Petition for Writ of Certiorari — Leonard Farrell Willis, Petitioner v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division

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Case: 23-40229

Document: 00516953075

Page: 1

Date Filed: 11/01/2023

tHmteti States Court of Appeals

for tfje jftftlj Ctraht

United States Court of Appeals

Fifth Circuit

FILED

November 1,2023

No. 23-40229

Lyle W. Cayce

Clerk

Leonard Farrell Willis

Petitioner—Appellant,

versus

Bobby Lumpkin, DirectorTexas Department of Criminal Justice,

Correctional Institutions Division,

Respondent—Appellee.

Application for Certificate of Appealability

the United States District Court

for the Southern District of Texas

USDC No. 3:20-CV-369

ORDER:

Leonard Farrell Willis, Texas prisoner # 02144867, was convicted of

sexual assault and received a sentence of 40 years in prison. He now seeks a

certificate of appealability (COA) to appeal the dismissal of his 28 U.S.C.

§ 2254 application challenging this conviction. Willis’s motion for leave to

file a supplemental brief in support of his COA motion is DENIED.

Before this court, Willis asserts that the district court erred in

concluding that several of his claims were unexhausted and procedurally

defaulted. He contends that his procedurally defaulted claim of actual

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JL/H

A

' Case: 23-40229

Document: 00516953075

Page: 2

Date Filed: 11/01/2023

No. 23-40229

innocence of his habitual offender sentence may constitute a gateway for

consideration of the merits of his constitutional claims and that he was

entitled to relief on the merits of this allegation. Willis also asserts that his

appellate counsel rendered ineffective assistance by failing to challenge

limitations on his cross-examination of the victim pursuant to Davis v.

Alaska, 415 U.S. 308 (1974), and that the limits on his questioning violated

the Confrontation Clause. Although he also argued in the district court that

appellate counsel rendered ineffective assistance by failing to challenge the

admission of telephone calls recorded while Willis was in jail and that the

prosecutors committed misconduct by failing to specify which calls they

would seek to admit at trial, he does not brief these claims and they are thus

abandoned. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999).

To obtain a COA, Willis must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When the district

court denied relief on the merits, a COA applicant “must demonstrate 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). If the district court’s denial of relief is based on procedural

grounds, a COA may not issue unless the prisoner shows 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 procedural ruling. ” Id.

Willis has not made the required showing. Accordingly, the motion

for a COA is DENIED.

JZes/ie hf. *$cutfrwicjl

Leslie H. Southwick

United States Circuit Judge

2

Case: 23-40229

Document: 00516981983

Page: 1

Date Filed: 11/28/2023

tHmtetr States Court of appeals

for tl)t Jftftf) Circuit

No. 23-40229

Leonard Farrell Willis,

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 Southern District of Texas

USDC No. 3:20-CV-369

UNPUBLISHED ORDER

Before Smith, Southwick, and Wilson, Circuit Judges.

Per Curiam:

A member of this panel previously DENIED Appellant’s motions for

a certificate of appealability (COA) and for leave to file a supplemental brief

in support of a COA. IT IS ORDERED that Appellant’s motion for leave

to file the motion for reconsideration out of time is GRANTED.

IT IS FURTHER ORDERED that Appellant’s motion for

reconsideration is DENIED.

Case 3:20-cv-00369 Document 29 Filed on 03/15/23 in TXSD Page 1 of 43

United States District Court

Southern District of Texas

ENTERED

IN THE UNITED STATES DISTRICT COURT

2023 „

___

Nathan Ochsner, Clerk

FOR THE SOUTHERN DISTRICT OF TEXAS

GALVESTON DIVISION

No. 3:20-369

Leonard Farrell Willis, TDCJ # 02144867, Petitioner,

v.

Bobby Lumpkin, Respondent.

MEMORANDUM OPINION AND ORDER

Jeffrey Vincent Brown, United States District Judge:

State inmate Leonard Farrell Willis filed a petition for a federal writ of

habeas corpus under 28 U.S.C. § 2254 and seeks relief from a state conviction. The

respondent filed a motion for summary judgment and a copy of the state-court

records, and Willis responded. The claims are ripe for decision. Having now

considered the petition, the briefing, all matters of record, and the applicable legal

authorities, the court will grant summary judgment for the respondent and dismiss

the petition for the reasons explained below.

I.

BACKGROUND

A.

Procedural Background

On June 16, 2017, Willis was convicted in the 405th District Court of

Galveston County of sexual assault, enhanced, Case No. 15-CR-1465. Dkt. 23-6, at

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Case 3:20-cv-00369 Document 29 Filed on 03/15/23 in TXSD Page 2 of 43

64-68. The court sentenced Willis to 40 years. Id. On April 30, 2019, the

Fourteenth Court of Appeals affirmed his conviction. Willis v. State, No. 4-1700559-CR, 2019 WL 1941067 (Tex. App.-Hou. [14th Dist.] Apr. 30, 2019, pet.

refd); Dkt. 23-6, at 86-102 (memorandum opinion); id. at 103 (mandate). On

August 21, 2019, the Court of Criminal Appeals refused his petition for

discretionary review. Dkt. 20-1. Willis did not file a petition for a writ of certiorari

with the United States Supreme Court.

On November 18, 2020, through counsel, Willis filed an application for state

habeas relief. Dkt. 24-2, at 4-22 (WR-72,712-04).1 On December 7, 2020,

proceeding pro se, he filed his petition for federal habeas relief in this court. Dkt.

1. On April 26, 2021, on the respondent’s motion, the court stayed this federal

habeas action pending completion of Willis’s state habeas proceedings. Dkt. 8.

In a letter to the Court of Criminal Appeals dated April 26, 2021, Willis

stated that he had not authorized the state petition filed by counsel on November

18, 2020, and requested a writ of mandamus. Dkt. 22-6. The Court of Criminal

Appeals opened a mandamus action (WR-72,712-03), see Dkt. 22-4 & Dkt. 22-5,

which proceeded simultaneously with the habeas action (WR-72,712-04).

On May 11, 2021, the trial court entered findings of fact and conclusions of

law recommending denial of Willis’s application for state habeas relief. Dkt. 24-2,

1

At the time of filing, Willis had filed two other state writs (WR-72,712-01 & WR72,712-02) challenging prior convictions. Dkt. 21-9; Dkt. 21-10; Dkt. 22-1; Dkt. 22-2. His

first two state writs are not relevant to this habeas case.

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at 147-50 (WR-72,712-04). Willis then submitted a supplemental pro se

application, which he later moved to dismiss. On June 18, 2021, the trial court

issued additional findings of fact and conclusions of law dismissing Willis’s

supplemental application on his motion. Dkt. 23-6, at 84-85 (WR-72,712-04).

On December 8, 2021, the Court of Criminal Appeals denied Willis’s habeas

application without written order on the findings of the trial court without a

hearing and on the court’s independent review of the record. Dkt. 22-9 (WR72,712-04). On February 2, 2022, the Court of Criminal Appeals denied Willis’s

motion to reinstate his supplemental application. Dkt. 23-2 (WR-72,712-04).

On December 24, 2021, Willis executed a new application for state habeas

relief (WR-72,712-05). Dkt. 24-5, at 3-27. The trial count entered findings of fact

and conclusions of law on January 14, 2022, recommending that the application

be dismissed as subsequent under Texas Code of Criminal Procedure, article 11.07,

§ 4. Dkt. 24-5, at 116-18. On March 30, 2022, the Court of Criminal Appeals

dismissed the application as subsequent without written order. Dkt. 24-3.

On May 16, 2022, the court granted Willis’s motion to reinstate these federal

proceedings and instructed the respondent to answer Willis’s petition and

supplemental petition. See Dkt. 1 (petition); Dkt. 15 (supplemental petition). The

respondent then filed a copy of the state-court records and a motion for summary

judgment. Dkt. 20; Dkt. 21; Dkt. 22; Dkt. 23; Dkt. 24; Dkt. 25. Willis filed a

response. Dkt. 28.

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B.

Factual Background

l. Trial and appellate proceedings

Willis was convicted of sexual assault. The complainant was a teenager and

a friend of Willis’s daughter. The appellate court’s opinion summarized of the

assault, which occurred while the complainant was intoxicated and asleep:

The complainant graduated from High Island High School in May,

2014. She would turn 18 later that summer. One of the complainant’s

friends was appellant’s daughter. The complainant knew appellant as

a result of the time she spent with his daughter.

On June 22, 2014, appellant began texting the complainant.

Appellant’s first text stated: “Hey sexy.” This text was sent at 9:29 p.m.

The complainant had never texted appellant before, and she did not

know his telephone number. In fact, when appellant’s first text

arrived, the complainant did not know who was texting her. Appellant

then sent a second text message, asking the complainant, “Wanna

come play?” The following exchange then occurred:

Complainant: “Who is this?”

