Petition for Writ of Certiorari — Kavali v. Thaler (No. 08-1535)

S

(| upreme Court, U.S.

081535 JUN 11 2009

$n The

Supreme Court of the Anited States

ARUNA KAVALI,

Petitioner,

Vv.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS

DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent.

On Petition for Writ of Certtorari to the United

States Court of Appeals for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

GARY A. UDASHEN

Counsel of Record

SORRELS, UDASHEN & ANTON

2301 CEDAR SPRINGS ROAD

Suite 400

Daas, Texas 75201

214-468-8100

214-468-8104 Fax

Counsel for Petitioner

June 11, 2008

Becker Gallagher Cincinnat. OH + Washington, DC + 800.890.5001

i

QUESTION PRESENTED FOR REVIEW

Did Petitioner receive ineffective assistance of

counse! at trial?

1]

PARTIES TO THE PROCEEDINGS

Aruna Kavali - Petitioner

represented by:

Gary A. Udashen

2301 Cedar Springs Road

Suite 400

Dallas, Texas 75201

214-468-8100

Nathaniel Quarterman, Director,

Texas Department of Criminal Justice, Correctional

Institutions Division - Respondent

represented by:

Greg Abbott

Texas Attorney General

209 W. 14th Street

Austin, Texas 78711-2548

512-463-2100

lil

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED FOR REVIEW ....... 1

PARTIES TO THE PROCEEDINGS ........... 1]

‘LPs CE REC EMEUn ev ea wh ees bes 11]

TIWEPE CIP AAS LEU RE EMD 60k ean bats wees Vv

CITATIONS OF OPINIONS AND ORDERS

BIN Lome IN Tris CASE 2.66.5. c ees ecss 2

JURISDICTIONAL BASIS

CONSTITUTIONAL PROVISIONS INVOLVED 1

STATEMENT OF THE CASE .........0...55. 2

A. Proceegings BOIOW ......5..cseka decane 2

B. Statement of Facts .. rg oe 3

ARGUMENT _.. ae | a he ee

Standard for Issuance of Certificate of

AOORURDIEY © ous kos ce ee a ee 4

Ineffective Assistance of Counsel - Governing

Law ... | 4

Deficient Performance 6

iv

1. Counsel failed to object when the prosecutor

incorrectly argued during summation that

the jury could convict Petitioner of capital

murder if she engaged in conduct that

constituted hindering apprehension or

I inc oe ake Chee ees 6

2. Counsel failed to object to the State making

prejudicial references to Petitioner’s alleged

religious and cultural beliefs ............ 8

3. Counsel failed to present expert testimony to

explain how Petitioner could have been the

source of the blood on the carpet in the

master bedroom that contained the baby’s

Re ek eae ees Cae eee 12

PN ro ra cle oa Seager 14

CE ks 6 ne vw ee oe ee eee 16

APPENDIX

Appendix A: Fifth Circuit Order, dated March

ie oe ae i Le ae la

Appendix B: District Court Order of Dismissal,

Gatec Miaren 10; FIs «3... cee ce baee vers 3a

Appendix C: District Court Report and

Recommendation, dated February 26, 2008 .. 5a

V

INDEX OF AUTHORITIES

PAGE

Cases

Barefoot v. Estelle,

463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090

I eye ks he eek a ee ee ee 4

Brady v. Maryland,

373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215

CR cnr. he a leg ee eee 5

Davis v. State,

506 S.W.2d 909 (Tex. Crim. App. 1974) ...... 6

Drinkert v. Johnson,

97 F.3d 751 (5th Cir.), cert. denied, 117 S.Ct.

Dare Gg eae ore ene ety teas 4.7

Easter v. State,

536 S.W.2d 223 (Tex. Crim. App. 1976) ...... 7

Fuller v. Johnson,

134 F.26 Sen (oth Cir. G07) . w. 6 cect aes 4

Gideon v. Wainwright,

372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799

RU ane 2: sake Pea NS ig ECO D Secysr ie BR Diya ae Nag Bhar De 4

Kyles v. Whitley,

514 U.S. 419, 115 8.Ct. 419, 131 L.Ed. 2d 490

(1995) pis aye ere aes Pht ne Be D

Lockhart v. Fretwell,

Ee! 0 ree i)

Lozada v. Deeds,

498 U.S. 430, 111 S.Ct. 860, 112 L.Ed.2d 956

eee ce a ee a arrears 4

McClesky v. Kemp,

7 DR Me ge yt 10

Miller-El v. Cockrell,

fg a RS os ei.) | a ae

Nix v. Whiteside,

475 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 12:

I a a ee gar oa fe ee ee 5

wh

Strickland v. Washington,

466 U.S. 668 (1984) ..............6. a oy te 28

United States v. Bagley,

473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed. 2d 481

ee er, a ela fae ae hana

United States v. Doe,

Sa eo 16 te... Car. 1900) ........... 10, ]]

Viereck v. United States.

