Opposition Brief — Naim Rasool Muhammad, Petitioner v. Texas

No. 21-5420

**CAPITAL CASE**

IN THE

Supreme Court of the United States

NAIM RASOOL MUHAMMAD,

Petitioner,

v.

STATE OF TEXAS,

Respondent.

On Petition for a Writ of Certiorari

to the Court of Criminal Appeals of Texas

BRIEF IN OPPOSITION

JOHN CREUZOT

Criminal District Attorney

Dallas County, Texas

JACLYN O’CONNOR LAMBERT

Assistant District Attorney

Counsel of Record

Frank Crowley Courts Bldg.

133 N. Riverfront Blvd., LB-19

Dallas, Texas 75207

(214) 653-7928

Jaclyn.OConnor@dallascounty.org

Counsel for Respondent

CAPITAL CASE

QUESTIONS PRESENTED

1. In a state habeas proceeding, is it improper for the state court to

apply the “reasonable probability” standard applicable to

Strickland’s prejudice prong, as well as the “preponderance of the

evidence” standard required for a habeas applicant to meet his

burden of proof, and to evaluate prejudice resulting from each

individual allegation of deficient performance?

2. In a state habeas proceeding, is it a violation of due process for the

state court to adopt one party’s proposed findings of fact and

conclusions of law and to rely, in part, on the court’s personal

experience and knowledge of the case in denying relief?

i

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................................................................... I

TABLE OF AUTHORITIES ........................................................................................ IV

BRIEF IN OPPOSITION ............................................................................................... 1

STATEMENT OF JURISDICTION .............................................................................. 1

STATEMENT OF THE CASE....................................................................................... 2

I.

Procedural History .............................................................................................. 2

II.

Trial Evidence ..................................................................................................... 3

III.

A.

Facts of the Crime ....................................................................................... 3

B.

The State’s Punishment Evidence ............................................................. 7

C.

Muhammad’s Punishment Evidence.......................................................... 8

State Habeas Proceedings ................................................................................ 13

REASONS FOR DENYING THE PETITION ............................................................ 14

I.

This Court Lacks Jurisdiction Because the Petition is Untimely ................... 14

II.

The State Court Properly Applied Strickland’s Prejudice Prong ................... 17

III.

A.

The lower court applied the correct reasonable-probability

standard to Strickland’s prejudice prong. ............................................... 18

B.

The lower court did not violate Strickland by rejecting

Muhammad’s cumulative-error argument............................................... 21

The Procedure Used by the State Court in Resolving Muhammad’s State

Habeas Claims Did Not Implicate Due Process .............................................. 23

A.

There is no constitutional right to any particular process or

procedure in state habeas proceedings. ................................................... 23

B.

Muhammad identifies no infirmity in the state habeas court’s

proceedings that would give rise to a due process violation. .................. 25

ii

CONCLUSION............................................................................................................. 30

iii

TABLE OF AUTHORITIES

Cases

Anderson v. City of Bessemer City, N.C.,

470 U.S. 564 (1985) ................................................................................................. 28

Armstead v. Scott,

37 F.3d 202 (5th Cir. 1994) ..................................................................................... 29

Ballard v. McNeil,

785 F. Supp. 2d 1299 (N.D. Fla. 2011).................................................................... 22

Blanton v. Quarterman,

543 F.3d 230 (5th Cir. 2008) ................................................................................... 18

Brown v. Dretke,

419 F.3d 365 (5th Cir. 2005) ................................................................................... 29

Charles v. Stephens,

736 F.3d 380 (5th Cir. 2013) ................................................................................... 21

Clark v. Johnson,

202 F.3d 760 (5th Cir. 2000) ................................................................................... 29

Dist. Attorney's Off. for Third Jud. Dist. v. Osborne,

557 U.S. 52 (2009) ................................................................................................... 24

Emerson v. Johnson,

243 F.3d 931 (5th Cir. 2001) ................................................................................... 16

Ex parte Muhammad,

WR-85,343-01, 2020 WL 6777968 (Tex. Crim. App. Nov. 18, 2020)

(not designated for publication) ...................................................................... passim

Ford v. Wainwright,

477 U.S 399 (1986) .................................................................................................. 27

Forrest v. Fla. Dep’t of Corr.,

342 F. App’x 560 (11th Cir. 2009) ........................................................................... 22

Frost v. Pryor,

749 F.3d 1212 (10th Cir. 2014) ............................................................................... 21

Harrington v. Richter,

562 U.S. 86 (2011) ................................................................................................... 19

iv

Holland v. Jackson,

542 U.S. 649 (2004) ................................................................................................. 20

Hughes v. State,

24 S.W.3d 833 (Tex. Crim. App. 2000).................................................................... 22

Jolly v. Gammon,

28 F.3d 51 (8th Cir. 1994) ....................................................................................... 27

Missouri v. Jenkins,

495 U.S. 33 (1990) ................................................................................................... 15

Muhammad v. State,

No. AP-77,021, 2015 WL 6749922 (Tex. Crim. App. Nov. 4, 2015)

(not designated for publication) ........................................................................ 2, 7, 8

Muhammad v. Texas,

136 S. Ct. 2462, 195 L. Ed. 2d 803 (2016)................................................................. 2

Murray v. Girratano,

492 U.S. 1 (1989) ..................................................................................................... 24

Nichols v. Scott,

69 F.3d 1255 (5th Cir. 1995) ................................................................................... 28

Pennsylvania v. Finley,

481 U.S. 551 (1989) ................................................................................................. 24

Sears v. Upton,

561 U.S. 945 (2010) ................................................................................................. 18

Spears v. Mullin,

343 F.3d 1215 (10th Cir. 2003) ............................................................................... 23

Strickland v. Washington,

466 U.S. 668 (1984) ........................................................................................... 18, 19

Strong v. Johnson,

495 F.3d 134 (4th Cir. 2007) ................................................................................... 29

Tercero v. Stephens,

738 F.3d 141 (5th Cir. 2013) ................................................................................... 27

Trevino v. Johnson,

168 F.3d 173 (5th Cir. 1999) ................................................................................... 27

v

United States v. Cronic,

466 U.S. 648 (1984) ................................................................................................. 22

United States v. Ebron,

683 F.3d 105 (5th Cir. 2012) ................................................................................... 23

United States v. Rivera,

900 F.2d 1462 (10th Cir. 1990) ............................................................................... 23

Woodford v. Visciotti,

537 U.S. 19 (2002) ................................................................................................... 21

Statutes

28 U.S.C § 2101(c) .................................................................................................. 14, 17

Tex. Code Crim. Proc. Ann. art 11.071, § 1 (West Supp. 2020) ................................. 28

Tex. Code Crim. Proc. Ann. art. 11.071, § 9(a) (West Supp. 2020) ...................... 28, 29

Tex. Code Crim. Proc. Ann. art. 11.071, § 9(c) (West Supp. 2020) ............................ 26

Tex. Code Crim. Proc. Ann. art. 37.071, § 2(b) (West Supp. 2020) .............................. 2

Tex. Code Crim. Proc. Ann. art. 37.071, § 2(e) (West Supp. 2020) .............................. 2

Tex. Code Crim. Proc. Ann. art. 37.071, § 2(g) (West Supp. 2020) .............................. 2

Tex. Penal Code Ann. § 19.03(a)(7)(A) .......................................................................... 2

Rules

Sup. Ct. R. 13.1 ............................................................................................................ 14

Sup. Ct. R. 13.3 ............................................................................................................ 16

Tex. R. App. P. 79.1 ..................................................................................................... 17

Tex. R. App. P. 79.2(d) ................................................................................................. 15

vi

BRIEF IN OPPOSITION

On August 22, 2011, Petitioner Naim Rasool Muhammad drowned his fiveyear-old son Naim and three-year-old son Elijah because he was angry with their

mother, Kametra Sampson, and wanted to prove a point. In May 2013, a Dallas

County jury convicted Muhammad of capital murder and, via the special issues,

sentenced him to death. Muhammad now seeks certiorari review of the Texas Court

of Criminal Appeals’ (TCCA’s) rejection of his state habeas ineffective assistance of

counsel (IAC) claims. But this Court does not have jurisdiction because Muhammad

filed his petition for writ of certiorari more than 150 days after the TCCA issued its

judgment. The TCCA does not allow petitions for rehearing of a state habeas decision,

and Muhammad’s suggestion the lower court reconsider its decision on its own

initiative did not toll his 150-day period for filing a petition.

