fight with me. MOCK did in fact have a handgun. I know this is fact because

after MOCK was shot, we took the handgun from his person seeking to protect

MOCK from being the aggressor and to make MOCK look innocent. We did not

know, at the time, the shot to his legs were [sic] life threatening.

Shortly after MOCK sought to pry open TATUM's car door, to drag him out

of his vehicle, we heard GUNSHOTS. TATUM shot from his vehicle and again tried

to escape. TATUM was clearly placed in a threatening situation, and sought to

defend himself against an act of aggression on my part, which lead [sic] to MOCK

seeking to pry TATUM's car door and drag jim out of his own vehicle, resulting into

[sic] MOCK's demise.

During trial, I did not testify to MOCK's possession of a handgun, nor did I

testify to MOCK's threat to TATUM by seeking to drag him out of his vehicle, while

having a gun in his possession. I intentionally misrepresented the facts because I was

encouraged by the victim's [Mother] to lie on TATUM to make her son look

innocent, and to make it appear that TATUM shot MOCK for no reason, to assure

that TATUM receive[d] a life sentence. Having a relationship with MOCK and his

Mother, and disliking TATUM, I went along with the lie, and testified untruthfully,

intentionally omitting facts that would cast MOCK in a bad light. TATUM sought

to avoid the entire incident by fleeing in his vehicle. There were other witnesses at

Trial who testified truthfully to the fact that TATUM was acting in SELF DEFENSE.

I even parked my vehicle at the exit, to assure that TATUM was trapped in, seeking

to avoid any escape on TATUM's part. It was my car that TATUM hit while trying

to flee. I did lie at trial, to make MOCK appear innocent, and that TATUM shot

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MOCK for no reason. I DID NOT testify truthfully as to provocation. Further, I did

not disclose to the Jury that we got the gun that BONNIE [MOCK] had in his

possession and threatened TATUM with, to make it appear that TATUM shot

MOCK for no reason. The offense that TATUM was eventually accused and

convicted of was a classic case of Self Defense against one waging a weapon at him,

and seeking to drag him out of his own vehicle, for the purposes of threatening or

actually causing harm. The sole purpose of seeking to drag TATUM out of the car

was for TATUM and Ito fight. I was with my cousins, and felt assured I would have

prevailed against TATUM. I realize now I was very very wrong, and after changing

my life and embracing Christianity, it is my desire to correct the wrong, and possibly

assist in a wrongful murder conviction. It is my position TATUM was acting

"LAWFULLY", in defense of his person, against the unwarranted attack and threat

of MOCK, the Complainant.

(Document No. 43-1). As argued by Respondent, however, the "factual" contents of that affidavit

do not establish Tatum's innocence of the murder offense.' In addition, Ivory's affidavit, standing

alone, does not provide a legal basis for consideration of Tatum's actual innocence claim.

"Supreme Court jurisprudence does not support an independent claim for federal habeas

relief based on an allegation of actual innocence." Dowthitt v. Johnson, 180 F.Supp.2d 832, 843

(S.D. Tex. 2000) (Atlas, J.). Instead, a claim of actual innocence may be a "gateway through which

a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the

merits." Schiup v. Delo, 512 U.S. 298, 316 (1995) (quoting Herrera v. Collins, 506 U.S. 390,400

(1993)). To serve as such a "gateway", however, a petitioner must "support his allegations of

'Given the uncontested evidence in the record that Tatum shot Mock and that Mock died

of his injuries, the contents of Ivory's June 30, 2013, affidavit are only relevant to Tatum's claim

of self-defense. However, a review of the record convinces the undersigned that the contents of

Ivory's after-the-fact affidavit do not establish self-defense. Two uninterested witnesses testified

at trial that Mock was not acting aggressively and was not threatening Tatum, and that neither saw

anyone with a weapon other than Tatum. One of those witnesses also testified that no one was

blocking Tatum's car from exiting the parking lot. That testimony, by those two uninterested

witnesses, corroborated the testimony of Ivory at trial. In addition, Ivory's testimony at trial was

consistent with his account to police following the shooting. As such, the contents of Ivory's June

30, 2013, affidavit cannot, on this record, be considered reliable evidence in support of Tatum's

claim of self-defense, and the contents of that affidavit do not undermine confidence in the jury's

verdict

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constitutional error with new reliable evidence—whether it be exculpatory scientific evidence,

trustworthy eyewitness accounts, or critical physical evidence that was not presented at trial," and

must demonstrate that "it is more likely than not that no reasonable juror would have convicted him

in the light of the new evidence." Schiup, 513 U.S. at 324, 327.