Appellant: “It’s your friend.”

Complainant: “Who?”

Appellant: “You just gave me a hug in the big store yesterday.”

Appellant: “You confused”

Appellant: “Any way just wanted to say hi”

Complainant: “A hug? In the big store? Who is this”

Appellant: “This is [complainant?]”

Complainant: “Yea?”

Appellant: “Is this [complainant?]”

Complainant: “Yea?”

Appellant: “This is your bff s old man”

Appellant: “Lol”

Complainant: “Oh hi lol.”

Appellant: “Hi”

Appellant: “So you wanna come play”

The complainant thought that this exchange was unusual because

appellant was texting her, “Want to come play.” Complainant was “a

little grossed out” by the text messages. The complainant was not

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attracted to appellant in any way.

A short time later that same evening, appellant texted the complainant

again.

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Appellant:/‘What’s up?”.

Appellant: “Wyd”

Complainant: “I wi§h l could but I have to work tomorrow and

it’s my brother’s fir$t day.” ; .

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The complainant did not have to work the next day. This was her way

of refusing appellant’s offer tp come play with him, which she did not

want tq do. Appellant then tested, “Oh, ok. We’ll [sic] be gopd. Where

yqu working.” The complainant responded with the name pf a

particular bqr in Crystal Beaoh, Appellant then tested the following?

Appellant: “I have tp take my father to the heart dr tomorrow”

Appellant: “Ok thep” ?

Appeljant: “Night” '

Appeljapt: “Didn’t rpeqn no harm. Sorry.”

The complainant did npt respond t;o these final text messages.

This text message exchange frightened the complainant, so she

contacted Brian, her ex-boyfriend, to help her block appellant’s

telephone number. The complainant texted Brian that appellant’s

daughter “gave my number to her dad. He keeps asking me to party

with him.” She showed Brian the text messages that appellant had

sent to her, and Brian agreed they were inappropriate, and that the

complainant should block his number. Brian blocked appellant’s

number from again reaching the complainant’s phone.

The complainant then contacted appellant’s daughter and asked if she

had given appellant her telephone number. Appellant’s daughter

apologized for what appellant had texted to the complainant.

Appellant’s daughter told the complainant that appellant was sorry,

and that he did not mean it. While this incident did not harm the

complainant’s friendship with appellant’s daughter, the complainant

did spend less time at appellant’s residence after it occurred. On one

occasion, the complainant did go to appellant’s residence so that she

could go swimming with appellant’s daughter. On this occasion, when

appellant saw the complainant, he told her that she was pretty. This

made the complainant feel uncomfortable. Since appellant had

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apologized for the previous texts he had sent, the complainant

brushed the comment off.

Later that year, the complainant and some of her friends were

attending the Rice Festival in Winnie. After attending the festival, the

group travelled to a cabin in east Texas owned by the family of one

member of the group. The group began drinking heavily and the

complainant became very intoxicated. The complainant eventually

went to the bathroom and vomited for an extended period-of-time.

The complainant testified that she had never gotten this intoxicated

before. It was also the first time that she got so intoxicated that she

did not remember everything that had occurred. Another of the

complainant’s friends was helping the complainant in the bathroom

when appellant’s daughter got upset because she wanted to be the one

to help the complainant. The two friends got into a violent fight as a

result of this dispute.

After the fight, a member of the group told appellant’s daughter and

her boyfriend, Anthony, that they had to leave the cabin. Appellant’s

daughter took the intoxicated complainant with her because they were

best friends. Appellant’s daughter got the complainant into the back

seat of her car and the complainant fell asleep. The complainant did

not know where appellant’s daughter was taking her, but she had

assumed that they were driving to appellant’s daughter’s trailer as

they had done in the past. But, when they reached their destination,

appellant’s daughter got the complainant out of the vehicle and helped

her upstairs at appellant’s Crystal Beach residence. Appellant’s

daughter told the complainant, “Shhh, my dad is sleeping. I need you

to be quiet.” Appellant’s daughter and Anthony got the complainant

into a bed in a guest room and she fell asleep. The complainant

testified that she did not take her clothes off when she got into bed.

The complainant remained very intoxicated.

The next thing the complainant remembered was that she woke up,

her clothes were off, and appellant was on top of her. The complainant

did not immediately know who was on top of her. Appellant’s penis

was inside the complainant’s vagina. The complainant was scared,

and she did not say or do anything. After appellant was finished, he

went to the bathroom and returned with a wash cloth and told the

complainant to wash up. By this time, the complainant realized who

her attacker was, and she just wanted to get away. The complainant

testified that she did not give appellant consent to enter her room nor

to have sex with her. When the complainant was asked if she might

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have consented as a result of the alcohol she had consumed, she

responded, “No, ma’am. He was a friend’s dad. That was just gross.”

After tossing the wash cloth to the complainant, appellant left the

room and went into another room. At that point, the complainant

grabbed her clothes and put them back on. The complainant’s cell

phone was still in appellant’s daughter’s vehicle, so she went outside

and then downstairs to get her phone so that she could call a friend to

pick her up. When the complainant retrieved her phone, she

discovered that its battery was dead. Appellant came outside at that

point and asked the complainant if her phone was dead and needed to

be charged. When the complainant told him yes, appellant took the

phone into the kitchen and plugged it in to charge. The complainant

remained outside on the porch. The complainant began smoking a

cigarette and appellant came outside and said that she could smoke

inside and watch television if she wished. The complainant remained

outside on the porch. The complainant testified that she did not want

to be in the same room with appellant.

After a while, the television went off and the complainant realized that

appellant had left the living room. At that point, the complainant went

back inside the house to get her phone. It was approximately 5:00 in

the morning when the complainant retrieved her phone. She then

walked to a nearby real estate leasing office and began calling people

[to] get Brian, or someone else, to pick her up. The complainant also

texted one of Brian’s roommates, telling him, “please wake up and

have Brian come get me please. I’m begging you. Something bad just

happened.”

The complainant briefly thought about calling the police, but she did

not want to do that at the time because “[ejverybody on the island

would hate me.” The complainant “just wanted it to go away.” The

complainant was also scared to call the police because appellant’s

family was friends with one of the Galveston County Sheriff s deputies

who regularly patrolled Bolivar Peninsula. Appellant’s daughter often

would stop and talk to this deputy when they would see him on the

beach.

The complainant continued to call people. Eventually, Brian realized

that his roommates’ phones had been ringing repeatedly. Checking his

roommate’s phone, Brian discovered that the complainant had been

trying to reach him. By text, Brian asked the complainant what had

happened. The complainant responded, “Come get me, please.” Brian

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then called the complainant and told her to wait and he would be there

to pick her up. Brian described the complainant as “[s]haken, anxious,

real jittery, she could barely speak.” The complainant waited at the

real estate office for Brian. Brian and one of his roommates, Dory,

eventually arrived at the real estate office. When they saw the

complainant, Brian put her in his truck. The complainant “was crying

really, really hard. And so I just tried to understand what she was

trying to say.” Brian had never seen the complainant that shaken up

before. The complainant told Brian that something bad had

happened, that appellant had raped her, and that she wanted Brian to

take her home.

Instead of driving complainant home, Brian drove to appellant’s

residence to confront appellant. The complainant, who just wanted to

go home, initially remained in Brian’s truck when they reached

appellant’s residence. Brian and Dory went up to appellant’s residence

and repeatedly knocked on the door and windows of the residence.

Appellant eventually answered the door. Brian asked appellant what

had happened with the complainant, and appellant said that he did

not know what Brian was talking about. A confrontation ensued

between Brian and Dory on one side, and appellant, appellant’s

daughter, and her boyfriend Anthony on the other, with the

complainant caught in the middle.

Appellant’s daughter called the police. At this point, the complainant,

appellant’s daughter, Anthony, and appellant were all on appellant’s

front porch. Anthony continued to yell at Brian and Dory to get off the

property. Appellant’s daughter wanted the complainant to tell the

police that nothing had happened. After a while during the continuing

argument, the complainant eventually said, “I’ll say nothing

happened. Just let me leave.” The complainant said this because she

wanted to go home. Appellant’s daughter told the complainant,

“[pjlease, I’m begging you. This is my dad.” The complainant tried to

climb over the gate to leave the property, but appellant’s daughter

grabbed the complainant’s hand and prevented her from leaving.

Brian called his uncle, Constable William Comeaux. When Brian told

Constable Comeaux that the police had been called, Constable

Comeaux told Brian that he needed to leave. After talking with

Constable Comeaux, Brian told the complainant that he had to go

home and that he could not wait. Brian and Dory left the residence,

leaving the complainant at appellant’s residence. After talking to

Brian, Constable Comeaux called Deputy Robert Dodd with the

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Galveston County Sheriffs Office. Constable Comeaux told Deputy

Dodd that Brian had expressed concern that the complainant was

being held at appellant’s residence against her will.

