Petition for Writ of Certiorari — Joseph James Craver, Petitioner v. Eric Guerrero, Director, Texas Department of Criminal Justice, Correctional Institutions Division, et al.

APPENDIX A

U.S. Court of Appeals Fifth Circuit Opinion

Case: 25-40079

Document: 33-1

Page: 1

Date Filed: 10/22/2025

QUniteii B>tate£ Court of Appeals:

for tlje jFiftlj Circuit

United States Court of Appeals

Fifth Circuit

FILED

No. 25-40079

October 22, 2025

Lyle W. Cayce

Clerk

Joseph James Craver,

Petitioner—Appellant,

versus

Eric Guerrero, Director, Texas Department of Criminal Justice,

Correctional Institutions Division-, Texas Department of Criminal

Justice,

Respondents—Appellees.

Application for Certificate of Appealability

the United States District Court

for the Eastern District of Texas

USDC No. 2:22-CV-52

ORDER:

Joseph James Craver, Texas prisoner # 02262481, moves for a

certificate of appealability (CO A) to appeal the district court’s denial of his

28 U.S.C. § 2254 application challenging his three convictions for aggravated

sexual assault of a child. The district court denied Craver’s § 2254

application upon finding that all of the claims he raised in his application were

unexhausted and procedurally barred. In his CO A pleadings, Craver admits

that his claims are unexhausted but, citing Martinez v. Ryan, 566 U.S. 1

(2012), contends that he can overcome the procedural bar because he was not

Case: 25-40079

Document: 33-1

Page: 2

Date Filed: 10/22/2025

No. 25-40079

represented by counsel in connection with his state postconviction

proceedings and at least two of his claims have some merit and are

substantial.

In order to obtain a CO A, Craver must make “a substantial showing

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

district court denies relief on procedural grounds, a COA should issue if an

applicant establishes, at least, that jurists of reason would find it debatable

whether the application states a valid claim of the denial of a constitutional

right and whether the district court was correct in its procedural ruling. Slack

v. McDaniel, 529 U.S. 473, 484 (2000).

Craver fails to make the required showing. See id. Accordingly, his

motion for a COA is DENIED. His motion to proceed in forma pauperis

on appeal is likewise DENIED .

/s/James E. Graves, Jr.

James E. Graves, Jr.

United States Circuit Judge

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APPENDIX B

U.S. District Court Magistrate Report & Recommendation,,;

Opinion, and Judgment

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421

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

JOSEPH JAMES CRAVER, #02262481

§

VS.

§

DIRECTOR, TDCJ-CID.

§

CIVIL ACTION NO. 2:22cv052

REPORT AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Petitioner Joseph James Craver, a prisoner within the Texas Department of Criminal Justice

proceeding pro se, filed this federal petition for a writ of habeas corpus challenging a Harrison

County conviction. The petition was referred to the undersigned United States Magistrate Judge

for findings of fact, conclusions of law, and recommendations for the disposition of the petition.

For reasons explained below, the Court recommends that Petitioner Craver’s habeas

petition be dismissed with prejudice. Finally, the Court recommends that Craver be denied a

certificate of appealability sua sponte.

I. Procedural Background

/

On May 8, 2019, after a jury trial, Craver was sentenced to three terms of 99 years’

imprisonment for three counts of aggravated sexual assault of a child, (Dkt. # 10, pg. 121). He filed

a direct appeal, and the appellate court affirmed the judgment and sentence. See Craver v. State,

2020 WL 253003 (Tex. App.—Texarkana, pet. ref d). He filed a petition for discretionary review,

which was refused on May 6, 2020, and a motion for rehearing, which was denied on July 22,

2020.

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omitted). When reviewing state proceedings, a federal court will not act as a “super state supreme

court” to review error under state law. Wood v. Quarterman, 503 F.3d 408, 414 (5th Cir. 2007).

Federal habeas review of state court proceedings is governed by the Antiterrorism and

Effective Death Penalty Act (AEDPA) of 1996. Under the AEDPA, which imposed several habeas

corpus reforms, a petitioner who is in custody “pursuant to the judgment of a State court” is not

entitled to federal habeas relief with respect to any claim that was adjudicated on the merits in

State court proceedings unless the adjudication of the claim—

1. resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established law, as determined by the Supreme Court of the

United States; or

2. resulted in a decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceedings.

