Petition for Writ of Certiorari — Lanny Marvin Bush, Petitioner v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

SAN ANGELO DIVISION

LANNY MARVIN BUSH

Petitioner,

No. 6:19-CV-00006-H

v.

DIRECTOR, TDCJ-CID,

Respondent.

ORDER

Petitioner Lanny Marvin Bush, a state prisoner proceeding pro se and in forma

pauperis, filed this petition for writ of habeas corpus under 28 U.S.C. § 2254 to challenge his

state-court conviction for capital murder and his resulting sentence of life in prison without

the possibility of parole. He raises 24 claims divided into eight grounds for relief, alleging

various errors in the process—starting with law enforcement’s investigation of him and

continuing through his jury trial and on appeal. Respondent filed an answer with copies of

Petitioner’s relevant state-court records, arguing that many of Petitioner’s claims are

partially unexhausted and procedurally barred, and the rest lack merit. Petitioner replied.

As explained below, the Court finds that some of Petitioner’s claims are unexhausted and

procedurally barred. Otherwise, the Court finds that Petitioner has failed to overcome the

difficult, deferential standard of 28 U.S.C. § 2254(d). Thus, the petition must be denied and

dismissed with prejudice.

1.

Background

Petitioner challenges his state-court conviction and prison sentence out of the 42nd

District Court of Coleman County, Texas. In cause number 2602, styled State of Texas v.

Lanny Marvin Bush, Petitioner was charged by indictment with capital murder, for

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“intentionally causing] the death of an individual, namely MICHELE MONIQUIE

REITER, by means unknown ... in the course of committing or attempting to commit the

offense of kidnapping.” (Dkt. Nos. 24-14 at 9; 24-62 at 41.) The State did not seek the

death penalty. Petitioner pled not guilty, but a jury found him guilty, and the trial court

sentenced him to life without parole. (Dkt. No. 24-14 at 107.)

Petitioner appealed his conviction, and the Eleventh Court of Appeals partially

reversed and partially affirmed the judgment. (Dkt. No. 24-3.) Specifically, the

intermediate court of appeals found that the evidence was insufficient to support the

kidnapping element of the capital conviction, but the evidence was sufficient to support the

lesser included offense of murder. {Id. at 1-2.) The State filed a petition for discretionary

review (PDR), as did Petitioner. (SeeDkt. Nos. 24-30, 24-29.)

The Texas Court of Criminal Appeals (TCCA) refused Petitioner’s PDR.1 But it

granted the State’s PDR, reversed the intermediate appellate court, and reinstated

Petitioner’s original conviction and sentence. (Dkt. No. 24-23.) The TCCA found that “the

evidence and the inferences from it support the jury’s finding that [Petitioner] killed Reiter

while in the course of kidnapping her or attempting to kidnap her.” {Id. at 14.)

Petitioner then filed a state application for habeas corpus. (Dkt. Nos. 24-61, 24-62.)

In his state application, he raised eight grounds for relief, including claims that he received

ineffective assistance of counsel (IAC) from both his trial and appellate attorneys. (Dkt. No.

24-61 at 11-18.) The TCCA initially remanded the case to the trial court for findings of fact

and conclusions of law regarding Petitioner’s IAC claims. (Dkt. No. 24-46.) The trial

court obtained affidavits from Petitioner’s counsel, found that Petitioner did not receive

1 See https://search.txcourts.gov/Case.aspx?cn=PD-1012-16&coa=coscca (showing that Petitioner’s

pro se PDR was refused on January 11, 2017) (last visited February 28, 2022).

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ineffective assistance from either trial counsel or appellate counsel, and recommended

denial of Petitioner’s habeas application. (Dkt. No. 24-59 at 4-5.) The TCCA denied relief

without written order on January 9, 2019. (Dkt. No. 24-45.)

Petitioner filed his federal petition on February 6, 2019.2 The Court understands

Petitioner to raise the following grounds for review in his federal petition:

(1)

the State unlawfully suppressed or withheld:

(a)

(b)

(c)

(d)

(e)

ffl

(g)

(2)

the evidence at trial was insufficient to prove that any crime occurred because:

(a)

(b)

(3)

the State did not prove the cause of death, and <

the State did not prove that the victim was kidnapped; -

his statement to law enforcement was involuntary because:

(a)

(b)

(c)

(4)

a statement from the victim’s boyfriend that he spoke to the victim *days after she was reported missing,

a statement from a witness who swore to seeing the victim days after

she was reported missing,

evidence that a friend of the victim spoke to her after she was reported missing,

a statement from an eyewitness who saw the victim’s car arrive days *

after she was reported missing,

information that the victim was seen in another town,

alibi evidence (video and receipt) showing that Petitioner was paying

for gasoline 80 miles away when he was alleged to have been at the

grave site, showing inconsistencies in the GPS mapping data, and

proof of a ghost phone or mirror phone; _

Rangers threatened to jail Petitioner’s girlfriend and nephew, —

Rangers attempted to bribe Petitioner with the use of a loaner vehicle —

so they could search his truck, and

Rangers refused to allow breaks and “used threatening manners of

[bjodily injury to intimi[d]ate” Petitioner into “giving them

something”;

the trial court abused its discretion by:

(a)

(b)

denying Petitioner’s request for a mistrial after his parole status was

inadvertently mentioned in front of the jury,

denying a jury instruction on the voluntariness of his statement,

2 See SpotviUe v. Cain, 149 F.3d 374, 378 (5th Cir. 1998) (providing that a prisoner’s habeas petition is

deemed to be filed when he delivers the papers to prison authorities for mailing).

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(c)

(d)

(e)

(5)

denying Petitioner’s motion for a directed verdict,

allowing the Brown County District Attorney to assist in prosecuting

his case, and

refusing two requests for DNA testing;

he was denied due process when:

(a)

law enforcement failed to investigate other possible suspects and test

(b)

the trial court allowed unreliable and inaccurate “junk science”—GPS

mapping data—to be introduced, and

the Brown County District Attorney took an inconsistent position in

his capital murder trial, using the ranger statement as evidence against

him after telling the Brown County court that it was illegally obtained;

(c)

(6)

the jury was allowed to consider evidence that was not introduced at trial

through the trial court’s answer to a jury note;

(7)

the prosecutor improperly introduced his own opinion or personal knowledge

into his closing argument by stating that he “knew how the gun was used”;

and

(8)

he received ineffective assistance of counsel when:

(a)

(b)

his trial attorney had a conflict of interest because he represented a '

person on the State’s witness list and then steered the trial away from

his client testifying, and

his appellate counsel failed to present a claim related to Petitioner’s

request for mistrial, which would have been a “dead bang winner”

claim that would have resulted in reversal.

(Dkt. No. 1 at 6-8.) Petitioner seeks a new trial. (Id. at 7.)

Respondent argues that Petitioner’s claims are partially unexhausted and

procedurally barred, partially procedurally defaulted, and otherwise fail to overcome the

deferential standard imposed by the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA).

In reply, Petitioner contends that he fully exhausted each of his claims through either

his PDR or his state habeas application, and he reiterates the merit of his claims. He asks

that the Court overturn his conviction and grant him a new trial.

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2.

Legal Standard

Section 2254 provides federal courts with a limited, but important opportunity to

review a state prisoner’s conviction and sentence. See Harrington v. Richter, 562 U.S. 86, 103

(2011). This statute, as amended by AEDPA, creates a “highly deferential standard for

evaluating state-court rulings, . . . which demands that state-court decisions be given the

benefit of the doubt.” Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam) (internal

quotation marks omitted).

The basic structure of the federal habeas statute is “designed to confirm that state

courts are the principal forum for asserting constitutional challenges to state convictions.”

Richter, 562 U.S. at 103. First, the statute requires that a habeas petitioner exhaust his

claims in state court. 28 U.S.C. § 2254(b). If the state court dismisses the claim on

procedural grounds, then the claim is barred from federal review unless the petitioner shows

cause and prejudice. Richter, 562 U.S. at 103. And if the state court denies the claim on the

merits, then AEDPA’s relitigation bar applies. Lucio v. Lumpkin, 987 F.3d 451, 464-65 (5th

Cir. 2021).

A.

Exhaustion and Procedural Default

Courts may not grant habeas relief unless the petitioner first exhausts all available

state remedies. 28 U.S.C. § 2254(b)(1)(A). “The exhaustion requirement of § 2254(b)

ensures

a state custodial judgment before the lower federal courts may entertain a collateral attack

upon that judgment.” Duncan v. Walker, 533 U.S. 167, 178-79 (2001). Although

unexhausted claims prevent courts from granting relief, courts may deny a petition on the

merits despite the petitioner’s failure to exhaust the state remedies. 28 U.S.C. § 2254(b)(2).

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“The exhaustion requirement is satisfied when the substance of the federal habeas

claim has been fairly presented to the highest state court.” Whitehead v. Johnson, 157 F.3d

384, 387 (5th Cir. 1998), which in Texas is the TCCA. Richardson v. Frocunier, 762 F.2d 429,

431-32 (5th Cir. 1985). More than mere presentation of claims to the high court is required.

Raising a claim “in a procedural context in which its merits will not be considered” does not

constitute “fair presentation”; thus, it cannot satisfy the exhaustion requirement. Castille v.

Peoples, 489 U.S. 346, 351 (1989). To present claims to the TCCA, a petitioner must pursue

hk claims through direct appeal and a PDR or through a state habeas application. See Myers

v. Collins, 919 F.2d 1074, 1076 (5th Cir. 1990).

Additionally, if a petitioner presents new legal theories or factual claims in his federal

habeas petition, then he has not met the exhaustion requirement. Nobles v. Johnson, 127 F.3d

409, 420 (5th Cir. 1997) (citing Anderson v. Harless, 459 U.S. 4, 6-7 (1982)). “It is not

enough that all the facts necessary to support the federal claim were before the state courts

or that a somewhat similar state-law claim was made.” Harless, 459 U.S. at 6 (internal

citations omitted).

In the context of federal habeas proceedings, a resolution (or adjudication) on the

merits is a term of art that refers to whether a court’s disposition of the case was substantive,

rather than procedural. Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000) (citing Green v.

Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997)). In Texas writ jurisprudence, a “denial”

signifies that the state high court “addressed and rejected the merits of a particular claim,”

but a “dismissal” means that the court “declined to consider the claim for reasons unrelated

to the claim’s merits.” Exparte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997);

Barrientes v. Johnson, 221 F.3d 741, 780 (5th Cir. 2000).

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Along with the exhaustion requirement, the doctrine of procedural default provides

“ [a] distinct but related limit on the scope of federal habeas review.” Nobles, 127 F.3d at

420. Federal habeas courts are barred from reviewing a question of federal law decided by a

state court “if the decision of that court rests on a state law ground that is independent of the

federal question and adequate to support the judgment,” whether the ground is substantive

or procedural. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). In Texas, the high

court’s dismissal of a habeas application as subsequent provides an adequate and

independent state ground, barring federal review. See Nobles, 127 F.3d at 423.

“1A1 habeas petitioner who has failed to properly present his federal constitutional

claims to the state courts can still be considered to have exhausted his state remedies if

the state courts are no longer open to his claim because of a procedural bar.” Busby v.

Dretke, 359 F.3d 708, 724 (5th Cir. 2004). But “the same procedural bar that satisfies the

exhaustion requirement at the same time provides an adequate and independent

state procedural ground to support the state judgment and thus prevents federal habeas

corpus review of the defaulted claim.” Id. A petitioner may overcome this bar only if he

can show “cause for the default and actual prejudice as a result of the alleged violation of

federal law, or demonstrate that failure to consider the claims will result in a fundamental

miscarriage of justice.” Id. at 750.

But if a federal claim was fairly presented to the state court, then the federal habeas

court cannot assume that the state court overlooked the claim. Johnson v. (Tara) Williams,

568 U.S. 289, 298 (2013). Instead, the federal court must presume that the state court

adjudicated the federal claim on the merits, and thus the relitigation bar of Section 2254(d)

applies. Lucio, 987 F.3d at 464-65 (citing (Tara) Williams, 568 U.S. at 298).

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B.

AEDPA’s Relitigation Bar

Once a state court has rejected a claim on the merits, a federal court may grant relief

on that claim only if the state court’s decision was (1) “contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the Supreme

Court of the United States,” or (2) was “based on an unreasonable determination of the^

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

Adekeye v. Davis, 938 F.3d 678, 682 (5th Cir. 2019). And “[t]he question under AEDPA is

not whether a federal court believes the state court’s determination was incorrect but

whether that determination was unreasonable—a substantially higher threshold.” Schriro v.

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

A state-court decision is contrary to clearly established federal law if “it relies on

legal rules that directly conflict with prior holdings of the Supreme Court or if it reaches a

different conclusion than the Supreme Court on materially indistinguishable facts.” Busby,

359 F.3d at 713. A decision constitutes an unreasonable application of clearly established

federal law if “the state court identifies the correct governing legal principle from [the

Supreme] Court’s decisions but unreasonably applies that principle to the facts of the

prisoner’s case.” Williams v. Taylor, 529 U.S. 362, 413 (2000); see also Pierre v. Vannoy, 891

F.3d 224, 227 (5th Cir. 2018) (explaining that a petitioner’s lack of “Supreme Court

precedent to support” a ground for habeas relief “ends [his] case” as to that ground).