Moreover, Muhammad’s petition does not warrant this Court’s attention. The

record shows the state court correctly applied Strickland and this Court’s precedent

in assessing prejudice, and the procedures used by the state court did not implicate,

much less violate, Muhammad’s due process rights. Accordingly, this Court should

deny certiorari review.

STATEMENT OF JURISDICTION

The TCCA entered its order denying habeas relief on November 18, 2020. See

Ex parte Muhammad, WR-85,343-01, 2020 WL 6777968 (Tex. Crim. App. Nov. 18,

2020) (not designated for publication). Considering the time period allowed by statute

and this Court’s rules (usually a 90-day deadline but extended to 150 days due to the

1

COVID-19 pandemic), Muhammad’s petition should have been filed by April 17, 2021.

Instead, Muhammad filed his petition on August 16, 2021. He calculated his deadline

by incorporating tolling for the time period during which his suggestion that the

TCCA reconsider its order on its own initiative was pending. Texas law explicitly

precludes an applicant from filing a petition for rehearing of the TCCA’s denial of

state habeas relief in a death penalty case, and this Court should not construe the

TCCA’s denial of Muhammad’s suggestion for reconsideration on the court’s own

motion as a sua sponte consideration and denial of rehearing. Because the petition

was not filed within the 150 days prescribed by statute and this Court’s rules, it is

untimely, and this Court lacks jurisdiction.

STATEMENT OF THE CASE

I.

Procedural History

In May 2013, a Dallas County jury convicted Muhammad of the August 22,

2011, capital murder of his two young sons, Naim Muhammad Jr. and Elijah

Muhammad. See Tex. Penal Code Ann. § 19.03(a)(7)(A). In accordance with the jury’s

answers to the special issues, the trial court sentenced him to death on May 23, 2013.

See Tex. Code Crim. Proc. Ann. art. 37.071, §§ 2(b),(e),(g) (West Supp. 2020).

On direct appeal, Muhammad raised fifty-four points of error. Having found

all of Muhammad’s claims to be without merit, the TCCA affirmed the judgment and

sentence on November 4, 2015. Muhammad v. State, No. AP-77,021, 2015 WL

6749922 (Tex. Crim. App. Nov. 4, 2015) (not designated for publication). Muhammad

petitioned this Court for a writ of certiorari, which was denied on June 13, 2016.

Muhammad v. Texas, 136 S. Ct. 2462, 195 L. Ed. 2d 803 (2016).

2

Muhammad timely filed his original application for writ of habeas corpus in

the trial court in June 2015. After conducting a six-day live evidentiary hearing, the

trial court entered findings of fact and conclusions of law recommending that relief

be denied on November 21, 2019. The TCCA adopted the trial court’s findings of fact

and conclusions of law and, based on those findings and conclusions, as well as its

own review, denied relief on claims one and three through nine and dismissed claim

two. Ex parte Muhammad, 2020 WL 6777968, at *1-2.

II.

Trial Evidence

A. Facts of the Crime

In its opinion on direct appeal, the TCCA summarized the facts of the capital

murder as follows:

[Muhammad] drowned two of his sons, five-year-old Naim

Muhammad and three-year-old Elijah Muhammad, because he was

angry with their mother, Kametra Sampson, who had separated from

[Muhammad] about eight months before the offense. Because the

circumstances of the instant offense are intertwined with

[Muhammad]’s long history of abusing Kametra, we will begin with this

history.

[Muhammad] and Kametra met and began dating in 2003, when

Kametra was fifteen years old and [Muhammad] was twenty-five.

Within a few weeks, [Muhammad] began physically abusing Kametra.

The first episode of abuse occurred during an argument in the back yard

of [Muhammad]’s father’s house. Kametra told [Muhammad] that she

was leaving and turned to walk away. [Muhammad] grabbed her, threw

her into his car, punched her repeatedly, and told her that she was not

leaving. He did not let her go home that day.

[Muhammad] beat Kametra once or twice a week for the first four

or five years of their relationship, and then the beatings became more

frequent. [Muhammad] usually abused Kametra by punching her in the

face with his fists. In 2006, Kametra told [Muhammad] that she was

pregnant. [Muhammad] told her to get an abortion, and when she

refused, he attempted to induce a miscarriage by punching and kicking

3

her stomach. When that failed, [Muhammad] urged Kametra to drink

bleach or use a wire hanger, but Kametra did not do so. Kametra later

gave birth to the couple’s first child, Naim. In 2008, Kametra informed

[Muhammad] that she was pregnant with their second child. She again

refused to get an abortion and [Muhammad] again attempted to induce

a miscarriage by punching and kicking her stomach. The attempt failed,

and Kametra gave birth to Elijah. [Muhammad] did not punch and kick

Kametra in the stomach when she informed him that she was pregnant

with their third child, Jeremiah, but [Muhammad] continued to

physically abuse her by punching her in the face.

Around Christmas of 2010, Kametra left [Muhammad], taking

their three sons with her. [Muhammad] continued to physically abuse

Kametra when he had the opportunity. He also used their sons in his

efforts to control her. For example, on February 24, 2011, [Muhammad]

showed up at Kametra’s mother’s house, and Kametra went outside to

talk to him. He told Kametra that he wanted to take Naim and Elijah,

but Kametra told him that he could not. She went back inside and tried

to close the door, but [Muhammad] forced his way into the house. He

pushed Kametra against the wall and punched her in the face. He then

rushed into the dining room and grabbed Naim. While carrying Naim,

he kicked down a side door and fled. Police found Naim a short time later

and returned him to Kametra.

As a result of this incident, [Muhammad] was arrested for

assaulting Kametra. [Muhammad] was already on probation for a 2009

assault on his sister, and the State subsequently filed a motion to revoke

his probation based on this new offense. However, the motion to revoke

remained pending because [Muhammad] stopped reporting to his

probation officer and avoided contact with other law-enforcement

officials.

Kametra and [Muhammad] continued to communicate after the

February 2011 incident, and the boys sometimes visited [Muhammad].

[Muhammad] repeatedly asked Kametra to reconcile with him, but she

rejected his requests. On March 24, 2011, all three boys visited

[Muhammad] at his brother’s house. [Muhammad] told Kametra that he

could not take Naim to preschool that day, so Kametra borrowed a car

from her sister, Gabrielle, and drove to the house to pick up the boys.

Kametra stopped the car in front of the house, loaded the children into

the back seat, and sat down in the driver’s seat. [Muhammad], who was

standing by the car, asked Kametra to take him to the store. She told

him that she could not do that because she had to return the car to

Gabrielle. [Muhammad] climbed into the car anyway. Kametra again

4

told [Muhammad] that she could not take him to the store and asked

him to get out of the car. [Muhammad] became upset and choked

Kametra into unconsciousness.