28 U.S.C. § 2254(d). The AEDPA imposes a “highly deferential standard for evaluating state

court rulings,” which demands that federal courts give state court decisions “the benefit of the

doubt.” See Renico v. Lett, 559 U.S. 766,773 (2010) (internal citations omitted); see also Cardenas

v. Stephens, 820 F.3d 197, 201-02 (5th Cir. 2016) (“Federal review under the AEDPA is therefore

highly deferential: The question is not whether we, in our independent judgment, believe that the

state court reached the wrong result. Rather, we ask only whether the state court’s judgment was

so obviously incorrect as to be an objectively unreasonable resolution of the claim.”). Given the

highly deferential standard, a state court’s findings of fact are entitled to a presumption of

correctness and a petitioner can only overcome that burden through clear and convincing evidence.

Reed v. Quarterman, 504 F.3d 465, 490 (5th Cir. 2007).

To show that trial counsel was ineffective, Craver must demonstrate both deficient

performance and ensuing prejudice. See Strickland v. Washington, 466 U.S. 668 (1984). In

evaluating whether an attorney’s conduct was deficient, the question becomes whether the

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petition. A state prisoner must exhaust all remedies available in state court before proceeding in

federal court unless circumstances exist which render the state corrective process ineffective to

protect the prisoner’s rights. See 28 U.S.C. § 2254(b) & (c). To exhaust properly, a petitioner

must “fairly present” all of his claims to the state court. See Picard v. Connor, 404 U.S. 270

(1971) (“Accordingly, we have required a state prisoner to present the state courts with the same

claim he urges upon the federal court.”); Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997).

In Texas, all claims must be presented to and ruled on by the Texas Court of Criminal

Appeals.

See Richardson v. Procunier, 762 F.2d 429 (5th Cir. 1985); Deters v. Collins, 985

F.2d 789 (5th Cir. 1993). Exhaustion is mandatory.

Here, a review of both Craver’s state habeas application, his direct appeal, and his federal

petition before this Court illustrates that the claims outlined above were not presented to the Texas

Court of Criminal Appeals. Craver admits that he did not exhaust his claims, asserting that “Craver

acknowledges that he did not present his claims of ineffective assistance of trial counsel in his state

court proceedings,” (Dkt. #11, pg. 2). The docket reflects that Craver argued in his petition for

discretionary review that (1) the appellate court erred in allowing “harmless” testimony, and (2)

the appellate court erred in finding that “percentage of untruthful allegations in child sex abuse

victims was harmless,” (Dkt. #10, pg. 263).

Additionally, in his state habeas application, Craver raised several claims of trial court

error, and that trial counsel was ineffective for (1) failing to ask the trial court to order the State to

“make its election at the rest” of their case; (2) failing to object to testimony of Ms. Wisson; (3)

failing to object to “State’s designation of outcry witness,” (Dkt. #10, pg. 319-40). Accordingly,

these federal habeas claims—raised for the first time here in federal court—are unexhausted.

Craver did not give the state courts an opportunity to address these claims; instead, he bypassed

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the state courts and moved to federal court on these claims. See, e.g., Wenceslao v. Quarterman,

326 F. App’x 789, 790 (5th Cir. 2009) (“The petitioner must provide the state court a ‘fair

opportunity to pass upon the claim.’”) (citing and quoting Morris v. Dretke, 379 F.3d 199, 204

(5th Cir. 2004)).

A petitioner is not entitled to a stay for unexhausted claims wherein the state court would

find them procedurally barred. See Neville, 423 at 780 (“Neville’s unexhausted claims are ‘plainly

meritless’ because he is now procedurally barred from raising those claims in state court.”)

(emphasis added). If state remedies are unavailable, a stay would be inappropriate. See Slater v.

Davis, 2017 WL 1194574 *5 (S.D. Tex. Mar. 30,2017) (“A procedural bar precludes consideration

of any unexhausted grounds for relief.”), certificate ofappealability denied, 717 F. App’x 432 (5th

Cir. 2018) (unpublished).