“ [A] state-court factual determination is not unreasonable merely because the

federal habeas court would have reached a different conclusion in the first instance.” Wood

v. Allen, 558 U.S. 290, 301 (2010). Federal habeas relief is precluded even when the state

court’s factual determination is debatable. Id. at 303. State-court factual determinations are

entitled to a “presumption of correctness” that a petitioner may rebut only by clear and

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convincing evidence. 28 U.S.C. § 2254(e)(1). This “deference extends not only to express

findings of fact, but to the implicit findings of the state court.” Ford v. Davis, 910 F.3d 232

234-35 (5th Cir. 2018).

The focus of federal review under Section 2254(d) “should be on the ultimate legal

conclusion that the state court reached and not on whether the state court considered and

discussed every angle.” Neal v. Puckett, 286 F.3d 230, 246 (2002). State courts need not

provide reasons for their decisions, and even summary denials of relief are entitled to

substantial deference. Richter, 562 U.S. at 100-01.

Of course, when the state high court “explains its decision on the merits in a

reasoned opinion,” then the federal court’s review is straightforward—it “simply reviews the

specific reasons given by the state court and defers to those reasons if they are reasonable.”

Wilson v. Sellers, 584 U.S.

138 S. Ct. 1188, 1192(2018). But when reviewing a

summary denial, “the federal court should ‘look through’ the unexplained decision to the

last related state-court decision that does provide a relevant rationale.” Id. If the lower

court’s rationale is reasonable, the federal court must “presume that the unexplained

decision adopted the same reasoning.” Id. This presumption may be rebutted, however, by

evidence that the summary decision “relied or most likely did rely on different grounds.” Id.

And when the lower state court decision is unreasonable, then it is more likely that the state

high court’s single-word decision rests on alternative grounds. Id. at 1196.

In short, a reviewing court cannot “overlook!] arguments that would otherwise

justify the state court’s result.” Richter, 562 U.S. at 102. A federal habeas court “must

determine what arguments or theories supported, or . . . could have supported, the state

court’s decision” before considering “whether it is possible fairminded jurists could disagree

that those arguments or theories are inconsistent” with Supreme Court precedent. Id. “As a

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condition for obtaining habeas corpus from a federal court, a state prisoner must show that

the state court’s ruling on the claim being presented in federal court was so lacking in

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

beyond any possibility for fairminded disagreement.” Id.

Moreover, “federal habeas relief does not lie for errors of state law,” and “it is not

the province of a federal habeas court to reexamine state-court determinations on state-law

questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Westv. Johnson, 92 F.3d 1385

1404 (5th Cir. 1996). AEDPA “modified a federal habeas court’s role in reviewing state

prisoner applications in order to prevent federal habeas ‘retrials’ and to ensure that state

court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S.

685, 693 (2002). Federal habeas review is reserved only as a “guard against extreme

malfunctions in the state criminal justice systems, not a substitute for ordinary error

correction through appeal.” Richter, 562 U.S. at 102-03. This standard is intentionally

“difficult to meet.” Id.

Finally, federal habeas review is limited “to the record that was before the state court

that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011).

In short, to overcome AEDPA’s highly deferential, difficult standard, a petitioner “must

show, based on the state-court record alone, that any argument or theory the state habeas

court could have relied on to deny . . . relief was contrary to or an unreasonable application

of clearly established federal law as determined by the Supreme Court.” Evans v. Davis, 875

F.3d 210, 217 (5th Cir. 2017).

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3.

Analysis

A.

Some of Petitioner’s claims are unexhausted and procedurally barred from

federal review.

First, the parties dispute the extent to which Petitioner exhausted his claims.

Respondent asserts that Petitioner never presented some of his claims to the state courts,

and he raises them for the first time in his federal petition. (Dkt. No. 25 at 8-9.)

Specifically, Respondent argues that parts of Petitioner's first, third, fourth, and fifth

grounds for relief were not properly presented to the state court and cannot be presented

now because of Texas’s abuse-of-the-writ doctrine. Thus, Respondent argues that these ,

claims are unexhausted and procedurally barred from federal-review.

After carefully reviewing the records, the Court finds that Petitioner presented_each

nf his plaims_in_frnmp_ form _tn_th e_TC.CA. But some of his claims were raised only ina^

procedural context that likely precluded a review of the merits of those claims. For

example, Petitioner’s claims 4(d) and 5(c), which allege errors related to the Brown County

District Attorney’s participation in Petitioner’s Coleman County prosecution, were raised

for the first and only time in Petitioner’s pro se PDR. “[T]he presentation of claims on

discretionary review to the state’s highest court does not,” necessarily, “constitute ‘fair

presentation’ for exhaustion purposes.” Satterwhite v. Lynaugh, 886 F.2d 90, 92 (5th Cir.

1989) (citing Castille, 489 U.S. at 349). In the TCCA, discretionary review is limited to the

issues that were properly presented to the intermediate court of appeals. See Satterwhite, 886

F.2d at 92 n.2. As a result, claims presented “for the first and only time in a petition for

discretionary review” do not satisfy the exhaustion requirement of Section 2254. Myers v.

Collins, 919 F.2d 1074, 1077 (5th Cir. 1990).

Petitioner’s grounds 4(d) and 5(c) were not properly presented to the TCCA in his

PDR because he did not first raise them in his direct appeal. He also failed to raise these

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claims in his state habeas application, and he is barred from doing so now by Texas’s abuseof-the-writ doctrine. See Nobles, 111 F.3d at 423. Thus, Petitioner’s claims 4(d) and 5(c) are

unexhausted and procedurally barred.

Similarly, Petitioner raised some of his claims only in the memorandum of law that

he submitted in support of his state habeas application. But the TCCA ‘‘will not consider

grounds for relief set out in a memorandum of law that were not raised on the form.” See Ex

parte Walton, 422 S.W.3d 720, 721 (Tex. Crim. App. 2014) (emphasis in original). This

aligns with Texas Rule of Appellate Procedure 73.1, which sets out the requirements for

state habeas applications. Rule 73.1 explains that the TCCA requires a specific form for

habeas applications and that “[a]ny ground not raised on the form will not be considered.”

Tex. R. App. P. 73.1(a), (c). The required form, which Petitioner filled out, reiterates this

admonishment. (SeeDkt. No. 24-61 at 10: “You must present each ground on the form

application and a brief summary of the facts. Ifyour grounds and brief summary ofthefacts have

not been presented on theform application, the Court will not consider your grounds. ”) (emphasis in

original).

Here, Petitioner raised claim 4(e), alleging that the trial court erred in refusing

Petitioner’s requests for additional DNA testing, in his memorandum but not in his form

application. He did not properly present this claim to the TCCA, and the Court finds that it

is unexhausted and nrocedurallv barred. Three more of Petitioner’s claims—claims l(c),

l(e), and 3(c)3—were presented improperly both in Petitioner’s PDR, without inclusion in

3 In these claims, Petitioner alleges that the State withheld evidence that the victim’s friend spoke to

her after she was reported missing and evidence that the victim was seen in another town after she

was reported missing (claims l(c) and (e)), and Petitioner alleges that his statement to law

enforcement was involuntary and inadmissible because the police did not give him breaks and used

threats of injury and intimidation to elicit information (claim 3(c)).

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v)K

I

his direct appeal, and in Petitioner’s memorandum but not on his form habeas application.

The Court must likewise find these claims to be unexhausted and procedurally barred.

Petitioner makes no argument for cause and resulting prejudice to excuse his failure.*

tn pyhanst thesp plaims, nor has he shown that the Court’s failure to review them will result

in a fundamental miscarriage of justice. Thus, the Court concludes that claims 1(c), 1(e)

3(c), 4(d)-(e), and 5(c) are unexhausted and procedurally barred.

Respondent also asserts that Petitioner’s claim 1(d) is unexhausted. But Petitioner

did raise this claim in his state form application. (Dkt. No. 24-61 at 11.) Thus, the Court

finds that Petitioner’s claim 1(d)—alleging that the State withheld evidence that a witness

saw the victim’s car arrive at the ballpark after she was reported missing—was fairly

presented to the TCCA. The Court will address this claim more fully below.

Finally, Respondent argues that one of Petitioner’s claims—claim 2(a), that the

evidence was insufficient to prove murder because the victim’s cause of death is unknown—

is procedurally defaulted. Respondent acknowledges that Petitioner raised this claim in his

state habeas application. But Respondent contends that the TCCA did not consider the

claim because it is well established that sufficiency-of-the-evidence claims are not cognizable

on habeas review in Texas. (Dkt. No. 25 at 12); see also Ex parte Grigsby, 137 S.W.3d 673,

674 (Tex. Crim. App. 1997). The Court agrees that Petitioner did not properly present this

claim in his state habeas application. But the Court finds that Petitioner also raised this

claim in both his PDR and in his direct appeal.

Petitioner raised three issues on direct appeal. One of those issues was the

sufficiency of the evidence to prove that he murdered the victim. Petitioner’s argument

focused on the insufficiency of the evidence linking Petitioner to the murder. But in support

of that argument, he contended that “[n]o evidence of the murder weapon or cause of death

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was introduced, much less evidence linking [Petitioner] to a weapon or the cause of death.”

(Dkt. No. 24-16 at 9-10.) The Eleventh Court of appeals discussed the cause-of-death issue

before finding the evidence was sufficient to support murder. (Dkt. No. 24-3 at 17-18.) The

court noted that “although [the medical examiner] could not determine Reiter’s cause of

death, . . . there was strong evidence of foul play,” and thus, “a rational jury could have

found beyond a reasonable doubt that [Petitioner] murdered Reiter.” (Id.) Petitioner raised

this claim again in his pro se PDR, (Dkt. No. 24-29 at 2, 4-5), which the TCCA refused.

Moreover, the TCCA considered the sufficiency of the evidence in its written opinion on the

State’s PDR. While focusing on the kidnapping element of the capital charge, the TCCA

expressly found that the evidence was sufficient for a rational jury to conclude that

Petitioner murdered the victim in the course of kidnapping or attempting to kidnap her.

(Dkt. No. 24-23 at 15-16.)

Based on the record, the Court concludes that Petitioner fairly presented his

insufficiency-of-the-evidence claim to the TCCA. Moreover, the Court finds that the TCCA

considered the merits of Petitioner’s claim. Petitioner’s claim has shifted over time—from

his initial argument that the State couldn’t prove he mmdered-thewictim, to his_current

argument that the State can’t prove that the victim_was murdered_at_alL But the state court’s

findings on the narrower issue (that the evidence shows Petitioner murdered the victim)

necessarily resolve the broader issue (that the evidence shows the victim was murdered).

Thus, “it is fair to assume that further state proceedings would be useless.” Castille, 489 U.S.

at 351.

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C<^

B.

Petitioner has not overcome AEDPA’s relitigation bar as to his exhausted

claims.

i.

Ground One: Withheld Evidence

In his first ground for relief, Petitioner asserts that the State unlawfully withheld

evidence in violation of Brady v. Maryland, 373 U.S. 83, 87 (1963). Specifically, he alleges

that the prosecutor suppressed evidence that (a) the victim’s boyfriend spoke to her days

after she was reported missing, (b) a witness swore to seeing the victim days after she was

reported missing, (c) a friend of the victim spoke to her after she was reported missing,

(d) an eyewitness saw the victim’s car arrive days after she was reported missing, (e) the

victim was seen in another town, (f) alibi evidence (including a video and a receipt) showing

that Petitioner was paying for gasoline 80 miles away when he was alleged to have been at

the grave site, showing inconsistencies in the GPS mapping data, and (g) proof of a ghost

phone or mirror phone.

As discussed above, two of these claims, (c) and (e), are unexhausted and

procedurally defaulted. Regardless of whether the claims are exhausted, however, the Court

finds that these claims are without merit. See 28 U.S.C. § 2254(b)(2) (providing that a court

may deny habeas relief on the merits notwithstanding the petitioner’s failure to exhaust state

remedies).

A federal habeas petitioner must show three elements to establish a Brady violation:

(1) the prosecutor suppressed or withheld evidence (2) that was favorable and (3) material to

the defense. Castillo v. Johnson, 141 F.3d 218, 222 (5th Cir. 1998) (citing Moore v. Illinois, 408

U.S. 786, 794-95 (1972)). Contrary to Petitioner’s argument that the evidence was

suppressed, much of this evidence was presented at Petitioner’s trial.