Deputy Dodd was called to appellant’s residence because of “[a]

trespass of subject being on location, creating a disturbance, that had

been asked to leave, that wouldn’t leave.” After he arrived at

appellant’s residence, Deputy Dodd asked where Brian was because

he was the person supposedly causing the disturbance. Appellant’s

daughter told him that Brian had already left. Deputy Dodd testified

that no one wanted to press charges against Brian. Deputy Dodd saw

the complainant as well, and he observed her to be “[qjuiet, very

reserved with - almost withdrawn.” Based upon the officer’s training

and experience, the complainant was acting like other assault victims

he had encountered in the past. The complainant testified during

appellant’s trial that she did not feel comfortable speaking with

Deputy Dodd because he was a good friend of appellant and his family.

The complainant testified that she did not believe Deputy Dodd would

do anything to help her. As a result, she told the deputy nothing had

happened, that she had called Brian, and that he had just been there

to pick her up. When appellant’s trial attorney asked the complainant

if she was suggesting that the deputy would cover up a rape, the

complainant responded, “I’m saying I was scared.” After he left the

scene, Deputy Dodd contacted Constable Comeaux and told him that

the complainant told him that she was not being held against her will.

The complainant eventually asked appellant’s daughter to take her

home. Appellant’s daughter and Anthony then drove her home. When

they dropped the complainant off, her parents were not home. While

initially unsure about what to do, the complainant contacted the

police that same day, and she decided to press charges against

appellant. The State charged appellant with the felony offense of

sexual assault.

Willis, 2019 WL 1941067, at *i-*4 (footnotes omitted).

At trial, Willis sought to introduce evidence that, several years earlier, the

complainant alleged that a foreign exchange student had sexually assaulted her.

Although Willis argued that the complainant’s prior allegations were false and thus

were relevant to prove her motive to lie in Willis’s case, the trial court excluded the

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evidence, stating that Willis had not shown that the prior allegations actually were

false. The appellate court summarized the proceedings as follows:

During his trial, appellant sought to introduce evidence that the

complainant allegedly fabricated a sexual assault claim against a

foreign exchange student when she was thirteen or fourteen years old.

In appellant’s view, this evidence of an allegedly false prior sexual

assault allegation was admissible because it established a motive to lie

about having consented to sex with appellant. The trial court

sustained the State’s Rule 412 objection and excluded the proffered'

evidence. See Tex. R. Evip. 412. The trial court allowed appellant to’

make a bill-of-exception apd the excluded evidence is contained in the,

appellate record.’ *

*

During the bill-of-exception hearing, the complainant testified that

she told J:h£ detective investigating the sexual assault allegation'

against appellant that the reason she did not say no to appellant, wps,

because she( had been raped in the past. The complainant told the

detective fhaU wheii she Was thirteen or fourteen and attending high

school in Oklahoma, a foreign exchange student had raped her. The,

complainant told thjs detective that she did not tell anyone about the

rape by the foreign exchange student. The complainant also told the

detective that she did not say no or fight back when appellant was

assaulting her because the foreign exchange student had beaten her

during the prior incident. The complainant said the previous rape

occurred during a party at a friend’s house.

The complainant also told the detective that a friend found her in a

ditch on the morning after the rape. The complainant testified during

the bill-of-exception hearing however, that her friend did not find her

in a ditch, but that she had walked to the friend’s house after she

initially had fled and taken refuge in a ditch. The complainant further

told the detective that she was wearing only a bra and sweatpants

when her friend found her, and her friend asked her what happened.

The complainant told her friend that she did not want to talk about it.

Her friend acceded to that request, and no one made her speak about

the incident again. When asked during the bill-of-exception hearing,

the complainant agreed that she had told the investigating detective

that three or four months after the Oklahoma rape, her parents made

her go to counseling in lieu of medication because they thought she

was depressed. During the hearing, the complainant agreed that she

also told the investigating detective that she kept a diary as part of that

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counseling, that her parents found the diary, and learned about the

rape as a result. Finally, the complainant told the detective that, by the

time her parents found her diary, the foreign exchange student had

already left the country.

The complainant testified during the bill-of-exception hearing that

she began seeing a counselor in response to the rape by the foreign

exchange student. But, as mentioned above, the complainant also had

told the investigating detective that she actually started the counseling

at the request of her parents because she was depressed, not because

of the rape. The complainant testified that the counselor made her

keep a diary. She also testified that her parents found the diary and

then learned about the rape. According to the complainant her

parents wanted to press charges against the foreign exchange student,

but he had already left the country.

When appellant’s trial attorney suggested that the complainant’s high

school assailant was still in school at the time that she began her

counseling, the complainant again testified that he already had left the

country. But, the complainant later also testified that her assailant

was still in school at that time. So, it was unclear in the complainant’s

bill-of-exception testimony when her high school assailant had

returned to his home country. The complainant never, however,

wavered in her assertion that the foreign exchange student had raped

her.

In this bill-of-exception hearing, the appellant’s trial attorney asked

the complainant if she was Facebook friends with her high school

assailant, and she responded, “[n]ot that I know of,” and “I don’t know

if I’m still friends with him or not.” When appellant’s trial attorney

asked her if she had “unfriended” him, she responded, “[n]ot that I

remember.” The complainant explained that she did not check all of

her Facebook friends because she had thousands of them. When

appellant’s trial attorney suggested that the complainant had added

her assailant as a Facebook friend perhaps even after the rape, the

complainant testified, “I do not remember. At that time I just added

everybody. [ ] I just used to go down and just click ‘confirm’ on

everyone.”

When appellant’s trial attorney suggested that the rape of the

complainant was in fact only an attempted rape because the

complainant had told her counselor that the complainant had called

for help and that someone came to help, interrupting the rape. The

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complainant testified, “nobody came to help. My friend had walked in

and asked me to put clothes on and walked out of the room. And he

had went and sat on the bed while I put my clothes on and ran. I didn’t

even finish putting all my clothes on. My friends were all still there at

the party. Appellant’s attorney again suggested to the complainant

that she had told her counselor that this rape was in fact only an

attempted rape because the assailant was not able to get the

complainant’s clothes off before someone else came into the room

where he was assaulting her. The complainant countered that, “my

clothes were already off, sir.”

During the bill-of-exception hearing, appellant argued that his offer

of proof showed that the complainant had made a fabricated sexual

assault claim, which he suggested was corroborated by the “fact” that

the complainant remained Facebook friends with her alleged high

school assailant. The trial court responded that “even the counselor in

the records indicates a sexual or attempted sexual assault happening.”

The trial court continued that a “trial court is not required

to admit evidence ofproof of a priorfalse accusation when

the accusation was never shown to be false to the

satisfaction of the trialjudge, and that hasn’t been done, to

me.” Appellant’s trial attorney then pointed out that appellant was

also offering the testimony regarding the prior incident to prove the

complainant’s “motive or bias under the confrontation clause” for

making the accusation against appellant. The trial court rejected this

argument as well.

Id. at *4-*5 (emphasis added).

A jury convicted Willis of sexual assault and the court sentenced him to 40

years. On direct appeal, Willis raised one issue, claiming that the trial court abused

its discretion when it excluded evidence of the complainant’s prior allegations

against the exchange student. Willis argued that the evidence “was admissible

pursuant to his rights under the Confrontation Clause” and also because the

evidence “demonstrate[d] the complainant’s bias against him or motive to lie as

allowed by Rule 412(b)(2)(C) of the Texas Rules of Evidence.” Id. at *6. The

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appellate court overruled the issue and affirmed the judgment, determining that

Willis had not demonstrated that the allegation was false or that the two incidents

were “similar” or had a “logical connection.” Id. at *7-*8. The court concluded that

the trial court could reasonably have decided that the probative value of the

evidence was outweighed by the danger of unfair prejudice. Id. at *7.

2. State habeas and mandamus proceedings

Willis filed one mandamus action (WR-72,712-03) and two state habeas

actions (WR-72,712-04 & WR-72,712-05) that are relevant to his 2017 conviction

and these federal proceedings.

On November 18, 2020, through counsel, Willis filed a state habeas

application raising two grounds for relief:

1.

2.

His appellate counsel was constitutionally ineffective because

he failed to:

a.

challenge evidence of the complainant’s prior

accusations under Davis v. Alaska, 415 U.S. 308 (1974),

rather than Rule 412; and,

b.

raise an issue regarding the court’s admission of phone

calls between Willis and his daughter that were recorded

when Willis was awaiting trial in the Galveston County

Jail; and,

The prosecutors in his trial committed misconduct when they

refused to identify which jail calls they intended to admit at trial

“in a calculated effort to deny Mr. Willis effective assistance of

counsel.”