When Kametra regained consciousness, she and the boys were

inside the house. [Muhammad] hit Kametra in the head with a heavy

object when she told him that she needed to leave. Kametra finally

persuaded [Muhammad] to let her go, telling him that Gabrielle would

call the police if she did not return the car soon. [Muhammad] allowed

Kametra to leave with the boys, but he insisted on riding with them.

Gabrielle was waiting outside when they stopped the car. As

Kametra exited the car, Gabrielle saw her battered condition and called

the police. [Muhammad] picked up Elijah and told Kametra, who was

holding Jeremiah, that he would kill Elijah if she did not walk away

with him. [Muhammad] walked away quickly, carrying Elijah. Kametra,

still carrying Jeremiah, followed [Muhammad] slowly because she did

not want to go with him. [Muhammad] attempted to hide when police

officers arrived, but when he realized that the officers had seen him, he

dropped Elijah and ran away.

By the time of the instant offense, a Child Protective Services

(“CPS”) worker had instructed Kametra not to let [Muhammad] visit the

boys unless his mother accompanied him. Kametra complied with this

instruction. Nevertheless, at around 6:30 a.m. on Naim’s first day of

kindergarten, [Muhammad] borrowed a friend’s car and showed up at

Kametra’s house, unannounced and alone. He stated that he wanted to

take Naim to school. Kametra and her mother told [Muhammad] to

leave several times before he complied.

A short time later, while Kametra and Elijah were walking Naim

to school, [Muhammad] pulled up in a car in front of them, jumped out,

and picked up a rock. He threatened to hit Kametra in the head with it

if she and the boys did not get into the car with him. After they were in

the car, [Muhammad] drove toward Naim’s school, but he passed it

without stopping and announced that Naim would not go to school that

day. [Muhammad] drove erratically while he threatened and hit

Kametra. His demeanor alternated between hostile and affectionate. He

told Kametra several times that he would kill her and the boys.

When [Muhammad] stopped the car at a traffic light, Kametra

saw a constable’s car in the next lane. She jumped out of [Muhammad]’s

car and ran to the constable for help. Although the light was still red

and another car was stopped in front of him, [Muhammad] drove the car

5

over the curb and sped away with the boys. He told them that their

mother did not care about them any more. He stopped the car near a

creek and walked the boys down the embankment. The boys told

[Muhammad] that they loved him, and Naim asked him not to kill them.

Having second thoughts, [Muhammad] walked the boys back up

to the car and smoked a cigarette while he considered his next move. He

concluded that he could not take the boys back to the house because the

police would be waiting for them. After deciding to complete his plan,

[Muhammad] walked the boys back down the embankment.

[Muhammad] carried Elijah after Elijah complained that he could not

walk down by himself. Elijah cried for his mother, and [Muhammad]

told the boys that she ran away and he did not know where she was.

Naim repeated, “I love you, dad,” over and over.

[Muhammad] told the boys to sit down in the water, turn away

from him, and pretend they were swimming. They complied, and he held

their heads under water. Naim was kicking, but [Muhammad] would not

let him get up. [Muhammad] did not let up until both boys stopped

moving. [Muhammad] left their bodies in the creek and drove to

Kametra’s house, where he broke a window in the room where Jeremiah

was sleeping. [Muhammad] attempted to climb through the window, but

Kametra’s brother entered the room and pushed [Muhammad] back

outside. [Muhammad], as he was leaving, stated, “Your nephews are

dead now.”

After he committed the offense, [Muhammad] evaded capture and

resisted arrest. [Muhammad] told his mother, who was waiting for him

at his brother’s house, that he would not go home because he knew the

police were looking for him and he did not want to go back to jail. While

law-enforcement officers searched for him, [Muhammad] abandoned the

car and fled on foot. He kicked and fought with the arresting officers

when they found him. Five or six officers struggled to restrain him, and

they “Tazed” him three times before they were finally able to handcuff

him. [Muhammad] did not stop fighting until he was handcuffed.

After the offense but before his capture, [Muhammad]’s mother

asked [Muhammad] what he had done to her grandsons. [Muhammad]

told her that he “didn’t do that” and that Kametra “did it” by refusing to

let him see them. After he was captured, [Muhammad] said in his

statement to police that he regretted what he had done and that the only

reason he killed the boys was to prove a point to Kametra. He stated

that he would not have done it if she had stayed with him in the car.

Following his statement, [Muhammad] asked the investigating officer

6

to tell Kametra that it was her fault that he killed the boys because he

would not have done it if she had let him see them. He also asked the

investigator to tell his sisters that he was sorry he “did this stupid-ass

shit.”

While in jail, [Muhammad] wrote a letter to Kametra’s mother in

which he stated that he would never do anything to hurt the boys. He

declared that he still loved Kametra. He also stated that the boys’ deaths

were Kametra’s fault because she got out of the car, and Kametra’s

mother's fault because she did not let [Muhammad] into her house.

Muhammad, 2015 WL 6749922, at *1-3.

B. The State’s Punishment Evidence

During the punishment phase, the State presented evidence of Muhammad’s

20-year criminal history through judicial records of prior criminal convictions, as well

as live testimony regarding various extraneous adjudicated and unadjudicated

offenses. The Court of Criminal Appeals summarized this evidence as follows:

[Muhammad] had contact with the juvenile system before he was

a teenager, and, when he was thirteen years old, he began committing

criminal offenses that resulted in juvenile adjudications. Among other

offenses, [Muhammad] was adjudicated for evading arrest and for

burglaries of habitations and vehicles. When he was fifteen years old,

[Muhammad] was sent to a juvenile home where he received individual

and group counseling. After numerous rules infractions, however,

including assaulting the same juvenile twice in one day, [Muhammad]

was discharged from the home and sent to the Texas Youth Commission

facility for Jefferson County (“TYC”) in July 1995.

At TYC, [Muhammad] was often explosive and disrespectful to

staff. He was particularly hostile to female staff. On one occasion when

he was being disciplined for disruptive behavior, [Muhammad] looked

toward a female officer and declared that he wanted to “beat somebody

down,” adding, “especially females.” [Muhammad] also committed rules

infractions. For example, when he was found in possession of razor

blades and crushed aspirin in December 1995, he admitted to staff that

he stole the razor blades and crushed the aspirin to trade it for snacks.

In September 1996, he was disciplined after he repeatedly punched a

juvenile while another boy held the victim down. After [Muhammad]

7

was released from TYC, he resumed committing criminal offenses such

as burglary and evading arrest.

[Muhammad]’s history of violence toward women was not limited

to Kametra. In 2001, [Muhammad] threatened to beat a female neighbor

after she saw him looking in her bathroom window and confronted him

in her yard. He left when she called the police.

In 2009, [Muhammad] hit his sister in the head with a hammer.

When officers responded to the scene, his sister was crying, and fresh

blood was running down the back of her head. [Muhammad] had walked

down the street to a convenience store after the incident. When he was

brought back to the scene, he told officers that he had acted in selfdefense. This incident was not the first time [Muhammad] had hit his

sister. As a result of this incident, [Muhammad] pleaded guilty to a

charge of aggravated assault with a deadly weapon and received five

years’ deferred adjudication. He did not comply with many of the

conditions of his probation, including attending an anger-management

course, performing community service, and obtaining a job. He also

tested positive for drug use on several occasions. [Muhammad] stopped

reporting to his probation officer after his arrest for assaulting Kametra.

While in jail awaiting trial on the instant offense, [Muhammad]

committed violent disciplinary offenses. For example, he refused

instructions to return a breakfast tray and “swung at” the officer who

entered his cell to retrieve it. On another occasion, [Muhammad] fought

with an inmate over the choice of a television show.