For example, Petitioner alleges that video evidence of his “alibi” was suppressed, but

he also cites the record where the video was admitted. In fact, the video—showing

15

Petitioner at a gas station in Ballinger, Texas, on the evening on September 10, 2012—was

published to the jury, and two witnesses discussed it. (See Dkt. Nos. 24-10 at 101; 24-11 at

68-69.) Likewise, Petitioner contends that the State withheld evidence that the victim was

seen in another town after she was reported missing, but this evidence was discussed at trial

too. (See Dkt. No. 24-11 at 74-76.) Moreover, defense witness Joel Gongora testified at

trial that he thought he saw the victim in Brady, Texas, after seeing news of her

disappearance. (See Dkt. No. 24-11 at 116.)

As to these claims, Petitioner has failed to show the elements of a Brady violation.

The evidence was not withheld. In fact, it was discussed at trial in front of the jury. He has

also not shown that the evidence was favorable. For example, a law enforcement officer

testified that he investigated a reported sighting of the victim, viewed surveillance videos,

and determined the report to be inaccurate. (See Dkt. No. 24-11 at 75) (“And we followed

that up, sir. There was no evidence that she was ever there.”) Petitioner may disagree with

how the State presented the evidence, or how his attorney used the evidence, but it was

presented.

The record also shows that Petitioner’s counsel was at least aware of evidence related

to Petitioner’s claims, even though the evidence was not specifically discussed at trial.

While cross-examining a law enforcement witness, Petitioner’s counsel alluded to

information about “activity” where the victim’s vehicle was found on the day after her

disappearance. (See Dkt. No. 24-9 at 80.) In fact, in his supplemental reply to Respondent’s

answer, Petitioner admits that his attorney knew about the car statement, and he argues that

his counsel must have “acted in concert with the Prosecution to suppress it.” (Dkt. No. 36.)

But again, Petitioner’s complaint now seems to be that his attorney failed to effectively use

the evidence—a claim never presented to the state courts—rather than that the State

16

concealed it. Similarly, counsel demonstrated knowledge of two statements given by the

victim’s boyfriend, although counsel’s focus was establishing that the boyfriend had lied to

police. (SeeUkt. No. 24-9 at 86-89.)

Otherwise, Petitioner’s claims of withheld evidence are conclusory. It is well

established that “[m]ere conclusory statements do not raise a constitutional issue in a habeas

case.” Schlang v. Heard, 691 F.2d 796, 799 (5th Cir. 1982). Petitioner has not provided any

of the statements or other evidence he claims was suppressed. He has not shown that the

evidence exists, much less that it was suppressed, favorable, and material to his defense.

Thus, the Court finds that the TCCA reasonably rejected Petitioner’s Brady claims.

ii.

Ground Two: Insufficient Evidence

Petitioner raised sufficiency-of-the-evidence claims at every stage of his state-court

reviews. On direct appeal and in his PDR, Petitioner alleged that the evidence was

insufficient to show that he murdered the victim or that he did so while kidnapping or

attempting to kidnap her. The TCCA only granted the State’s PDR to review the

sufficiency of the evidence on the kidnapping element. But in refusing Petitioner’s PDR, the

TCCA left undisturbed the finding of the intermediate court of appeals that Petitioner

murdered the victim.

While focusing on the kidnapping element of the capital murder charge, the TCCA

examined “the combined and cumulative evidence, including all inferences,” and found that

“when viewed in the light most favorable to the prosecution, a rational jury could conclude

that [Petitioner] murdered Reiter in the course of kidnapping or attempting to kidnap her.”

(Dkt. No. 24-23 at 2, 15-16.) This express finding is entitled to substantial deference under

Section 2254(d) and (e). See also Callins v. Collins, 998 F.2d 269, 276 (5th Cir. 1993)

17

r

(explaining that when “a state appellate court has conducted a thoughtful review of the

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

The Supreme Court set out the appropriate standard for reviewing sufficiency-of-theevidence questions in federal habeas proceedings in Jackson v. Virginia, 443 U.S. 307 (1979).

“[T]he relevant question is whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Id. at 319 (emphasis in original). Well before

Petitioner’s conviction, the TCCA determined that the Jackson standard “is the only

standard that a reviewing court should apply in determining whether the evidence is

sufficient to support each element of a criminal offense,” eliminating any distinction

between legal and factual sufficiency. Brooks v. State, 232 S.W.3d 893, 895 (Tex. Crim. App.

2010).

Here, consistent with Brooks, the TCCA identified and applied the relevant standard

provided by the Supreme Court in Jackson. And the court applied the Jackson standard with

the appropriate deference to the jury’s role as the fact-finder and consistent with federal

principles informing Jackson’s application. Reviewing courts may not substitute their view

of the evidence for that of the fact-fmder but must consider the evidence in the light most

favorable to the prosecution to determine whether any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt. Alexander v. McCotter, 775

F.2d 595, 597-98 (5th Cir. 1985); see also United States v. Nguyen, 28 F.3d 477, 480 (5th Cir.

1994) (explaining that “[a] 11 credibility determinations and reasonable inferences are to be

resolved in favor of the jury’s verdict”).

The TCCA refused Petitioner’s PDR, thus summarily denying review of his,

sufficiency claim as to the murder element of his conviction. Thus, the Court finds it helpful

18

to look through to the opinion of the intermediate court on this claim. The Eleventh Court

of Appeals—applying the appropriate Jackson standard—carefully examined the evidence

and determined that it was sufficient for a rational jury to find that Petitioner murdered the

victim. (Dkt. No. 24-3 at 16-18.) The court of appeals considered whether the evidence

supported the jury’s finding that Petitioner “intentionally or knowingly killed Reiter,”

referring to the substantive elements of murder as a lesser included offense of capital murder

under Texas Penal Code §§ 19.02, 19.03. {Id. at 16); See Alexander, 775 F.2d at 598

(explaining that courts must “refer to the substantive elements of the criminal offenseQ as

defined by state law”).

The court of appeals noted what was absent from the evidence, including, among

other things, “evidence of a murder weapon or cause of death,” but found that “other

evidence, including circumstantial evidence,” was enough to prove that Petitioner murdered

Reiter. (Dkt. No. 24-3 at 16.) Specifically, the Eleventh Court relied on evidence that

Petitioner had the opportunity to kill Reiter—that “[h] is phone and her phone were in the

same locations throughout the evening of her disappearance, and the last place for which

her phone provided location data was the location where her body was found.” {Id. at lb17.) As a result, the court concluded that “the record supports a reasonable inference that

[Petitioner] was the last person to see Reiter alive.” {Id. at 17.) The court noted “[i]n fact,

these phone records were the means by which Reiter’s body was found.” {Id. at 9.)

The court also discussed evidence showing Petitioner’s motive to kill Reiter, noting

that he “had a difficult time dealing with his breakup with Reiter” and “that he wanted to

hurt Reiter as bad as she hurt him.” {Id. at 17.) And the court discussed the circumstances

surrounding Reiter’s death, including that her “unclothed body was found in a shallow

grave under a bridge.” {Id. at 9.) The court considered that although the medical examiner

19

could not determine a definite cause of death, he testified that he “could not rule out

a

*

asphyxiation” and “that there was strong evidence of foul play.” (Id.) Finally, the court

pointed to evidence that refrigerant, like that found in Petitioner’s truck, could cause death

by asphyxiation. (Id. at 17.) After examining the evidence, the Eleventh Court found that

it was sufficient for a rational jury to find beyond a reasonable doubt that Petitioner

intentionally or knowingly killed Reiter. (Id. at 17-18.)

The TCCA refused Petitioner’s request to revisit the sufficiency of the evidence to

support the murder element of his capital murder charge. But it did review the sufficiency

of the evidence to prove the kidnapping element, necessary to support Petitioner’s capital

charge and sentence. In doing so, the TCCA reasonably applied Jackson to the evidence

presented at trial and reinstated the jury’s finding of guilt.

The TCCA discussed evidence that Reiter was scared of Petitioner and that she “told

her friends that she would not get into a car with him or meet him alone, and had asked

friends to call the police if they did not hear from her for a certain period of time.” (Dkt.

No. 24-23 at 14.) It also noted evidence that Petitioner created a fake identity as a “ruse to

ccnufik ^

trick Reiter into meeting him on the night of her disappearance. (Id.) The court also

focused on evidence showing that Petitioner “laid the groundwork for kidnapping” Reiter,

including evidence that he “researched how to make knock-out drops, purchased refrigerant

and ammunition, and had a belt in his truck.” (Id.) The TCCA noted that Petitioner had

control over Reiter’s phone as it traveled to her burial site, evidenced by his admission that

he sent a fraudulent text from her phone at 7:56 pm on the evening of her disappearance.

(Id.) After thoughtfully considering the evidence, and applying the relevant Supreme Court

standard, the TCCA determined that the evidence was sufficient to support the jury’s

finding of guilt on capital murder.

20

Petitioner has not shown that the state court’s determination, based on a thoughtful

review of the evidence, was either contrary to, or involved an unreasonable application of,

Supreme Court precedent, or that it was based on an unreasonable determination of the

facts in light of the evidence presented in the state court proceeding. Thus, Petitioner is not

entitled to federal habeas relief on his sufficiency-of-the-evidence claims.

iii.

Ground Three: Voluntariness of Statement

Petitioner alleges that the trial court erred when it admitted the video of his

statement to law enforcement because it was involuntary because of “bribes, coercion and

th[re]ats by the [gangers.” (Dkt. No. 1 at 7.) Petitioner moved to suppress his statement in

the trial court. (Dkt. No. 24-14 at 15.) The trial court held a brief hearing, (Dkt. No. 24-13),

reviewed the video, and entered a letter ruling denying the motion to suppress and finding

that the statement was voluntary. (Dkt. No. 24-14 at 52.) The Eleventh Court of Appeals

affirmed this finding after considering “the totality of the circumstances surrounding” the

interrogation to determine whether Petitioner was in custody. (Dkt. No. 24-3 at 3, 5.) The

TCCA summarily denied Petitioner’s involuntary-statement claims in both his PDR and in

his state habeas application.4

The admissibility of a confession5 is a mixed question of law and fact. Miller v.

Fenton, 474 U.S. 104, 112 (1985). The voluntariness determination is a legal conclusion that

4 As discussed above, Petitioner’s claim 3(c), that his statement was involuntary because the rangers

refused to allow him breaks and used threats of bodily injury to coerce him into talking, was not

presented to the TCCA in a.procedurallv correct manner and is thus unexhausted and procedurally

defaulted. Even so, as explained in this section, Petitioner’s claims about the voluntariness of his

statement lack merit.

5 Petitioner did not confess to murder. He did confess, however, to online impersonation—

admitting that he created a fake profile on social media to communicate with the victim in the days

before her disappearance. He was arrested for that crime nearly three hours into the interview. And

he made other admissions that were used to corroborate separate evidence. For example, he

admitted that he sent a text message from the victim’s phone the evening of her disappearance,

21

is entitled to independent federal review. See id. But under Section 2254(d), the federal

habeas court will defer to the state court’s determination of voluntariness unless it was

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

determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1); Barnes v. Johnson, 160 F.3d 218

222 (5th Cir. 1998).

But voluntariness turns on the facts of each case. United States v. Posada-Rios, 158

F.3d 832, 866 (5th Cir. 1998). Determining whether officers used coercive tactics to elicit

the confession is a question of fact, and the state court’s factual findings are entitled to

deference when supported by the record. Pemberton v.Collins, 991 F.2d 1218, 1225 (5th Cir.

1993); Selfv. Collins, 973 F.2d 1198, 1204 (5th Cir. 1992); see also Miller, 474 U.S. at 112

(noting that “subsidiary factual questions” such as whether the police engaged in coercive

tactics or intimidation are afforded the presumption of correctness).

“[T]he Due Process Clause of the Fourteenth Amendment [prohibits] states from

securing criminal convictions through the use of involuntary confessions resulting from

coercive police conduct.” Selfv. Collins, 973 F.2d at 1205 (citing Miller, 474 U.S. at 109).

“Coercive police conduct is a necessary prerequisite to the conclusion that

a confession was involuntary, and the defendant must establish a causal link between

the coercive conduct and the confession.” Carter v. Johnson, 131 F.3d 452, 462 (5th Cir.

1997) (citing Colorado v. Connelly, 479 U.S. 157, 163-67 (1986)). “Neither mere

emotionalism and confusion, nor mere trickery will alone necessarily invalidate a

confession.” Self, 973 F.2d at 1205. The Fifth Circuit has explained that such tactics are

“only prohibited to the extent that it deprives the defendant of knowledge essential to his

which corroborated the cell phone records that placed his phone in the same location as the victim’s

phone at that time.

22

ability to understand the nature of his rights and the consequences of abandoning

them.” Bell, 367 F.3d at 461 (citing Soffarv. Cockrell, 300 F.3d 588, 596 (5th Cir. 2002) (en

banc) and Self, 973 F.2d at 1205).

Both the trial court and the court of appeals expressly found Petitioner’s statement

voluntary. The TCCA summarily denied Petitioner’s claims, so the Court looks through

that summary denial to the reasoning of the Eleventh Court of Appeals. The court of

appeals determined that “[t]he entire conversation between the rangers and [Petitioner]

indicated that they all believed that [he] was free to leave” and that “the initial portion” of

Petitioner’s statement was voluntary. (Dkt. No. 24-3 at 4, 5.) Then, after his arrest for

online impersonation, the rangers read Petitioner his Miranda rights, and the court found

that Petitioner voluntarily waived those rights and continued the interview. (Id. at 5.)