As Respondent argues, Texas strictly enforces its abuse-of-the-writ doctrine and normally

prohibits the filing of successive habeas petitions. See Fearance v. Scott, 56 F.3d 633, 642 (5th

Cir. 1995) (explaining that the Fifth Circuit has recognized that Texas has strictly and regularly

applied the abuse-of-the-writ doctrine). The successive statute states, in pertinent part:

(a) If a subsequent application for writ of habeas corpus is filed after final disposition of

an initial application challenging the same conviction, a court may not consider the merits

of or grant relief cased on the subsequent application unless the application contains

sufficient specific facts establishing that:

(1) the current claims and issues have not been and could not have been presented

previously in an original application or in a previously considered application filed

under this article because the factual or legal basis for the claim was unavailable

on the date the applicant filed the previous application; or

(2) 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.

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Tex. Code Crim. P. art. 11.07 § 4(a). Stated differently, “Texas courts will not address the merits

of unraised claims that could have been brought on initial habeas.” Tong v. Lumpkin, 90 F.4th 857,

864 (5th Cir. 2024).

Under the same statute, the legal basis of a claim is “unavailable” if the “legal basis was

not recognized by and could not have been reasonably formulated from a final decision of the

United States Supreme Court, a court of appeals of the United States, or a court of appellate

jurisdiction of this state on or before that date.” Id. at § 4(b). Moreover, the factual basis of a

claim is unavailable on the date the petitioner’s initial habeas application was filed only if “the

factual basis was not ascertainable through the exercise of reasonable diligence on or before that

date.” Id. at § 4(c).

Here, Craver’s unexhausted claims are those of ineffective assistance of trial counsel. The

legal and factual bases for these claims were available to him at the time he filed his initial state

habeas application—if not before. See Neville, 423 F.3d at 480 (finding that Neville’s unexhausted

claims were plainly meritless because he was barred from raising them in state court, “Neville had

his opportunity to file all of his claims in his first state habeas petition, and failed to do so.”).

Like Neville, here, Craver had the opportunity to raise his unexhausted claims in his initial

habeas application but did not do so. Importantly, as mentioned, the record shows that Craver

raised other claims regarding ineffective assistance of counsel and trial court error in his initial

state habeas application that was denied without written order, (Dkt. #10, pg. 335-40)—

demonstrating that he could have raised these unexhausted claims then as well. His claims are

procedurally barred. See Coleman v. Thompson, 501 U.S. 722, 750 (1991) (holding that a federal

court may excuse a procedural bar if the petition can demonstrate cause or prejudice for the default,

or that the court’s failure to consider the claims will result in a miscarriage ofjustice).

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B. Martinez and Trevino

Craver states that the Court should review his unexhausted claims—though procedurally

barred—because he was not afforded habeas counsel in state court, citing Martinez v. Ryan, 566

U.S. 1 (2012) and Trevino v. Thaler, 569 U.S. 413 (2013). Martinez, together with Trevino,

established that a procedural default does not bar federal review of a substantial claim of

ineffective assistance of trial counsel if trial counsel in the initial-review collateral proceeding was

ineffective.

In Martinez, the Supreme Court held that where state law provides that “claims of

ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a

procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective

assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in

that proceeding was ineffective.” Martinez, 566 U.S. at 17; (emphasis added); see also Trevino,

569 U.S. at 428 (recognizing that the “narrow exception” created by Martinez applies in Texas,

where claims of ineffective assistance of trial counsel are precluded from direct appeal “as a matter

of course.”).

Here, Craver maintains that because he did not have counsel for his state habeas

proceeding, the procedural bar should not apply. But this does not end the analysis. Martinez does

not require a federal court to excuse a state’s procedural default caused by circumstances within

the prisoner’s control—and neither Martinez nor Trevino require a state to appoint postconviction

counsel, as there is no constitutional right to postconviction counsel. See Moody v. Lumpkin, IQ

F.4th 884, 891 (5th Cir. 2024) (“We agree with the State that Martinez and Trevino had no effect

on the long-established rule that there is no constitutional right to counsel in postconviction

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not a cause,” (Dkt. #1, pg. 7). Counsel then used “eight of his peremptory challenges to strike

veniremember that were further back in the jury pool,” and juror number five ultimately was

chosen.

But Craver’s mere disagreement with trial counsel’s elections on strikes during jury

selection does not demonstrate deficient performance and ensuing prejudice. It is well-settled that

“[a] conscious and informed decision on trial tactics and strategy cannot be the basis for

constitutionally ineffective assistance of counsel unless it is so ill-chosen that it permeates the

entire trial with obvious unfairness.” Crane v. Johnson, 178 F.3d 309,314 (5th Cir. 1999) (quoting

Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983)). Counsel’s strategic decisions are given

heavy deference and should not be second-guessed. See United States v. Jones, 287 F.3d 325, 331

(5th Cir. 2002); see also Yohey v. Collins, 985 F.2d 222, 228 (5th Cir. 1993) (“Given the almost

infinite variety of possible trial techniques and tactics available to counsel, this Circuit is careful

not to second-guess legitimate strategic choices.”); Lamb v. Johnson, 179 F.3d 352, 358 (5th Cir.

