Petition for Writ of Certiorari — Julian Terence Martin, Jr., Petitioner v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division

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JDl “5224 ORIGINAL

SUPREME COURT OF the UNITED STATES

H LED

JU1T13 2021

^ss!MsnK

Petitioner-Appellant,

JULIAN TERENCE MARTIN, JR.,

Versus

BOBBY LUMPKIN, Director, Texas Department of Criminal Justice,

Correctional Institutions Divison,

Respondent-Appelle.

On Petition for Writ of Certiorari from the United States

Court of Appeals for the Fifth Circuit.

.-Y

PETITION FOR WRIT OF CERTIORARI

Julian Terence Martin Jr., TDCJ # 2026170,

3899 State Hwy 98 New Boston, Tx. 75570.

a.

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TABLE OF CONTENTS

Questions Presented

I&iii

Parties

Pg.iii

Prior Opinions and Orders

Pg.iii

Index of Auhtorities

Pg.iv

Basis of Jurisdiction

Pg.v

Constitutional Provisions and Statutes

Pg.v

Statement of the Case

Pg.v,vi

Reasons for Granting the Petition of Certiorari

Pg.vii

Argument

Pg.1-5

Conclusion

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Index of Appendices

Pg • 6

Appendix A: United States Court of Appeals for the Fifth Circuit,

Opinion;

Appendix B: United States Distrct Court Order^Sdceptihg findings,

and recommendation of the United States Magistrate Judge;

Appendix C: United States District Court Magistrate Judge findings,

conclusions, and recommendation.

Proof of Service

Pg.i

QUESTIONS PRESENTED

1. When a state court grants a motion for a competency haering, but

convicts a defendant without holding one, is a defendant's due pro­

cess of law denied under the 14th Amendment?

2. Is a state appellate court's unexplained decision to allow app­

ellant's counsel to withdraw, pursuant to Anders' Brief a denial of

due process, under the 14th Amendment, when a substantive due pro­

cess claim is presented in the record?

3. Does the procedural default rule operate to preclude a petitio­

ner federal review, when a question of competency was apparent fr­

om the record?

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X

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PARTIES

petitioner, pro se:

Julian Terence Martin, Jr., #22026170, 3899 State Hwy 98, New

Boston, Tx., 75570.

For Respondent Bobby Lumpkin:

Texas Attorney General Casey Solomon, assitance counsel of record

P.0. Box 12548, Austin, Tx. 78711-2548.

PRIOR OPINIONS AND ORDERS

Oct. 30, 2014 Order: Granted motion for competency evaulation, (

Clerk-;s Record pg. 11),Dallas County, Tx., F13-59221-X;

Sept. 23, 2015 Conviction, Murder, Dallas County, Tx., F13-59221-X;

July, 29, 2016 Direct Appeal, Affirmed, Martin v. State 5th Court of Appeal, No.05^15-01306-CR (Tex.App.Dallas 2016);

June;7, 2017 Petition for 11.07 writ of habeas corpus Denied, Texas

Court of Criminal Appeals, WR-85,758-02;

July 5, 2017 Motion for Rehearing Dismissed, Texas Court of Criminal

Appeals, No. W13-59221-X(B);

May 7, 2019 The Magistrate Issued Opinion: Findings, Conclusions,

and Recommendation, Recommending Petition be Denied with Prejudice,

( USDC-Dall. Div. No. 3 :17-CV-2226)

July 30, 2019 Petition for 2254 writ of habeas corpus Denied, USDC

Dali. Div. 3:17-CV-2226.

Sept. 6, 2019 Order: Granted

to proceed on appeal in forma pauperis,

(USDC No. 3:17-CV-2226);

Sept. 24, 2020 Order: Certificate of Appealability, Granted, in part,

United States Court of Appeals, Fifth Circuit No. 19-10987;

March 16, 2021 United States Court of Appeals, Fifth Circuit, Affirmed,

'No. 19-10987.

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s

INDEX OF AUTHORITIES

CASES

Anders v. California, 386 US. 738 (1967).

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Dye v. HofBauer, 546 US. 1,3 (2005).

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Evitts, 105 S. Ct. 830 (1985).

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Ex Parte Saenz, 491 SW.3d. 819,823(Tex.Crim.App.2016).

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James v. Singletary, 957 F.2d. 1562,1569(llth Cir.1992).

Pg • 5

McCoy v. Court of Appeals of Wisconsin, 486 US. 429,443(1988).Pg.3-4

Pate v. Robinson, 383 US. 375 (1966).

