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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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.” ; .
!
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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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
t
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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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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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.