Here, Tatum's independent actual innocence claim is not cognizable in this § 2254

proceeding. In addition, to the extent Tatum's actual innocence claim and the contents of Charlie

Ivory's affidavit are intended to buttress any of the other claims he raises in this § 2254 proceeding,

the contents of that affidavit will be addressed in connection with Tatum's particular claims, below.

As a stand-alone actual innocence claim, however, it is subject to dismissal.

Insufficient Evidence Claim (Claim 2)

In his next claim, premised somewhat on the contents of Charlie Ivory's June 30, 2013,

affidavit, Tatum maintains that the evidence supporting his murder conviction is insufficient.

According to Tatum, there is no evidence in the record to establish "(A) the absence of sudden

passion; and (B) the absence of self defense," and the "evidence gives rise to 'equal probabilities and

equal possibilities concerning a key element of the offense, i.e., whether or not [his] actions were

'lawful." § 2254 Application (Document No. 1-1 at 28).2

A claim of factual insufficiency is not cognizable in a federal habeas corpus proceeding

because it is a product of state law and implicates no federal constitutional right(s). Woods v.

Tatum's insufficient/no evidence claim was not raised in his direct appeal, in his petition

for discretionary review, or in his "first" state application for writ of habeas corpus. It was

included in Tatum's "second" habeas filing, but it was rejected by the state courts as not

cognizable and procedurally barred. See Findings of Fact and Conclusions of Law at 3 (Document

No. 48-2 at 45) ("With respect to [Tatum's] first ground for relied, a claim of insufficiency of the

evidence does not state a claim for relief in habeas corpus. Ex parte Easter, 615 S.W.2d 719

(Tex. Crim. App. 1981). Though [Tatum] couches his argument as 'no evidence' he challenges

the sufficiency of the evidence as to self-defense and sudden passion.").

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Cockrell, 307 F.3d 353, 358 (5th Cir. 2002), Wanzer v. Cockrell, 2002 WL 31045971 (N.D. Tex.

2002). A claim of legal insufficiency, in contrast, does implicate federal due process guarantees, and

is governed by the standard set forth in Jackson v. Virginia, 443 U.S. 307, 325 (1979). Under that

standard, a petitioner must prove that no rational trier of fact could have found the existence of facts

necessary to establish the offense beyond a reasonable doubt. Id. at 325-26. In applying the standard,

all evidence is viewed in the light most favorable to the prosecution, id. at 319; Bujol v. Cain, 713

F.2d 112, 115 (5th Cir. 1983), cert. denied, 464 U.S. 1049 (1984), and all credibility choices and

conflicts in the evidence are resolved in favor of the verdict. United States v. Graves, 669 F.2d 964,

969 (5th Cir. 1982).

Here, viewing the evidence in the light most favorable to the prosecution, there was sufficient

evidence to support Tatum's murder conviction.' In addition, a review of the evidence shows there

was sufficient evidence upon which the jury could have relied in rejecting Tatum's claim of selfdefense. Critical to the jury in this case, as reflected in the jury notes sent to the Court during its

deliberation, was whether Tatum was prevented from leaving the parking lot before the shooting.

Kim Boyd, an uninterested witness, testified that there was no car in front of Tatum's at the exit.

She also testified, as did several others, that Mock was not acting aggressively and his hands were

in the air. Based on this evidence, taken in a light most favorable to the prosecution, a jury could

reasonably have believed that Tatum was not acting in self-defense. See e.g., Teague v. Stephens,

No. A-13-CA-444, SS, 2014 WL 5461414 at *9 (W.D. Tex. Oct. 27, 2014) (rejecting sufficiency of

the evidence claim related to self-defense because the jury could have believed the defendant was

A person commits murder under section 19.02(b)(2) when that person (1) intends to cause

serious bodily injury and (2) commits an act clearly dangerous to human life that (3) causes the death

of an individual. Tex. Penal Code § 19.02(b)(2)." Cannon v. State, 401 S.W.3d 907,910 (Tex. App.

Hoüton[14111 Dist.] 2013).

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not justified in his belief that he "needed to use deadly force to defend himself")

As for the defense of "sudden passion," it was not presented to the jury and no finding was

made relative thereto. Moreover, as argued by Respondent, "sudden passion" under Texas law

relates to punishment, and not guilt-innocence.

See TEX. PENAL CODE § 19.02(d) ("At the

punishment stage of a trial, the defendant may raise the issue as to whether he caused the death under

the immediate influence of sudden passion arising from an adequate cause. If the defendant proves

the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second

degree."). Because there was no issue submitted to the jury at punishment on the defensive

mitigating issue of sudden passion, and because Tatum bore the burden on that issue at sentencing,

Tatum cannot maintain a sufficiency of the evidence claim related thereto.