Muhammad, 2015 WL 6749922, at *5-6.

C. Muhammad’s Punishment Evidence

The defense presented evidence related to the following four mitigation themes

during the punishment phase: (1) Muhammad had intellectual and cognitive deficits,

caused by a variety of factors, that impaired his executive functioning; (2)

environmental factors such as Muhammad’s horrific childhood and lack of support

negatively influenced his life and contributed to his cognitive deficits; (3) the failure

of society and the community to assist Muhammad during adolescence led him to

8

where he is today; and (4) Muhammad is not a future danger because he can be

controlled in prison. In its Findings of Fact and Conclusions of Law denying state

habeas relief, the trial court summarized the defense’s punishment-phase evidence

as follows:

The defense presented evidence of the neglect, violence, and

sexual abuse [Muhammad] and his siblings suffered during childhood.

[Muhammad] had five siblings: Abdullah, Jamal, Aqueelah, Sekinah,

and Rashad. (RR47: 140, 169-70, 183-84). Their mother, Naimah, was

married to Roger Mopping when the children were young, until about

the time that Jamal was in fifth grade. (RR47: 141, 170-71). Roger was

the biological father of Jamal and Aqueelah. (RR47: 141, 183, 233, 248).

Abdullah and [Muhammad] were told that their biological father was a

man named Lynn, but no one knew for sure. (RR47: 149-50, 154, 183-84,

233, 248-49). None of them knew who the biological father of Sekinah or

Rashad was. (RR47: 149, 162-63, 184, 248-49). Naimah was a drugaddicted prostitute who was rarely home. (RR47: 148, 150, 184-86, 231,

235-36; RR48: 31, 38-39, 47). Roger also became addicted to drugs.

(RR47: 149-50, 186, 234-35, 238). Roger loved Naimah but eventually

left her because she kept getting pregnant by other men. (RR47: 249).

After Roger left, Naimah and the children moved in with

Naimah’s mother Dorothy May Butler (“Madea”), who was confined to a

wheelchair. (RR47: 152-53, 187-88). Even though Madea was crippled

and regularly needed assistance from the children, this was the only

stable portion of their childhood that they could recall. (RR47: 152-53,

187-88). After Madea passed away, Naimah was married to Joe Johnson

for a short time. (RR47: 142, 159). While Joe did work and put a roof

over their head, he was an alcoholic and appeared to care more about

his hogs than the children. (RR47: 159-61, 198-99, 245; RR48: 47). When

Joe left Naimah, the children lived with a variety of different people.

(RR47: 161, 164, 193, 206-08; RR48: 29, 45). The girls were taken in by

family members and somewhat protected; however, the boys, who were

all already involved in the juvenile system, were forced to fend for

themselves. (RR47: 164, 177, 207; RR48: 29-30, 45-46, 52, 55). According

to Jamal, they ate out of dumpsters and resorted to crime to make

money. (RR47: 164-65).

Throughout their childhood, [Muhammad] and his siblings were

regularly exposed to drugs and violence in their home. Naimah, her

sister Tina, and their brothers drank alcohol and smoked cracked

9

cocaine together at the house, and these binges frequently ended with

violent fights. (RR47: 167, 194-95; RR48: 39, 42-43). Naimah and Tina

fought the most, and Tina was sent to prison for twenty years for

stabbing Naimah in the face during one of their arguments. (RR47: 15657, 195-97; RR48: 42). Naimah was also violent toward the children

when she believed they were taking her drugs away. (RR47: 166, 18992).

The children were also victims of sexual abuse. Abdullah, the

eldest brother, sexually assaulted Aqueelah, Sekinah, and

[Muhammad]. (RR47: 202-03; RR48: 40-41). Aqueelah and Sekinah

recalled that he would frequently come into their room at night and rub

his penis on them, fondle them, and ejaculate on them. (RR47: 202-03;

RR48: 40-41). According to [Muhammad], Abdullah played with his

penis and made [Muhammad] play with his. (Defendant’s Exhibit 11).

[Muhammad] also reported that he was sexually abused around age four

or five by an older woman who asked him to have sex with her.

(Defendant’s Exhibit 11).

Both Aqueelah and Sekinah graduated from high school due to

the guidance they received from the friends and relatives who helped

take care of them in Naimah’s absence. (RR48: 31-32, 37). However, no

one encouraged the boys to attend school or stay out of trouble. (RR47:

204; RR48: 31-32, 46). To the contrary, the eldest brother, Abdullah,

taught Jamal to steal and commit crimes, and that way of life was then

passed on to [Muhammad] and Rashad. (RR47: 153-55, 205; RR48: 32).

Like [Muhammad], Abdullah, Jamal and Rashad were involved in a

number of juvenile and adult crimes and spent time in prison. (RR47:

157-58, 163, 205-06; RR48: 29). Abdullah was shot in the chest when he

was eighteen years old and survived; however, he died from

complications related to that gunshot wound in January of 2011. (RR47:

158).

With regard to [Muhammad]’s medical history, the jury heard

evidence that [Muhammad] was struck by an automobile around age

three and had to go to the hospital. (RR48: 177-78; Defendant’s Exhibit

11). The jury also heard that, in 2009, [Muhammad] started having

brain seizures and has been receiving treatment for epilepsy since that

time. (RR48: 178-79; Defendant’s Exhibit 11).

Dr. Gilbert Martinez, a clinical neuropsychologist, testified

regarding [Muhammad]’s intellectual and cognitive functioning. (RR48:

100-02). In addition to reviewing [Muhammad]’s academic, juvenile, and

medical records, Dr. Martinez conducted a five-hour clinical interview

10

of [Muhammad] and administered a battery of psychological tests.

(RR48: 102-04, 106-07, 111-12, 141; DE 11). Dr. Martinez testified that

[Muhammad] has a full-scale IQ score of 76, which falls in the borderline

range of intellectual functioning. (RR48: 114-16, 124-25, 133; DE 11).

Based on his examination and the results of his testing, which showed

deficits in executive functioning, Dr. Martinez diagnosed [Muhammad]

with Mild Neurocognitive Disorder. (RR48: 119, 122; DE 11). He opined

that [Muhammad]’s deficits are not severe, but they are significant

enough to interfere with some of his daily activities and, therefore,

significant enough to warrant the diagnosis. (RR48: 122-23, 126-27). He

explained that executive functioning controls a number of brain

functions, including thinking, memory, attention, planning, reasoning,

judgment, decision-making, and inhibition. (RR48: 110-11, 122-24; DE

11). An individual with executive functioning deficits like

[Muhammad]’s would have poor judgment and reasoning and would

have difficulty making decisions, controlling their emotions and

behavior, understanding social situations, and learning from their

mistakes. (RR48: 110-11, 119, 123-24, 126-27, 133-35, 164-65). Dr.

Martinez opined that [Muhammad]’s deficits in executive functioning

are due to the combined effect of his epilepsy, the head injury he

sustained as a child, and the lack of emotional support he received as a

child. (RR48: 127-29, 133; DE 11). Dr. Martinez observed that the

medication [Muhammad] used to treat his epilepsy could also contribute

to his cognitive deficits. (RR48: 128-29, 133; DE 11). He also

acknowledged that [Muhammad]’s chronic illicit drug use could be a

contributor to his deficits, or alternatively, his choice to use drugs could

be the result of those deficits and his poor judgment. (RR48: 131, 133).