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Penn. v. Finley, 481 US. 551 (1987).

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Penson v. Ohio, 488 US. 75, 83-84 (1988).

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Rocha v. Thaler, 626 F.3d. 815, 820 (StH.Cir. 2010).

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Sena v. New Mexico, 109 F.3d. 652, 654-655(10th Cir.1997).

Pg • 5

Vogt v. United States, F.3d. 587, 590-591(8th Cir. 1996).

Pg.5

Zapata v. Estelle, 588 F.2d. 1017, 1021 (5th Cir. 1979).

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STATUTES

U.S. Constitution, Amendment XIX.

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28 U.S.C. § 2254 (b)(1)(A)

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BASIS OF JURISDICTION

Seeking U.S. Supreme Court review of the denial of permission of

claim to be heard on federal review, in a 28 U.S.C. § 2254 Writ of

Habeas Corpus for relief under 28 under 28 U.S.C. § 2254(b)(1)(A);

' denial was by the United States Court of Appeals for the Fifth Ci-^

rcuit on March 16, 2Q21.

Petition for Rehearing was not timely filied within (14) days, which

on April 7, 2021, United States Court of Appeals for the Fifth Cir­

cuit, Affirmed, which renders it final.

Jurisdiction is conferred on this Court by U.S. Sup. Ct. Rules 10(c)

and 13(1). The U.S. Court of Appeals for the Fifth Circuit decision

was final adjudication, and the denial conflicts with the Due Process

Clause of the U.S. 14th Amendment as read in Patev. Robinson, 383

U.S. 375 (1966).V

CONSTITUTIONAL PROVISIONS AND STATUTES

United States Constitution, Amendment XIV.

28 U.S.C. § 2254 (b)(1)(A)

STATEMENT OF THE CASE

Martin was granted a motion for competency evaulation on October

30, 2014 Trial court failed to hold a competency hearing, Martin

was convicted of murder on September 23, 2015. On direct appeal,

Martin's appellate counsel filed a motion to withdraw pursuant to

Anders v. California, 386 U.S. 738 (1967). The 5th Court of App­

eals granted the motion and.affirmed Martin's conviction. Martin

filed his state writ application and was denied June 7, 2017, and

motion for rehearing was dismissed on July 5, 2017.

Pg.v

!>

Martin filed his federal petition for writ of habeas corpus and

was denied on July 30, 2019, The district court found that Martin

did not raise his Pate Claim in state court. Martin was granted a

Certificate of Appealability on this issue. The United States Cou­

rt of Appeals for the Fifth Circuit, Affirmed on March 16, 2021

stating Martin did not fairly present this claim to the highest

state court being procedurally barred from federal review.

Pg.vi

:a

REASONS for GRANTING the PETITION of CERTIORARI

The Petitioner herein after [Martin], states the nature of his cl­

aim is not that he was denied the due process of a statutory proc­

edure, but that he went to trial while mentally incompetent, he does not contend that the State deprived him of a procedural right,

but that it committed a fundamentally unfair act, depriving him of

his substantive right to due process. U.S. Courts of Appeals have

ruled substantive due process claims are not procedurally barred.

Martin contends that he presented the claim from the record. Trial

counsel submitted a post conviction affidavit, stating his actions

where "trial strategy" and he and [Mjartin had agreed to after in

depth consultations. Martin rebutted this presumption by filing objections and bringing to the Texas Court of Criminal Appeals here­

in after TCCA attention, a pretrial motion that had been filied by

trial counsel. Martin argues thMt trial counsel's post conviction

affidavit, and trial counsel's pretrial motion are so contrary to

each other, well enough for the trial court and TCCA to have made

a determination: to have a 'evidentiary hearing', because Martin's

comptency was questionable from the record, bringing his claim be­

fore the habeas trial court and TCCA. Martin was also injured in

direct appeal, the Appellate Court allowed appellant's counsel to

withdraw, to have the effect of relieving the court of its indep­

endent review of the record, making an absence of the state corr­

ective process or existence of circumstances rendering such proc­

ess ineffective to protect the rights of the prisoner. The confl­

ation of cause Martin's incompetence and prejudice in the substa­

ntive due process claim presented in th!e record of this case, are

compelling reasons for the United States Supreme Court to exercise

its discretionary jurisdiction to decide the questions involved.