318 U.S. 286 (1943) ee i 10

Wiggins v. Smith,

Se a ee ED og kg kk ccs ek ees ee ee 14

Codes and Rules

28 U.S.C. §1254

28 U.S.C. §2253(c)(2) .

TEX. PENAL CODE & 38.05(a)

Constitutional Provisions

U.S. Const., amend. VI

U.S. Const., amend. XIV, Sect. 1

1

CITATIONS OF OPINIONS AND ORDERS

ENTERED IN THIS CASE

Kavali v. State, No. 05-01-00835-CR (Tex. App. -

Dallas 2002, pet. ref'd), cert. denied, 540 U.S. 967

(2003) (unpublished).

Kavali v. Quarterman, No. 08-40368 (5th Cir. 2009)

(unpublished) (Appendix A)

Kavali v. Quarterman, No. 4:05-CV-124 (U.S. Dist.

Court, E. D. Tex. 2008) District Court Order, Appendix

B; Magistrate’s Report, Appendix C.

JURISDICTIONAL BASIS

Jurisdiction for this Petition is based on 28 U.S.C.

§1254. The Order of the United States Court of

Appeals For the Fifth Circuit denying Petitioner's

request for a certificate of appealability was issued on

March 16, 2009.

CONSTITUTIONAL PROVISIONS

U.S. Const., amend. VI

In all criminal prosecutions, the accused shall

enjoy the right to a speedy trial, by an impartial

jury of the State and district wherein the crime

shall have been committed, which district shall

have been previously ascertained by law, and to

be informed of the nature and cause of the

accusation; to be confronted with the witnesses

against him; to have compulsory process for

obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defence.

2

U.S. Const., amend. XIV, Sect. 1

No State shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any

State deprive any person of life, liberty, or

property, without due process of law; nor deny

to any person within its jurisdiction the equal

protection of the laws.

STATEMENT OF THE CASE

A. Proceedings Below

Petitioner was indicted for capital murder in cause

number 380-80476-01 in the 380th District Court of

Collin County, Texas. She pled not guilty. A jury

convicted her, and the court assessed punishment at

life imprisonment on March 4, 2001.’

The Fifth Court of Appeals of Texas affirmed the

conviction in an unpublished opinion issued on

November 4, 2002 (AX1). The Court of Criminal!

Appeals refused discretionary review on June 11, 2003.

The United States Supreme Court denied certiorari on

October 20, 2003. Kavali v. State, No. 05-01-00835-CR

(Tex. App.-Dallas 2002, pet. ref'd), cert. denied, 540

U.S. 967 (2003).

Petitioner filed a state habeas corpus application on

September 16, 2004 raising ineffective assistance of

counsel under the United States Constitution. The

state district court, without conducting an evidentiary

The State did not seek the death penalty. .

3

hearing, signed the State’s proposed findings of fact

and conclusions of law verbatim and recommended

that reliet be denied. The Texas Court of Criminal!

Appeals denied relief without written order on March

2, 2005. Petitioner filed this Federa) action under 28

U.S.C. §2254. The Federal District Court denied relief

on March 19, 2008. On March 16, 2009, the United

States Court of Appeals for the Fifth Circuit denied

the Petitioner’s Application for a Certificate of

Appealability.

Bb. Statement of Facts

Petitioner was indicted for the offense of Capital

Murder by indictment that alleged that she caused the

death of Venkateswar Kavali, a child under 6 years of

age. The indictment alleged various means of the

offense being committed, including choking and

striking the child and causing the child's skull to

fracture, and causing the child to ingest glass

particles, and committing an act clearly dangerous to

a human life by choking and str:king the child and

causing the child to ingest glass particles. (CR 1, p. 2-

3; CR 2, p. 267-272),

ARGUMENT

The state court judgment in this case involved a

misapplication of Strickland v. Washington, 466 U.S.

668 (1984). The Federal District Court likewise

misapplied Strickland and the Court of Appeals erred

in not granting a certificate of appealability.

Standard for Issuance of Certificate of

Appealability

A certificate of appealability should issue if

Petitioner made a substantial showing of the denial of

a constitutional right. 28 U.S.C. §2253(c)(2). Miller-El

v. Cockrell, 537 U.S. 322, 336 (2003). Petitioner must

“demonstrate that the issues are debatable among

jurists of reason; that a court could resolve the issue

(in a different manner); or that questions are adequate

to deserve encouragement to proceed further.”

Drinkert v. Johnson, 97 F.3d 751, 755 (5th Cir.), cert.

denied, 117 S.Ct. 1114 (1997) (quoting Barefoot v.

Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3394

n.4, 77 L.Ed.2d 1090 (1983)); accord, Lozada v. Deeds,

498 U.S. 430, 111 S.Ct. 860, 112 L.Ed.2d 956 (1991).

“{A] claim can be debatable even though every jurist of

reason might agree, after the certificate of

appealability has been granted and the case has

received full consideration, that petitioner will not

prevail.” Miller-El v. Cockrell, 537 U.S. at 337. Any

doubts about whether to issue a certificate of

appealability should be resolved in favor of Petitioner.

Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir. 1997).

Ineffective Assistance of Counsel - Governing

Law

It is well established that a defendant is entitled to

the effective assistance of counsel as required by the

Sixth and Fourteenth Amendments. Gideon ov.

Wainwright, 372 U.S. 335, 83S.Ct. 792, 9 L.Ed.2d 799

(1963). Effective assistance is denied if, “counsel’s

representation fell below an objective standard of

reasonableness,” and “there is a reasonable probability

that, but for counsel's unprofessional errors, the result

5

of the proceeding would have been different.”

Strickland v. Washington, 466 U.S. 668 (1984).

“A reasonable probability is a probability sufficient

to undermine confidence in the outcome.” Strickland,

466 U.S. at 694. That is, “a criminal defendant

alleging prejudice must show ‘that counsel’s errors

were so serious as to deprive the defendant of a fair

trial, a trial whose result is reliable.” Lockhart v.

Fretwell, 506 U.S. 364, 369 (1993) (quoting Strickland,

466 U.S. at 687). This in not an _ outcome-

determinative test. Nix v. Whiteside, 475 U.S. 157,

106 S.Ct. 988, 89 L.Ed.2d 123 (1986). The question is

not whether a defendant would have more likely than

not received a different verdict but for counsel’s

performance, but whether, “he received a fair trial,

understood as a trial resulting in a verdict worthy of

confidence.” Kyles v. Whitley, 514 U.S. 419, 454, 115

S.Ct. 419, 131 L.Ed. 2d 190 (1995).°

“ Although Kyles involves the determination of prejudice following

the State’s suppression of evidence favorable to the defense (Brady

error) (Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d

215 (1963)) the standard for prejudice employed in such cases is

adopted from, and is identical to, that in Strickland. United

States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed. 2d

481 (1985). In both circumstances, to demonstrate prejudice, a

petitioner must show that “there is a reasonable probability that

the result of the proceeding would have been different.” Ky/.

514 US. at 433-434 (quoting Bagley, 473 U.S. at 682)

6

Deficient Performance

1. Counsel failed to object when _ the

prosecutor incorrectly argued during

summation that the jury could convict

Petitioner of capital murder if she engaged

in conduct that constituted hindering

apprehension or prosecution.

The theory of defense was that Petitioner’s husband

killed the baby, established his alibi, and set up

Petitioner. Defense counsel argued during summation

that Mr. Kavali fed glass to the baby while Petitioner

was taking a nap; went to Wal-Mart and made the

first purchase; returned home and found that the baby

was still alive; choked and beat the baby and left him

outside the apartment; went to Babies ’R Us and made

the second purchase; and then called Petitioner on his

cell phone and asked about the baby. After she went

outside and found the baby, he told her what to tell

everyone (6 R.R. 26, 28-29). The prosecutor argued in

rebuttal that even if the jury believed “this crazy,

made-up story,” Petitioner was guilty of capital

murder as a party because she helped Mr. Kavali

create his alibi by lying to the police (6 R.R. 33; AX 15).

Defense counsel did not object that the argument

misstated the law contrary to the court’s charge.

Under Texas law, a conviction must be reversed

where the court, during summation, allows the

prosecutor, over objection to misstate the law contrary

to the court’s charge. Davis v. State, 506 S.W.2d 909

(Tex. Crim. App. 1974) (prosecutor improperly argued

that defendant forfeited right to rely on defense of

accident because he was engaged in unlawful act at

time of shooting). A wife who is present when her

7

husband kills their child and thereafter tries to help

him avoid detection by lying to the police cannot be

convicted as a party to the murder; helping the

perpetrator cover up the crime constitutes only

hindering apprehension or prosecution. Easter v.

State, 536 S.W.2d 223, 225-29 (Tex. Crim. App. 1976).

Thus, if Mr. Kavali killed the baby without Petitioner’s

assistance but she helped him create his alibi by lying

to the police, she would be guilty of hindering

apprehension or prosecution rather than capital

murder.

The prosecutor incorrectly advised the jury, in

essence, that it could convict Petitioner of capital

murder on facts that constituted only a misdemeanor.”

Defense counsel’s failure to object to this egregiously

improper argument that was contrary to the court’s

charge constituted deficient performance.

Neither the State nor the state habeas court

dispute that the prosecutor’s argument constituted an

incorrect statement of Texas law. However, the court

adopted the State’s proposed findings that the

argument “was merely an unrehearsed response to

applicant’s surprise closing argument” and, at worst,

“the prosecutor simply misspoke;” it concluded that

counsel was not deficient in failing to object (S.H.R.