1999) (“Informed strategic decisions of counsel are given a heavy measure of deference and will

not be second guessed.”).

Here, Craver admits that trial counsel used his peremptory strikes on other potential jury

members. He presents nothing demonstrating—or even suggesting—that counsel’s strategy was

so ill-chosen that it permeated the entire trial with obvious unfairness. The Fifth Circuit has

squarely held that “acts of counsel conducted during voir dire are generally considered a matter of

trial strategy.” Ray v. Johnson, 196 F.3d 1257 (5th Cir. 1999) (citing Teague v. Scott, 60 F.3d

1167, 1172 (5th Cir. 1995)); Ramirez v. Stephens, 641 F. App’x 312, 322 (5th Cir. 2016) (“But

with respect to deficient performance at voir dire, we have noted that an attorney’s actions during

voir dire are considered to be a matter of trial strategy.”) (internal citation and quotations omitted).

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Craver offers nothing to overcome the heavy deference afforded to counsel—as conclusory

allegations are insufficient. See Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1993) (per curiam)

(“re-emphasiz[ing] that mere conclusory allegations do not raise a constitutional issue in a habeas

proceeding.”). Craver also fails to show that he was prejudiced, and this claim should be dismissed.

2. Failure to Object to Court's Comment

Craver further contends that trial counsel was ineffective for failing to object to the trial

court’s “comments on the evidence,” when it stated that the victim identified Craver in open court.

He insists that it was the “jury’s responsibility to determine whether petitioner was identified or

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not.”

Counsel cannot be ineffective for failing to raise a meritless or frivolous objection. See

Turner v. Quarterman, 481 F.3d 292,298 (5th Cir. 2007) (“Turner’s counsel cannot have rendered

ineffective assistance of counsel by failing to make an objection that would have been meritless.”);

see also Green v. Johnson, 160 F.3d 1029, 1037 (5th Cir. 1998) (explaining that “counsel’s failure

to make a frivolous objection does not cause counsel’s performance to fall below an objective level

of reasonableness[.]”). Furthermore, in order to show that counsel was ineffective for failing to

raise an objection, the petitioner must show that the court would have sustained the objection—or

that the failure to object was an unreasonable trial tactic. See United States v. Oakley, 827 F.2d

1023,1025 (5th Cir. 1987) (explaining that counsel’s ineffectiveness depends on whether a motion

or an objection would have been granted or sustained had it been made.”); see also Burtnett v.

Collins, 982 F.2d 922, 930 (5th Cir. 1993) (holding that the “failure to object to leading questions

and the like is generally a matter of trial strategy as to which we will not second guess counsel.”)

(emphasis added).

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Here, Craver wholly fails to demonstrate that an objection to the court identifying him in

open court after the State corrected the victim who apparently identified Craver as “number three”

instead of number four would have been sustained or that the failure to object was an unreasonable

trial strategy. Moreover, Craver fails to show prejudice—or that the outcome of the proceedings

would have been different had trial counsel objected on this basis. This claim should be dismissed.

3. Failure to Object Use of “Victim ”

Craver also asserts that trial counsel was ineffective for failing to object to the State and its

witnesses’ referring to the complainant as the “victim.” He claims that while trial counsel filed a

motion in limine, he did not request that the “prosecution and its witnesses be ordered not to refer

to the complainant as the victim during the guilt-innocence phase,” (Dkt. #1, pg. 10).