Pg.vii

ARGUMENT

Petitioner-Appellant, herein after Martin was denied due process of

law, when the State Court failed to, Sue Sponte, order a competency

hearing. Martin's trial counsel informed the Court via, a motion for appointment of expert witness that it was his belief that Martin

was not competent to stand trial and that he lacked a rational as well as actual understanding of the trial proceeding and inability

to assist in his defence. (Clerk's Record herein after CR. at pgs.

61-64). The Court granted the motion for Martin at CR. pg. 11 to be

evaluted for competency, but failed to follow up on the issue, and

instead allowed Martin to be tried without resolving the question of

his incompetency to stand trial. See: Pate v. Robinson, 383 US. 375

(1966). In State habeas proceedings, in response to Martin's State

writ, the State habeas court issued an order designating grounds two

through four as in need of resolution:

2. Trial Counsel was ineffective for failing to request either

a curative instruction or a mistrial based on the prosecutor's

improper closing arguments;

3. Trial Counsel was ineffective for failing to request a sud­

den passion instruction;

4. Trial Counsel was ineffective for failing to object to the

State's constructive amendment of the indictment.

Moreover, in the State's order designating issues, the habeas court

appointed an "Independent Counsel" to investigate and resolve the claims. Martin requested time to respond to any findings and conclus­

ions made by independent counsel. The habeas court ignored Martin's

motions and requests. The independent counsel subsequently made fin­

dings and conclusions recommending the writ be denied based on facts

Pg.l

in­

stated in a post-conviction affidavit filed by trial counsel. In tr­

ial counsel's affidavit he said his actions were a "trial strategy",

he and Martin had agreed to after in depth consultations. Martin fi­

led objections and directed the Texas Criminal Court of Appeals her­

ein after TGGA attention to a motion filed back at trial, by trial counsel which stated, in relevant part:

"I have had several opportunties to meet with [Martin] and disc­

uss the facts of his case, possible defences, case strategy and

other matters. [Martin] has exhibited confused and fragmented thought processes. He also exhibits a blunted affect, emotional

withdrawal, confusion and limited ability to concentrate." CR.at pg. 61.

Martin pointed out trial counsel's request for a competency examina­

tion and trial. Martin also pointed out to the TCCA where trial cou­

nsel stated in his motion how, in his estimation, Martin had no rat­

ional understanding of the trial proceedings or ability to assist in

his own defense. In accord with Penson v. Ohio, 488 US. 75, 83-84 (1988), ("A determination that arguable issues were presented by the

record creates a constitutional imperative"). Martin was only requi­

red to provide the TCCA with a "fair opportunity to apply controlli­

ng legal principles to the facts bearing upon [his] constitutional claim." Rocha v. Thaler, 626 F.3d 815, 820 (5th Cir. 2010). Moreover, .

the TCCA's own precedent allowed Martin to raise a supplemental claim

filed before its final ruling. See: Ex Parte Saenz, 491 SW.3d 819, 823

(Tex. Crim.App.2016). Martin also relied upon the Supreme Court's de­

cision in Dye v. Hofbauer, 546 US. 1,3 (2005), which decided tfuat the

"[f]ailure of a State Appellate Court to mention a federal claim does not mean the claim was not presented to it". The TCCA simply declined to address the issue, the TCCA issued an order denying relief

Pg.2

without a hearing or written opinion based on the findings and con­

clusions filed by the independent counsel. The Court never address­

ed the issue of there being nothing in the record of trial indicat­

ing that Martin was examined for competency prior to trial. Nor was

there evidence that a competency hearing had been held. Martin also

argued that the claim should not be procedurally barred based on cause and prejudice, by virtue of the fact that the State direct ap­

peal court allowed appellate counsel to withdraw pursuant to Anders

v. California, 386 US. 738 (1967). The United States Court of Appe­

als for the Fifth Circuit misses the enormous evidentiary value of

the State Appellate Court's 'independent Review of the Record as required under Anders, and brushes it aside. While there is no cons­

titutional right, to require states to provide a system of appellate

review, at all, but when a state elects to provide an avenue for appellate review, the process must comport with the protections of the Fourteenth Amendment, Id. Evitts' Court used much of frhe same reasoning guides that criminal defendant's have a right to effecti­

ve assistance of counsel in direct appeals at Evitts, 105 S. Ct. 830 (1985) ("When a state opts to act in a field where its action has significant discretionary elements, it must nonetheless act in

accord with Due Process Clause"). See; Pennsylvannia v. Finley, 481

US. 551 (1987). The nature of Martin's claim is not that he was de­

nied the due process of a statutory procedure, but that he went to

trail while mentally incompetent, he does not contend that the State

deprived him of a procedural right, but that it committed a fundam­

entally unfair act, depriving him of his substantive right to due process. The remedy sought by Martin is an elaboration of the right