In all, there is sufficient evidence in the record to support the jury's verdict. Accordingly,

Tatum's sufficiency of the evidence claim should be dismissed.

Ineffective Assistance of Counsel Claims (Claim 3)

In his next claim, Tatum maintains that his trial counsel, Fred Reynolds, was ineffective for:

(a) failing to pursue a lesser included offense instruction; (b) failing to present mitigating evidence

at the punishment stage on sudden passion; (c) failing to properly investigate the offense; and (d)

failing to lodge proper objections during voir dire, the guilt-innocence stage, the punishment stage,

and during closing arguments. Some of these ineffectiveness claims were considered and rejected

by he Texas Court of Criminal Appeals, while others were not.4 In any event, such claims are

In Tatum's "second" state application for writ of habeas corpus, which was denied by the

Texas Court of Criminal Appeals without written order on the findings of the trial court, Tatum

alleged that his trial counsel was ineffective for: (1) failing to raise a sudden passion defense at

sentencing; and (2) failing to investigate the offense because he did not: (a) hire an investigator

to investigate damage to Tatum's car; (b) ask Deputy Ortiz about damage to Tatum's car and the

absence of fmgerprint testing; (c) request and obtain Tatum's cell phone records; (d) interview

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governed by the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984).

In Strickland, the Supreme Court determined that relief is available if a petitioner can show

that his counsel was deficient and that the deficiency prejudiced him to the extent that a fair trial

could not be had. Id. at 687. Deficiency under Strickland is judged by an objective reasonableness

standard, with great deference given to counsel and a presumption that the disputed conduct is

reasonable. Id. at 687-689. The prejudice element requires a petitioner to "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. A petitioner has the burden to prove both the deficiency and

the prejudice prongs in order to be entitled to relief. United States v. Chavez, 193 F.3d 375, 378 (5th

Cir. 1999).

Under Strickland, judicial scrutiny of counsel's performance is highly deferential and a strong

presumption is made that "trial counsel rendered adequate assistance and that the challenged conduct

was the product ofreasoned trial strategy." Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir. 1992)

(citing Strickland), cert. denied, 509 U.S. 921 (1993). In order to overcome the presumption of

competency, a petitioner "must identify the acts or omissions of counsel that are alleged not to have

been the result of reasonable professional judgment." Strickland, 466 U.S. at 690. Under the

prejudice prong of Strickland, a petitioner must be able to establish that absent his counsel's

deficient performance the result of his trial would have been different, "and that counsel's errors

were so serious that they rendered the proceedings unfair or the result unreliable." Chavez, 193 F.3d

at 378; Cullen, 131 S.Ct. at 1403 ("[t]he benchmark for judging any claim of ineffectiveness must

and/or subpoena the security guards that were at the scene; and (e) review Mock's medical

records. All of Tatum' s other ineffectiveness claims, raised by Tatum in his "first" state

application for writ of habeas corpus, were dismissed, and were therefore not adjudicated on the

merits.

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be whether counsel's conduct so undermined the proper functioning of the adversarial process that

the trial cannot be relied on as having produced ajust result") (quoting Strickland, 466 U.S. at 686)).

"An error by counsel, even if professionally unreasonable, does not warrant setting aside the

judgment of a criminal proceeding if the error had no effect on the judgment." Strickland, 466 U. S.

at 691.

Constitutionally effective assistance of counsel under Strickland is not errorless counsel. The

determination whether counsel has rendered reasonably effective assistance turns on the totality of

facts in the entire record. Each case is judged in the light of the number, nature, and seriousness of

the charges against a defendant, the strength of the case against him, and the strength and complexity

of his possible defense. Baldwin v. Maggio, 704 F.2d 1325, 1329 (5th Cir. 1983), cert. denied, 467

U.S. 1220 (1984). The reasonableness of the challenged conduct is determined by viewing the

circumstances at the time of that conduct. Strickland, 466 U.S. at 690-691. Counsel will not be

judged ineffective only by hindsight. "The Sixth Amendment guarantees reasonable competence,

not perfect advocacy judged with the benefit of hindsight." Yarborough v. Gentry, 540 U.S. 1, 124

S.Ct. 1, 6 (2003).

Lesser Included Offense

Tatum maintains, presumably in retrospect given the jury's rejection of his claim of selfdefense, that his counsel should have requested a lesser included offense instruction on manslaughter

and/or criminally negligently homicide.

In Texas, a person commits the offense of manslaughter "if he recklessly causes the death

of an individual." TEX. PENAL CODE ANN. § 19.04 (West). A person commits the offense of

criminally negligent homicide "ifhe causes the death of an individual by criminal negligence." TEX.