Petitioner has not shown that the state court’s voluntariness determination was contrary to

or involved an unreasonable application of Supreme Court precedent.

The state court also implicitly found that the officers’ tactics were not coercive. This

subsidiary fact finding is entitled to the presumption of correctness under Section 2254(e)(1).

See Valdez v. Cockrell, 274 F.3d 941, 948 n.ll (5th Cir. 2001) (explaining that “[t]he

presumption of correctness not only applies to explicit findings of fact, but it also applies to

those unarticulated findings which are necessary to the state court’s conclusions of mixed

law and fact”); see also Ford v. Davis, 910 F.3d 232, 234-35 (5th Cir. 2018). Petitioner has

not overcome the presumption of correctness with clear and convincing evidence.

At the suppression hearing, the parties disputed the effect of certain facts on the

voluntariness determination. Petitioner argued that “he was asked to do more than just

answer questions. He was bartered things like cigarettes, would not provide them until he

provided more information.” (Dkt. No. 24-13 at 6.) The State answered, “[a]s far as the

23

7

cigarettes, I believe the Court will see at the end of the video that not only did they offer him

breaks, which he declined, they also offered to get him cigarettes and a lighter.” (Id. at 8.)

The parties also disputed the effect of the ranger’s words at the beginning of the

interview. The State argued that the ranger “simply got tongue-tied” and used a double

negative, explaining that he was not telling Petitioner that he was under arrest, or that he

was not free to leave. (Id. at 7.) The State asserted that “when the court watches the video

it is blatantly obvious that everybody understood the terms and conditions.” (Id.) Petitioner

argued that “[w]ords have meaning” and that regardless of “what was intended,” the ranger

told Petitioner he was not free to leave. (Id. at 8.)

Ultimately, however, the court of appeals discussed “several facts [that] indicate”

that the interview was voluntary. (Dkt. No. 24-3 at 4.) The court found that Petitioner

“requested to meet with the rangers,” and that he “drove himself and came with his

girlfriend to the police station.” (Id.) “The rangers permitted [Petitioner’s] girlfriend to

/

vP

enter the interview room, discuss the situation with him, leave, and wait for [him] in

vi

another room.” (Id. at 5.) The court also discussed the fact that Petitioner did get up and

V

leave at some point; “[h]owever, by the time [he] made it outside the station, the rangers

had decided to place him under arrest for online impersonation.” (Id.) The state court

resolved these fact questions in favor of the prosecution, implicitly finding that the officers’

tactics were not coercive. This subsidiary fact determination is supported by the record, and

Petitioner has not overcome the presumption of correctness.

The state court reasonably rejected Petitioner’s arguments that his statement was

coerced. And notably, Petitioner did not confess to the murder. “Absent police conduct

causally related to the confession, there is simply no basis for concluding that any state actor

has deprived a criminal defendant of due process of law.” Colorado v. Connelly, 479 U.S.

24

157, 164 (1986). Thus, Petitioner has failed to show that the state court’s denial of this

claim was unreasonable.

iv.

Ground Four: Trial Court Error

Petitioner also alleges that the trial court erred when it denied (a) his request for a

mistrial, (b) a jury instruction on the voluntariness of his statement, and (c) his motion for a

directed verdict. (Dkt. No. 1 at 7.) Additionally, Petitioner alleges two unexhausted claims

of trial court error—in (d) allowing the Brown County prosecutors to assist in his capital

murder prosecution, and (e) denying his request for additional DNA testing^____ _____

The TCCA’s judgment is a final and authoritative answer to Petitioner’s claims that

the trial court violated or misapplied state law. This Court will not reexamine state-court

determinations on state-law questions. See Estelle, 502 U.S. at 67-68. Thus, to the extent

that Petitioner bases his grounds for relief on the application of a state procedural rule, his

claims are not cognizable under Section 2254.

Petitioner requested a mistrial after the jury heard a fleeting mention of his parole

status in his video-recorded statement, due to a redaction error. (Dkt. No. 24-9 at 106.) The

trial court denied the motion. {Id. at 108.) Later, the trial court asked Petitioner to consider

whether he wanted the court to instruct the jury to disregard the mention of his parole

status. (Dkt. No. 24-10 at 5-6.) The trial judge explained that he was “willing to . . .

explain it to them,” but acknowledged that Petitioner may not want to emphasize it by

bringing it up again. {Id.) After discussing it with his attorney, Petitioner opted “to make

no further mention of it” to the jury, “because ... it might reinforce the idea in their mind. ”

(Dkt. No. 24-11 at 113.)

Petitioner’s mistrial claim hinges on state-law grounds. And as explained above,

federal habeas relief will not issue to correct errors of state law, unless a federal issue is also

25

present. Estelle, 502 U.S. at 67-68. To the extent that this claim implicates due process

“[t]he erroneous admission of prejudicial evidence will justify habeas relief only if the

admission was a crucial, highly significant factor in the defendant’s conviction.” Neal v.

Cain, 141 F.3d 207, 214 (5th Cir. 1998).

)

It is clear from the record that the inadvertent, brief mention of parole was not “so

\

unduly prejudicial that it rendered] the trial fundamentally unfair.” Payne v. Tennessee, 501

U.S. 808, 825 (1991). While discussing the pros and cons of giving a limiting instruction

•j*

after the fact, the trial judge described it as “just a quick reference to maybe parole” and

explained that he “was listening and [he] didn’t pick up on it.” (Dkt. No. 24-10 at 6.) The

inadvertent admission of a brief reference to Petitioner’s parole status does not implicate the

Due Process Clause. Petitioner has no right to federal habeas relief on this ground.

Likewise, improper jury instructions in a state criminal trial will generally not

support federal habeas relief. Estelle, 502 U.S. at 72 (explaining that a petitioner has no right

to federal habeas relief simply because a jury instruction was deficient under state

procedural law). Rather, the only question for the federal court is “whether the ailing

instruction by itself so infected the entire trial that the resulting conviction violates due

process.” Id. (quoting Cuppv. Naughten, 414 U.S. 141, 147 (1973)). And “[a]n omission, or

an incomplete instruction, is less likely to be prejudicial than a misstatement of the law.”

Henderson v. Kibbe, 431 U.S. 145, 155 (1977).

Here, Petitioner did no£-request a iurv instruction on the voluntariness of his

statement. Nor did he object to the jury instructions as prepared by the trial court. (Dkt.

No. 24-12 at 4.) And, as discussed above, the trial court conducted a hearing on the

voluntariness of the statement and determined it to be voluntary. The Court has found the

state court’s voluntariness finding to be reasonable. Petitioner has not shown that the trial

26

1

court’s failure to give a voluntariness instruction—that he did not request—so infected his

trial as to render his conviction unconstitutional. The state court’s rejection of this claim

was reasonable.

Additionally, Petitioner claims the trial court abused its discretion by denying his

motion for directed verdict. “Under Texas state law, alleged errors regarding the denial of a

motion for a directed verdict are construed as a challenge to the legal sufficiency of

the evidence.” Barley v. Stephens, No. CV H-15-1529, 2016 WL 739848, at *11 (S.D. Tex.

Feb. 25, 2016) (citing Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996)). The

Court has already discussed Petitioner’s sufficiency-of-the-evidence claims and found no

constitutional error. Petitioner had “no federal constitutional or statutory right to

a directed verdict in state court.” See Howard v. Davis, No. CV H-18-2436, 2019 WL 291980

at *5 (S.D. Tex. Jan. 23, 2019). Thus, the trial court’s denial of a directed verdict does not

create a viable claim for federal habeas relief.

Petitioner’s remaining claims of trial-court error, related to DNA testing_ancLthe—

disqualification of the prosecuting attorneys, are unexhausted and-pm.ceduialIv.haiiMJut

the Court denies them anyway because they are also without merit. Again, Petitioner’s

claims stem from alleged errors of state law. Petitioner had no federal right to post­

conviction DNA testing. SeeDist. Attorney's Off for Third Jud. Dist. v. Osborne, 557 U.S. 52,

73 (2009). “Any right to post-conviction DNA testing arises only under Texas law and does

not raise a federal constitutional issue.” Glenn v. Stephens, No. 3:14-cv-3403-D-BH (N.D.

Tex. Mar. 17, 2015) (collecting cases).

Finally, Petitioner’s claim that the trial court abused its discretion by allowing two

prosecutors from Brown County to help prosecute his Coleman County capital murder

charge must fail. The record reflects that the elected District Attorney of Coleman County:

27

t

Heath Hemphill, appointed two prosecutors from Brown County, Michael Murray and Sam

Moss, as Assistant District Attorneys “to perform any and all acts and things necessary in”

Petitioner’s Coleman County trial. (Dkt. No. 24-14 at 95.) This deputation was authorized

by Texas Government Code §§ 41.102-105. The record does not show that Petitioner ever

objected to the deputation of the Brown County prosecutors.

Further, the trial court could not have disqualified the lawfully appointed assistant

district attorneys. “A trial court judge is without legal authority to remove a District

Attorney from a case and, as such, any order attempting to do so is void. ” State ex rel Eidson

v. Edwards, 793 S.W.2d 1, 5 (Tex. Crim. App. 1990). If a conflict of interest arises, the

responsibility of recusal lies with the prosecutors, not with the trial court judge. State ex rel.

Eidson v. Edwards, 793 S.W.2d 1, 6 (Tex. Crim. App. 1990). “A trial court may not

disqualify a district attorney or his staff on the basis of a conflict of interest that does not rise

to the level of a due process violation.” Id.

Here, there is no evidence of a conflict of interest, much less one that rises to the

level of a due process violation. Brown County and Coleman County are neighbors. The

State alleged that Petitioner’s crime began in Brown County, when he kidnapped or

attempted to kidnap the victim. From there, Petitioner traveled with the victim to Coleman

County, where her body was later discovered. The record reflects that law enforcement

from both counties were involved from early in the case. {See Dkt. No. 24-59 at 6.) As a

result, Hemphill, Massey, and Moss had a shared interest in prosecuting Petitioner.

In sum, Petitioner’s allegations of trial court error have failed to state any viable

claim for federal habeas relief.

28

v.

Ground Five: Due Process

Petitioner claims that his federal due process rights were violated when (a) law

enforcement failed to investigate other suspects and test all of the physical evidence, (b) his

conviction was premised on “junk science,” i.e., GPS mapping data that was unreliable and

inaccurate, and (c) the Brown County District Attorney relied on his ranger interview in his

Coleman County trial after telling the Brown County court that he believed it was unlawful.

“Defendants do not enjoy a general constitutional right to a proper or

thorough investigation of the offense with which they are charged.” Riley v. Quarterman,

No. H-07-2087, 2008 WL 4425366, at *7 (S.D. Tex. Sept. 24, 2008). In federal habeas

review, this type of claim invokes due process only if the petitioner can show that that_the_

police investigation was so inadequate that it was “tantamount to a suppression of relevant

evidence.” Owens v. Foltz, 797 F.2d 294, 296 (6th Cir. 1986) (citing Brady, 373 U.S. 83).

When a petitioner alleges “nothing more than negligence on the part of the police

investigators,” without evidence that investigators acted in bad faith by failing to preserve,

evidence, he has failed to state a viable due process claim. Rileyy 2008 WL 4425366, at *7

(citing Holdren v. Legursky, 16 F.3d 57, 60 (4th Cir. 1994)).

Here, Petitioner raised issues related to the deficiencies in the investigation as part of

his defense at trial, including law enforcement’s early focus on him as the primary suspect to

the exclusion of other possibilities and the failure to test certain items of physical evidence.6

The jury was free to consider these arguments in determining whether the State proved its

6 And law enforcement witnesses explained that because of limited resources, they chose only to test

evidence that they believed would produce probative results, rather thamconfirminp undisputed-------car for DNA or fingerprints because it was undisputed that the victim, Petitioner, and the victim’s

boyfriend had ail been inside the vehicle. (Dkt. No. 24-9 at 68-69.) So law enforcement did not

believe that testing the evidence would aid their investigation as to who was responsible for the

victim’s death. (Id.)

29

^

case beyond a reasonable doubt. Now, Petitioner speculates, in conclusory fashion, that if

law enforcement had conducted a more thorough investigation, or had tested more of the

physical evidence, he would not have been convicted. Petitioner’s inadequate-investigation

claim fails to rise to the level of a constitutional violation. The TCCA reasonably rejected

this claim.