Dr. Kellie Gray-Smith, a licensed psychologist and specialist in

school psychology, testified as an expert on special education, chronic

school failure, and emotional disturbance in children. (RR49: 11-14). She

explained that academic failure can develop for a number a reasons and

it is not uncommon for an emotional disturbance to cause academic

failure or vice versa. (RR49: 18-19, 59-60). She explained that many

“externalizing behaviors” (e.g., aggression, fighting, profanity,

disrespect, non-compliance) that often arise from underlying emotional

or academic disabilities can be mislabeled as choice-based “bad

behavior,” with the result that a child who has such disabilities and

exhibits such behavior does not receive appropriate support and

intervention. (RR49: 19-21). Without such support, the child does not

learn coping skills and is unable to regulate his emotions and respond

to stressful situations “in a controlled way.” (RR49: 21). She testified

that literature shows that students whose needs are not recognized and

addressed by an early age are at risk for chronic school failure, which

11

then often progresses into a variety of emotional, behavioral, and social

problems such as school dropout, substance abuse, criminal activity,

confinement in the penitentiary, unemployment, and mental illness.

(RR49: 21-24, 31).

Dr. Gray-Smith reviewed [Muhammad]’s school records, the

psychological evaluation done in 1994 when [Muhammad] was a

juvenile, and the report of Dr. Gilbert Martinez. (RR49: 26-27, 41). Dr.

Gray-Smith testified that [Muhammad]’s school records demonstrate

that [Muhammad] experienced chronic school failure that started very

early in elementary school and went unaddressed. (RR49: 29-30, 33). Dr.

Gray–Smith noted that [Muhammad]’s school records from fourth and

fifth grades included a mention of special education, but she believed

that, based on his early poor performance, the school should have

provided him with help in the first or second grade. (RR49: 30, 33).

Despite this note, [Muhammad] was never referred to special education.

His school records showed that his behavioral and academic problems

worsened after sixth grade and he received no intervention. (RR49: 30,

33).

Dr. Gray–Smith explained that if a child had behavioral problems

but received no intervention before he was nine years old, his prognosis

would be very poor with respect to preventing adolescent behavioral

problems. (RR49: 31-32). Beyond the age of nine, a child’s behavioral

problems would be classified as a conduct disorder and generally result

in suspension or expulsion. (RR49: 32, 35). Such disciplinary actions

would disconnect the child from his school and important sources of help

and support. (RR49: 32-33). In addition, a child whose school records

indicated that he had oppositional defiant disorder and whose juvenile

records included a diagnosis of conduct disorder, but who received no

intervention, would typically be diagnosed with antisocial personality

disorder (“ASPD”) as an adult. (RR49: 42-43). Dr. Gray–Smith testified

it is common for people with this behavior pattern to end up in jail.

(RR49: 43-44, 73). This is what is known within the psychological

community as the “school-to-prison pipeline,” and it is most prevalent

with African-American males. (RR49: 44).

On cross-examination, Dr. Gray-Smith acknowledged that

[Muhammad]’s school and psychological records suggest that he has

ASPD. (RR49: 58, 66-67, 72). She also stated on redirect that a great

majority of inmates in the penitentiary have the traits of ASPD, so an

opinion that a person has ASPD is not a meaningful predictor of his

future dangerousness in prison. (RR49: 73-74, 79).

12

See Petitioner’s App. C at 9-15.

III.

State Habeas Proceedings

Muhammad raised nine claims in his state application for writ of habeas

corpus. As relevant here, Muhammad alleged IAC in grounds one, four, and five,

specifically that: (1) trial counsel were ineffective for failing to sufficiently investigate

and present mitigation evidence; (2) trial counsel were ineffective for failing to

preserve the record for appeal; and (3) trial counsel’s cumulative deficient

performance over the course of the trial prejudiced him. Pursuant to a request from

the parties, the trial court agreed to conduct a live evidentiary hearing to resolve the

following two issues raised in the habeas application: (1) whether Muhammad was

denied the effective assistance of trial counsel; and (2) whether Muhammad is

intellectually disabled and therefore ineligible for the death penalty pursuant to this

Court’s holding in Atkins v. Virginia, 536 U.S. 304 (2002).

The trial court conducted a live evidentiary hearing on the designated issues

on February 28, March 1-2, March 5, and June 20-21, 2018. On the first day of the

hearing, Muhammad announced that he was abandoning his Atkins claim, so the

parties proceeded solely on the IAC claims. Over the course of the six-day hearing,

the trial court heard testimony from Muhammad’s trial counsel Paul Johnson, Mark

Watson, and Kobby Warren; Muhammad’s trial mitigation specialist Dr. Kristi

Compton; lay witnesses Dennis Raveneau, Alexander Butler, Jr., and Aqueelah

Green; and Muhammad’s habeas experts Danalynn Recer, Dr. George Holden, Dr.

Mark Agostini, Dr. Joan Mayfield, Dr. Pamela Blake, and Dr. Bhushan Agharkar.

The trial court heard final argument from the parties on December 14, 2018. On

13

November 21, 2019, the trial court signed findings of fact and conclusions of law

recommending that relief be denied.

The entire record was then sent to the TCCA for review and ultimate

disposition. On November 18, 2020, the TCCA adopted the trial court’s findings of

fact and conclusions of law and, based on those findings as well as its own review,

denied relief on claims one and three through nine and dismissed claim two. Ex parte

Muhammad, 2020 WL 6777968, at *1-2.

On August 16, 2021, Muhammad petitioned this Court for certiorari review of

the TCCA’s opinion. The State files this brief opposing Muhammad’s petition.

REASONS FOR DENYING THE PETITION

The claims for which Muhammad seeks review are unworthy of this Court’s

attention. As a threshold matter, this Court does not have jurisdiction to review the

state court’s denial of Muhammad’s IAC claims because Muhammad’s petition is

untimely. Jurisdiction notwithstanding, Muhammad fails to provide a compelling

reason to grant review in this case. He fails to show any error in the state court’s

application of Strickland in assessing prejudice or in the process employed by the

state court during his state habeas proceedings. Accordingly, Muhammad’s claims

have no merit, and this Court should deny certiorari review.

I.

This Court Lacks Jurisdiction Because the Petition is Untimely

Under 28 U.S.C. § 2101(c), Supreme Court Rule 13.1, and this Court’s March

19, 2020 Order relating to COVID-19, Muhammad’s petition for writ of certiorari was

due within 150 days after the TCCA’s denial of his habeas petition. The time limit for

14

filing a petition for certiorari is “mandatory and jurisdictional.” Missouri v.

Jenkins, 495 U.S. 33, 45 (1990).

Texas procedural rules bar a motion for rehearing on an order denying relief

in state habeas proceedings. See Tex. R. App. P. 79.2(d) (“A motion for rehearing an

order that denies habeas corpus relief or dismisses a habeas corpus application under

Code of Criminal Procedure, articles 11.07 or 11.071, may not be filed. The Court may

on its own initiative reconsider the case.”). Thus, there is no mechanism in Texas for

the TCCA to rehear, on Muhammad’s motion, the denial of his state habeas

application.

After the TCCA’s November 18, 2020 denial, on February 2, 2021, Muhammad

filed a “Suggestion for the [TCCA] to Reconsider Writ On Its Own Initiative Because

It Denied Relief to Mr. Muhammad Without Having Reviewed Two Thirds of the Writ

Hearing Transcript and Two Entire Exhibit Volumes.” The TCCA denied

Muhammad’s “suggestion” on March 17, 2021, opting not to reconsider the case on its

own initiative.1 Because Texas does not allow a motion for rehearing of an order

denying a state habeas application, Muhammad should have calculated his petition

deadline from the November 18, 2020 judgment. The deadline for Muhammad to file

his petition was April 17, 2021. Instead, he filed his petition on August 16, 2021—

271 days after the TCCA’s denial.

1 In its order denying the “suggestion,” the TCCA stated that Muhammad was mistaken, and the TCCA

had received and reviewed all 22 volumes of the state habeas record.