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PENAL CODE ANN. § 19.05 (West). Both manslaughter and criminally negligent homicide are lesser

included offenses of murder. TEX. CODE CRHvI. PROC. Art. 37.09 ("An offense is a lesser included

offense if: (1) it is established by proof of the same or less than all the facts required to establish the

commission of the offense charged; (2) it differs from the offense charged only in the respect that

a less serious injury or risk of injury to the same person, property, or public interest suffices to

establish its commission; (3) it differs from the offense charged only in the respect that a less

culpable mental state suffices to establish its commission; or (4) it consists of an attempt to commit

the offense charged or an otherwise included offense."). But, just because manslaughter and

criminally negligent homicide are lesser included offenses of murder does not mean that a defendant

is entitled to, a lesser included offense instruction. Instead, a defendant is entitled to a jury

instruction on a lesser included offense only if two requirements are met: "(1) the requested charge

is for a lesser-included offense of the charged offense; and(2) there is some evidence that, if the

defendant is guilty, he is only guilty of the lesser offense." Guzman v. State, 188 S.W.3d 185, 188

(Tex. Crim. App. 2006) (quoting Hayward v. State, 158 S.W.3d 476,478 (Texas Crim. App. 2005)).

Here, the evidence in the record did not support the submission of an instruction on the lesser

included offenses of manslaughter or criminally negligent homicide. Tatum testified in support of

his self-defense claim. 'While he testified that he "blocked" out the actual shooting, he also testified

that he loaded the gun and fired it intentionally because he "was fearing for [his] life." (Document

No. 8-13 at 72, 88, 92). Nothing in the record suggested that Tatum acted recklessly or negligently.

Moreover, his trial counsel stated in an affidavit he filed in the state habeas proceeding, the contents

of which the state trial court found to be credible and true (Document No. 48-2 at 44), that Tatum

understood the murder charge, and relayed to counsel "that his reaction was in self-defense."

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(Document No. 48-1 at 85). Given Tatum's position on his claim of self-defense, as well as the

absence of evidence in the record to support the characterization of his conduct as reckless and/or

negligent, counsel had no basis, strategic or otherwise, for seeking a lesser included offense

instruction. As such, under Strickland, this ineffectiveness claim has no merit.

Sudden Passion

Tatum's next complaint, about counsel's failure to pursue "sudden passion" as a mitigating

defense at sentencing, was addressed and rejected by the Texas Court of Criminal Appeals in

connection with Tatum's "second" state application for writ of habeas corpus. In so doing, the Texas

Court of Criminal Appeals relied on the following findings and conclusions of the state trial court:

[Tatum] fails to show that Reynolds' conduct as [Tatum's] trial attorney fell

below an objective standard of reasonableness and that, but for trial counsel's alleged

deficient conduct, there is a reasonable probability that the result of the proceeding

would have been different. Strickland v. Washington, 466 U.S. 668, 686 (1984);

Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (adopting the

Strickland standard in Texas); and Narvaiz v. State, 840 S.W.2d 415,434 (Tex. Crim.

App. 1992) (defining two-part Strickland standard).

[Tatum] has failed to show that if he had requested a jury instruction on

"sudden passion" that the trial court would have erred in denying the instruction. See

Exparte White, 160 S.W.3d 46 (Tex. Crim. App. 2004) (to successfully assert that

trial counsel's failure to object amounted to ineffective assistance, an applicant must

show that the trial judge would have committed error in overruling such an

objection).

Assuming arguendo that counsel was deficient for failing to request a sudden

passion instruction, [Tatum] cannot show he was harmed. Wooten v. State, 400

S.W.3d 601, 609 (Tex. Crim. App. 2013) (It is highly unlikely that a jury that had

already rejected an applicant's claim that he reasonably believed that deadly force

was immediately necessary to defend himself would nevertheless find in his favor on

the issue of sudden passion).

Furthermore, [Tatum] fails to show that the record supports an inference: 1)

that [Tatum] in fact acted under the immediate influence of a passion such as terror,

anger, range [sic], or resentment; 2) that his sudden passion was in fact induced by

some provocation by the deceased or another acting with him, which provocation

Case 4:14-cv-01735 Document 54 Filed on 09/06/17 in TXSD Page 28 of 38

would commonly produce such a passion in a person of ordinary temper; 3) that

[Tatum] committed the murder before regaining his capacity for cool reflection; and

4) that a causal connection existed "between the provocation, passion, and

homicide." McKinney v. State, 179 S.W.3d 565, 569 (Tex. Crim. App. 2005).

The totality of the representation afforded [Tatum] was sufficient to protect

his right to reasonably effective assistance of trial counsel in the primary case.

Findings of Fact and Conclusions of Law at 3-5 (Document No. 48-2 at 45-47).