254-59). The state court unreasonably applied

Strickland, as counsel is clearly ineffective where he

fails to object to egregiously improper argument that

is contrary to the court’s charge. See Drinkert, 821

S.W.2d at 955-56. The prejudice resulting from this

Hindering apprehension or prosecution is a Class A

misdemeanor. See TEX. PENAI, CODE § 38.05(a) (West 1998)

8

improper argument, by itself, is sufficient to require

habeas corpus relief.

2. Counsel failed to object to the State

making prejudicial references’ to

Petitioner’s alleged religious and cultural

beliefs.

Petitioner is from India. During the voir dire

examination, the prosecutor asked a prospective juror

to assume that a couple had “a religious or cultural

belicf that a baby with a defect or some type of

deformity is ... better off dead [so] ... they kill the

baby” (2 R.R. 36-38; AX 16). Defense counsel did not

object to the prosecutor making this prejudicial

reference to religious and cultural beliefs although he

did comment, “Religious belief has nothing to do with

this case and the allegations against this woman or

her defense” (2 R.R. 38).”

The State called Joseph Elder during its case-in-

chief. After he introduced himself as a Professor of

Sociology in languages and the cultures of Asia at the

University of Wisconsin and the Director of the Center

for South Asia, the court retired the jury (5 R.R. 62).

Elder testified outside the presence of the jury to

various aspects of the Indian culture (5 R.R. 62-67).

Defense counsel said that he did not have any

objection except to one portion of the testimony (5 R.R.

68). Nonetheles:, the court stated, “I think it’s clear

that the Constitution doesn’t allow you to present

* Defense counsel’s comment could be interpreted to mean that

Petitioner had the religious belief described by the prosecutor but

it was unrelated to the offense

9

racial characteristics to prove that something is more

likely than not. I think it also applies to ethnicity, and

I think this could be plain error” (5 R.R. 68). Co-

counsel then responded that the defense was

“changing our position” and “objecting to his entire

testimony” (5 R.R. 68-69). The court sustained the

objection (5 R.R. 73).

During summation, the prosecutor argued that

Petitioner did not want to deal with the medical

problems of a defective child, but “here in the United

States you don’t have that right ... to choose to get rid

of the problem” (6 R.R. 35; AX 17). Defense counsel

did not object to the prosecutor contrasting the alleged

cultural beliefs of Indians with those of Americans.

The State’s theme throughout the trial was that

Indians have a religious or cultural belief that it is

acceptable to kill a defective baby. During the voir

dire examination, the prosecutor introduced this

theme in the form of a hypothetical question.

Although the State did not thereafter offer evidence

that Indians have this belief, the jury likely reached

that conclusion when the State called an expert in

Indian culture in their presence and the court, after a

hearing outside their presence, excluded his testimony.

To ensure that the jurors reached this conclusion

despite the lack of evidence, the prosecutor argued

during summation that Petitioner did not have the

right “here in the United States” to get rid of a

defective baby, implying that this right existed in

India. Defense counsel failed to object to these

improper references to Petitioner’s alleged religious

and cultural beliefs.

10

The United States Supreme Court has recognized

the harm that results from the introduction of race

into the criminal] justice system. The Court observed

in McClesky v. Kemp, 481 U.S. 279, 309-10 (1987)

(citations omitted):

Because of the risk that the factor of race may

enter the criminal justice process, we have

engaged in “unceasing efforts” to eradicate

racial prejudice from our criminal justice

system.... Our efforts have been guided by our

recognition that “the inestimable privilege of

trial by jury ...is a vital principle, underlying

the whole administration of criminal justice....

Thus, it is the jury that is a criminal

defendant’s fundamental “protection of life and

liberty against race or color prejudice.”

Argument appealing to ethnic prejudice constitutes

plainerror.” In United States v. Doe, 903 F.2d 16 (D.C.

Cir. 1990), the prosecutor argued without objection

that Jamaican drug dealers were taking over the sale

of crack in the city. The court of appeals observed that

appeals to racial passion “distort the search for truth

and drastically affect a juror’s partiality.” /d. at 25.

When the argument “shifts its emphasis from evidence

to emotion...it matters not whether the reference is to

race, ancestry or ethnic background.” TJd. Ethnic

comments are “especially egregious because of the

possibility that the jury will give special weight to the

prosecutor’s arguments, not only because of the

*'The United States Supreme Court has cautioned trial judges to

stop argument of this nature without waiting for an objection

Viereck v. United States, 318 U.S. 236, 248 (1943).

1]

prestige associated with his office, but also because of

the fact-finding facilities presumably available to him.”

Id. at 28.

The State improperly suggested to the jury, in the

absence of evidence, that Indians have a religious or

cultural belief that a defective baby is better off dead,

that Petitioner acted on this belief in killing her baby,

and that the jury should convict her to show that she

did not have the right “here in the United States” to

kill a defective baby. Defense counsel’s failure to

object to these improper references to Petitioner's

alleged religious and cultural beliefs constituted

deficient performance.