Dkt. 24-2, at 9-12 (WR-72,712-04). As instructed by the court, Willis’s prior

counsel submitted affidavits responding to the claims. See id. at 64-67 (affidavit of

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Case 3:20-cv-00369 Document 29 Filed on 03/15/23 in TXSD Page 14 of 43

appellate counsel regarding ineffective-assistance-of-appellate-counsel claims);

id. at 78-81 (affidavit of trial counsel regarding prosecutorial-misconduct claim).

In early 2021, Willis filed multiple letters in the state courts stating that he

had submitted a pro se application for state habeas relief that was not reflected on

the docket.2 On April 26, 2021, he drafted a letter to the Court of Criminal Appeals

stating that he had not authorized the petition filed by counsel on November 18,

2020. Dkt. 22-6. The Court of Criminal Appeals then opened a mandamus action

(WR-72,712-03).

On May 11, 2021, the trial court entered findings of fact and conclusions of

law recommending denial of Willis’s application for state habeas relief. Dkt. 24-2,

at 147-50 (WR-72,712-04) (adjudicating petition filed by counsel on November 18,

2020). One day later, on May 12, 2021, the Court of Criminal Appeals instructed

the trial court to respond within 30 days in the mandamus action. Dkt. 22-4; Dkt.

22-5.3

2

See id. at 68 (letter filed in trial court on Jan. 6, 2021, stated that he had sent a

supplemental application on Nov. 26, 2020, but had not received confirmation or a

response); id. at 82 (letter filed in the trial court on Mar. 26, 2021, stated that he had sent

a supplemental application on Nov. 26, 2020, but had received no response); id. at 83

(letter filed Apr. 14,2021, in trial court requesting information about the receipt and filing

of his supplemental application sent on Nov. 26, 2020); id. at 84 (letter filed Apr. 27,

2021, in trial court requesting the same information); id. at 146 (letter dated May 4, 2021,

to district clerk requesting the same information).

3

No subsequent proceedings in the mandamus action (WR-72,712-03) are reflected

in the record before this court. However, later proceedings in Willis’s habeas actions (WR72,712-04 & WR-72,712-05) addressed the issues raised in the mandamus action, i.e.,

whether Willis had authorized the application filed by counsel and whether he had

submitted a pro se application for habeas relief in November 2020.

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On May 18, 2021, Willis executed a supplemental pro se application for

habeas relief that was docketed with the trial court around June 1, 2021. Dkt. 236, at 4-26 (WR-72,712-04). The supplemental application brought eight claims,

many of which were based on Willis’s contention that the prosecution had not

adequately proven that the complainant did not consent to the sexual encounter:

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1.

the jury charge was constitutionally deficient because it did not

require a unanimous verdict “as to why consent was lacking”;

2.

the jury charge failed to authorize Willis’s conviction because

the “theory of law as to why consent was lacking was not applied

to the facts of the case”;

3-

the indictment failed to charge Willis with an offense or to

invoke the trial court’s jurisdiction because it did not

“specifically plead why consent was lacking”;

4-

Willis is “actually innocent of the sentence imposed” because

the indictment did not authorize punishment as a habitual

offender;

5-

the trial court violated Willis’s constitutional rights when it

excluded evidence of the complainant’s prior allegations of

sexual assault;

6.

Willis’s trial counsel were constitutionally ineffective because

they:

a.

failed to subpoena and call witnesses who could have

testified regarding the complainant’s credibility and her

propensity to allege sexual assault;

b.

failed to challenge several prosecution witnesses

regarding whether they were fact or expert witnesses;

and,

c.

failed to impeach complainant with her prior

inconsistent statements to support the theory that the

complainant had consented and no assault occurred;

Case 3:20-cv-00369 Document 29 Filed on 03/15/23 in TXSD Page 16 of 43

7-

8.

Willis’s trial counsel were constitutionally ineffective because

they:

a.

failed to object to the admission of certain phone records

into evidence because they were not properly

authenticated and irrelevant;

b.

failed to object to the sentencing of Willis as a habitual

offender;

c.

failed to object to the indictment on the grounds that it

failed to properly charge a theory “as to why consent was

lacking”; failed to object to the jury charge that did not

require the jury “to find why consent was lacking;” and

failed to object to the jury charge that did not require a

unanimous verdict “as to why consent was lacking”;

d.

failed to convey a 15-year plea offer to Willis; and

e.

rejected a five-year offer without consulting with Willis;

and

Willis’s appellate counsel was constitutionally ineffective

because he:

a.

failed to raise an issue regarding the jury charge’s failure

to include instructions for the prosecution to prove “why

consent was lacking”;

b.

failed to raise an issue about the indictment’s failure to

invoke the trial court’s jurisdiction because the

indictment did not “contain an essential element of the

offense as to why consent was lacking”; and

c.

failed to raise an issue regarding the “Texas Habitual

Sentencing Scheme.”

Dkt. 23-6, at 9-22.

On June 9, 2021, based on Willis’s representations that he had not

authorized the habeas application filed by his counsel on November 18, 2020, the

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Court of Criminal Appeals remanded Willis’s habeas action (WR-72,712-04) to the

trial court. Dkt. 24-1; Dkt. 23-4. The court noted that the habeas application filed

by Willis’s counsel contained counsel’s certification that Willis had consented to,

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the filing, thqt the‘ record‘did not contaip a pro se application filed in November

2020, and that Willi? apparently wanted to proceed with both applications:

1

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The record indicafes, that an Article 11.Q7 habeas application

challenging this conviction was filed by habeas counsel ip the trial

court on November 18, 2020, That application was not signed hy

Applicant hijnpelf, but includes the “Petitioner’s Statement’1 signed by

habeas counsel, certifying that- counsel has consulted with Applicant

apd that Applicant has giyen consent for the filing of the application

on his behalf. Applicant allege? that he filed an amended application

in the trial cqurt op November 26, 2020, Although the trial court

entered a timely order designating issue? as to the claims raised in the

application filed by habeas counsel ancj subsequently entered findings

of fgct and conclusions of law ad^re?sihg those claims, there i? ho

indication that Applicant’s amended application was received pr filed

in the trial court, or that the claims raised therein were ever addressed

by the trial e°nrt The amended application was not included in the

habeas record forwarded to this Court.

Based on correspondence in the record between Applicant and the

Galveston County District Clerk’s Office, it appears that Applicant

wants his amended application to be considered. The correspondence

also indicates that Applicant did not retain habeas counsel to file an

application on his behalf. However, Applicant does not allege that he

wants the application filed by habeas counsel to be disregarded;

rather, he appears to want both applications to be considered.

Dkt. 24-1, at 1-2. The court then instructed the trial court to obtain an affidavit

from habeas counsel regarding whether Willis had consented to the filing of the

application filed by counsel and an affidavit from the clerk as to whether the pro

se application had been received:

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We remand this application to the trial court to obtain an affidavit

from habeas counsel confirming that she consulted with Applicant

regarding the filing of the habeas application, and obtained his

consent to the filing of the application. In addition, the Galveston

County District Clerk should submit an affidavit stating whether

Applicant’s amended application was ever received and filed in the

district court. If the amended application was filed but not included

in the habeas record, the trial court shall ensure that the habeas record

is supplemented with a copy of the amended application, as well as

any responses and findings of fact necessary to address the claims

raised in the amended application. The trial court shall make findings

of fact and conclusions of law within thirty days from the date of this

order.

Id. at 2.

On June 14, 2021, in the trial court, the district attorney filed an answer to

the supplemental pro se application dated May 18, 2021. The answer attached a

motion from Willis, through counsel* seeking to dismiss the supplemental pro se

application. Dkt. 23-6, at 80-81. The motion was supported by Willis’s handwritten

and notarized affidavit, dated June 9, 2021, in which Willis swore that he agreed

to the dismissal of the supplemental pro se application and wished to proceed with

the application filed by counsel:

I, Leonard Farrell Willis, TDCJ # 2144867, hereby swear that I agree

to move to dismiss Subsequent Writ of Habeas Corpus cause No. 15CR-1465-83-2. I wish to proceed with my original writ, filed under

cause no. 15-CR-1465-83-1 by my attorney....

Id. at 83. Case No. 15-CR-1465-83-2 matches the case number stamped on Willis’s

supplemental pro se application dated May 18, 2021. See id. at 4.

On June 18, 2021, the trial court issued additional findings of fact and

conclusions of law dismissing Willis’s supplemental pro se application on Willis’s

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agreed to dismiss on June 9, 2021. See Dkt. 24-5, at 3-27 (application dated

December 24, 2021); Dkt. 23-6, at 9-22 (supplemental pro se application dated

May 18, 2021). The Court of Criminal appeals dismissed the application as

subsequent on March 20, 2022. Dkt. 24-3 (WR-72,712-05).