"In Texas, if a defendant is convicted of murder, he may argue at the punishment phase of

the trial that he caused the death of the victim while under the immediate influence of sudden passion

arising from an adequate cause. If a defendant establishes he was under the influence of sudden

passion, the offense level is reduced from a first-degree felony to a second-degree felony. The

maximum term of imprisonment for a second degree felony is 20 years." Bradshaw v. Dir., TDCJCID, No. 5:11 CV49, 2015 WL 364239, at *7 (E.D. Tex. Jan. 23,2015). Here, as determined by the

Texas Court of Criminal Appeals in connection with Tatum's "second" state application for writ of

habeas corpus, it is unlikely that a sudden passion instruction, if one had been requested by counsel,

would have been warranted. That determination, which was based on state law and therefore not

reviewable herein, Creel v. Johnson, 162 F.3d 385, 39091(51h Cir. 199 8) (federal courts defer to the

state courts "interpretation of its law for whether a lesser-included-offense instruction is warranted"),

fully supports the Texas courts' determination that counsel's performance was reasonably effective.

Under § 2254(d) and the doubly deferential standard of review for ineffective assistance of counsel

claims,' no relief is available to Tatum on this claim.

When an ineffective assistance of counsel claim has been adjudicated on the merits by the

state courts, federal habeas review is "doubly deferential," with the court taking a "highly deferential

look at counsel's performance" under Strickland, and then imposing a second layer of deference

under § 2254(d). Cullen, 563 U.S. at 190. Under § 2254(d), therefore, the question is not whether

counsel's actions were reasonable," but "whether there is any reasonable argument that counsel

satisfied Strickland's deferential standard." Richter, 562 U.S. at 105. As for Strickland's prejudice

Case 4:14-cv-01735 Document 54 Filed on 09/06/17 in TXSD Page 29 of 38

Investigation

Tatum next contends that his trial counsel was ineffective for failing to investigate the

offense, alleging, in particular, that counsel failed to: (1) hire an investigator; (2) investigate that

damage to Tatum's car; (3) ask Deputy Ortiz about the existence of damage to his car and the

absence of fingerprint testing; (4) request and obtain Tatum's cell phone records; (5) ask who Mark

Moore was; (6) interview or subpoena Sergeant Fields, who was first officer to speak to Charlie

Ivory after the offense; (7) interview or subpoena Deputy Stemberg; (8) interview Dr. Brad Scott,

Mock's attending physician at the time of his death; (9) ask any questions of Detective Yvonne

Cooper; (10) interview or subpoena any of the security guards that were at the scene; and (11) review

Mock's medical records to determine whether the 7 minute delay in his treatment following the

shooting caused or contributed to his death.

None of these allegations of ineffectiveness are supported by any factual allegations from

which it could be determined that counsel's performance was deficient or that Tatum was prejudiced

thereby. Tatum maintains that his counsel should have investigated the damage to his car that

occurred when he attempted to flee the parking lot. But Tatum testified at trial that he was able to

maneuver out of the parking spot he was in without hitting or scratching any other cars, and made

no mention of there being any damage to his car. (Document No. 8-13 at 104-106). And, Officer

prong, "the question is not whether a court can be certain counsel's performance had no effect on

the outcome or whether it is possible a reasonable doubt might have been established if counsel acted

differently." Richter, 562 U.S. at 111. Instead, the question is whether "fairminded jurists could

disagree that the state court's decision conflicts with [the Supreme Court's] precedents. Id. at 102.

If "'fairminded jurists could disagree' on the correctness of the state court's decision," § 2254(d)(1)

precludes relief. Id. at 101. In contrast, where there is no "possibility that fairminded jurists could

disagree" and fairminded jurists would uniformly conclude that the state court's decision is contrary

to, or based on an unreasonable application of clearly established Federal law, relief is available

under § 2254(d)(1). Id at 102.

- -29

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Ortiz testified that there was no damage to Tatum's car. (Document No. 8-12 at 107).6 Similarly,

Tatum cannot show that counsel's failure to obtain his cell phone records had any effect on any issue

in the case. Both Charlie Ivory and Tatum testified that they had had several hostile telephone

conversations prior to September 28, 2005. Tatum has not alleged how his cell phone records would

have added anything favorable for the defense. As for the witnesses Tatum believes his counsel

should have interviewed and/or subpoenaed (Mark Moore, Sergeant Fields, Deputy Sternberg; Dr.