recognized in McCoy v. Court of Appeals of Wisconsin, 486 US. 429,

443 (1988),

Pg-3

$

Wherein if an attorney advises the Court that an apppeal is frivolous then no constitutional deprivation occurs when the attorney ex­

plains the Msis for that conclusion. ("Once the Court is satisfied

both that counsel has been diligent in examining the record for mertorious issues and that the appeal is frivolous, federal concerns

are satified and the caser-may be disposed of in accordance with st­

ate law"). Wherein the record is not reviewed by an attorney only,

but also of the Appellate Court, befdoee allowing appellate counsel

to withdraws Review of record shows the direct appeal court did not

give full consideration to the substantial evidence set forth in the record. A motion had been granted on a competency hearing, and

that the record was

such'-'a hearing

the defendant went to

trial and was convicted while being incompetent to stand trial. ("A

determination that arguable issues were presented by the record cre­

ates a constitutional imperative"). In Penson v. Ohio, 488 US. 75,

83-84 (1988). This is a competency to stand trial claim, an aspect

of substantive due process. The Due Process Clause of the Fourteenth

Amendment prohibits the Appellate Court from making use of Anders v.

California, 386 US. 738 (1967), to have the effect of relieving the

appellate court of the burden of its independent review of the record

making an absence of the state corrective process or the existence of

circumstances rendering such process ineffective to protect the rig - .

hts of the prisoner. Because of the conflation of cause (Martin's in­

competence) and prejudice in the substantive due process claim preset

nted in the record of this case, Martin has shown cause and prejudice

the United States Court of Appeals, for the Fifth Circuit decision conflicts with decisions of the United States Supreme Court, Pate v.

Robinson, 383 US. 375 (1966), Anderr v. California, 386 US. 738 (1967).

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and the Court's decision conflicts with the authoritative decisions of its own precedent and other United States Courts of App­

eals that have addressed the issue before the Supreme Court: Za­

pata v. Estelle, 588 F.2d. 1017. 1021 (5th Cir. 1979), Vdgt v. United States, F.3d. 587,

590-591 (8th Cir. 1996). Sena v. New M-

exico, 109 F.3d. 652, 654-655 (lOthiCir. 1997), and James v. Sing­

letary, 957 F.2d. 1562 (11th Cir, 1992).

CONCLUSION

Executed on June

H , 2021

Respectfully submitted,

i

lian T. Martin, Jr.

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U.S.C. § 2254(b). To exhaust under § 2254, a petitioner must fairly present the factual and legal

basis of any claim to the highest available state court for review prior to raising it in federal court.

See Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993); Richardson v. Procunier, 762 F.2d 429,

432 (5th Cir.1985); Carter v. Estelle, 677 F.2d 427,443 (5th Cir.1982). In Texas, a prisoner must

present his claim to the Texas Court of Criminal Appeals in a petition for discretionary review or

an application for writ of habeas corpus. See Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir.

1986); Richardson, 762 F.2d at 432. A federal district court may raise the lack of exhaustion sua

sponte. Shute v. State, 117 F.3d 233, 237 (5th Cir. 1997).

Petitioner did not file a petition for discretionary review, and he did not raise this claim in

his state habeas application. {See doc. 13-28 at 10-18.) The competency claim is therefore

unexhausted.

B.

Procedural Bar

Notwithstanding the lack of exhaustion, the claim is also procedurally barred from federal

habeas review. See Coleman v. Thompson, 501 U.S. 722, 735 n.l (1991). The normal rule that a

state court must explicitly apply a procedural bar to preclude federal review does not apply to those

cases where a petitioner has failed to exhaust his state court remedies, and the state court to which

he would be required to present his unexhausted claims would now find those claims to be

procedurally barred. Id. In those cases, the federal procedural default doctrine precludes federal

habeas corpus review. Id.; see also Nobles v. Johnson, 127 F.3d 409,423 (5th Cir. 1997) (finding

unexhausted claim that would be barred by the Texas abuse-of-the-writ doctrine if raised in a

successive state habeas petition, to be procedurally barred).

Here, if Petitioner brought his unexhausted claim in a subsequent state habeas corpus

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application, the Court of Criminal Appeals would consider the claim to be procedurally defaulted

as a successive state habeas application under Article 11.07 § 4 of the Texas Code of Criminal

Procedure, so his competency claim is also procedurally barred from federal habeas review. See

Nobles v. Johnson, 127 F.3d at 423.