The state habeas court adopted the state’s proposed

findings that the prosecutor’s references to culture and

religion “were designed to eliminate them as a factor

in the case” and did not constitute “any appeal, direct

or subtle, to racial prejudice” (S.H.R. 256); it concluded

that counsel was not deficient in failing to object

(S.H.R. 259). These findings and conclusions were

based on unreasonable determinations of the facts in

light of the record. It strains credulity to find that the

prosecutor repeateciy mentioned Petitioner’s alleged

religious and cultural beliefs in this manner to ensure

that the jury would not consider them in deciding the

case. Argument that a person does not have the right

to get rid of a defective child “here in the United

States” is the antithesis of the state court’s findings.

12

3. Counsel failed to present expert testimony

to explain how Petitioner could have been

the source of the blood on the carpet in the

master bedroom that contained the baby’s

DNA.

The police seized a piece of carpet that contained

three spots of blood from between the bed and the

bathroom in the master bedroom and a bloody towel

from the tub (4 R.R. 50-54). The blood on the carpet

contained a mixture of the DNA of the baby and either

Petitioner or Jyothi, her other child; the DNA in the

blood on the towel could not be determined (5 R.R. 96,

101-02). Defense counsel elicited on cross-examination

of the chemist that the presence of a person’s DNA in

blood does not mean that the person is the source of

the blood; the DNA could be from the person’s saliva or

skin cells (5 R.R. 109-11). However, defense counsel

did not present expert testimony to explain how the

baby’s DNA could be in Petitioner’s blood. The

prosecutor argued during summation that the DNA

evidence proved that Petitioner’s story to the police

was false, as she did not say that she took the baby

into the bedroom after she found him outside the

apartment, yet his blood and DNA were in the

bedroom (6 R.R. 39). The court of appeals, in holding

that the evidence was legally sufficient to establish

that. Petitioner killed the baby, observed that the

evidence “showed the baby’s blood was on the bed and

on the carpet in the master bedroom” (AX 1 at 4).

Thus, both the prosecutor and the court of appeals

assumed that because the baby’s DNA was in the

blood, it was his blood.

Petitioner told the police that she left the baby on

the couch in the living room while she went to the

13

master bathroom; when she returned, the front door of

the apartment was open, and he was laying on the

porch, fatally injured. The police found evidence that

Petitioner had vaginal bleeding; three spots of blood

were on the carpet in the master bedroom and a bloody

towel was in the master bathroom.

Because defense counsel failed to present expert

testimony to explain how the baby’s DNA could have

been in Petitioner’s blood, the prosecutor was able to

make the misleading, but effective, argument that

Petitioner injured the baby in the bedroom, causing

him to bleed on the carpet.

Dr. Mark Jacobs, an obstetrician and gynecologist,

reviewed this aspect of the case and provided an

affidavit in the state habeas proceeding (AX 18).

According to Dr. Jacobs, a baby sheds its skin cells and

urine into amniotic fluid throughout its gestation.

During labor, the amniotic sac ruptures, amniotic fluid

is expelled, and the baby’s skin comes into direct,

vigorous contact with the uterine walls. The baby’s

skin cells are exfoliated and rubbed into the decidual

(internal) surface of the uterine walls. After birth, the

decidua sheds. It is reasonably likely that the shed

decidua contains DNA from the baby’s skin cells. The

mother’s vaginal secretions, which continue for days to

weeks after birth, contain decidua, plasma, blood, and

cellular material. It is reasonably likely that those

secretions contain DNA from both the mother and the

baby. There is a reasonable medical probability that

if Petitioner bled vaginally onto the carpet in the

bedroom three days after giving birth, her blood

contained the baby’s DNA. Had defense counsel]

presented expert testimony of this nature, the

prosecutor could not have argued plausibly that the

14

DNA evidence proved that the baby was injured in the

bedroom, contrary to Petitioner’s statements to the

police.

Counsel has a duty to conduct an adecuate

investigation and to discover and present relevant

evidence. Counsel cannot make a reasonable strategic

decision not to present evidence that he failed to

discover as a result of an inadequate investigation.

Wiggins v. Smith, 539 U.S. 510 (2003). Defense

counsel’s failure to discover and present this medical

evidence constituted deficient performance.

The state habeas court adopted the State’s

proposed conclusion that counsel made a reasonable

strategic decision not to explain the blood drop

evidence, as it did not inculpate Petitioner nor

exculpate her husband (S.H.R. 257-59). This

conclusion ignores the prosecutor’s argument that the

DNA evidence proved that Petitioner’s story to the

police was false. Thus, the state court conclusion

involved an unreasonable application of Wiggins and

Strickland.

Prejudice

This was a classic circumstantial evidence murder

case. The Kavalis’ baby was killed at their apartment

within hours after he came home from the hospital.