Brad Scott, or the un-named security guards), Tatum has neither alleged nor offered any evidence

that any of those witnesses had evidence favorable to the defense. As for counsel's failure to

question Detective Yvonne Cooper at trial, Tatum has not alleged what counsel should have asked

her, particularly given Cooper's testimony during the State's case in chief that the witnesses'

accounts were all generally consistent. (Document No. 8-12 at 116). Finally, with regard to

counsel's alleged failure to review Mock's medical records, while Tatum asserts that a 7 minute

delay in providing Mock with treatment could have contributed to his death, Tatum does not allege

or show how that would have been favorable for the defense. The gunshot wound damaged Mock's

femoral artery. A review of the medical records, standing alone, would not have provided counsel

with a viable basis for challenging the murder charge against Tatum.

Officer Ortiz testified directly and unequivocally about this as follows:

All right. Did you see any other any signs of the vehicle being under

attack of any kind, like, maybe not bullet holes, but someone throwing rocks or

bottles or anything like that on the vehicle? Did you notice any of that?

I didn't see any damage to the vehicle.

Nothing?

Nothing.

(Document No. 8-12 at 107).

IiJ

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In all, Tatum's complaints about counsel's failure to investigate the case are unsupported by

any factual allegations or evidence that could show that counsel's performance was deficient, or that

Tatum was prejudiced thereby. As such, under Strickland, no relief is available to Tatum on his

failure to investigate ineffective assistance of counsel claims.

Objections

Over several pages of his Memorandum of Law (Document No. 1-4 at 18-22), Tatum raises

a multitude of complaints about counsel's failure to object during voir dire, the guilt-innocence

stage, and during the punishment phase. With respect to voir dire, Tatum complains about counsel's

failure to object to: (1) the prosecutor's comments about defense counsel's ability; (2) the prosecutor

injecting his own race into the case; (3) the prosecutor's comments on presumption of innocence;

(4) the prosecutor commenting on the facts of the case; (5) a venireperson commenting on police

"shooting people down;" (6) a venireperson commenting on friend being killed because he retreated;

(7) a venireperson's comment that person was guilty if he was arrested and tried; and (7) the

prosecutor's improper commitment questions. As for the guilt-innocence stage, Tatum complains

about his counsel's failure to object to: (1) the chain of custody for the recovered bullet fragments;

(2) the prosecutor asking Tatum to demonstrate how he shot Mock; and (3) the prosecutor's

comments about drug dealers, gang members, drive-by shootings and street justice. Finally, with

regard to the punishment hearing, Tatum faults his counsel for failing to object to: (1) Mock's

mother's speculation that Tatum knew who she was when he saw her after the offense; (2) the

prosecutor badgering Tatum about the extraneous offense; (3) the introduction of the extraneous

offense; (4) the prosecutor's comments on the weight of the evidence; (5) the prosecutor stating that

he was the "Chief' prosecutor when arguing against probation; (6) the prosecutor's comments

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bolstering the testimony of Charlie Ivory; and (7) the prosecutor's comments about drugs and Ivory's

drug conviction.

All of these complaints about counsel's failure to object were made by Tatum generally,

without any specific argument or reference as to how the trial or Tatum's self-defense claim was

affected thereby. Given the general, conclusory nature of these ineffectiveness claims, coupled

with a review of the entire record in connection with counsel's self-defense strategy, the

undersigned concludes that none of the objections Tatum believes his counsel should have made

had any effect on the jury's verdict or the sentence Tatum received. As aptly argued by

Respondent, Tatum has not shown that counsel's performance during voir dire resulted in a partial

jury; has not shown that counsel's performance at trial resulted in a verdict that is not worthy of

confidence; and has not shown that counsel's performance at sentencing affected the length of his

sentence. In all, under Strickland, no relief is available to Tatum on his failure-to- object

ineffective assistance of counsel claims.

Ineffective Assistance of Appellate Counsel Claim (Claim 4)

In his next claim, Tatum maintains that his appellate counsel, Patti Sedita, was ineffective

for: (a) filing an Anders brief; and (2) failing to raise challenges to the sufficiency of the evidence,

trial counsel's effectiveness, and the State's inadequate and unfair investigation of the offense.

Tatum raised these ineffective assistance of appellate counsel claims in his "second" state application

for writ of habeas corpus, which was rejected by the Texas Court of Criminal Appeals on the merits.

In so doing, the Texas Court of Criminal Appeals relied on the following conclusions of law reached

by the state trial court on Tatum's ineffective assistance of appellate counsel claims:

[Tatum] fails to show that appellate counsel's conduct fell below an objective

standard of reasonableness and that, but for trial counsel's alleged deficient conduct,

Case 4:14-cv-01735 Document 54 Filed on 09/06/17 in TXSD Page 33 of 38

there is a reasonable probability that the result of the proceeding would have been

different. Strickland v. Washington, 466 U.S. 668, 686 (1984); Hernandez v. State,

726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (adopting the Strickland standard in

Texas); and Narvaiz v. State, 840 S.W.2d 415,434 (Tex. Crim. App. 1992) (defining

the two-part Strickland standard).