IV. INEFFECTIVE ASSISTANCE OF COUNSEL

The Sixth Amendment to the United States Constitution provides in relevant part that “[i]n

all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for

his defense.” U.S. Const, art. VI. It guarantees a criminal defendant the effective assistance of

counsel. Stricklandv. Washington, 466 U.S. 668(1984). To successfully state a claim of ineffective

assistance of counsel, the prisoner must demonstrate that counsel’s performance was deficient and

that the deficient performance prejudiced his or her defense. Id. at 687. A failure to establish either

prong of the Strickland test requires a finding that counsel’s performance was constitutionally

effective. Id. at 696. The Court may address the prongs in any order. Smith v. Robbins, 528 U.S.

259, 286 n. 14 (2000).

In determining whether counsel’s performance is deficient, courts “indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable assistance.”

Strickland, 466 U.S. at 689. “The reasonableness of counsel’s actions may be determined or

substantially influenced by the defendant’s own statements or actions.” Id. at 691. To establish

prejudice, a Petitioner must show that “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694; Williams

v. Taylor, 529 U.S. 362, 393 n.17 (2000) (inquiry focuses on whether counsel’s deficient

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

Reviewing courts must consider the totality of the evidence before the finder of fact in assessing

whether the result would likely have been different absent counsel’s alleged errors. Strickland, 466

U.S. at 695-96.

To show prejudice in the sentencing context, the Petitioner must demonstrate that the alleged

deficiency of counsel created a reasonable probability that his or her sentence would have been less

harsh. See Glover v. United States, 531 U.S. 198, 200 (2001) (holding “that if an increased prison

term did flow from an error [of counsel] the petitioner has established Strickland prejudice”). One

cannot satisfy the second prong of Strickland with mere speculation and conjecture. Bradford v.

Whitley,952 ¥ 2d 1008,1012(5thCir. 1992). Conclusory allegations are insufficient to obtain relief

under § 2255. United States v. Woods, 870 F.2d 285, 288 n.3 (5th Cir. 1989); United States v.

Daniels, 12 F. Supp. 2d 568, 575-76 (N.D. Tex. 1998); see also Miller v. Johnson, 200 F.3d 274,

282 (5th Cir. 2000) (holding that “conclusory allegations of ineffective assistance of counsel do not

raise a constitutional issue in a federal habeas proceeding”).

A.

Competency

In his second ground, Petitioner contends that counsel was ineffective for allowing him to

stand trial despite evidence of his incompetency and for failing to ensure that his competency was

adequately investigated or that a competency hearing was held.

1.

Exhaustion and Procedural Bar

Respondent argues that this claim is unexhausted and procedurally barred.

Petitioner did not raise this claim in his state habeas application. (See doc. 13-28 at 10-18.)

It is therefore unexhausted. See Deters v. Collins, 985 F.2d at 795. If Petitioner brought his

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unexhausted claim in a subsequent state habeas corpus application, the Court of Criminal Appeals

would consider the claim to be procedurally defaulted as a successive state habeas application under

Article 11.07 § 4 of the Texas Code of Criminal Procedure, so this claim is also procedurally barred

from federal habeas review. See Nobles, 127 F.3d at 423.

Nevertheless, the Texas bar on successive or subsequent state habeas applications “will not

bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the

initial-review collateral proceeding, there was no counsel or counsel in that proceeding was

ineffective.” Trevino v. Thaler, 569 U.S. 413, 429 (2013) (citing Martinez v. Ryan, 566 U.S. 1

(2012)). A substantial claim is one that has some merit. Ibarra v. Davis, 738 F. App’x 814, 817

(5th Cir. 2018). An insubstantial claim is one that does not have any merit or is “wholly without

factual support.” Id.

2.

Merits

Due process requires that a criminal defendant be competent to stand trial before he is

prosecuted. Cooper v. Oklahoma, 517 U.S. 348, 354 (1996). The appropriate test is whether a

defendant “has sufficient present ability to consult with his lawyer with a reasonable degree of

rational understanding—and whether he has a rational as well as factual understanding of the

proceedings against him.” Dusky v. United States, 362 U.S. 402, 402 (1960); see also Tex. Code

Crim. Proc. art. 46B.003. To prove prejudice for counsel’s failure to raise an issue that the petitioner

was incompetent, he must demonstrate that there is a reasonable probability that but for counsel’s

failure to raise the issue, he would have been found incompetent to stand trial. See Felde v. Butler,