3. Federal habeas proceedings

Willis initiated this federal habeas action on December 7, 2020, while his

state habeas proceedings (WR-72,712-04) were pending. His initial petition raises

seven claims:

1.

the jury charge was constitutionally deficient because it did not

require the jury to reach a unanimous verdict “as to why

consent was lacking”;

2.

the jury charge failed to authorize Willis’s conviction because

the “theory of law as to why consent was lacking was not applied

to the facts of the case”;

3-

the indictment failed to charge Willis with an offense or to

invoke the trial court’s jurisdiction because it did not

“specifically plead why consent was lacking”;

4-

Willis is “actually innocent of the sentence imposed” because

the indictment did not authorize punishment as a habitual

offender;

5-

the trial court violated Willis’s constitutional rights when it

excluded evidence of the complainant’s prior allegations of

sexual assault;

6.5

his trial counsel were constitutionally ineffective because

counsel:

5

Willis’s federal petition numbers these claims as Claim 6(1) through 6(8), but skips

Claim 6(3). Dkt. 1, at 13-15. For clarity, the court will refer to the claims as Claims 6(a)

through 6(g).

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7- 6

a.

failed to subpoena and call witnesses who could have

testified regarding the complainant’s credibility and her

propensity to allege sexual assault;

b.

failed to challenge several prosecution witnesses

regarding whether they were fact or expert witnesses;

c.

failed to impeach complainant with her prior

inconsistent statements to support the theory that the

complainant had consented and no assault occurred;

d.

failed to object to the admission of certain phone records

into evidence because they were not properly

authenticated and irrelevant;

e.

failed to object to the trial court’s sentencing of Willis as

a habitual offender;

f.

failed to object to the indictment on the grounds that it

failed to properly charge a theory “as to why consent was

lacking;” failed to object to the jury charge that did not

require the jury “to find why consent was lacking;” and

failed to object to the jury charge that did not require a

unanimous verdict “as to why consent was lacking”;

g-

failed to convey to Willis a 15-year plea offer and rejected

a five-year offer without consulting with Willis; and,

His appellate counsel was constitutionally ineffective because

counsel:

a.

failed to raise an issue regarding the jury charge’s failure

to include instructions for the prosecution to prove “why

consent was lacking”;

b.

failed to raise an issue about the indictment’s failure to

invoke the trial court’s jurisdiction because the

indictment did not “contain an essential element of the

offense as to why consent was lacking”; and,

6

Willis’s federal petition includes these claims in Claim 6 but does not number the

three sub-claims. Id. at 15-16. For clarity, the court will refer to his ineffective-assistanceof-appellate-counsel claims as Claim 7(a)-7(c).

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Case 3:20-cv-00369 Document 29 Filed on 03/15/23 in TXSD Page 22 of 43

failed to raise an issue regarding the Texas Habitual

Sentencing Scheme.

c.

Dkt. l, at 8-16. These claims are identical or substantially similar to claims Willis

raised in his supplemental pro se state application, which the court later dismissed

on Willis’s motion. 7

This court entered an order for the respondent to answer and, because state

habeas proceedings were ongoing, granted the respondent’s motion to stay federal

I

habeas proceedings. D]jct. 58. After the state proceedings concluded, Willis filed a

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request to reinstate these proceedings and a supplemental federal petition raising

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two additional ! grounds| for habeas relief. Because the first claim in his

supplemental federal petition ,'is an ineffective-assistance-of-appellate-couiisel :

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claim, the court will consider its sub-claims as part of Claim 7:

7-

His appellate counsel was constitutionally ineffective because:

d.

counsel should have challenged evidence of the

complainant’s prior accusations under Davis v. Alaska,

415 U.S. 308 (1974), rather than Rule 412; and,

e.

counsel failed to raise issues on appeal regarding

evidence of calls between Willis and his daughter that

were recorded when Willis was in the Galveston County

Jail awaiting trial; and,

Claims 1-5 in Willis’s federal petition are identical or substantially similar to

Claims 1-5 in his supplemental pro se state application. See Dkt. 23-6, at 9-17. Claim 6 in

his federal petition is identical or substantially similar to Claims 6 and 7 in his

supplemental pro se state application. See id. at 19-21. Claims 7(a)-7(c) in his federal

petition are identical or substantially similar to Claim 8 in his supplemental pro se state

application. See id. at 22.

7

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Case 3:20-cv-00369 Document 29 Filed on 03/15/23 in TXSD Page 23 of 43

8.

Prosecutors at his trial committed misconduct when they

refused to identify which jail calls they intended to admit at trial

“in a calculated effort to deny Mr. Willis effective assistance of

counsel.”

Dkt. 15, at 3-6. The claims in Willis’s supplemental federal petition are identical or

substantially similar to his claims in the state habeas application filed by habeas

counsel on November 18, 2020, see Dkt. 24-2, at 9-12, which the state courts

decided on the merits.

On May 16, 2022, the court reinstated the case and instructed the

respondent to answer. The respondent then filed a motion for summary judgment

and a copy of the state-court records, and Willis responded. Along with his

response, Willis filed declarations from himself and another inmate regarding his

supplemental pro se state habeas application. Dkt. 28, at 35-38. Both declarations

are dated October 7, 2022, and state that Willis never intended to dismiss the

claims in his supplemental application. They also state that Willis’s state habeas

counsel incorrectly advised him that the application was a subsequent application,

and thus subject to dismissal, under state law.8

8

See id. at 35-36 (declaration by Willis states that he had submitted the

supplemental application to prison officials for mailing on Nov. 26, 2020, but that the

court did not receive a supplemental application until June 6, 2021, after he had mailed

another; that it was “never [his] intentionf] to dismiss any claims [that] need to be

presented to the State court for exhaustion purposes;” and that he believes that his state

habeas counsel was “in collaboration with the District Attorney’s office... to induce [him]

to have and/or agree to the dismissal of the application” because his counsel should have

known that his application was not subsequent); id. at 37-38 (declaration from inmate

Kirk Wayne McBride states that he assisted Willis with the supplemental state habeas

application, that “it was never Mr. Willis’s intention[]” to have his application dismissed,

and that Willis received “erroneous advi[c]e” from state habeas counsel who told Willis

that the supplemental application was a subsequent application).

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II.

LEGAL STANDARDS

A.

Pro Se Pleadings

Federal courts do not hold pro se habeas petitions “to the same stringent

and rigorous standards as . . . pleadings filed by lawyers.” Hernandez v. Thaler,

630 F.3d 420, 426 (5th Cir. 2011) (cleaned up). “The filings of a federal habeas

petitioner who is proceeding pro se are entitled to the benefit of liberal

construction.” Id.

B.

The Anti-Terrorism and Effective Death Penalty Act

This federal petition for habeas corpus relief is governed by the applicable

provisions of the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). See

Woodford v. Garceau, 538 U.S. 202, 205-08 (2003); Lindh v. Murphy, 521 U.S.

320, 335-36 (1997). Under AEDPA, federal habeas relief based upon claims that

were adjudicated on the merits by the state courts cannot be granted unless the

state court’s decision (1) “was 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);

Early v. Packer, 537 U.S. 3, 7-8 (2002); Cobb v. Thaler, 682 F.3d 364, 372-73 (5th

Cir. 2012).

Federal courts look to the “last reasoned opinion” as the state court’s

“decision.” Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); see Wilson v. Sellers,

138 S. Ct. 1188, 1192 (2018); Salts v. Epps, 676 F.3d 468, 479 (5th Cir. 2012).

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“Where a state court’s decision is unaccompanied by an explanation,” and the

lower courts did not issue a reasoned opinion, “the habeas petitioner’s burden still

must be met by showing there was no reasonable basis for the state court to deny

relief.” Harrington v. Richter, 562 U.S. 86, 98 (2011); see Johnson v. Williams,

568 U.S. 289, 293 (2013) (holding that there is a rebuttable presumption that the

federal claim was adjudicated on the merits when the state court addresses some

claims, but not others, in its opinion).

Review under AEDPA is “highly deferential” to the state court’s decision.

Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam). To merit relief under

AEDPA, a petitioner may not merely show legal error in the state court’s “decision.”

White v. Woodall, 572 U.S. 415, 419 (2014) (stating being “merely wrong” or in

“clear error” will not suffice federal relief under AEDPA). AEDPA review exists only

to “guard against extreme malfunctions in the state criminal justice systems.”

Woods v. Donald, 575 U.S. 312, 316 (2015) (cleaned up). “[F]ocus[ing] on what a

state court knew and did,” Cullen v. Pinholster, 563 U.S. 170,182 (2011), AEDPA

requires inmates to “‘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.’” Woodall, 572 U.S. at 419-20 (quoting Richter, 562 U.S.

at 103). “If this standard is difficult to meet, that is because it was meant to be.”