Petitioner’s claims that the GPS technology used to map the locations of his phone

and the victim’s phone was unreliable “junk science.” Aside from his own conclusions

Petitioner has offered no support for his claim that this type of evidence has been

O'

—discredited. And his conclusory statements do not present a constitutional issue for federal

review. Schlang, 691 F.2d at 799. Nor is there any “clearly established federal law” that

entitles Petitioner to raise his challenge here. SeePedraza v. Davis, No. 2:17-CV-190-Z-BR,

2020 WL 4720093, at *5 (N.D. Tex. July 23, 2020), report and recommendation adopted, No.

2:17-CV-190-Z-BR, 2020 WL 4698325 (N.D. Tex. Aug. 13, 2020); Williams v. Taylor, 529

U.S. 362, 377-80 (2000) (requiring a federal court to deny habeas relief that depends on a

rule of law not clearly established when the state conviction became final). The Court also

notes that Petitioner did not object to the evidence at trial. (See Dkt. No. 24-10 at 112-58.)

He vaguely referred to the expert testimony in discussing his pretrial motion in limine, but

the trial court denied the motion because counsel did not ask for a “Daubert, Robinson or

any of that business exclusion.” (Dkt. No. 24-6 at 10.) For all of these reasons, the TCCA

reasonably rejected Petitioner’s challenge to the reliability of the cell-phone location

evidence.

Petitioner also asserts that his due process rights were violated when the Brown

County prosecutors introduced his ranger statement in his Coleman County trial, despite

previously telling the Brown County court that they would not introduce it because it was

30

A

unlawfully obtained. But as explained above, Petitioner failed to properly raise this judicial

estoppel7 argument in the state courts. Thus, it is unexhausted and procedurally barred

from federal review. The Court cannot grant relief on this claim. 28 U.S.C. § 2254(b).

Neither can the Court deny this claim on the merits. The record before the Court is limited

to his Coleman County capital murder proceedings and does not include transcripts or other

records from Petitioner’s related, but distinct, Brown County criminal proceedings. Thus,

the Court lacks the records necessary to determine the merits in the first instance.

vi.

Ground Six: Jury Misconduct

In his sixth ground for relief, Petitioner complains that the jury was permitted to

consider evidence not presented at trial. Although Petitioner characterizes this as jury

misconduct, he really complains that the judge improperly influenced the jury with

supplemental instructions. Specifically, Petitioner challenges the trial court’s response to a

jury note. After deliberations began, the jury sent out written questions about the victim’s

boyfriend, Kemper Croft. (Dkt. No. 24-14 at 96.) The note read, “Was Kimper Croft

interrgated - What is his status today? - Was his phone record looked at [all sic].” (Id.) The

trial judge responded by writing on the note, “1. Mr. Croft was questioned. 2. There was no

evidence on his ‘status.’ 3. There was no evidence on Croft’s phone records.”

Petitioner alleges that the trial court permitted the jury to consider evidence outside

the record. The Supreme Court has explained that a trial judge may comment on the

testimony offered at trial when instructing a jury, but he “may not either distort it or add to

it.” Quercia v. United States, 289 U.S. 466, 470 (1933). The Court emphasized a judge’s

7 Judicial estoppel is “a common law doctrine by which a party who has assumed one position in his

pleadings may be estopped from assuming an inconsistent position. The purpose of the doctrine is

to protect the integrity of the judicial process, by preventing parties from playing fast and loose with

the courts to suit the exigencies of self interest.” In re Coastal Plains, Inc., 179 F.3d 197, 205 (5th Cir.

1999) (internal citations and quotations omitted).

31

obligation to communicate with the jury in a way that is neither misleading nor one-sided.

Id. So a trial judge should respond to jury questions “with concrete accuracy.” Bollenbach v.

United States, 326 U.S. 607, 613 (1946). When a jury seeks guidance after deliberations have

begun, “the court must exercise special care to see that inaccuracy or imbalance in

supplemental instructions do not poison an otherwise healthy trial.” United States v. Carter,

491 F.2d 625, 633 (5th Cir. 1974). The Fifth Circuit has observed that “the touchstone of

the inquiry might be described as whether there was prejudice to the defendant.” United

States v. Le, 512 F.3d 128, 132 (5th Cir. 2007). Petitioner cannot show any prejudice here

because the record betrays his contention that the jury considered evidence outside the

record.

The trial court’s response to the jury’s questions accurately reflected the evidence

introduced during trial. The fact that law enforcement questioned Kemper Croft, at least

twice, was discussed at length during the trial. (See Dkt. No. 24-9 at 63, 78, 86-89.)

Moreover, the trial court’s other responses—that no evidence was introduced to answer

their questions—did not provide the jurors with any information outside the record.

Additionally, there is no indication that Petitioner objected to the court’s response at the

time.

In sum, the court’s responses to the jury questions were neither misleading nor one­

sided. And most importantly, the responses did not prejudice Petitioner. Petitioner has not

shown that the trial court’s response to the jury’s note improperly influenced the jury or in

any way deprived him of a fair trial. The TCCA reasonably rejected this claim in light of

clearly established federal law.

v A>

8 In fact, the testimony at trial at least strongly suggested that law enforcement looked at Kemper

Croft’s cell phone records in ruling him out as a suspect. (Dkt. No. 24-9 at 89.) So if the trial court’s

response to the jury’s note was inaccurate at all, that inaccuracy was favorable, rather than

prejudicial to Petitioner.

32

vii.

Ground Seven: Improper Jury Argument

Similarly, Petitioner claims that the prosecutor improperly argued to the jury that he

“knew how the gun was used,” even though “there was no mention of any weapon ever

being introduced or used” at trial. (Dkt. No. 1 at 8.) But Petitioner’s claim misrepresents

the evidence. The prosecutor first summarized the evidence that the jury heard, including

evidence that Petitioner (1) recently asked his nephew about where a deceased relative’s .32

caliber gun ended up, and (2) bought .32 caliber ammunition on the day of the victim’s

disappearance. (Dkt. No. 24-12 at 34-35.) The prosecutor acknowledged to the jury that

law enforcement never found the gun or the ammunition but reminded them of the relevant

testimony they had heard and the surveillance video of Petitioner purchasing the

ammunition—using his girlfriend’s debit card and having recently removed the sewn-on

name tag from his shirt. (Id. at 35.)

Later, the prosecutor discussed the State’s theories for why the victim may have left

with Petitioner, despite evidence that she was afraid of him and had told her friends she

would not get into a car with him. (Id. at 37.) The State suggested two theories and asked

the jury to consider what made sense in light of the evidence they had seen. “Could it have

anything to do with a .32 caliber pistol?” Or “was it the big deception of’ promising to

return the victim’s personal property? (Id.) Discussing the kidnapping element of the

charged crime, the prosecutor concluded that “whether he . . . gets her into the truck by

deception, or whether he puts a gun in her face and forces her into the vehicle, it matters not

which one.” (Id.)

Under Texas law, “[i]t is well established that properjury argument must fall within

one of the following categories: (1) summary of the evidence; (2) reasonable deduction from

the evidence; (3) in response to argument of opposing counsel; and (4) plea for law

33

enforcement.” Botjan v. State, 787 S.W.2d 53, 55 (Tex. Crim. App. 1990). Thus, a

prosecutor may “draw from the facts in evidence all inferences which are reasonable, fair

and legitimate, but he may not use the jury argument to get before the jury, either directly or

indirectly, evidence which is outside the record." Id. at 57. For purposes of federal habeas

review, “[t]he relevant question is whether the prosecutors’ comments ‘so infected the trial

with unfairness as to make the resulting conviction a denial of due process.’” Darden v.

Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637

(1974)).

The TCCA’s summary denial of this claim includes an implicit finding that the

State’s jury argument was proper. Indeed, the TCCA could have reasonably found that the

prosecutor’s comments fell into permissible categories of arguments—summarizing the

evidence and drawing reasonable deductions from the evidence. The record disproves

Petitioner’s claim that the prosecutor mentioned evidence that the jury had not heard. The

State’s arguments recalled the testimony of Petitioner’s nephew, two employees of the

sporting goods store where Petitioner bought ammunition, as well as surveillance footage

and a time-stamped receipt. Then, the State asked the jury to draw reasonable inferences

from that evidence, all while acknowledging that some of the details remain unknown. The

prosecutor’s comments were well within the limits of a proper jury, argument. Thus, the

Court cannot conclude that the State’s closing argument rendered Petitioner’s trial unfair or

resulted in a denial of due process. The TCCA reasonably rejected this claim,

viii.

Ground Eight: Ineffective Assistance of Counsel

In his final ground for relief, Petitioner asserts that he received ineffective assistance

of counsel at trial and on appeal. First, he claims that his trial attorney had a conflict of

interest because he also represented a person listed as a possible State’s witness but who

34

never testified. (Dkt. No. 1 at 8.) Then, he claims his appellate attorney was ineffective for

failing to raise a “Dead Bang winner” of a claim—related to the denial of his request for

mistrial—that he contends would have resulted in reversal. {Id.)

The well-known standard forjudging Petitioner’s contentions is articulated in

Strickland v. Washington, 466 U.S. 668, 689 (1984). Under the two-pronged Strickland test, a

petitioner must show that counsel’s performance was both deficient and prejudicial. Id. at

687. An attorney’s performance was deficient if the attorney made errors so serious that the

attorney was not functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment to the United States Constitution. Id. That is, counsel’s performance must

have fallen below the standards of reasonably competent representation as determined by

the norms of the profession.

A reviewing court’s scrutiny of trial counsel’s performance is highly deferential, with

a strong presumption that counsel’s performance falls within the wide range of reasonable

professional assistance. Id. at 689. A strong presumption exists “that trial counsel rendered

adequate assistance and that the challenged conduct was reasoned trial strategy.” Wilkerson

Collins, 950 F.2d 1054, 1065 (5th Cir. 1992) (citing Strickland, 466 U.S. at 694).

Additionally, a petitioner must show that counsel’s deficient performance prejudiced

the defense. To establish this prong, a petitioner must show that counsel’s errors were so

serious as to deprive petitioner of a fair trial. Strickland, 466 U.S. at 687. Specifically, to

prove prejudice, a petitioner must show “(1) there is a reasonable probability that, but for

counsel’s unprofessional errors, the ultimate result of the proceeding would have been

different. . . and (2) counsel’s deficient performance rendered the trial fundamentally

unfair.” Creel v. Johnson, 162 F.3d 385, 395 (5th Cir. 1998). “Unreliability or unfairness

does not result if the ineffectiveness of counsel does not deprive the defendant of any

35

substantive or procedural right to which the law entitles him.” Lockhart v. Fretwell, 506 U.S.

364, 372 (1993). This is a heavy burden that requires a “substantial,” and not just a

“conceivable,” likelihood of a different result. Richter, 562 U.S. at 112; see also Pinholster,

563 U.S. at 189.

In the context of § 2254(d), the deferential standard that must be given to counsel's

representation must also be considered in tandem with the deference that must be accorded

state-court decisions, which has been called “doubly” deferential. Richter, 562 U.S. at 105.

“When § 2254(d) applies, the question is not whether counsel’s actions were reasonable.

The question is whether there is any reasonable argument that counsel satisfied Stricklands

deferential standard.” Id. Additionally, if a petitioner fails to show either the deficiency or

prejudice prong of the Strickland test, then the Court need not consider the other prong.

Strickland, 466 U.S. at 697.

Here, Petitioner’s ineffective-assistance-of-counsel claim was adjudicated on the

merits in his state-court proceeding, and the denial of relief was based on a factual

determination that will not be overturned unless it is objectively unreasonable in light of the

evidence presented in the state-court proceeding. Miller-El v. Cockrell, 537 U.S. 322, 340

(2003). As part of the state habeas review process, the trial court gathered affidavits from

Petitioner’s attorneys and made findings of fact and conclusions of law, recommending that

the TCCA deny Petitioner’s ineffective-assistance-of-counsel claims.

The trial court found that Petitioner’s trial attorney notified Petitioner of the

potential conflict if the witness were Ccfikd-to4estify_and that Petitioner waived the potential

conflict, choosing to continue with his lawyer. (Dkt. No. 24-59 at 4.) The trial court further

found that no actual conflict ever arose because the witness was not called to testify. (Id.)

The court also found that Petitioner’s lawyer could not have “steered” the trial away from

36

his client being called as a witness, and no evidence suggested that the witness could have

provided any evidence or testimony that would have helped Petitioner had he been called.9

{Id. at 4-5.) Based on these facts, the trial court determined that Petitioner had not shown

that his lawyer’s performance was deficient or that he was harmed as a result. {Id. at 5.)

Similarly, the trial court found no error in appellate counsel’s failure to raise the

mistrial claim. After reviewing the record and the affidavit of Petitioner’s appellate

attorney, the trial court found that the decision not to raise the mistrial issue “was a studied

and conscientious strategic decision made by appellate counsel.” (Dkt. No. 24-59 at 5.)

'J

M

The court also found that the decision was reasonable and supported by legaLautharityT-in

light of the trial court’s offer of a limiting instruction as an alternative remedy for the

inadvertent mention of Petitioner’s parole status and Petitioner’s declining to request the

instruction. {Id.) And the trial court found that Petitioner’s appellate attorney made him

aware of the decision not to raise this issue on appeal. {Id.) So the trial court concluded

that Petitioner was unable to establish either deficient performance by his appellate attorney

or resulting prejudice. {Id.) The trial court submitted these findings of fact and conclusions

of law to the TCCA, and the TCCA denied Petitioner’s habeas application without written

order. (Dkt. No. 24-45.)