817 F.2d 281,282, 283 (5th Cir. 1987).

Counsel’s motion for the appointment of an expert to evaluate whether Petitioner was

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competent suggested that Petitioner may not have been competent to stand trial because he

“exhibited confused and fragmented thought processes[,... a blunted affect, emotional withdrawal,

confusion, and a limited ability to concentrate[, and he] does not appear [to] exhibit an intellectual

capacity consistent with his physical age.” (doc. 13-13 at 61.) It did not assert that Petitioner lacked

the ability to consult with counsel with a reasonable degree of rational understanding, or that he

lacked a rational and factual understanding of the proceedings against him. The state court granted

the motion, but the record does not indicate whether the evaluation occurred or any findings by the

expert. The record does show that during trial, counsel and the court explained to Petitioner his right

to testify, and he acknowledged that he discussed the matter with counsel and ultimately decided that

he was not going to testify. He also understood that he had been found guilty. The record shows

that Petitioner understood the proceedings against him and that he was able to have discussions with

counsel about the case; it does not indicate that he was incompetent. Petitioner has not shown that

he was or would have been found to be incompetent. Because this unexhausted claim of ineffective

assistance of counsel does not have merit, it is not a substantial claim that excuses the procedural

bar. See Ibarra, 738 F. App’x at 817.

B.

Jury Instruction

In his fourth ground, Petitioner contends that counsel failed to request a jury instruction on

sudden passion in the punishment phase.

Under Texas law, if a defendant is convicted of murder, he may raise sudden passion as an

issue at punishment. If it is proven by a preponderance of the evidence that he caused the death

while under the immediate influence of sudden passion, the murder conviction will be lowered from

a first-degree felony to a second-degree felony. See Tex. Penal Code § 19.02(d). “Sudden passion”

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means “passion directly caused by and arising out of provocation by the individual killed... which

passion arises at the time of the offense and is not solely the result of former provocation.” Tex.

Penal Code § 19.02(a)(2). “Adequate cause” means “cause that would commonly produce a degree

of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind

incapable of cool reflection.” Tex. Penal Code § 19.02(a)(1). An instruction on sudden passion is

warranted if it is supported by “some evidence,” even if that evidence is “weak, impeached.

contradicted, or unbelievable.” Beltran v. State, 472 S.W.3d 283, 290 (Tex. Crim. App. 2015).

Counsel submitted an affidavit in state habeas. He stated:

13. [The victim] was sitting with some friends on the porch of the [bar] observing the fight

and left the porch to try to break up the fight. There was a particularly disturbing cell phone

video of the ensuing encounter between [the victim] and [Petitioner] in which [Petitioner]

appeared very much the aggressor. This combined with witness statements that confirmed

[the victim] was indeed merely trying to stop the fight and that he indicated he did not intend

or want to fight [Petitioner], We had discussed this matter with [Petitioner] prior to trial,

however he indicated that he did not wish to view the video.

14.1 discussed possible defense strategies with all of the other attorneys involved

and we all agreed that the statements and the tape, especially the one referenced

above, would make it impractical to assert certain defenses and that attempting to do

so after [the] jury had viewed the videos would only serve to cost us credibility and

perhaps sympathy as well during the punishment phase.

15. We specifically discussed every defense; mitigation issue and potential lesser

included offenses. Both before trial and before the charge conference we discussed

the possibility of a sudden passion instruction—I am fairly sure that we discussed the

matter with [Petitioner] specifically. [Petitioner] always maintains that he was acting

out of fear.

17. Based on discussions among ourselves, facts related to us by [Petitioner], the

tapes - and the one tape in particular - and the witness statements we did not believe

the facts would support a finding of sudden passion nor that this should be our focus.

The evidence adduced at trial in no way changed this and we felt that it simply did

not indicate that [the victim] was the aggressor, that he initially provoked [Petitioner]

or an absence of former provocation.

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18.1 believe we discussed the matter and believed that it was doubtful the evidence

would even support a charge on sudden passion. We had all watched the one

particular tape numerous times before trial and agreed that [Petitioner] looked

aggressive and even frightening (we had extensive discussions on the mater). On the

other hand, the State was presenting [the victim] as a good Samaritan who was

merely trying to break up a fight before anyone was seriously injured.

19. Aside from the fact that the evidence did not support an argument that [the

victim] was the initial aggressor, we were concerned about the jury perceiving our

position as “Mr. Good Samaritan butted his nose in someone else’s business and

therefore got what he deserved, or at least can’t complain.” We elected to take

another approach that we felt was more sustainable based on the evidence presented

and what we perceived to be the juries’ reactions to that evidence.