Richter, 562 U.S. at 102.

For questions of law or mixed questions of law and fact adjudicated on the

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merits in state court, this court may grant habeas relief under 28 U.S.C.

§ 2254(d)(1) only if the state-court decision “was contrary to, or involved an

unreasonable application of, clearly established” Supreme Court precedent. See

Kittelson v. Dretke, 426 F.3d 306, 318 (5th Cir. 2005). Under the “contrary to”

clause, this court may afford habeas relief if the state court “reaches a legal

conclusion in direct conflict with a prior decision of the Supreme Court or if it

reaches a different conclusion than the Supreme Court on materially

indistinguishable facts.” Matamoros v. Stephens, 783 F.3d 212, 215 (5th Cir. 2015)

(cleaned up). To constitute an “unreasonable application” of clearly established

federal law, the state court’s determination “must be objectively unreasonable, not

merely wrong; even clear error will not suffice.” Woods, 575 U.S. at 316 (cleaned

up).

On factual issues, AEDPA precludes federal habeas relief unless the state

court’s adjudication of the merits was based on an “unreasonable determination of

the facts in light of the evidence presented in the state[-]court proceeding.” See 28

U.S.C. § 2254(d)(2); Martinez v. Caldwell, 644 F.3d 238, 241-42 (5th Cir. 2011).

C. Summary-Judgment Standard

In ordinary civil cases, a district court considering a motion for summary

judgment is required to construe the facts of the case in the light most favorable to

the non-moving party. See Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986).

“As a general principle, Rule 56 of the Federal Rules of Civil Procedure, relating to

summary judgment, applies with equal force in the context of habeas corpus

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cases.” Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000). However, AEDPA

modifies summary-judgment principles in the habeas context, and Rule 56

“applies only to the extent that it does not conflict with the habeas rules.” Smith v.

Cockrell, 311 F.3d 661, 668 (5th Cir. 2002), overruled on other grounds by

Tennard v. Dretke, 542 U.S. 274 (2004); see Torres v. Thaler, 395 F. App’x 101,

106 n.17 (5th Cir. 2010). “Therefore, § 2254(e)(1)—which mandates that findings

of fact made by a state court are presumed to be correct—overrides the ordinary

summary judgment rule that all disputed facts must be construed in the light most

favorable to the nonmoving party.” Smith, 311 F.3d at 668.

III.

DISCUSSION

Willis’s petition and supplemental petition bring eight claims for federal

habeas relief. The respondent argues in his summary-judgment motion that

Claims 1, 2, 3, 4, 6, and 7(a)-7(c) are unexhausted and procedurally defaulted, and

that Claims 5, 7(d)-7(e), and 8 fail on the merits.

A.

Exhaustion and Procedural Default

The respondent argues that Claims 1, 2, 3, 4, 6, and 7(a)-7(c) should be

dismissed as unexhausted and procedurally defaulted because Willis did not fairly

present the substance of his claims to the state court.

Under the exhaustion doctrine, AEDPA precludes federal relief on

constitutional challenges that an inmate has raised for the first time in federal

court. See 28 U.S.C. § 2254(b)(1). To comply with exhaustion, a petitioner must

“fairly present his legal claim to the highest state court in a procedurally proper

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manner.” Nickleson v. Stephens, 803 F.3d 748, 753 (5th Cir. 2015) (cleaned up);

see Jones v. Dretke, 375 F.3d 352, 354-55 (5th Cir. 2004). The federal claim “must

be the substantial equivalent of the claim brought before the State court.” Young

v. Davis, 835 F.3d 520, 525 (5th Cir. 2016) (cleaned up); see Lucio v. Lumpkin,

987 F.3d 451, 464 (5th Cir. 2021) (“a state prisoner who does not fairly present a

claim to a state habeas court—specifying both the legal and factual basis for the

claim—may not raise that claim in a subsequent federal proceeding”).

As a corollary to exhaustion, the federal procedural-default doctrine

requires inmates to litigate claims in compliance with state procedural law. See

Dretke v. Haley, 541 U.S. 386, 392 (2004); Coleman v. Thompson, 501 U.S. 722,

731-32 (1991). If a petitioner with an unexhausted claim would be barred from

returning to state court by Texas’ abuse-of-the-writ doctrine, Tex. Code Crim.

Proc. art. 11.07 § 4> the claim is barred under the federal procedural-default

doctrine. Young, 835 F.3d at 525; Nobles v. Johnson, 127 F.3d 409 (5th Cir. 1997).

To overcome the default and obtain federal habeas review, a petitioner must

demonstrate either “cause for the default and actual prejudice as a result of the

alleged violation of federal law,” or that “failure to consider the claims will result

in a fundamental miscarriage of justice.” Williams v. Thaler, 602 F.3d 291, 307

(5th Cir. 2010) (cleaned up). The fundamental-miscarriage-of-justice exception to

procedural default is limited to cases in which a petitioner demonstrates that a

constitutional violation has probably resulted in the conviction of one who is

actually innocent. Garza v. Stephens, 738 F.3d 669, 675 n.3 (5th Cir. 2013);

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Hughes v. Quarterman, 530 F.3d 336, 341-42 (5th Cir. 2008).

In this case, Willis raised Claims 1, 2, 3, 4, 6, and 7(a)-7(c) in his

supplemental pro se application, which was docketed in the trial court after the

court entered its first findings of fact and conclusions of law. See Dkt. 23-6, at 922 (Claims 1-4 & 6-8 in supplemental pro se state application). The trial court did

not reach the merits of the claims, but rather dismissed them on Willis’s motion,

which was supported by Willis’s handwritten affidavit stating that he agreed to the

dismissal. See id. at 80-81 (motion); id. at 83 (affidavit); id. at 84-85 (findings of

fact and conclusions of law). The Court of Criminal Appeals then denied the writ

without written order on the findings of the trial court and on the court’s

independent review of the record. Dkt. 22-9. Therefore, Willis did not fairly

present the substance of his claims to the state courts and give the state courts the

opportunity to correct the alleged violations of his rights. See Jones, 375 F.3d at

354-55 (the presentation requirement gives state courts “an initial opportunity to

pass upon and correct alleged violations of its prisoners’ federal rights”) (cleaned

up) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)). His claim is

unexhausted. See Nickleson, 803 F.3d at 753.

If Willis returned to the state courts now to exhaust his claims, they would

be barred. In fact, when Willis filed a state habeas application in December 2021,

which included the unexhausted claims he brings in this court, the Court of

Criminal Appeals dismissed the application as subsequent. Dkt. 24-3 (citing Tex.

Code. Crim. Proc. art. 11.07, § 4)- His claims therefore are barred under the

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procedural-default doctrine. See Young, 835 F.3d at 525.

Willis argues that he had “cause” for the default because he dismissed his

state habeas claims in reliance on his habeas counsel’s erroneous advice. Dkt. 28

at 13-15. Under Coleman, an attorney’s negligence in habeas proceedings does not

establish cause for default; rather, an attorney is the prisoner’s agent, and the

prisoner bears the risk of the attorney’s negligent conduct. Coleman, 501 U.S. at

753-54. Under this principle, cause for a procedural default exists only “where

something external to the petitioner, something that cannot fairly be attributed to

him, impeded his efforts to comply with the State’s procedural rule.” Maples v.

Thomas, 565 U.S. 266, 280 (2012) (cleaned up) (emphasis original). In 2012, the

Supreme Court allowed a limited qualification to Coleman for ineffectiveassistance-of-trial-counsel claims that the petitioner is otherwise unable to present

for habeas review due to constitutionally ineffective counsel in state habeas

proceedings. Martinez v. Ryan, 566 U.S. l, 12 (2012). Under Martinez, if a habeas

petitioner can show that his state habeas counsel was constitutionally ineffective

under the standards of Strickland v. Washington, 466 U.S. 668 (1984), the

showing can suffice as cause for the default of ineffective-assistance-of-trialcounsel claims. Martinez, 566 U.S. at 14.

Here, Willis argues that his state habeas counsel gave him erroneous advice

regarding the motion to dismiss his supplemental pro se application. In particular,

he claims that his habeas counsel incorrectly informed him that the claims in his

supplemental pro se application would be a subsequent application under Texas

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Code of Criminal Procedure, art. 11.07, § 4- Dkt. 28, at 14. He further states that,

when he agreed to the dismissal, he intended to proceed with his writ filed on

November 26, 2020, i.e., the writ that was never docketed in the state courts. Id.

at 7. His declaration, dated October 7, 2022, states that he was “under the

impression” that his prior, unfiled application could proceed once it was located:

I was under the impression that by agreeing to dismiss [the

application dated May 18, 2021], it would not have a bearing on the

application that I tendered on November 26, 2020, because [the

application tendered on November 26, 2020] was considered filed at

the time that I handed it to prison officials [] for mailing ... [and] all

[that] was needed was to track it down and see if it was filed with a

different court. I state that it was never my intention[] to dismiss any

claims [that need] to be presented to the State court for exhaustion

purposes so that they could be heard by the federal court.