There was no direct evidence that either parent killed

him. Petitioner, instead of Mr. Kavali, was charged

with murder because her statements to the police

placed her alone with the baby and gave him an alibi

for when the baby was injured. That Petitioner may

have lied to the police about what happened does not

mean that she killed the baby or was criminally

15

responsible for his death. A jury that heard all the

relevant evidence, without being influenced by

religious or ethnic prejudice and misadvised regarding

the applicable law, should have acquitted her.

Effective representation truly would have made a

difference in this case.

The jury was not aware of crucial evidence relevant

to Petitioner’s credibility. Defense counsel failed to

present expert testimony to explain how Petitioner’s

blood on the bedroom carpet could contain the baby’s

DNA. This testimony would have precluded the State

from arguing that the DNA evidence proved that the

baby was injured in the bedroom, contrary to

Petitioner’s statements to the police.

The jury was improperly influenced by the

prosecutor’s references to Petitioner’s alleged religious

and cultural beliefs. The prosecutor suggested during

the voir dire examination and summation that a

religious or cultural belief led Petitioner to kill her

defective baby and argued that she did not have that

right “here in the United States.” It was reprehensible

to refer to Petitioner’s alleged religious and cultural

beliefs as a basis to convict her, especially in the

xenophobic times in which we live.

Defense counsel’s most egregious error was his

failure to object when the prosecutor misstated the law

during summation. The prosecutor argued that even

if the jury believed that Mr. Kavali killed the baby and

framed Petitioner, she was guilty of capital murder as

a party because she helped him create his alibi by

lying to the police. The jury was improperly advised

that it could convict Petitioner of capital murder on

facts that constituted hindering apprehension or

16

prosecution, a misdemeanor. The prejudice resulting

from this improper argument, by itself, is sufficient to

require relief.

The jury may have believed that Mr. Kavali killed

the baby without Petitioner’s assistance but convicted

her of capital murder as a party based on the

prosecutor’s argument that she helped him create his

alibi by lying to the police. But for defense counsel’s

errors, there is a reasonable probability that the jury

would have acquitted Petitioner or deadlocked. Had

the court overruled timely objections to the

prosecutor’s improper comment during the voir dire

examination and to the improper arguments, there is

a reasonable probability that an appellate court would

have reversed any conviction. A capital murder

conviction obtained under these circumstances is not

a verdict worthy of confidence. Accordingly, Petitioner

is entitled to a new trial.

CONCLUSION

BASED ON THE FOREGOING ARGUMENTS,

Petitioner pray that this Petition for Writ of Certiorari

be granted.

Respectfully submitted,

GARY A. UDASHEN

State Bar No. 20369590

SORRELS, UDASHEN & ANTON

2301 Cedar Springs Road, Suite 400

Dallas, Texas 75201

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APPENDIX

APPENDIX A

IN THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

No. 08-40368

USDC No. 4:05-CV-124

iFiled March 156, 2009]

ARUNA KAVALI )

Petitioner Appellant }

NATHANIEL QUARTERMAN,

DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL )

INSTITUTIONS DIVISION

Respondent-Appellee

Appeal from the United States District Court

for fh® Eastern District of Texa

ORDER

Aruna Kavali. Texa prisonel Ht 1043/77/76. wa

onvicted by a jury of capital murder and wa

entenced to Irfe Mn prison She eek i certificate of

ippealability COA) te ippea the dustrict court

2a

denial of her 28 U.S.C. § 2254 petition chalienging this

conviction. To obtain a COA, Kavali must make “a

substantial showing of the denial of a constitutional!

right.” 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529

U.S. 473, 483 (2000). She therefore must demonstrate

“that jurists of reason could disagree with the district

court’s resolution of [her] constitutional claims or that

jurists could conclude that the issues presented are

adequate to deserve encouragement to proceed

further.” Miller-El v. Cockrell, 537 US. 322, 327 (2003).

Kavali does not repeat in her COA application her

assertion that she was denied due process when she

was not provided with an interpreter at trial, and this

claim is thus deemed abandoned. See Hughes uv.

Johnson, 191 F.3d 607, 613 (5th Cir. 1999). Kavahi

does assert, however, that her trial counsel rendered

ineffective assistance by failing to object to the

prosecutor’s misstatement of law during closing

arguments, by failing to object to the prosecutor's

attack on Kavali’s purported cultural or religious

beliefs during voir dire and closing arguments, and by

failing to present expert testimony at trial to explain

the presence of DNA evidence. She has failed to

“demonstrate that reasonable jurists would find the

district court’s assessment of the constitutional claims

debatable or wrong.” Slack, 529 U.S. at 484

Consequently, Kavali’s motion for a COA is DENIED

/s/

LESLIE H. SOUTITWICK

UNITED STATES CIRCUIT JUDGE

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

CIVIL ACTION NO. 4:05cev124

{Filed March 19, 2008]

ARUNA KAVALI, #1043776

VS.