15

This Court’s Rule 13.3 provides that the time for filing a petition for certiorari

runs from the date of entry of the order sought to be reviewed; or, “if a petition for

rehearing is timely filed in the lower court by any party, or if the lower court

appropriately entertains an untimely petition for rehearing or sua sponte considers

rehearing, the time to file the petition for writ of certiorari . . . runs from the date of

the denial of rehearing or, if rehearing is granted, the subsequent entry of judgment.”

Sup. Ct. R. 13.3. Thus, the filing deadline runs from a date other than the initial entry

of judgment if (1) a petition for rehearing is timely filed, (2) the lower court entertains

an untimely petition for rehearing, or (3) the lower court sua sponte considers

rehearing. See id. Because Texas law bars a petition for rehearing, a timely one could

not be filed nor an untimely one entertained. Also, the lower court did not sua sponte

consider rehearing: it denied Muhammad’s suggestion that it sua sponte reconsider.

Sua sponte involves consideration without prompting, on the court’s own initiative.

The TCCA denied Muhammad’s suggestion; it did not reconsider anything. Because

none of the three circumstances set out in Rule 13.3 existed to toll the deadline,

Muhammad’s deadline ran from the date of the TCCA’s denial of his habeas petition,

not its denial of his suggestion for sua sponte reconsideration.

Muhammad may argue that, although the state procedural rules plainly

prohibit the filing of a motion for reconsideration or rehearing following the denial of

state habeas-corpus relief, the TCCA has entertained such motions on its own

initiative. See Emerson v. Johnson, 243 F.3d 931, 934 (5th Cir. 2001) (holding that a

“properly filed” motion for reconsideration or rehearing in a state habeas case tolls

16

the running of the federal limitations period under the Antiterrorism and Effective

Death Penalty Act because, although prohibited under the state procedural rules, the

TCCA has entertained such motions). However, Muhammad’s case is distinguishable

from Emerson. Here, the purported motion for reconsideration was untimely. See Tex.

R. App. P. 79.1 (“A motion for rehearing may be filed with the Court of Criminal

Appeals clerk within 15 days from the date of the judgment or order.”). Muhammad

filed his motion on February 2, 2021, 76 days after the TCCA’s judgment and well

outside the 15-day deadline for filing a motion for reconsideration or rehearing under

Texas law. Because Muhammad’s motion was not “properly filed,” the rationale

outlined by the Fifth Circuit in Emerson does not apply.

Muhammad’s petition for writ of certiorari is untimely under 28 U.S.C §

2101(c) and this Court’s March 19, 2020 Order. This Court therefore lacks jurisdiction

in this case. Should this Court assume jurisdiction over the petition, it should

nevertheless be denied.

II.

The State Court Properly Applied Strickland’s Prejudice Prong

In his first issue, Muhammad argues that the TCCA committed constitutional

error by conflating Strickland’s “reasonable probability” standard with the higher

“preponderance of the evidence” standard and by failing to evaluate the impact of

trial counsel’s alleged deficient performance cumulatively. Muhammad’s claims

wholly lack merit as he fails to show any error in the state court’s application of this

Court’s precedent in assessing prejudice.

17

A. The lower court applied the correct reasonable-probability

standard to Strickland’s prejudice prong.

Contrary to Muhammad’s claim, the TCCA did not hold that a preponderanceof-the-evidence standard applies to the prejudice prong. Rather, it cited the general

standard of proof for habeas claims in Texas, i.e., preponderance of the evidence.

Muhammad takes this routine recitation to mean that the lower court adopted the

preponderance standard that Strickland explicitly rejected. It did not.

To meet Strickland’s prejudice prong, an applicant must show “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). A

“reasonable probability” is a probability “sufficient to undermine confidence in the

outcome.” Id. While an applicant need not show that counsel’s deficient conduct “more

likely than not altered the outcome in the case,” it is not enough for him to show the

errors only had “some conceivable effect on the outcome of the proceeding.” Id. at 693.

In a prejudice analysis, the reviewing court weighs the quality and quantity of

the available mitigating evidence from trial and post-conviction proceedings along

with any aggravating evidence and asks whether there is a reasonable probability

the new evidence would have caused a juror to change her answer to the mitigation

special issue. Blanton v. Quarterman, 543 F.3d 230, 236 (5th Cir. 2008). The inquiry

requires a court to engage in a “probing and fact-specific analysis” and to speculate

as to the effects of the new evidence. Sears v. Upton, 561 U.S. 945, 955-56 (2010).

“The

likelihood

of

a

different

result

18

must

be

substantial,

not

just

conceivable.” Harrington v. Richter, 562 U.S. 86, 111-12 (2011) (citing Strickland, 466

U.S. at 693).

The TCCA set out and applied the proper Strickland standard in its November

18, 2020 decision. On Muhammad’s IAC claims, the TCCA concluded:

Applicant fails to meet his burden under Strickland v. Washington,

466 U.S. 668 (1984), to show by a preponderance of the evidence that

his counsel’s representation fell below an objective standard of

reasonableness and that there was a reasonable probability that the

result of the proceedings would have been different but for counsel’s

deficient performance. See Ex parte Overton, 444 S.W.3d 632, 640

(Tex. Crim. App. 2014) (citing Strickland, 466 U.S. at 688).

See Ex parte Muhammad, 2020 WL 6777968, at *1. After discussing the denial and

dismissal of Muhammad’s other claims, the TCCA adopted the trial court’s findings

of fact and conclusions of law. Id. Based on those findings and conclusions, as well as

its own review of the record, the TCCA denied relief. Id. at *2.

The trial court’s findings of fact and conclusions of law, which the TCCA

adopted, similarly set out the general legal standard for proof of a habeas corpus

claim in Texas, along with the Strickland standard:

An applicant asserting a claim of [IAC] has the burden to prove, by a

preponderance of the evidence, that (1) counsel’s performance was

deficient, falling below an “objective standard of reasonableness,”

and (2) the deficient performance prejudiced the defense such that

“there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different.” Strickland v. Washington, 466 U.S. 668, 694 (1984); Ex

parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012).

…

Moreover, in a habeas proceeding, the applicant bears the burden of

proving his factual allegations by a preponderance of the evidence.

Ex parte Morrow, 952 S.W.2d 530, 534 (Tex. Crim. App. 1997).

19

See Petitioner’s App. C at 18-19. These recitations of the correct standard

demonstrate that the state courts that evaluated Muhammad’s IAC claims did not

hold him to a higher standard for prejudice than the one Strickland sets out.

In his petition, Muhammad cites to the trial court’s use of the preponderance

language in reference to his burden of proof in this case (Pet. at 22-23), an alleged

circuit split on the reasonable-probability standard (Pet. at 23-24), and an alleged

“epidemic” problem of state courts using the wrong standard (Pet. at 24-25). But he

does not recognize that the courts he refers to, including the lower court here, are

merely incorporating the overall standard of proof for habeas claims in their

jurisdiction (i.e., preponderance of the evidence).