Dkt. 28, at 35-36-

Willis’s filings in this court clearly state that he personally agreed to dismiss

his supplemental pro se application. His affidavit in state habeas proceedings also

unequivocally stated that he agreed to dismiss the application. Dkt. 23-6, at 83.

Although he now claims that, when he agreed to the dismissal, he believed he

would be able to continue with his unfiled petition at a later time, his filings in state

court made no mention of proceeding with an undocketed pro se application.

Rather, his affidavit at the time of the dismissal stated that he “wish[ed] to proceed

with [his] original writ, filed under cause no. 15-CR-1465-83-1 by [his] attorney.”

Id. See also Dkt. 24-5, at 3-27 (habeas application filed on Dec. 30, 2021, did not

refer to the undocketed petition) (WR-72,712-05); Dkt. 23-2 (motion to reinstate

dated Jan. 12, 2022, did not refer to the undocketed petition) (WR-72,712-04).

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In light of Willis’s statements in this court and his affidavit filed in state

habeas proceedings in June 2021, he fails to show that his effort to present the

substance of his claims to the state habeas court was impeded by something

“external... that cannot fairly be attributed to him.” See Maples, 565 U.S. at 280.

Even assuming that Willis could prove that his habeas counsel was negligent, the

showing would be insufficient to demonstrate cause for his default. Id.

Additionally, to the extent he argues that his habeas counsel was ineffective and

rendered him unable to present his ineffective-assistance-of-trial-counsel claims

to the state habeas court for review, see Martinez, 566 U.S. at 12-14, he fails to

sufficiently show that his counsel was deficient or that he was prejudiced under

Strickland standards. He therefore has not shown that cause to overcome the

default of his claims.

Willis also fails to demonstrate a fundamental miscarriage of justice. He

claims that he is actually innocent and entitled to merits review of his claims

because he was not “legally eligible for the sentence imposed” against him, Dkt. 28,

at 16, arguing that his sentence was wrongly enhanced based on prior offenses. See

id. at 20-21. He cites to the exception in Texas Code of Criminal Procedure, article

11.07, § 4(a)(2), which provides that a subsequent writ may be considered if the

application “contains sufficient specific facts establishing that ... by a

preponderance of the evidence, but for a violation of the United States Constitution

no rational juror could have found the applicant guilty beyond a reasonable doubt.”

To the extent Willis relies on Texas Code of Criminal Procedure art. 11.07,

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§ 4, for his arguments regarding a fundamental miscarriage of justice, the Court of

Criminal Appeals squarely rejected his arguments. Willis presented his claims to

the state courts in his petition executed on December 24, 2021, including his claim

that he is “actually innocent of the sentence” imposed. See Dkt. 24-5 at 3-27 (WR72,712-05). The Court of Criminal Appeals rejected this claim under article 11.07,

§ 4, and dismissed the application as subsequent. Dkt. 24-3. In this court, Willis’s

arguments grounded in state law cannot provide a basis for federal habeas relief.

See 28 U.S.C. § 2254(a) (a federal court shall entertain a habeas petition from a

person in state custody “only on the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States”). 9

To the extent Willis here relies on actual innocence as a gateway to present

otherwise-barred claims to in federal court, his argument would require “new

evidence” and a showing that, “in light of the new evidence, no juror, acting

reasonably, would have voted to find him guilty beyond a reasonable doubt.”

McQuiggin v. Perkins, 569 U.S. 383, 386 (2013); see Floyd v. Vannoy, 894 F.3d

143, 155 (5th Cir. 2018) (to be credible, claims of actual innocence require “new

reliable evidence”) (cleaned up). Because Willis has not presented any new

evidence in these proceedings that he was innocent of sexual assault, his argument

that he suffered a fundamental miscarriage of justice is unavailing.

9

Similarly, to the extent Willis argues that federal habeas relief is warranted because

the state courts failed to comply with state procedural law, see Dkt. 28, at 2-5, his

argument fails under 28 U.S.C. § 2254(a).

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Because Willis’s claims are unexhausted and defaulted, federal habeas relief

is unavailable and Claims l, 2, 3, 4, 6, and 7(a)-7(c) will be dismissed.

B.

Fundamental Fairness

Willis claims in Claim 5 that the trial court violated his constitutional rights

under the Sixth and Fourteenth Amendments when it excluded evidence of the

complainant’s prior allegations of sexual assault. He argues that the evidence was

relevant to the issue of whether the complainant had consented to sex and to her

motive to lie, that it was admissible under the Confrontation Clause, and that the

trial court violated his due-process rights when it excluded the evidence. Dkt. 1, at

12; Dkt. 28, at 29-32.

The Fourteenth Amendment’s Due Process Clause protects a state

defendant’s right to a fundamentally fair trial. Rogers v. Lynaugh, 848 F.2d 606,

608 (5th Cir. 1988) (citing, inter alia, Darden v. Wainwright 477 U.S. 168, 181

(1986)); Kirkpatrick v. Blackburn, 777 F.2d 272, 278 (5th Cir. 1985) (citing, inter

alia, United States v. Bagley, 473 U.S. 667 (1985)). On habeas review, a petitioner

bringing a claim based on a trial court’s error must show prejudice by

demonstrating that the error had a “substantial and injurious effect or influence in

determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)

(cleaned up). The Sixth Amendment’s Confrontation Clause guarantees criminal

defendants the right to confront witnesses against them. Crawford v. Washington,

541 U.S. 36 (2004); Dorsey v. Stephens, 720 F.3d 309, 317 (5th Cir. 2013).

At his trial, Willis sought to introduce evidence that the complainant was

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C.

Ineffective Assistance of Appellate Counsel

Willis claims in Claims 7(d) and 7(e) that his appellate counsel was

constitutionally ineffective. A criminal defendant is entitled to effective assistance

of counsel on direct appeal. Evitts v. Lucey, 469 U.S. 387 (1985); Dorsey, 720 F.3d

at 319-21. Claims of ineffective assistance of counsel on appeal are governed by

Strickland, which requires a petitioner to show that counsel’s performance was

deficient and that the petitioner was prejudiced. Id. at 319. The court’s review

under Strickland is “highly deferential,” and “doubly deferential” on habeas review

when the standards of § 2254(d) apply. Richter, 562 U.S. at 105. A habeas

petitioner must overcome “a strong presumption that counsel’s conduct falls

within the range of reasonable professional assistance.” Higgins v. Cain, 720 F.3d

255, 265 (5th Cir. 2013) (cleaned up). Moreover, appellate counsel is not required

to “raise every nonfrivolous ground of appeal available.” Dorsey, 720 F.3d at 320

(cleaned up). “[Ajppellate counsel who files a merits brief need not (and should

not) raise every nonfrivolous claim, but rather may select from among them in

order to maximize the likelihood of success on appeal.” Smith v. Robbins, 528 U.S.

259,288 (2000). Effective advocates “‘winnowf] out weaker arguments on appeal’”

and focus on key issues. Higgins, 720 F.3d at 265 n.41.

1. Claim 7(d)

In Claim 7(d), Willis alleges that his appellate counsel was ineffective when

he failed to argue under Davis v. Alaska, 415 U.S. 308 (1974), that the

complainant’s past allegation of sexual assault by an exchange student should have

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been admitted into evidence. Dkt. 15, at 3 (arguing that his counsel erred by

bringing the claim under Texas Rule of Evidence 412 rather than Davis). In Davis,

a criminal defendant sought to use cross-examination to impeach the credibility of

a prosecution witness by questioning the witness about possible bias deriving from

his probationary status as a juvenile delinquent. The trial court entered a

protective order based on a state statute, preventing the defense from referring to

the witness’s juvenile record on cross. The Supreme Court reversed Davis’s

conviction, holding that the limited cross-examination violated the Confrontation

Clause. Davis, 415 U.S. at 320-21. The court noted that the witness’s “accuracy and

truthfulness ... were key elements in the State’s case against [Davis]” and that the

defense’s evidence of bias “was admissible.” Id. at 317-18.