As mentioned, the failure to raise a meritless objection or argument is not ineffective

assistance. Turner, 481 F.3d at 298. While Craver insists that the use of the term “victim” harmed

his case, he neither shows that any objection on this basis would have been meritorious nor that he

was prejudiced by counsel’s failure to object. In fact, “state and federal courts have rejected

ineffective assistance claims based on the use of the term ‘victim’ during trial.” Harris v. Davis,

2018 WL 11322716, at *4 (S.D. Tex. Apr. 3, 2018) (unpublished); see also Tollefson v. Stephens,

2014 WL 7339119, at *5-6 (W.D. Tex. Dec. 23, 2014) (holding that the state court reasonably

found that counsel was not ineffective for failing to object to witnesses’ use of the term ‘victim.’);

Cueva v. State, 339 S.W.3d 839, 864 (Tex. App.—Corpus Christi-Edinburg 2011, pet. refd)

(holding that counsel was not ineffective for using the term “victim” and failing to object to its use

during trial because the term “is relatively mild and non-prejudicial, especially given that courts

have held invocation of far stronger terms did not amount to reversible error.”). This claim should

be dismissed.

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4. Failure to Object to State’s Comments During Closing

Finally, Craver maintains that counsel was ineffective for failing to object to the State’s

comments during closing regarding the victim’s “truthfulness.” He insists that his “case came

down to the credibility of a child complainant,” and that it was “obvious” that the complainant was

“confused about who abused her.”

As an initial matter, Craver does not identify the State’s comments that counsel should

have objected to. This is fatal to his claims, as his citation to the record is insufficient. Second,

given the conclusory nature of this claim, Craver has not shown that any objection would have

been meritorious—or that he was prejudiced by the comments or lack of objection. This claim

should be dismissed.

VI. Conclusion

Craver’s entire petition is unexhausted and procedurally defaulted. He previously raised

claims of ineffective assistance of counsel in his state habeas proceeding but failed to raise these

particular claims before filing in federal court. Craver has not shown that he was obstructed or

prevented from raising these unexhausted claims in his initial state habeas application. The

procedural default should not be excused in this case.

Additionally, Craver’s claims of ineffective assistance of counsel cannot be characterized

as “substantial.” For each of his ineffective assistance claims, he fails to show deficient

performance, ensuing prejudice, that counsel’s trial strategies were unreasonable, or that any

objection would have been meritorious. His petition should be dismissed.

VII. Certificate of Appealability

“A state prisoner whose petition for a writ of habeas corpus is denied by a federal district

court does not enjoy an absolute right to appeal.” Buck v. Davis, 137 S. Ct. 759, 773 (2017).

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Instead, under 28 U.S.C. § 2253(c)(1), he must first obtain a certificate of appealability (“COA”)

from a circuit justice or judge. Id. Although Petitioner has not yet filed a notice of appeal, the

court may address whether he would be entitled to a certificate of appealability. See Alexander v.

Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (A district court may sua sponte rule on a certificate

of appealability because “the district court that denies a petitioner relief is in the best position to

determine whether the petitioner has made a substantial showing of a denial of a constitutional

right on the issues before the court. Further briefing and argument on the very issues the court has

just ruled on would be repetitious.”).

A certificate of appealability may issue only if a petitioner has made a substantial showing

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

petitioner need only show that “jurists of reason could disagree with the district court’s resolution

of his constitutional claims or that jurists could conclude the issues presented are adequate to

deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). The

Supreme Court recently emphasized that the COA inquiry “is not coextensive with merits analysis”

and “should be decided without ‘full consideration of the factual or legal bases adduced in support

of the claims.’” Buck, 137 S. Ct. 773 (quoting Miller-El, 537 U.S. at 336). Moreover, “[w]hen the

district court denied relief on procedural grounds, the petitioner seeking a COA must further show

that ‘jurists of reason would find it debatable whether the district court was correct in its procedural

ruling.’” Rhoades v. Davis, 852 F.3d 422, 427 (5th Cir. 2017) (quoting Gonzalez v. Thaler, 565

U.S. 134, 140-41 (2012)).

Here, Craver failed to present a substantial showing of a denial of a constitutional right or

that the issues he has presented are debatable among jurists of reason. He also failed to demonstrate

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that a court could resolve the issues in a different manner or that questions exist warranting further

proceedings. Accordingly, he is not entitled to a certificate of appealability.

RECOMMENDATION

For the foregoing reasons, it is recommended that Petitioner Craver’s petition for the writ

of habeas corpus be denied—and that the case be dismissed without prejudice. Finally, it is

recommended that Petitioner Craver be denied a certificate of appealability sua sponte.

Within fourteen (14) days after the receipt of the Magistrate Judge’s Report, any party may

serve and file written objections to the findings and recommendations contained in the Report.