Section 2254(e)(1) provides that a factual finding made by a state court must be

presumed to be correct. The petitioner has the burden of rebutting this presumption of

correctness by clear and convincing evidence. Hill v. Johnson, 210 F.3d 481, 485 (5th Cir.

2000). This type of state-court factual determination is not unreasonable even if the federal

9 The affidavit of Petitioner’s lawyer also explains that the prosecutor had a habit of adding current

or former clients of defense counsel to State’s witness lists to obtain the withdrawal of defense

counsel. {See Dkt. No. 24-59 at 7.) And there was no indication that the State ever intended to call

the witness to testify because he was not a fact witness and no subpoena was ever issued for his

presence at trial. {Id.)

37

V

habeas court would have reached a different conclusion in the first instance. Burt v. Titlow,

571 U.S. 12, 18(2013).

Moreover, when, as here, “a state court has already rejected an ineffective-assistance

claim, a federal court may grant habeas relief [only] if the decision was ‘contrary to, or

involved an unreasonable application of, clearly established Federal law, as determined by

the Supreme Court of the United States.’” Yarbrough v. Gentry, 540 U.S. 1, 5 (2003) (quoting

28 U.S.C. § 2254(d)(1)). See Santellan v. Cockrell, 271 F.3d 190, 193 (5th Cir. 2001) (“[A]

federal court’s authority under AEDPA is. . . limited to determining the reasonableness of

the ultimate decision,” even if the state court has rejected an ineffective-assistance claim

with no reasoning.).

Given the circumstances, the state habeas court’s finding that counsels’ performance

was not deficient is reasonable based on the state-court records. Petitioner has not presented

clear and convincing evidence to rebut any of the trial court’s findings. He has not rebutted

the finding that he knowingly waived his trial attorney’s notentiaLconflict. And more

importantly, he has not shown that an actual conflict of interest arose or that he was harmed

in any way by his attorney’s representation. The state court reasonably concluded,

consistent with the Supreme Court’s Strickland standard, that Petitioner failed to show that

his trial attorney’s performance was deficient or that he suffered any harm as a result.

The Strickland standard applies equally to claims against appellate counsel. See Smith

v. Murray, 477 U.S. 527, 535-36 (1986). As discussed above, Petitioner’s mistrial claim is

flimsy. The error itself—the quick, inadvertent mention of Petitioner’s parole status—was

relatively minor. Despite his repeated contention that the claim is a “Dead Bang winner,”

Petitioner has not shown, at any level of review, that the trial court erred in denying his

request for mistrial. In any event, the “process of winnowing out weaker arguments on

38

appeal and focusing on those more likely to prevail, far from being evidence of

incompetence, is the hallmark of effective appellate advocacy.” Smith, 477 U.S. at 536

(1986) (internal quotation marks omitted) (quoting Jones v. Barnes, 463 U.S. 745, 751-52

(1983)). The TCCA reasonably concluded that Petitioner failed to satisfy either prong of

Stricklands test for ineffective assistance of counsel.

Because reasonable arguments could support the state court’s finding that

Petitioner’s counsel satisfied both prongs of Stricklands deferential standard, Petitioner has

no right to relief under Section 2254(d).

4.

Conclusion

After carefully reviewing the state court records and the pleadings, the Court finds

that an evidentiary hearing is unnecessary to resolve the instant petition. See Young v.

Herring, 938 F.2d 543, 560 n. 12 (5th Cir. 1991) (“[A] petitioner need not receive an

evidentiary hearing if it would not develop material facts relevant to the constitutionality of

his conviction.”). For the reasons discussed above, the Court finds that Petitioner is not

entitled to federal habeas relief. His claims are partially unexhausted and procedurally

barred, and he has otherwise failed to show that the state-court adjudication of his claims

was contrary to or involved an unreasonable application of clearly established federal law as

determined by the Supreme Court of the United States, or was based on an unreasonable

determination of the facts in light of the evidence presented in the state court proceeding.

28 U.S.C. § 2254(d).

The Court therefore orders:

(1)

The petition for writ of habeas corpus is denied and dismissed with prejudice.

(2)

All relief not granted is denied, and any pending motions are denied.

39

(3)

Under Rule 22 of the Federal Rules of Appellate Procedure and 28 U.S.C.

§ 2253(c), this Court finds that a certificate of appealability should be denied. Petitioner has

failed to show that reasonable jurists would find (1) this Court’s “assessment of the

constitutional claims debatable or wrong,” or (2) “it debatable whether the petition states a

valid claim of the denial of a constitutional right” and “debatable whether [this Court] was

correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

The Court will enter judgment accordingly.

Dated March 28, 2022.

/James Wesley Hendrix

United States District Judge

40

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

SAN ANGELO DIVISION

LANNY MARVIN BUSH,

Petitioner,

No. 6:19-CV-00006-H

v.

DIRECTOR, TDCJ-CID,

Respondent.

JUDGMENT

For the reasons stated in the Court’s order entered today, it is ordered, adjudged, and

decreed that this petition for writ of habeas corpus is dismissed with prejudice.

Dated March 28, 2022.

/JJ.

/ Tames Wesley Hendrix

United States District Judge

r

NOVBfflER 03rd, 2022

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OFFICE OF THE CLERCK

Lyle W. Cayce

C

RE: Document: oo516523544; Filed 10/26/22; Casw: 22-10345

Bear Mr. Cayde:

Please be advised that the ORDER was received and I would like to point out

the fopining:

* Judge Jerry F, Smith GRAKED motion to file a supplemental brief;

This brief was filed in the 5th dr. on July 20, 2022. (Please see your

records for this documenjr.)

6 A motion to leave was also filed in the 5th Cir. on July 20, 2022. These

were mailed postage paid at the same time to the court.

Elements of the JudgeAs findings per the ORDER ise ambiguous at best and leaves

question as to exactly what the Court seeks for the requested relief. Namely, page 3

of document 00516523655, paragraph 2; "To obtain a 0GA, Bush must make ,Ma substantial

showing of the denial of a constitutional right.'” Said information is unequicically

present in: Document 31, Filed 05/23/19 in the Northern District of Texas, San Angelo

Division, which was mailed to this honorable Court with the other aforementioned docu­

ments.

I am requesting your office to inform me if new copies must be mailed, or will

the copies I have already submitted be enterdd into the record. I would appreciate your

attention in these matters and advising me accordingly.

Respectfully,

Gatesville, Texas 76597^0001

1

appendix

I

UNITRED STATES COURT OPF APPEALS

,

5th CIRCUIT

NHBHORLBIEIB, LA

LANNY M. Bush;Pepiotioner

(

)

V.

BOBBY Lumpkin;Director, TDCJ

Respondent

( CAUSE NO: M-10345

)

(

PETITIONERS SUPPLEMENTAL BRIEF

Honorable Justices of Said Court;

Comes, Petitioner in this cause whom files this

his supplemental! brief for Additional consideration on the Merits

along woith hislOriginal Brief- Petitioner will contend hhe following;

I.

Issues Prsented

1- Ia-su^ficent Evidence to support a Capitol Conviction

_2. Hue Process Violation. Not allowed to rebutttAddversail

proceedings .

3. Conflict of Intrest- betewwen the Attorney and States witness

whom was also a client of the Attorney of record

4. In-Effectcive assisitance of Counsel; Counsel labored under

conflcict, Didnot Invetigate, Failed to object to Closing argumenbfe$Failed to Object, allowed junk science to be intorduced

5. C^lletreal Estoppel* District attorney abused his Powerby

introducing a Ranger Statement that he had Previously stated

in open court that was Illegal and woiuld not be using it, in another

Court then usewd the Statement in this Prosecution5. Suppressed Evidence- State suppressed evidence and statements

thaT HAD THE Jury been awaare of would have resulted in a difrent outeome. Statements that would have created a reasonable

doubt.

7. Haranda violations- used and extracted a Illegal sftOJ&BKnt

with coercion, thraets and Bribes without given Miranda Warrings'TV

•'

"

"

■-

-

-

Petitioner contends that these Violation deprived him pf a Fair and

Impartial Trial.

-1APPENDIX

J

II.

Insufficient evidence to support a Capitol Murder convictionfKidnapping)

Petitioneercontends that the Conviction for capitol Murder,

does not support the Canvis*tionby evidence- I Order for a Capitol

murder to be Legal an underlying felony must be Proven. In this

case Kidnsppingis supposely the uAdrrlying felony. However Kidnapping

Both the CoC.A

requires proof pf rerstraint and use of force

and the District court rukled on the fact of the Soft Robe belt

that was founf in the Petitioners Truck sotneweeks later- Neither

Couer took into considerationm that petitioner had recently moved

from one city to another and the soft Rotie belt could have been

the remaints of the Move. Both copurts speculated to the Illegal

Use of the Robe belt w/o and evidence to support kidnapping.

Both Courts also considered Freon in the Petitioners truck as

Part of the act of Kidnapping. Neither sourt considered the Proper

use of the Freon, instaed speculated on illegal use. The CCA desenting

Opinion, went into great lenghts to show how impossible that ideal

would be to restrain the Victum, use the Freon and NOT get himself

Intoxicated in the Process.(See CCA Diosenting Opinion of J. Walker

and J. Alaala). The 11th Court of appeals got it right when thay

reversed the convictioin and remanded to trial court for resentcing

on punishemnt , citing evidence was insufficent to support capital

murder. The legal defenition of Capitol murder is defined as; Under

aperson commits capitol murder if the persoa

flenal code 19.03(a)(2)

Intentionslly commits the Murder in the course of commoitting or

attempting to commitKidnapping,Burglary, Robbery,Aggrevated sexual as-ualt

in this case the state was burdenb

arson, or terroristic threat

with proving*both that the appellant intentionally caused the death,

and did so in the course of Kidnapping.(CR-9)(Clerks record). Kidnapping

is intentionally or knowlingly restricing a person movements, by

either moving a person from one place or another, or confining a

pereson wotout that persons consent.-Penal code |20.01(1)(A),(8)

$A)and(B) and 20.03.(a).requires that both restraint and intent be p

proven. Petitioners case dafinot do that. Instaed CCa and the district

Court Speculated on Issues that were never proven to be Illegalr(ieIn Ordder to prove capitol Murder, that State

Freon amd Robe belt)

is Required to prove beyong a resaonable doubt that the Petitioner

had the specific intent to commit kidnappiung and he committed an

• • t

, • ♦ •

ACTthaT amounted to more than mere preparation • * The State does not

-2-

'focus on the fact of no direct evidence and merely relies

on speculation and Coufcl Have*s . The State and the CCa along

with the District Court wants this Court to Blindly accept all

possible Inferences and speculation without any evidence, diredt

or circumstaipal to support the Underlying felony. The 11th

court of appeals stated that :"even under a defenterial standard

inferences alone cannot be held to support a verdit of capitol

murder when there is a absence of Evidence. Inferences are not

on the samne level as evidence. In the States Brief, they admitted

that ghere was No Direct evidencethat victum was moved, or held

agiaand her will. There is no evidence to establish Petitioner

kidnapped victum at the Baseball field where the victum car

was found, There is no eveidence to suhstaibn any struggle took

place(vol6p!00).The only remotely evidence that vicbum and Petitioner

were in the same general location is the ZCellPhone date(Vol-7,pl9).

Cell Phone data that isnot proven to be Reliable ar accurate, acnnot

be construed as evidence. Even so Cell phone data is not idicutive

of kidbappingand does not saatisfy the element of the offense of

kidnapping. The standard for reviewing legal sufficency clams is

Jackson V. Virginia,443 UP 307(1977), esatblishing that the evidence

is sufficent if viewed in the light most favorable to the verdict,

any ratiomaal trier of fact could have found the elements of the

offense beyong a reasonable doubt . The offense of Kidnapping is

complete when the restraint is accomplished and there is evidence

that the defendant intented to restrain the Victu.. The State offered

■o evidence in this case that there was a Kidnapping. The Circumstal

evidence and ZInferences does not support the necessary requirements.

(1) the existence and timing of appellant?petitioners Intent

to kidnappe victim(2) theaccomplishmnet or attempted restraint(3^

the lack of consent by victim to moved from one place to another,

by Petitioner. To substain a conviction of Capitol murder, Petitiomner

mustr have been in the Course of kidnappingwhen he commited Muyper.

I&re thre is no eewdence that to support kidnapping. There is no evidence

to substaniate retaraint or use of deadly force, no evidence of struggle,

(direct of circumstanial)nolsigns of foulclplay at the scene where the

car was found, or otherwise. Considering all the possible scenarios

any plausable

thing could have happend. Celll phone data alone cannot

supporta conviction for capitol Murder based on the Untested and in­

accurate science.