20. [Petitioner’s] Petition seems to confuse several things. First he confuses the

evidence and charges at the Guilt-Innocence and Punishment phases. Second, he

apparently, mistakenly fear from the earlier fights with sudden passion if I

understand his argument. We felt like it would be a mistake (and unsupportable) to

argue [the victim] was the initial aggressor. If I recall correctly (and [Petitioner]

appears to confirm that) we did argue that he was in several fights, a number [of]

people were involved, that he was fearful (or perhaps even panicked) when [the

victim] appeared.

(doc. 13-28 at 102-03.)

The state habeas court found that counsel’s affidavit was true and correct and that Petitioner

did not sustain his burden of showing that sudden passion was induced by the victim’s provocation.

{Id. at 94, 97.) The court concluded that Petitioner did not show that counsel was ineffective for

failing to request an instruction on sudden passion. {Id. at 97.)

Counsel’s reasons for not requesting an instruction on sudden passion and the state court’s

determination of this claim are supported by the record. Petitioner has not shown that he was

entitled to an instruction on sudden passion. Counsel was not ineffective for failing to make a futile

request. See Koch v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990) (“counsel is not required to make

futile motions or objections”). Petitioner has not shown that the state court’s rejection of this claim

was unreasonable.

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C.

Page 14 of 18 PagelD 1449

Curative Instruction/Mistrial

Petitioner’s fifth ground contends that counsel failed to request a curative instruction and a

mistrial after the court sustained an objection to the prosecutor’s argument about how Petitioner’s

three-inch or three-and-one-half inch knife could have caused the five-inch stab wound.

Counsel stated in his habeas affidavit that:

10. During the trial of the case, the State elicited evidence that the stab wound

suffered by [the victim] was five inches with respect to its depth. The State, as I

recall, failed to elicit testimony from the medical examiner that this was in fact

common because the skin gives way to allow the knife to puncture further than the

physical length of the blade. If 1 recall correctly, the Medical Examiner’s Office

indicated to us that it would be unusual for a five inch blade to leave a five inch

wound.

11. We explained this to [Petitioner] well before the closing that we would make the

argument but a juror could poke himself with a finger and see the skin give way. We

told him it was a throw away argument, but it was worth throwing out there. We

made the argument, the State offered the explanation we anticipated although I do

not recall his exact words. I do recall we objected and I think the objection was

sustained (although the judge may have said something to the effect of, “The jury

will recall the testimony”). I am sure [Petitioner’s] contention that I did not move for

a mistrial is correct. In the context of the proceedings, I would have been concerned

that the jury would perceive such a request as petty.

(doc. 13-28 at 101-02.)

The state habeas court found that counsel’s reason for not moving for a curative instruction

or mistrial was reasonable strategy. The court noted that although hindsight might suggest that a

curative instruction would have been appropriate, counsel’s trial tactic of not wanting to remind the

jury of the matter was reasonable, and it concluded that Petitioner did not show that counsel was

ineffective, (id. at 96.) Counsel’s reasons for not requesting a curative instruction or a mistrial are

supported by the record, and Petitioner has not shown that a mistrial would have been granted.

Additionally, he has not shown how he was prejudiced. There was evidence, including video

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Page 15 of 18 PagelD 1450

evidence, that Petitioner pulled out a knife and stabbed at the victim, and DNA found on Petitioner^

knife was consistent with the victim. Petitioner has not shown that the state court’s rejection of this

claim was unreasonable.

D.

Constructive Amendment of Indictment

In his sixth ground, Petitioner contends that counsel failed to object to the constructive

amendment of the indictment on the day that the trial began by abandoning the allegation of murder

under Tex. Penal Code § 19.02(b)(1) (intentionally and knowingly causing death) and proceeding

on the allegation of murder under § 19.02(b)(2) (intending to cause serious bodily injury and

committing an act clearly dangerous to human life that causes death). He argues that because the

indictment alleged the two theories of murder in the conjunctive, the State had to prove both

theories, and that abandoning one theory lessened its burden.

“[Ajlthough [an] indictment may allege the differing methods of committing the offense in

the conjunctive, it is proper for the jury to be charged in the disjunctive. Kitchens v. State, 823

S.W.2d 256, 258 (Tex. Crim. App. 1991). When alternative theories of the offense are submitted

to the jury in the disjunctive, a jury may return a general verdict if the evidence is sufficient to

support a finding of guilt under either theory submitted to the jury. Id. The State would have been

required to prove only one theory of the offense to obtain a conviction. The abandomnent of one

theory alleged in the indictment did not lessen the State’s burden and was therefore not a

constructive amendment to the indictment rather than an abandonment of a legal theory. Petitioner

has not shown that the state court’s rejection of this claim was unreasonable.