The totality of the representation afforded [Tatum] was sufficient to protect

his right to reasonably effective assistance of appellate counsel in the primary case.

Findings of Fact and Conclusions of Law at 5 (Document No. 48-2 at 47).

Claims of ineffective assistance of appellate counsel are generally assessed under the same

two part Strickland deficiency and prejudice standard as claims of ineffective assistance of trial

counsel. Williams v. Collins, 16 F.3d 626, 635 (5th Cir.), cert. denied, 512 U.S. 1289 (1994). With

respect to Strickland's deficiency prong, however, "[o]n appeal, effective assistance of counsel does

not mean counsel who will raise every nonfrivolous ground of appeal available." Green v. Johnson,

160 F.3d 1029, 1043 (5 th Cir. 1998), cert. denied, 525 U.S. 1174 (1999); see also Ellis v. Lynaugh,

873 F.2d 830, 840 (5th Cir.) ("The Constitution does not require appellate counsel to raise every

nonfrivolous ground that might be pressed on appeal."), cert. denied, 493 U.S. 970 (1989). Rather,

"[a]ppellate counsel is obligated to only raise and brief those issues that are believed to have the best

chance of success." Rose, 141 F.Supp.2d at 704-705. "[O]nly when ignored issues are clearly

stronger than those presented, will the presumption of effective assistance of counsel be overcome."

Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1985) (cited with approval in Smith v. Robbins, 528 U.S.

259, 288 (2000)). As for Strickland's prejudice prong, "[p]rejudice results if the attorney's deficient

performance would likely render either the defendant's trial fundamentally unfair or the conviction

and sentence unreliable." United States v. Dovalina, 262 F.3d 472, 474 (5th Cir. 2001).

Here, the record shows that Sedita filed an Anders brief, raising two claims (sufficiency of

the evidence and ineffective assistance of trial counsel) that she determined were not "arguable

Case 4:14-cv-01735 Document 54 Filed on 09/06/17 in TXSD Page 34 of 38

grounds for reversal." (Document No. 8-2). Tatum filed apro se Brief, raising claims of ineffective

assistance of trial counsel, ineffective assistance of appellate counsel, and trial court error in the

allowance of improper commitment questions during voir dire. In a short, essentially one-page

Opinion, Texas' Fourteenth Court of Appeals found that "the appeal [was] frivolous and without

merit and that there [was] no reversible error." Tatum v. State, No. 01-06-01190 (Document No. 826).

Because the Texas Court of Appeals considered the validity of the Anders Brief that was

filed, and reviewed the claims Tatum raised in his pro se Brief— the same claims Tatum contends

Sedita should have raised for him on appeal

the Texas Court of Criminal Appeals' rejection of

Tatum's ineffective assistance of appellate counsel claims is not contrary to or based on an

unreasonable application of Strickland and its appellate-context progeny. Clearly, if the Texas Court

of Appeals considered and rejected the claims Tatum believes his appellate counsel should have

raised, Tatum cannot show that he was prejudiced by appellate counsel's performance.

Consequently, under § 2254(d), no relief is available to Tatum on his ineffective assistance of

appellate counsel claim.

Due Process/Inadequate Investigation Claim and Suppression of Evidence

Claim (Claims 5 and 6)

In his next claim, Tatum maintains that the State conducted an inadequate investigation of

the offense, failing to test the door handle of his car for Mock's prints, and failing to investigate and

determine whether there was any damage to his car from his attempts to flee the parking lot. He also

claims that the State suppressed evidence that "Mock grabbed the driver's side door, attempting to

drag him out," and he (Tatum) hit Ivory's car while "attempting to escape." § 2254 Application

(Document No. 1) at 8.

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Defendants do not enjoy a general constitutional right to a proper or thorough investigation

of the offense with which they are charged. Rather, for a due process violation to arise, the police

investigation must have been so inadequate that it: (1) was "tantamount to a suppression of relevant

evidence", Owens v. Foltz, 797 F.2d 294, 296 (6th Cir. 1986), or (2) resulted in an identification

procedure that was "so unnecessarily suggestive and conducive to irreparable mistaken

identification" of the defendant as the perpetrator. Foster v. California, 394 U.S. 440, 442 (1969)

(quoting Stovall v. Denno, 388 U.S. 293, 302 (1967)). When the inadequacy of the police

investigation is premised on "nothing more than negligence on the part of the police investigators"

and there is no indication of "any bad faith on [the part of investigators] in failing to preserve []

evidence," a federal due process claim has not been stated. Hoidren v. Legursky, 16 F.3d 57, 60 (4th

Cir.), cert. denied, 513 U.S. 831 (1994).