This Court has previously addressed this very issue—and put it to rest. A lower

court’s recitation of the general state habeas standard of preponderance of the

evidence, where the standard for Strickland’s prejudice prong is also properly set out,

does not warrant relief. See Holland v. Jackson, 542 U.S. 649, 654 (2004). This Court

in Jackson recognized that the lower court’s statement the applicant had the burden

to prove his allegations by a preponderance of the evidence was reasonably read as

addressing the applicant’s general burden of proof on his factual contentions in a postconviction proceeding. Id. This Court refused to “needlessly create internal

inconsistency” in interpreting the state court’s decision. Id. Generally, reviewing

courts, including this Court, have recognized that when the correct Strickland

standard is set out, subsequent use of shorthand, ambiguous, or truncated language

and stray, imprecise articulations do not abrogate the lower court’s use of the correct

20

standard, even if some language in isolation does not entirely capture the correct

standard: the decision must be read as a whole. See, e.g., Woodford v. Visciotti, 537

U.S. 19, 23-24 (2002) (occasional use of an imprecise, shorthand reference was not a

repudiation of the Strickland standard); Frost v. Pryor, 749 F.3d 1212, 1226-27 (10th

Cir. 2014); Charles v. Stephens, 736 F.3d 380, 392-93 (5th Cir. 2013).

The TCCA articulated and applied the proper standard under Strickland in

determining there was no prejudice. When considered in the context of the whole

decision and the surrounding analysis, any ambiguous or imprecise references in the

trial court’s findings and conclusions to the preponderance-of-the-evidence standard

apply to the general standard of proof in a habeas proceeding. Furthermore, it is

evident from the lower court’s analysis that it did not believe the new habeas evidence

had a reasonable probability of altering the jury’s punishment verdict. Accordingly,

this issue is meritless and does not warrant this Court’s review.

B. The lower court did not violate Strickland

Muhammad’s cumulative-error argument.

by

rejecting

Muhammad also contends that the lower court violated Strickland and its

progeny by failing to assess prejudice cumulatively. Neither the law nor the record

below supports Muhammad’s contention.

Muhammad raised a cumulative-error argument in ground five of his state

habeas application. Specifically, he argued that trial counsel’s failure to sufficiently

investigate and present mitigation evidence and to preserve the record for appeal (as

alleged in grounds one and four of the application), when viewed collectively, created

a cumulative effect that deprived him of a constitutionally sound trial. The trial court

21

found that none of the allegations contained in grounds one or four amounted to

ineffective assistance of counsel. Having found no constitutional violations, the trial

court concluded that no “cumulative” harm could have occurred. See Petitioner’s App.

C at 33 (citing Hughes v. State, 24 S.W.3d 833, 844 (Tex. Crim. App. 2000)). The TCCA

adopted the trial court’s findings and denied relief on this claim. See Ex parte

Muhammad, 2020 WL 6777968, at *1. Muhammad now argues that the lower courts

erred by considering whether he was prejudiced by each individual allegation of

deficient performance instead of considering whether he was prejudiced by the

totality of counsel’s alleged deficient performance.

This Court has not recognized the cumulative-error doctrine in the context of

IAC claims. See Ballard v. McNeil, 785 F. Supp. 2d 1299, 1335 (N.D. Fla. 2011);

Forrest v. Fla. Dep’t of Corr., 342 F. App’x 560, 564 (11th Cir. 2009). To the contrary,

this Court has stated that “there is generally no basis for finding a Sixth Amendment

violation unless the accused can show how specific errors of counsel undermined the

reliability of the finding of guilt.” United States v. Cronic, 466 U.S. 648, 659 n.26

(1984). In light of Cronic and the absence of Supreme Court precedent applying the

cumulative-error doctrine to claims of IAC, Muhammad fails to show any error in the

prejudice analysis conducted by the state courts in this case.

Even assuming, arguendo, that such a doctrine applies in the context of IAC

claims, Muhammad’s claim would still fail. Muhammad has not demonstrated any of

trial counsel’s alleged errors rise to the level of deficient performance under

Strickland. No court has found that Muhammad’s trial counsel were deficient in any

22

respect. Therefore, even if the cumulative-error doctrine applied, there are no errors

to accumulate. See United States v. Ebron, 683 F.3d 105, 130 (5th Cir. 2012)

(indicating that the cumulative-error doctrine does not apply where there are no

errors to aggregate); Spears v. Mullin, 343 F.3d 1215, 1251 (10th Cir. 2003) (noting

that when the sum of various zeroes remains zero, the claim of prejudicial effect of

cumulative errors is nil and does not support habeas relief); United States v. Rivera,

900 F.2d 1462, 1471 (10th Cir. 1990) (stating that a cumulative-error analysis should

evaluate only the effect of matters determined to be error, not the cumulative effect

of non-errors). As such, Muhammad’s first issue is meritless and does not warrant

this Court’s review.

III.

The Procedure Used by the State Court in Resolving Muhammad’s

State Habeas Claims Did Not Implicate Due Process

In his second issue, Muhammad argues that the state trial court violated the

Due Process Clause by adopting the State’s proposed findings of fact and conclusions

of law and by relying, in part, on its personal knowledge of the case in denying relief.

Muhammad’s complaints do not give rise to a due process violation.

A. There is no constitutional right to any particular process or

procedure in state habeas proceedings.

Muhammad’s claim alleging a due process violation stemming from the

procedure used by the state habeas court in reviewing the evidence and entering

findings of fact and conclusions of law does not warrant this Court’s attention because

the claim does not implicate the full protections of due process. As Justice O’Connor

stated:

23

A post-conviction proceeding is not part of the criminal process itself,

but is instead a civil action designed to overturn a presumptively valid

criminal judgment. Nothing in the Constitution requires the States to

provide such proceedings … nor does it seem [] that that Constitution

requires the States to follow any particular federal role model in these

proceedings.

Murray v. Girratano, 492 U.S. 1, 13 (1989) (O’Connor, J., concurring); see also

Pennsylvania v. Finley, 481 U.S. 551, 557 (1989) (holding states have no obligation to

provide collateral review of convictions). “State collateral proceedings are not

constitutionally required as an adjunct to the state criminal proceedings and serve a

different and more limited purpose than either the trial or appeal.” Giarratano, 492

U.S. at 10. This Court has explained that “[t]he additional safeguards imposed by the

Eighth Amendment at the trial stage of a capital case are … sufficient to assure the

reliability of the process by which the death penalty is imposed.” Id.

Where a state allows for post-conviction proceedings, “the Federal Constitution

[does not] dictate[] the exact form such assistance must assume.” Finley, 481 U.S. at

555. A state habeas applicant’s “right to due process is not parallel to a trial right,

but rather must be analyzed in light of the fact that he has already been found guilty

at a fair trial, and has only a limited interest in postconviction relief.” Dist. Attorney's

Off. for Third Jud. Dist. v. Osborne, 557 U.S. 52, 69 (2009). “Federal courts may upset

a State’s postconviction procedures only if they are fundamentally inadequate to

vindicate the substantive rights provided.” Id.

The state had no obligation to provide collateral review of Muhammad’s

conviction, much less any duty to adhere to a particular procedure in doing so.

Muhammad fails to demonstrate that the procedure employed by the state habeas

24

court in his case was fundamentally inadequate. Because he fails to allege a claim

that would implicate due process, his complaint is not worthy of certiorari review.

B. Muhammad identifies no infirmity in the state habeas court’s

proceedings that would give rise to a due process violation.

Even if Muhammad’s complaint implicated his constitutional right to due

process, he has failed to show that the procedure employed by the state habeas court

in this case amounted to a due process violation. Muhammad was given a full and

fair opportunity to be heard, and the state habeas court, as well as the TCCA,

reviewed the entire record before making a ruling in this case. Muhammad was

afforded all of the process he was due.

Muhammad was indicted for capital murder in October 2011, and his case was

assigned to Criminal District Court No. 4 (“CDC4”) of Dallas County. In November

2012, the Honorable Dominique Collins was elected as the new presiding judge of

CDC4. Jury selection was scheduled to commence in Muhammad’s case on December

14, 2012, prior to Judge Collins taking the bench on January 1, 2013. (2 R.R. 1).