V. SUFFICIENCY OF EVIDENCE

Petitioner’s third ground contends there was no evidence that the knife used was a deadly

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Page 16 of 18 PagelD 1451

weapon as alleged in the indictment. Respondent argues that this claim is procedurally barred.

A claim that “no evidence” supports a conviction is the same as a challenge to the legal

sufficiency of the evidence. See Haley v. Cockrell, 306 F.3d 257, 266-67 (5th Cir. 2002) (noting

that a claim of “no evidence” is the same as a claim of insufficiency of the evidence), vacated on

other grounds, 541 U.S. 386 (2004); United States v. Jackson, 86 Fed. App’x 722, 722 (5th

Cir.2004) (per curiam) (applying insufficiency-of-the-evidence analysis to claim of “no evidence”).

Under Texas law, it has long been held that challenges to the sufficiency of the evidence of

a conviction must be raised on direct appeal. See Ex parte McLain, 869 S.W.2d 349, 350 (Tex.

Crim. App. 1994) (holding evidentiary sufficiency claims not cognizable in post-conviction,

collateral attack); West v. Johnson, 92 F.3d 1385, 1389 n. 18 (5th Cir. 1996) (recognizing that this

is a long-standing legal principle under Texas law).

Petitioner did not present this claim to the Court of Criminal Appeals on direct review,

because he did not file a petition for discretionary review. Fie raised a “no evidence” claim on state

habeas, and the Court of Criminal Appeals denied it without written order. That decision was an

adjudication on the merits. See Singleton v. Johnson, 178 F.3d 381,384 (5th Cir. 1999); Ex parte

Torres, 943 S.W.2d 469,472 (Tex. Crim. App. 1997). When the Court of Criminal Appeals denies

a state application for writ of habeas corpus without written order, it implicitly denies sufficiency

claims on the procedural basis that such claims are not cognizable on state habeas review. See Ex

parte Grigsby, 137 S.W.3d 673, 674 (Tex. Crim. App. 2004). When the last state court to review

a claim clearly and expressly states that its judgment rests on a procedural bar, the procedural default

doctrine generally bars federal review. See Harris v. Reed, 489 U.S. 255,262 (1989); Lowe v. Scott,

48 F.3d 873, 875 (5th Cir. 1995).

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Page 17 of 18 PagelD 1452

Petitioner has procedurally defaulted any claim of insufficiency of the evidence under Texas

law. This default constitutes an adequate and independent state procedural ground to bar federal

habeas review of the claim. See Reed v. Thaler, 428 F. App’x 453,454 (5th Cir. 2011) (citing Busby

v. Dretke, 359 F.3d 708,724 (5th Cir. 2004), and Ex parte Grigsby, 137 S.W.3d at 674)). The claim

is therefore procedurally barred.

VI. EVIDENTIARY HEARING

Upon review of the pleadings and the proceedings held in state court as reflected in the state

court records, an evidentiary hearing appears unnecessary. Petitioner has not shown he is entitled

to an evidentiary hearing.

VII. RECOMMENDATION

The petition for habeas corpus relief under 28 U.S.C. § 2254 should be DENIED with

prejudice.

SO RECOMMENDED this 7th day of May, 2019.

IRMA CARRILLO RAMIREZ

/I

UNITED STATES MAGISTRATE JUDGE

17

V,

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Page 18 of 18 PagelD 1453

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of these findings, conclusions and recommendation shall be served on all parties in

the manner provided by law. Any party who objects to any part of these findings, conclusions and

recommendation must file specific written objections within 14 days after being served with a copy.

See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In order to be specific, an objection must identify

the specific finding or recommendation to which objection is made, state the basis for the objection,

and specify the place in the magistrate judge’s findings, conclusions and recommendation where the

disputed determination is found. An objection that merely incorporates by reference or refers to the

briefing before the magistrate judge is not specific. Failure to file specific written objections will

bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate

judge that are accepted or adopted by the district court, except upon grounds of plain error. See

Douglass v. United Servs. Automobile Ass ’n, 79 F.3d 1415, 1417 (5th Cir. 1996).

-mNlA CARRILLO RAMIREZ

f)

UNITED STATES MAGISTRATE JtJDGE

I

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