A party’s failure to file written objections to the findings, conclusions, and

recommendations contained in this Report within fourteen days after being served with a copy

shall bar that party from de novo review by the district judge of those findings, conclusions and

recommendations, and, except on the grounds of plain error, from appellate review of unobjectedto factual findings and legal conclusions accepted and adopted by the district court. Douglass v.

UnitedServs. Auto. Ass’n, 79 F.3d 1415,1430 (5th Cir. 1996) (en banc) (extending the time to file

objections from ten to fourteen days).

SIGNED this 20th day of December, 2024.

UNITED STATES MAGISTRATE JUDGE

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

JOSEPH JAMES CRAVER, #02262481

§

VS.

§

DIRECTOR, TDCJ-CID.

§

CIVIL ACTION NO. 2:22cv052

FINAL JUDGMENT

The Court having considered Petitioner’s case and rendered its decision by opinion

issued this same date, it is hereby ORDERED that Petitioner’s habeas proceeding is

DISMISSED WITHOUT PREJUDICE.

So ORDERED and SIGNED this 22nd day of January, 2025.

RODNEY GILSfRAP

UNITED STATES DISTRICT JUDGE

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

JOSEPH JAMES CRAVER, #02262481

§

VS.

§

DIRECTOR, TDCJ-CID.

§

CIVIL ACTION NO. 2:22cv052

ORDER OF DISMISSAL

Petitioner Joseph James Craver, a prisoner within the Texas Department of Criminal Justice

proceeding pro se, filed this federal petition for a writ of habeas corpus challenging a Harrison

County conviction. The petition was referred to United States Magistrate Judge Roy S. Payne for

findings of fact, conclusions of law, and recommendations for the disposition of the petition.On December 23, 2024, Judge Payne issued a Report, (Dkt. #15), recommending that

Petitioner’s habeas petition be denied, the case be dismissed without prejudice, and that petitioner

be denied a certificate of appealability sua sponte. Specifically, Judge Payne found that Petitioner’s

petition is unexhausted and procedurally defaulted—-and that the procedural default should not be

excused, as his claims of ineffective assistance of counsel cannot be characterized as “substantial.”

A copy of this Report was sent to Petitioner, and Petitioner filed timely objections, (Dkt. #16).

Petitioner’s objections are without merit. Petitioner complains that the state court denied

him postconviction counsel, but petitioner does not address the Report explaining that there is no

constitutional right to postconviction counsel. See Moody v. Lumpkin. 70 F.4th 884, 891 (5th Cir.

2024) (“We agree with the State that Martinez and Trevino had no effect on the long-established

rule that there is no constitutional right to counsel in postconviction proceedings.”).

Moreover, while Petitioner states—in a conclusory fashion—that his claims of ineffective

assistance of counsel are “substantial” such that his failure to exhaust his state court remedies

should be excused, he does not elaborate or address the analyses contained in the Report. See, e.g.,

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Gonzales v. Collier, 2023 WL 5473699, at *1 & n.2 (S.D. Tex. Aug. 24, 2023) (citing Aldrich v.

Bock, 327, F. Supp. 2d 743, 747 (E.D. Mich. 2004) (“An objection that does nothing more than

state a disagreement with a magistrate [judge’s] suggested resolution, or simply summarizes what

has been presented before, is not an ‘objection’ as that term is used in this context.”)). In this way,

Petitioner has not identified any error in the Magistrate Judge’s Report.

The Court has conducted a careful de novo review of the record and the Magistrate Judge’s

proposed findings and recommendations. See 28 U.S.C. §636(b)(l) (District Judge shall “make a

de novo determination of those portions of the report or specified proposed findings or

recommendations to which objection is made.”). Upon such de novo review, the Court has

determined that the Report of the United States Magistrate Judge is correct, and Petitioner’s

objections are without merit. Accordingly, it is

ORDERED that the Report and Recommendation of the United States Magistrate Judge,

(Dkt. #15), is ADOPTED as the opinion of the Court. Petitioner’s objections, (Dkt. #16), are

OVERRULED. It is also

ORDERED that Petitioner’s habeas petition is DENIED and the above-styled civil action

is DISMISSED without prejudice. Petitioner is further DENIED a certificate of appealability sua

sponte. Finally, it is

ORDERED that any and all motions which may be pending in this civil action are

DENIED.

So ORDERED and SIGNED this 22nd day of January, 2025.

2

RODNEY GILSTRAP

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UNITED STATES DISTRICT JUDGE