Accordingly, Senior Judges Webb Baird and Quay Parker were assigned to preside

over jury selection, and Judge Parker was assigned to preside over the trial. (2 R.R.

6; 42 R.R. 10-11, 82). Judge Collins was present in the courtroom and observed

Muhammad’s entire trial, which took place in May 2013. See Petitioner’s App. C at

16.

Muhammad filed his state habeas application in CDC4 in June 2015. In

January 2016, the trial court ordered that an evidentiary hearing be held to resolve

Muhammad’s IAC claims, and Judge Parker was assigned to preside over the

25

evidentiary hearing. See Tex. Code Crim. Proc. Ann. art. 11.071, § 9(c) (West Supp.

2020) (providing that the presiding judge of the convicting court or the judge who

presided over the original capital felony trial may preside over a capital writ hearing).

Judge Parker heard the evidence presented by the parties over the six scattered days

between February and June, 2018. Subsequently, on October 20, 2018, Judge Parker

passed away. Judge Collins presided over the final argument presented by the parties

on December 14, 2018 and received proposed findings of fact and conclusions of law

from both parties.

Almost one year later, on November 21, 2019, Judge Collins signed the State’s

proposed findings of fact and conclusions of law recommending that relief be denied.

During the eleven months between argument and the court’s ruling, Judge Collins

had ample time to review the habeas hearing testimony, as well as all of the pleadings

and evidence filed by the parties. In the signed order, the court specifically stated

that its findings of fact and conclusions of law were made after considering “the

allegations contained in the Application for Writ of Habeas Corpus, all pleadings and

exhibits filed by the parties, the testimony and documentary evidence offered at the

live evidentiary hearings, argument presented by the parties, official court

documents and records, and the [c]ourt’s personal experience and knowledge of the

case.” See Petitioner’s App. C at 17. The TCCA subsequently denied relief based on

the trial court’s findings and conclusions and its own review of the record. Ex parte

Muhammad, 2020 WL 6777968, at *1-2.

26

In addition to his 127-page habeas application, Muhammad filed numerous

pleadings, admitted voluminous amounts of evidence, and presented testimony from

thirteen witnesses—all of which was considered by the trial court and TCCA. He was

undeniably afforded the due process core protection of the opportunity to be heard.

See Ford v. Wainwright, 477 U.S 399, 413 (1986) (“‘[t]he fundamental requisite of due

process of law is the opportunity to be heard’”) (citation omitted); Tercero v. Stephens,

738 F.3d 141, 148 (5th Cir. 2013) (noting that “states retain discretion to set gateways

to full consideration and to define the manner in which habeas petitioners may

develop their claims” and “‘[d]ue process does not require a full trial on the merits’;

instead, petitioners are guaranteed only the ‘opportunity to be heard.’”) (footnotes

and citations omitted).

In his petition, Muhammad contends that he was denied the right to a fair

hearing because the trial court adopted the State’s proposed findings of fact and

conclusions of law in toto. Muhammad, however, makes no showing that the trial

court failed to independently consider and evaluate the State’s proposed findings

before adopting them as its own. The trial court’s adoption of the State’s proposed

findings did not violate due process in any event. See Trevino v. Johnson, 168 F.3d

173, 180 (5th Cir. 1999) (rejecting claim that petitioner was denied due process in his

state habeas proceeding because the state habeas court adopted the prosecution’s

proposed findings of fact and conclusions of law only three hours after they were filed

with the court); Jolly v. Gammon, 28 F.3d 51, 54 (8th Cir. 1994) (rejecting petitioner’s

claim that he was deprived of due process when the state habeas court adopted the

27

State’s proposed findings of fact and law verbatim). Muhammad also has not shown

that the trial courts findings were clearly erroneous. See Nichols v. Scott, 69 F.3d

1255, 1277 (5th Cir. 1995) (citing Anderson v. City of Bessemer City, N.C., 470 U.S.

564, 572 (1985) (“even when the trial judge adopts proposed findings verbatim, the

findings ... may be reversed only if clearly erroneous”)).

Muhammad also complains that the judge who signed the trial court’s findings

did not observe the witnesses and hear any of the evidence presented at the habeas

hearing.2 Article 11.071 of the Texas Code of Criminal Procedure governs Texas

capital habeas corpus proceedings. See Tex. Code Crim. Proc. Ann. art 11.071, § 1

(West Supp. 2020). Article 11.071 allows—but does not require—a court to hold a live

evidentiary hearing to resolve the factual issues in a capital habeas proceeding. Id.

art. 11.071, § 9(a) (providing that the convicting court shall decide the manner in

which the designated issues shall be resolved, which may include affidavits,

depositions, interrogatories, evidentiary hearings, and the court’s personal

recollection). So the fact that Judge Collins did not hear the habeas testimony when

it was presented in the courtroom is of no consequence. Even if the entirety of the

state habeas court’s proceedings occurred without a live hearing, Muhammad would

have received the process he was due because “a paper hearing is sufficient to afford

a petitioner a full and fair hearing on the factual issues underlying the petitioner’s

claims.” Clark v. Johnson, 202 F.3d 760, 766 (5th Cir. 2000); Armstead v. Scott, 37

2 As stated above, the assigned judge, Judge Parker, died after the habeas hearing, and the presiding

judge, Judge Collins, stepped in to conclude the proceedings.

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F.3d 202, 208 (5th Cir. 1994) (finding that a hearing by affidavit was adequate to

allow presumption of correctness to attach to the state court’s factual findings); see

also Strong v. Johnson, 495 F.3d 134, 139 (4th Cir. 2007) (“[C]redibility

determinations may sometimes be made on a written record without live testimony.”).

In any case, even when a live hearing is held, it does not violate due process when

one judge presides over the hearing and a different judge issues the court’s findings

of fact. See Brown v. Dretke, 419 F.3d 365, 378 (5th Cir. 2005) (no due process violation

where state habeas judge who issued findings of fact was not the same judge who

presided over the petitioner’s state habeas hearing).

Last, Muhammad complains that Judge Collins relied on her personal

experience and knowledge of the case in denying relief. However, Texas law

specifically provides that a state habeas court may use personal recollection to resolve

the designated issues in a capital writ proceeding. See Tex. Code Crim. Proc. Ann.

art. 11.071, § 9(a). Furthermore, the habeas court’s personal knowledge and

recollection was just one of the many things it relied on in making its ruling. The

habeas court’s findings specify that it also considered the allegations in Muhammad’s

habeas application, all pleadings and exhibits filed by the parties, the testimony and

documentary evidence offered at the evidentiary hearings, argument presented by

the parties, and official court documents and records in the case. See Petitioner’s App.

C at 17. Additionally, the TCCA also reviewed all of the pleadings, evidence, and

testimony before making a ruling. The TCCA specified that its denial of Muhammad’s

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state habeas claims was based on the trial court’s findings and conclusions, as well

as its own review of the record. See Ex parte Muhammad, 2020 WL 6777968, at *2.

Based on the foregoing, Muhammad’s claims are meritless and therefore

unworthy of this Court’s attention. The petition for certiorari review should be

denied.

CONCLUSION

For the foregoing reasons, the State of Texas respectfully requests that

Muhammad’s petition for writ of certiorari be denied.

Respectfully submitted,

JOHN CREUZOT

Criminal District Attorney

Dallas County, Texas

/s/ Jaclyn O’Connor Lambert

JACLYN O’CONNOR LAMBERT

Assistant District Attorney

Counsel of Record

Frank Crowley Courts Bldg.

133 N. Riverfront Blvd., LB-19

Dallas, Texas 75207

(214) 653-7928

Jaclyn.OConnor@dallascounty.org

Counsel for Respondent

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