)

)

)

)

DIRECTOR, TDCJ-CID )

)

ORDER OF DISMISSAL

The above-entitled and numbered civil action was

referred to United States Mayistrate Judge Don D.

Bush, who issued a Report and Recommendation

concluding that the petition for a writ of habeas corpus

should be dismissed with prejudice. Petitioner has

filed objections.

The Report of the Magistrate Judge, which contains

his proposed findings of fact and recommendations for

the disposition of such action, has been presented for

consideration. Having made a de novo review of the

objections raised by Petitioner to the Report, the Court

is of the opinion that the findings and conclusions of

the Magistrate Judge are correct and the objections of

4a

Petitioner are without merit. The objections simply

serve to reurge the grounds contained in her petition

and reply. Therefore, the Court hereby adopts the

findings and conclusions of the Magistrate Judge as

the findings and conclusions of the Court. It is

accordingly

ORDERED that the petition for a writ of habeas

corpus is DISMISSED with prejudice. A certificate of

appealability is DENIED. It is further

ORDERED that al! motions not previously ruled

on are hereby DENIED.

SIGNED this 18" day of March, 2008.

ee ene ‘

RICHARD A. SCHELL

UNITED STATES DISTRICT JUDGE

5a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

CIVIL ACTION NO. 4:05cev124

[Filed February 26, 2008]

ARUNA KAVALL, #1043776

DIRECTOR, TDCJ-CID

)

)

VS. )

)

)

)

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Petitioner Aruna Kavali, an inmate confined in the

Texas prison system, filed this petition for writ of

habeas corpus pursuant to 28 U.S.C. § 2254. The

petition was referred for findings of fact, conclusions of

law and recommendations for the disposition of the

case.

Procedural History

On March 4, 2001, after pleading not guilty, a jury

from the 380" District Court of Collin County

convicted Petitioner of capital murder. She was

sentenced to life in prison, Cause number

6a

380-80476-01, The State of Texas v. Aruna Kavali.

Petitioner appealed her conviction, and the Fifth Court

of Appeals affirmed on November 4, 2002. After filing

a petition for discretionary review, the Texas Court of

Criminal Appeals refused review on June 11, 2003.

The United States Supreme Court denied Petitiuner’s

writ of certiorari on October 20, 2003. On September

16, 2004, Petitioner filed an application for state writ

of habeas corpus challenging her conviction, which the

Texas Court of Criminal Appeals denied without

written order on March 2, 2005. Petitioner filed the

instant petition on March 28, 2005.

Petitioner asserts that she is entitled to relief based

on the denial of her right of confrontation and a fair

trial, and the denial of effective assistance of counsel.

The Attorney Genera! provided a response, stating

that Petitioner’s claims are without merit.

Background

‘

Portions from the opinion of the Fifth Court of

Appeals are set out below:

On December 6, 1999, appellant gave birth toa

baby that was in perfect health but had

irregular genitalia. Specifically, the baby’s

genitalia at first appeared female but, after a

series of tests, a pediatric endocrinologist

determined the baby was a male. The

endocrinologist, Grace Tannin, discussed the

situacion with appellant and her husband and

presented the option of raising the baby as a

girl, though the baby would then require

reconstructive surgery at a later date and would

not be able to bear children. Alternatively, the

7a

baby could be raised as a boy, but Tannin could

not say with certainty that the baby would be

able to produce sperm or father children.

Appellant and her husband elected to raise the

baby as a boy and took him home on December

8, 1999. That same day, the baby died of blunt

force head injury and ligature strangulation.

Appellant was convicted of murdering her baby,

and this appeal followed.

In her first and second issues, appellant

complains the evidence is legally and factually

insufficient to support her capital murder

conviction. When reviewing challenges to the

legal and factual sufficiency of the evidence, we

apply well known standards. See Jackson uv.

Virginia, 443 U.S. 307, 319 (1979); Johnson v.

State, 23S.W.3d 1, 11 (Tex. Crim. App. 2000);

see also Clewis v. State, 922 S.W.2d 126, 129

(Tex. Crim. App. 1996). The factfinder is the

sole judge of the witnesses’ credibility and their

testimony’s weight. Bonham v. State, 680

S.W.2d 815, 819 (Tex. Crim. App. 1984). The

factfinder may believe or disbelieve all or any

part of any witness’ testimony. Sharp v. State,

707 S.W.2d 611, 614 (Tex. Crim. App. 1986).

When reviewing a case comprised wholly of

circumstantial evidence, the standard of review

is the same as it is for reviewing cases in which

direct evidence exists. King v. State, 29 S.W.3d

5956, 565 (Tex. Crim. App. ZO000). A person

commits capital murder if he intentionally or

knowingly causes the death of an individual

under six years of age. See Tex. Pen. Code Ann.

$§ 19.02(b)(1); 19.03(a)8) (Vernon 1994).