Willis raised this claim in state habeas proceedings. His appellate counsel

submitted an affidavit explaining that he did not raise a claim under Davis because

Davis had limited application in Willis’s case. Counsel opined that, while Davis

was “generally applicable” regarding Willis’s “right to confront the victim as

provided by the Confrontation Clause, “it did not specifically apply to “the subject

matter of [Willis’s] attempted cross examination.” Dkt. 24-2, at 65. The state

habeas court determined that counsel’s affidavit was “credible,” that he is “a wellqualified and experienced appellate attorney,” and that counsel “adequately

briefed and appealed [the] confrontation clause and Rule 412 point of error.” Id. at

147, 149. It concluded that Willis had not proven by a preponderance of the

evidence that counsel’s representation “fell below an objectively reasonable

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standard” nor that, “but for the complained of errors in [counsel’s] representation,

[Willis] would have prevailed on direct appeal.” Id. at 148-49.

In these federal proceedings, Willis claims that his counsel’s affidavit and

the state court’s decision are contrary to Davis and that relief under § 2254(d) is

justified. See Dkt. 28, at 25-26 (“the Davis case is very specific as to the subject

matter of the attempted cross examination of the alleged victim[] in this case that

excluded [sic] by the trial court”). His assertion does not satisfy his burden to show

that his appellate counsel’s performance was deficient under Strickland standards.

See Dorsey, 720 F.3d at 319-20.11 The state habeas court rejected his claim and, in

this proceeding, Willis does not show that the state court’s determination was

contrary to clearly established law or unreasonable under § 2254(d).

2. Claim 7(e)

In Claim 7(e), Willis argues that his appellate counsel failed to argue that

recorded calls between Willis and his daughter should have been excluded from

evidence. Willis alleges that the trial court admitted the calls, which were recorded

when he was a pretrial detainee in the Galveston County Jail, without adequate

The court notes that, in Willis’s case, the state courts determined that the evidence

was properly excluded because it had little or no probative value or that any value was

outweighed by the danger of unfair prejudice. Willis, 2019 WL1941067, at *7. By contrast,

in Davis, the Supreme Court stated that the cross-examination at issue was relevant and

admissible. Davis, 415 U.S. at 317-18; see United States v. Herman, 997 F.3d 251, 272-73

(5th Cir. 2021), cert, denied, 142 S. Ct. 787 (2022) (trial court’s limitations on the

defense’s cross-examination of the prosecution’s witnesses did not violate the

Confrontation Clause because the trial court properly excluded evidence that was

marginally relevant or concerned unrelated conduct).

11

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notice to the defense, and that the calls “contained evidence of extraneous bad acts,

i.e., witness tampering and suborning perjury.” Dkt. 15, at 4. Counsel’s affidavit in

state habeas proceedings stated that he “did not raise this argument on appeal

because [he] did not think it was well enough developed in the trial court.” Dkt. 242, at 66. Counsel also noted that Willis had not provided specific details as to why

the argument should have been raised. Id. at 66-67. The state habeas court rejected

Willis’s claim, concluding that counsel’s “decision not to brief the jail call point of

error relating to the admission of [the recorded calls] was a reasonable appellate

strategy based on [counsel’s] extensive legal experience.” Id. at 149.

Willis argues in this court that his appellate counsel’s argument is

inadequate to show that the claim was insufficiently developed in the trial court.

Dkt. 28, at 27. However, Willis bears the burden of proof to demonstrate that his

counsel was ineffective under Strickland standards. See Dorsey, 720 F.3d at 31920. His arguments fail to satisfy his burden to show that appellate counsel

rendered deficient performance or prejudiced him when he selected the issues for

appeal. They also fail to demonstrate that the state habeas court’s denial of relief

was contrary to clearly established law or unreasonable under § 2254.

D.

Prosecutorial Misconduct

Willis claims in Claim 8 that the prosecutors at his trial committed

misconduct. On federal habeas review, a claim for prosecutorial misconduct

requires a showing that the misconduct “so infected the trial with unfairness as to

make the resulting conviction a denial of due process.” Darden, 477 U.S. at 181

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(cleaned up); see Barrientes v. Johnson, 221 F.3d 741, 753 (5th Cir. 2000). Habeas

relief is only available if the trial was rendered “fundamentally unfair,” which

requires a showing of “a reasonable probability that the verdict might have been

different had the trial been properly conducted.” McAfee v. Thaler, 630 F.3d 383,

396-97 (5th Cir. 2011) (cleaned up). “The appropriate standard of review for such

a claim on writ of habeas corpus is the narrow one of due process, and not the

broad exercise of supervisory power.” Barrientes, 221 F.3d at 753 (cleaned up).

Here, Willis claims that his constitutional rights were violated when the

prosecution failed to provide proper notice of the particular recorded jail calls it

would seek to admit at trial. He alleges that the prosecution “made [a] massive

disclosure of jail calls in January of 2017, still refusing to identify which it intended

to admit at trial,” in a “calculated effort to deny [Willis] effective assistance of

counsel.” Dkt. 15, at 5.12

The state habeas court determined that the exhibits with the relevant phone

calls were provided to the defense “during the normal course of pre-trial discovery

on July 7, 2016;” that the prosecutors did not decide to seek introduction of the

exhibits “until, at the earliest, the evening of June 15, 2017;” and that the

prosecutors informed the defense of their intent to seek introduction of the

Willis describes the calls as “between Mr. Willis and his daughter, complainant’s

friend.” Id. at 6. He states that, in the calls, “Mr. Willis is heard asking his daughter to

have complainant sign an affidavit,” that “Mr. Willis’s daughter can be heard suggesting

that she might get the complainant drunk first, or misrepresent what the document

actually was,” and that “Mr. Willis can be heard agreeing with the strategy on the phone.”

Id.

12

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exhibits on the morning of June 16, 2017. Dkt. 24-2, at 147-48. The habeas court

further found that the trial court granted the defense a continuance to rebut the

evidence, but that Willis’s counsel “decided to move forward with trial without

taking the continuance.” Id. at 148. The court concluded that the prosecutors did

not commit prosecutorial misconduct, that the decision to seek introduction of the

calls “was not done with a calculated effort to frustrate or harm the defense,” and

that the prosecution “was not required to give [Willis] any Rule 404(b) notice” for

the recorded phone calls “because they were offered to rebut the defensive theory

of consent.” Id. at 149.

The state habeas court’s ruling included specific determinations that the

prosecution had not committed misconduct and that Willis had declined the

opportunity for a continuance. In these habeas proceedings, Willis’s assertion that

prosecutors deliberately attempted to thwart the defense is insufficient to

demonstrate prosecutorial misconduct. Willis also has not shown that that state

habeas court’s determination was contrary to, or an unreasonable application of,

clearly established federal law, or that it was based on an unreasonable

determination of the facts in light of the evidence presented in state-court

proceedings. See 28 U.S.C. § 2254(d).

IV.

CERTIFICATE OF APPEALABILITY

Habeas corpus actions for a person in state custody require a certificate of

appealability to proceed on appeal. 28 U.S.C. § 2253(c)(1); Miller-El v. Cockrell,

537 U.S. 322, 335-36 (2003). Rule 11 of the Rules Governing Section 2254 Cases

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requires a district court to issue or deny a certificate of appealability when entering

a final order adverse to the petitioner.

A certificate of appealability will not issue unless the petitioner makes “a

substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2),

which requires a petitioner to establish ‘“that reasonable jurists would find the

district court’s

assessment of the

constitutional claims

debatable

or

wrong.’” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v.

McDaniel, 529 U.S. 473,484 (2000)). Under the controlling standard, a petitioner

must show “that reasonable jurists could debate whether (or, for that matter, agree

that) the petition should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed further.” Miller-El,

537 U.S. at 336 (cleaned up). Where denial of relief is based on procedural grounds,

the petitioner must show not only that “jurists of reason would find it debatable

whether the district court was correct in its procedural ruling” but also that the

jurists “would find it debatable whether the petition states a valid claim of the

denial of a constitutional right.” Slack, 529 U.S. at 484; see Pierre v. Hooper, 51

F.4th 135, 137 (5th Cir. 2022) (a certificate of appealability may not issue based

solely on a debatable procedural ruling).

A district court may deny a certificate of appealability, sua sponte, without

requiring more briefing or argument. Alexander v. Johnson, 211 F.3d 895,898 (5th

Cir. 2000). After careful review of the record and the applicable law, the court

determines that reasonable jurists would not find its assessment of the claims

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debatable or wrong. Because the petitioner does not allege facts showing that his

claims could be resolved in a different manner, a certificate of appealability will

not issue in this case.

V.

CONCLUSION

For the reasons stated above, the respondent’s motion for summary

judgment is GRANTED. Dkt. 25. Willis’s habeas claims are denied and his

petition is DISMISSED with prejudice. A certificate of appealability is

DENIED.

The Clerk will provide copies of this order to the parties.

Signed on Galveston Island this 15th day of March

2023.

JEFFREYVINCENT BROWN

UNITED STATES DISTRICT JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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