Here, Tatum does not allege, and there is no evidence to support his claim, that the police's

investigation of the offense was conducted in bad faith. The investigating officers testified at trial

about their investigation at the scene, their interviews with witnesses, and their examination of

Tatum's vehicle. Deputy Ortiz, in particular, testified that there were no bullet holes or broken glass

in Tatum's car, no shots inside the vehicle, and no damage to the vehicle at all. (Document No. 8-12

at 102-107). Tatum has not shown that the police decided, in bad faith, not to test the door handle

for fingerprints. No relief is therefore available on Tatum's due process/improper investigation

claim (claim 5).

As for his suppression of evidence claim, it fails because there is no evidence that any

favorable fingerprint or vehicle damage evidence existed. In Brady v. Maryland, 373 U.S. 83, 87

(1963), the United States Supreme Court held that "suppression by the prosecution of evidence

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favorable to an accused upon request violates due process where the evidence is material either to

guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S.

at 87. In order to prevail on a suppression of evidence claim, however, it must be shown that

evidence was actually suppressed by the prosecution and that the suppressed evidence was material.

Strickler v. Greene, 527 U.S. 263, 281-282 (1999) ("There are three components of a true Brady

violation: The evidence at issue must be favorable to the accused, either because it is exculpatory,

or because it is impeaching; that evidence must have been suppressed by the State, either willfully

or inadvertently; and prejudice must have ensued."). Evidence is material under Brady if "there is

a reasonable probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682 (1985).

Here, there is no evidence in the record to support Tatum' s claim that favorable evidence was

withheld. Indeed, Tatum's own allegations indicate that there was no fingerprint testing done. In

addition, Tatum points to no evidence (only his own, after-the fact assertions) that there was any

damage to his car. As such, his suppression of evidence claim (claim 6) also fails on the merits.

Improper Commitment Questions during Voir Dire (Claim 7)

In his final claim, Tatum maintains that he was denied due process and a fair trial by virtue

of the prosecutor's "commitment" questions during voir dire. According to Tatum, the prosecutor

improperly asked prospective jurors to promise that they would convict Tatum if it was proven,

beyond a reasonable doubt, that Tatum committed the offense.

Tatum unsuccessfully raised this claim in his pro se appellate brief and in his petition for

discretionary review. Based on the state courts' rejection of this claim, ostensibly on state law

grounds that are not reviewable in this § 2254 proceeding, Estelle v. McGuire, 502 U.S. 62, 67-68,

(199 1) ("we reemphasize that it is not the province of a federal habeas court to reexamine state-court

Case 4:14-cv-01735 Document 54 Filed on 09/06/17 in TXSD Page 37 of 38

determinations on state-law questions"), and the absence of any evidence or credible allegation that

the commitment questions had any affect on the jury's verdict, herein, Tatum has not alleged, or

established, a violation of his federal constitutional rights attendant to the commitment questions he

complains of herein. As such, no relief is available on this claim.

VIII. Conclusion and Recommendation

Based on the foregoing and the conclusion that no relief is available to Tatum on the merits

of any of his claims, the Magistrate Judge RECOMMENDS that Respondent's Motion for Summary

Judgment (Document No. 47) be GRANTED, that Petitioner's Application and Supplemental

Application for Writ of Habeas Corpus (Document Nos. 1 & 43) be DENIED and that this § 2254

proceeding be DISMISSED WITH PREJUDICE on the merits.

The Clerk shall file this instrument and provide a copy to all counsel and unrepresented

parties of record. Within fourteen (14) days after being served with a copy, any party may file

written objections pursuant to 28 U.S.C. § 636(b)(1)(C), FED. R. CIV. P. 72(b), and General Order

80-5, S.D. Texas. Failure to file objections within such period shall bar an aggrieved party from

attacking factual findings on appeal. Thomas v. Am, 474 U.S. 140, 144-145 (1985); Ware v. King,

694 F.2d 89,91 (5th Cir. 1982), cert. denied, 461 U.S. 930 (1983); Nettles v. Wainwright, 677 F.2d

404, 408 (5th Cir. 1982) (en banc). Moreover, absent plain error, failure to file objections within the

fourteen day period bars an aggrieved party from attacking conclusions of law on appeal. Douglass

v. United Services Automobile Association, 79 F.3d 1415, 1429 (5th Cir. 1996). The original of any

Case 4:14-cv-01735 Document 54 Filed on 09/06/17 in TXSD Page 38 of 38

written objections shall be filed with the United States District Clerk.

Signed at Houston, Texas, this 5' day of September, 2017.

Frances H. Stacy

United States Magistrate Judge

Additional material

from this filing is

i the

a vaiIablen

Clerk's Office.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.