-3-

r

.2. DUE PROCESS VIOLATIONS :

Petitioner contends that he has a right under the 14th Amraendment

of the United states Consitution, to due Process in any adversaj.

porceeding and should not be deprived of Life liberty or Property

without such Due process. During Petitioners Habeaus corpus pet­

ition, The Court of Criminal Appeals issued a Order to the Trial

Court to iJold a Fact finding hearing to determine the Content

of Petitioners Claim of In-effective Assistance of Counse/,

and Conflict of Intrest with His Attorneys of Record. Atttorneys

both submitted Statement to the Court, which ruled than sent

the Facts and conclusion to the Court of Criminal appeals. That

Court dismissed any relief without written Order. Trail court

didnot allow Petitioner the Oppertunity to Respond to the Attorenys

Statement BEFORE ruling, which greatly deprived Petitrioner of

the right to Due Process. CCA then Issued a Ruling before the

petitioner could Get a Response in. In-Effective assistance of

Counsel and conflict of Interst are grounds in which a Hearing

shoukld have been Issued to Betremine the facts.

(b) Petitioner also contends that He has a Right to Testing

of DNA when the Idneity of Perpertratior is in question. State

had several tyes of Evidence to test, including Biological and

Class evidence. State is bound by the Seneate Bill-3 to test

any and all Dna when requested. Petitionet requested sucj test

but was denied, By the Trial Jude stating:”case onaAppeal11. State

did take a sample of Petitioners Dna for comparision and there

was no Match , from the crime Scene, From the Body, or From the

Alledged Abduction site. If DNA can convcit witout Question,

why Cant Dna Exonarate? Petitioner Asserts that Had there been

a Full testing of DNA that was availabe, A guilty Conviction

would not have happen, Instaed withopiuCull Testing, Petitioner

was denied his Consitutional right to due Process. A Famous

Frenc Criminftligst Named Stephen Locard, intoduced the Locard

Ppknclpal, which is Proven that*Phere is always and exchange

of Evidence between Victim and Perfr.1* in the case at Bar, Not

one piece of DNA if found that matches the Petitioner. Couetfc

must ask themself why? Coftld it be that maybe the Petitioner

is in fact Innocent&elf Not why isnt there some type of DNA matching

to the Petitioner?

-a-®

3* Conflict af intrest88”; Petitioner contends that hee was

denied hid right to Effective assistance of Counsel because of

the conflict on Intrest between the attorney of recoed and the

states witness, whom Had been Placed on the State switness list

some 10 da$y prior 06 TrA41. Attorney submitted a Affivdavit

that Stated that he had spoken with the Petitioner prior to trink

about such conflcit. However petitioner contends that no such

meeting ever took place. For One, Gpansel could have only learned

of such witness on the 27th of March-2014, and any such refrence

before that date would have been premature.Secondly, Why would

Counsel attempt to bring a Subjectfcthat has not arisen yet?

State and District court also have stated that no conflict

arose because the witness was not called. Petitioner asserts,

that this is notTrue, because the Attorney was laboring under

the conflict. Attorney copuld not and Would not calll his client

so as to expose the "DEAL" between The DA and the wirness for

Lesser criminal charges in exchange for testimny afgianst the

Petitioner. Such examination coultt have and Would have produced

the oppertunity to discreedit and impoaah other witness. By the

Conflict as decribed in the Attorneys Statement, (see attorneys

Affivdate) It was acommon Practice foe the Da to create a Conflict

in efforts tp get the attorneys to withdraw. Just One examole

of the Underhanded Tactiss of the Prosecution. In Johnson v. Hopper

639 F.2d 236(5thyCir);THAT Court held that • » • Ineffective representation

by a Lawer Laboring under Conflict o£ Cofcrest renders the Trial

fundamentally Unfair wether the KJudge knew of the Conflict of

Not.(citing Johnson-Sipra). A consitutional Implication occurs

when defense attorney is Placed In a sisuation inherently conductive

to decied loyalties. When a actual conflict exist, Prejudice need

Citing JofcnsonSu|HJ£ra.

In Cyler v.

not be shown or Proven

Sullivan;466 US348, The Suprem Court ruled that a Defendant can show

a 6th amranederanet violation by proving that • • counsel was actively

representinh conflict of Intrest...Also US v. Nickleson;475 F.3D241)

-5-

' In this case not only has it been stated and Proven that a

Conflcit actually existed, but that the Attorney was operating

inder such Conflcit, and Did Steer thg trial away from calling

such witness, therefore depriving petitioner of the right to Cross

Examing witness agianst him and denied the Right to Compell witness

in his Favor. Both A consitutional right.

4* In-Effective assistance of Counsel;

As Stated Prior to in the Aboveeparagraph, Counsel Labored

under Conflcit of Intrest and thceefor deprived Petitioner the

right to, effective assistance of Counsel due to that conflcit.

It was a catch 22 operation designed by the District Attorney

knowling that If the counsel called the Witness, It would be

a Conflict, and If the Counsel; Didnot call the Witness, that

Counsel would deprive the Petitioner of the Right to Cross examne

and Compi&l witness in his favor. The only attertative was for

the attorney to steer the Trrial away from calling his Client as

a witnesss. Counsel chooose to sway toward the Retained client

to protect his rights and Deny Petition his.

(b) Counsel didnot investigate witness for impeachment, or

acll any expoert witness or defense witness, Counsel didnot Objcet

to Closing argumnets by the District attorney at the Mention o4

a weapon, and "how It was allege;l$y use". Did not object to the

SECOND Mention of Prior criminal history, even after altercation

with the first instance. See$Exhibit 41). Counsel allowed Junk

science to be intorduce,(GPS MAPPING0 when it was proven in Court

to be faulty and innaccurate. Counsel Did not object to the District

Attorney using the Ranger Stat«aet agians the Petitioner when the

Attorney was the Same one who was in the 35th Court when the DA

said that the Ranger was statement was Illgal and would not be using

it. Attorney knew colleteral estoppal should have been ineffvct,

but did nothing.

C. Appellate Counsel; Rendered ineffective assistance of counsel

by the starined relainship between Petitioner and Counsel. Attorney

would not Communicate with Petitioner, Untill he notified the State

Bar in which tfcheCouysei then attempted to withdraw. The Court of

-6-

Criminal Appeals refused and Order the Attorney to contiuie.

Then the Communication became hostile* Attorney was instructed

to include the mention of Prior criminal History in the appeal

Brief, and refuse to do so. Appeal Attorney cited some case law

fkhA had nothing remotely to do with the Issue. However It is a

Atorneys duty to follow the Cliants command. Petitioner had even

had issue about the Attorneys Qualifications, since she was mostly

a Family lawer and had no experence with Capitol Murder cases*

Appeal Attorney cause the Petitioner to be defcaed the right to

a Fair and right appeal by not including Mention of Priors in the

Appeal Brief which is mostly commonly considered a”DEAD bAng winner”

5* Colleteral Estoppel;

Petitioner has repeately complained abouit the

District Attorney using the Ranger Statement in another Court

when he first said that it was Illegal and would not be using

it. However Petitioner did not know that it wass Called Colletyesil

Esstoppel* Petitioner only knew that it was not righH. Petitioner

broughyt up the Issue ant every stage of appeal, QBtitioner

even attempted to get the District court to EXpand the record*

to include this thru Motions to expand and Discovery, but was

denied by the district Court.JjSee Distrcit court Doc#15,28,36,41,43)

Petitioner did all that was ioahis knowwledge to have the

record expanded to include this issue, District Court was not

allowing this to proceed.

6. Suppressed Evidence;

State Suppressed statements that ahd they been

intorduced would have alterated at least one or more jurors.

Statements from the Victims Current Married Boyfrien, that

sworw he had talked to the victim on at least two seperate

times and was”Positive of the days) afetr the Victim had allegely

disappeared* Then there qsrs tbh satement from a Co-Worker and

friend who told police that the Victims car was not at the

Ball prak that Motnig but was at the Park that eveiniong,

whioch would suggerst that the Victim was not abducted as the

S&&68 so suggested- Takeb into account that the Victim had

accepted new frSiedd on face book that following eveingod 09/13/2014.

The Two statements alone would have convinced the Jurors that

kidnapping was not lprfehent. It woulkd have created reasonable

Doubt #

-7-

It is not for thr district attorney to decied what the

juoy hears but for the Jury to hear all the evidence favorble

to the defendabb$* District Court Cited that the Stfcfee feljr

that the Victims bojtfrien was lieing and therefore not truthfull

and non pertaint to the case. But on the other hand. Investigator

felt that Petitioner waas li§$fl§ SlS8 feB? submitted it to the

Court.Jurp is entitled to hear all the evidence and decied

accordingly, Not just what the State wants them to thear.

Then Lets look at the Unidentified Witness. Wtjile it was mentioned

in the Trial, The Attorney didnot bring forth the Identification

of the witness for cross exavalitgn. This witness gave a deescription

of a Man and Woman(who matched the Victim) at the Bal^ park on

2

9/294A* What is so suppressed about the Statement id the fact

that the witness saw a Pickup (gold in color) and a Man ther aslo.

ftrtitioner asserts that the Pickup could ahve been Idntified if

the wiitness had been called. Fictims Boyfriend Drove a Gold Pickup

with a Ladder rack, But this was not intordtued. petitioners truck

was actually sandy Color. Still the Witness could have identified

one or the other Trucks, therfore creating reasonable doubt

and altering the Mind of at leastrone juor. Why wasnt this Witness

Idnetified and/Or called? Agian In-Effective assistance of counsel.

To date the Petitioner still does not know the Identif of this

Witness. Police and State refuse to Idnetify this wirness. Once

agian Petitioner sought to Include and gain idenity of this person

thru expanding the record. District Court refused.

7. Miranda Violations.

Petitioner contends that he was in custody

from the time that he arrived at the Station. What this court does

not know is that Petitioner didnot dribe to the Police station.

Petitioner founds out that the Rangers had his Girlfriend in the

sation for questioning, and knowing that the Rangers werersomewaht corrupt, felt in fear for his Girl fiiend, and asked her to

come and get him and take him to the station while they talked ,

to her. Needless to say that one.ce he arrived at the Station all

attention turned to Petitioner and the rangers no longer wanted

to talk to the Woman ‘Petitioner and the Lady wwee seperated upon

-8-

i

■

\

/

\

III.

CONCLUSION

Petitioner, that through out the entire appeals process, he

has attempted to submitt his errors and grounds in complisnce with

the rules. Some grounds have been submitted under diffrent titles,

but the Subject is the same, Petitioner moves this court to accept

petiotioner ssupplemental Brief, Original Brief, and all other

Submitted Plaeding for comsderation in this Matter. Petitioner

firmly believed that his rights were and have been violated and

this court ahas they PONHER AHd Authority to grant reilef as Deemed

necessary. Petitioner has never asked for Aquittal, ONLY to have

A new Tr&tl, Failrly and Equally.

IV.

RELIF

Petitioner moves this Court to grant r&lif in the from of a

New Trail On the Merits of this Case and/Sr reform the conviction

to murder and Order A new Trial on punishment only, as the capitol

Murder is Illegal.

Petitiomner will forever Pray.

Lanny M. Bush Pro-Se

3201 Fip $292

Gatesville Tx 76597

8

se

CCERTIFICATE OF SERVICE

I do hereby certify that a fcue and correct copt of the Petitinnesr

Supplemental Brief ahs been mailed to the United State District Court

Correctly Addressed, properly Addressed and postage pre-Paid.

day of

Done '‘this

2022

Lanny M. Bush Pro-Se

3201 Fm 929

Gatesville, Texas 76597

-10-

UNITES STATES DISTRICT COURT

5TH CIRCUIT

NEW ORLEANS , LA.

A

LANNY M. BUSH:•PETITIONER

v.

(

)

( CAUSENO:22-10345

)

BOBY LUMPKIN, DIRECTOR,

v(

T.C.J.« RESPONDANT)

MOTION FOR RECONSIDERASTION

Honorable Justices of said Court;

COMES NOW, Petitioner, larray M. Bush, in the above styled and

numbered caused who filees this Motion for reconsideration for

Certificate of Appealabilty in this cause. On 10/26/22, this Court

issues an Order denying COA to the Petitioner, stating that Petitioner

needed to” make a substainal showing of Denial of Consitutional

right" to obtain a COA. Petitioner brings to the attention of the

Court, the Following;

1. Several Pleadings, SUPPORTING petitioners request

for COA were filed in this Court, Only to be filed as "NO ACTION"

by the Clerk. Each of these Pleadings supported the Consitutioinal

Right Violations as well as the Alledged procedural Bar issue.(see

case no 6;17-cv-0000-6-H Document 31)$Case no 22-10345,Objection to

District courts Ruling, Petitioners response, as well as Merits of

appeal expanded).

2. Petitioner filed his supplemental brief

with the Court and was told that Leave of the Court was required.

Petitioner filed this Leave of the Court.

3. Petitioners Supplemental brief outlined

the Consitutional Violations that weee had in this cause, as also

in the merits of appeal expanded.

4. Petitioners Claims are NOT procedural bar and

Have not Presented for the zfirst time on appeal, as nnt*£ed»dn

his Response to respondents awnser (Document 31,6-19-cv)and 11.07

PGR, and 22.54

5. DNA Lab results were mailed to the Court

showing innocence of the crime, and was not considered. No Appeals

court has considered the DNA in this case, even though it was brought

to the attention of Each and Every coutt. This in its self is a Viola£>

of due process, where the Guilt or innoncence is in question.

&

C

Prayer

Petitioner moves this court to Re-Consider Petitioner Request^x*

=LL=:

/>

-l

for Certificate of appeallibilty in this cause

based on the Consitutional Violations.

Petitioner will forever Pray*

Lanny H. 45ush Peo-Se

CERTIFICATE OF SERVICE

I9 do hereby certify that a True and Correct Copy of this

Motiuon for reconsideration has been Maile to the Honorable Court

of Appeals in the 5Th Circuit, of Hew oeleans, la. On this day.

By plkacing same in the US postal service, potage pre-paid, correctly

addressed.

2022.

day of t'J&'S

Done this

1

3201 Fm 929

Gatesvil&e. fexas 76597

-2-

UNITEB STATES DISTRICT COURT

STH CIRCUIT

NEW ORLEANS, LA.

■n

r

ganny M. Bush;

Petitioner,

v.

'

e

(

)

(

)

(

Cause no; 22-10345

Boby Lumpkin, Director,TDCJ,

* Respondant;

______ ;_______SUPPORTING GROUNDS FOR RECONSIDERATION_______ ,

TO THE HONORABLE JUSTICES OF SAIB COURT:COMES NOW, petitioner in the above styled and numbered

cause,'Who& files this Suppoting Grounds for re-Consideration

inn this ^Pleading. Petitioner asserts the following as reasons

for re-consideration.

I.

This Court Isssued a ruling on Oct /26/22 stating that several

issues were?,raised for the first time on appeal”, and that Petitioner

didnot dispute ©strict Courts Determination that"his Claims were

Procedurally bar" (see Page 2 of Order)

In the issue of "First time presented: This honorable Court

Is mistaken. If the court will look at the Petitioners State habeaus

Corpus Form, ground one is Suppressed evidence

Bfiound two ;is Insufficent evidence to support the

Page2Crime,(Including Kidnapping)

PageGround three;Voluntariness of the Statement

Page-8

Ground Four; Abuse of descretion,(Mention of priors)

Page-9

(Denial of Mistrial)(Including a State

lav

Law requiring Instruction on voluntariness

Page-10

Grond Five; Due process, Violation(including not testing

V

DNA)including Junk science (GPS)

Page-11

Ground sis; Jury misconduct; Jury allowed to consider

evidence not introduce

Ground Seven;Imprpper jury closing; Prosecutor injected

Page-12

personal opinion in to closing not supported

by Evidence

Page-l|PpS§eii3round Eight; Ineffective assistance of Counsel,Including

Conflict

Records tkaen from Original State Habeaus(ll.0?) and experts from

Clerks reocrd Exhibit B

In The Orde the Court satted that Petitioner”had to make a substianal

showing of the Denial of hgis consitutaonal Right”

Petitioner contends that, 1. The right to a fair trial is a substinal

right, Whent he State supress evidence or Concelas evidence, it can not

be said that Petitioner recieved a Fair trial. 2. The right to have

effective assistance of counsel, at every stage of the Proceeding is

a bedrock right.“When Counsel does not perform his duties to a client

or is BURDEN under a Conflict, no matter how small that conflict

it deprives a defendant of the right to Counsel..

On Page & of the State Habeaus Corpus, this court will find55

Listed grounds of we11 established Consitutional rights that any Juorist

would find errours of the Verdict.

Suppressed evidence is a Brady violation handed down by the Supremw

Court. Right to Counsel is a right set forth in the 6th Aramendment.

Abuse of decretion is a right to a Fair Trial set forth in the 6th Amm

endment.Attorney Conflict is also Protected by the 6 th ammedment.

Reasonable doubt is ghverned by the Jackson Stamilard set forth by the

Supreme Court as well establishewd law.

-1* APPENDIX L

*

Petitioner has presnted the issue to the Court of Criminal Appeala

in his State Habeaus Corpus, Therefore the Claims are not Procedural

bar, and Have been previously presented.

In content to the Issue of Due process violation by not holding a

hearing about the Conflict of Intrest. Petitio«aercould not object or

claim violation of Due process before it happens. Once the Due process

violation occured, then petitioner could have merit, NOT before. That

is aking the petitionet to Foresee the Future. Proper remendy

would have been for thr Trial court to Hold a Hearing and give the Pet­

itioner the oppertunity to rebutt. Instead the Trial court denied the

Petitionet the right to Rebutt and Due process, to protect his LIFE and

Liberty.(14 th Ammendraent)

In BUSBY v. Drelke;359 F. 3d 208(5th Cir-2004) This Court 3tated

that * A pabeaus Petitioner who has failed to properly present his Federal

Consitutional Claim to State Court will be considered to exhaut

his State rem,edies if the State Court are no longer open to his

*

claims because of pprocedural Bar" See Busby (supra)

Petitioner colAends that he has presnted his clsairas to the State Court

as Vjell as theis Court and Is no longer open to any other avenue of

relief, therfore not being Procedural bar.

Petitioner has repeately claimed that he has submitted the ground

to the state court with no action or Written Order.

II.

Relief

Petitioner moves this Honorable Vourt to Issue a Certificate of

Appealiblity OR/ send this Action back to the Lower court for Re-Considerati<

or action, petitioner Moves this court in the intrest of Justice and

Fairness.

III.

Prayer

Petitioner moves this Court to grant the Rekief reqiested herin

Petitioner vzill forever pary.

Lanny M. BUsh Pro-Se

32012 Fra 929

Gates ville, texas 76597

CERTIFICATE OF SERVICE.

I do herby certify that sa True and Correct copp fot his Motion has

been properly mailed VIA US postaal Service, correctly addressed

tot he UNited sates District court, 5th Circuit of Hew Oeleans La.

Done this

c/ day of

..

20122.

Lanny M. Bush Pro-Se

32M FM 929

Gatesville, Texas 76597

-2-

UNITED STATES COURT OF APPEALS

5TH CIRCUIT

New ORLEANS, LA.

r

Lanny. BUsh; Movant

>

v.

( Cause No; 22-10345

Bobby Lumpkin,Director,TDCJ

Respondant

)

(

)

EN BANC DECISION REVIEW

TO THE HONORABLE JUSTICES OF SAID COURT:

COMES NOW,Lanny m. Bush, Movant in the above numbered

cause whom files this request for EN BANC Review of the dismissal

of Petitioners Bequest for certificate of Appealiblity

tm«

Court

entered judgment on 0ctober/26/2022. Petitioner had already filed his

supplemental brief, and promply filed his Motion for consideration,Nov

03/2-22,along with a Letter to the Clerk.On Nov/04/2022Petitioner filed

a Motion entitled supporting grounds for reconsideration, citing error

in the Honorable Justices Smith decision. Movant/Petitioner moves this court

to reciew the Decision for reconsideration En Baacbefore the Court, as

Movant feel that slight error Ijas been applied and that all elements of the

request for Certificate of Appealiblity has been met as well as his Consitutional Claims.

II.

I

Prafyer

Movant herein moves this Court

to Ap|ly and Review the Disnissal

of Petitioners Request for Certificate of Appealiblity £n Banc.

Movant/Petitioner will fore«er Pary.

Lanny M. Bush

Certificfifeedti Service

\

I, Do here By certify that a True and Correct copy of £her plading

EN banc Decision Review, has been mailed to the US court of appeals,5Th

Cuircit, New Orleans, La.

Done this ^

Day of

APPENDIX

<\jUjJb---- "

2022

M

Lanny M. Bush Pro-Se

Case: 22-10345

Document: 00516523544

Page: 1

Date Filed: 10/26/2022

tHmteis States! Court of Appeals

for tfje Jftfff) Circuit

H

J

t

United States Court of Appeals

Fifth Circuit

No. 22-10345

FILED

October 26, 2022

Lyle W. Cayce

Clerk

Lanny Marvin Bush,

Petitioner—Appellant,

/

versus

Bobby Lumpkin, Director,

Texas Department ofCriminal Justice, Correctional Institutions Division,

Respondent—Appellee.

Application for Certificate of Appealability from

the United States District Court

for the Northern District of Texas

USDC No. 6:19-CV-6

ORDER:

Lanny Bush, Texas prisoner #1917810, seeks a certificate of appeala­

bility (“COA”) to appeal the denial and dismissal of his 28 U.S.C. § 2254

application challenging his conviction of capital murder in the course of kid­

napping or attempted kidnapping, for which he was sentenced to life impris­

onment.

Bush raises the following issues: (1) The state unlawfully withheld a

police report containing statements by witnesses regarding seeing or speaking

with the victim, not seeing the victim’s vehicle, and the victim’s seeing more

4

Case: 22-10345

Document: 00516523544

Page: 2

Date Filed: 10/26/2022

No. 22-10345

than one man; (2) the evidence was insufficient to support the conviction;

(3) Bush’s statement to rangers violated Miranda v. Arizona, 384 U.S. 436

(1966), and was coerced by threats and bribery; (4) the trial court abused its

discretion by allowing his criminal history to be mentioned at trial and deny­

ing a mistrial regarding this issue, failing to give a jury instruction regarding

the voluntariness of his statement to rangers, and denying his motion for a

directed verdict for insufficient evidence; (5) his due process rights were

violated because rangers failed to collect and/or test DNA, fingerprints, and

other biological matter found at the kidnapping and burial sites and because

his conviction was based on “junk science” because GPS mapping data intro­

duced at trial was flawed and unreliable; (6) the jury was unconstitutionally

permitted to consider evidence that was not presented at trial; (7) the prose­

cutor engaged in misconduct by improperly injecting his personal opinion

into closing argument; and (8) trial counsel was ineffective because of a con­

flict of interest involving a state witness, and appellate counsel was ineffective

for failing to challenge the denial of Bush’s request for a mistrial regarding

the mention of his criminal history at trial.

For the first time on appeal, Bush also avers that (1) the state habeas

court violated his right to due process by not allowing him the opportunity to

respond and by not holding a hearing before ruling on his ineffectiveassistance claims; (2) trial counsel was ineffective for failing to raise certain

objections and by failing to take various actions in order to raise a proper

defense; and (3) the prosecutor engaged in misconduct by allowing the men­

tion of Bush’s criminal conduct before the jury. These newly raised argu­

ments will not be considered. See Black v. Davis, 902 F.3d 541, 545 (5th Cir.

2018).

Bush does not dispute the district court’s determination that six of his

claims were procedurally barred. Thus, he has abandoned any challenge to

them. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999); Yohey v. Col2

Case: 22-10345

Document: 00516523544

Page: 3

Date Filed: 10/26/2022

No. 22-10345

•{

tins, 985 F.2d 222,224-25 (5th Cir. 1993); Brinkmann v. Dallas Cnty. Deputy

SheriffAbner, 813 F.2d 744, 748 (5th Cir. 1987).

To obtain a COA, Bush must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Miller-El v.

Cockrell, 537 U.S. 322,336 (2003). For claims denied on the merits, he must

show that “reasonable jurists would find the district court’s assessment of

the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S.

473, 484 (2000). Where the denial of federal habeas relief is based on pro­

cedural grounds, this court will issue a COA “when the prisoner shows, at

least, that jurists of reason would find it debatable whether the petition states

a valid claim of the denial of a constitutional right and that jurists of reason

would find it debatable whether the district court was correct in its proce­

dural ruling. ” Id.

Bush has not met that standard. Accordingly, a COA is DENIED.

Bush’s motion to file a supplemental brief is GRANTED. All remaining

outstanding motions are DENIED.

J

.Smith

United States Circuit Judge

3

1

United States Court of Appeals

FIFTH CIRCUIT

OFFICE OF THE CLERK

TEL. 504-310-7700

600 S. MAESTRI PLACE,

Suite 115

NEW ORLEANS, LA 70130

LYLE W. CAYCE

CLERK

November 16, 2022

MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW:

No. 22-10345

Bush v. Lumpkin

. US DC. No. 6:19-CV-6

Enclosed is an order entered in this case.

Sincerely,

LYLE W. CAYCE, Clerk

By:

Casey A.Sullivan,Deputy Clerk

504-310-7642

Mr. Lanny Marvin Bush

Ms. Jennifer Wren

r -»•-

APPENDIX

N

Case: 22-10345

Document: 00516547703

Page: 1

Date Filed: 11/16/2022

fHmteti States Court of appeals

for tfje JftftI) Circuit

No. 22-10345

Lanny Marvin Bush

Petitioner—Appellant,

versus

Bobby Lumpkin, Director,

Texas Department of Criminal Justice, Correctional Institutions Division,

Respondent—Appellee.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 6:19-CV-6

Before King, Jones, and Smith, Circuit Judges.

Per Curiam:

A member of this panel denied a certificate of appealability. The panel

has considered appellant’s motion for reconsideration, which is DENIED.

Additional material

from this filing is

available in the

Clerk's Office.