8a

In this case, the record shows appellant told

police that she left her baby sitting alone on the

couch and went to the bathroom for

approximately two minutes. The door of the

bathroom was closed, and appellant said she

heard a knock at the front door. Appellant

called out, but she did not hear anything.

Appellant came out of the bathroom three

minutes later and discovered her baby was no

longer sitting on the couch, and the front door of

the apartment was open. Appellant went

outside and discovered her baby lying dead on

the porch.

Johnny Lynn Rudder, a firefighter and

paramedic, arrived at appellant’s apartment

about the same time as police and a fire engine.

When he walked inside appellant’s apartment,

Rudder found appellant, her husband, and her

daughter “kind of walking around.” Everyone in

the apartment “had sort of a flat look on their

face.” Rudder asked what was wrong, but

nobody responded. However, they all looked

toward a couch where Rudder saw a baby lying

on its back. Jeffrey Surles, another paramedic,

came in and took the baby outside to the

ambulance where Rudder used a bag-valve

mask to try to get the baby breathing. Rudder

noticed the baby’s head was “like a bag of

water” with nothing solid along the top part of

the skull. Rudder also discovered a red line on

the baby’s neck as if someone had used a cord to

strangle it. Nevertheless, the baby’s face was

very clean as if it had just had a bath

9a

Collin county medical examiner William Rohr

performed an autopsy on appellant’s baby and

determined the baby died from blunt force head

injury and ligature strangulation. In addition,

Rohr detected c»ffeine in the body and found

fragments of green glass in the baby’s mouth,

stomach, and small intestine. David Walker

Spence, supervisor of the trace evidence section

at the Southwest Institute of Forensic Science

testified the glass fragments found in the baby’s

body matched fragments in a mortar and pestle

found in appellant’s kitchen and the “P-traps” of

two sinks in appellant’s apartment.

Dallas police officer Frank Della testified the

porch outside the door of appellant’s apartment

was clean, and the potted plants sitting on the

porch were sitting upright. The record does not

indicate that any physical evidence was

recovered from the porch. Police recovered a

latent palm print from the outside of the front

door, but the print was not identified. Dallas

police detective Daniel Krieter testified he could

not tell how old the palm print was and that

prints could remain on a surface indefinitely.

Timothy Kalafut, a forensic DNA analyst,

testified he compared DNA samples from

appellant, her baby, and her husband and

daughter with blood samples taken from her

apartment. On a sheet from the bed in

appellant’s master bedroom and on the carpet in

the master bedroom, Kalafut found stains that

were possibly a mixture of appellant’s, her

daughter’s, and her baby’s blood. Kalafut’s DNA

test indicated a male contributed to the

10a

samples, and the only other male in the family,

appellant’s husband, was excluded. Kalafut also

tested a bloodstain found on a wet towel in

appcllant’s master bathroom, but he was unable

to isolate any DNA from the towel because it

was too wet. Thus, the evidence developed at

trial showed the baby’s blood was on the bed

and on the carpet in the master bedroom.

In appellant’s apartment, a mortar and pestle

was found containing glass fragments matching

those found in the baby’s body - glass fragments

that had time to travel through the baby’s body

and into the baby’s small intestine. Rohr

testified the glass fragments would not

necessarily have stopped moving through the

baby’s system at death; however, Rohr had only

seen one example of such movement after death

and never in an infant. Rohr testified the glass

had to be in the baby “for some time,” but he

agreed there was no way to tell how long.

Despite the severity of the baby’s head injury,

the baby appeared clean as if it had just had a

bath. We conclude this evidence is legally and

factually sufficient to show appellant committed

the offense of capital murder. See Jackson, 443

U.S. at 319; Johnson, 23 S.W.3d at 11. We

overrule appellant’s first and second issues.

In her third issue, «ppellant argues the trial

court erred in submitting to the jury an

instruction on the law of parties because there

is no evidence to show that her husband

murdered the baby or that she acted with intent

to promote or assist her husband in murdering

the baby. A person is criminally responsible for

lla

an offense committed by the conduct of another

if, acting with intent to promote or assist the

commission of the offense, he = solicits,

encourages, directs, aids, or attempts to aid the

other person to commit the offense. Tex. Pen.

Code Ann. § 7.02(a)(2) (Vernon 1994). Evidence

is sufficient to support a conviction under the

law of parties where the actor is physically

present at the commission of the offense and

encourages the commission of the offense either

by words or other agreement. Ransom v. State,

920 S.W.2d 288, 302 (Tex. Crim. App. 1994). In

determining whether a defendant participated

in an offense as a party, the court may examine

the events occurring before, during, and after

the commission of the offense and may rely on

actions of the defendant which show an

understanding and common design to commit

the offense. Id.

On the day of the murder, Casey Larowe,

appellant’s neighbor, heard some loud talking

from appellant’s apartment next door and went

to investigate. Larowe looked in appellant’s

open doorway and saw appellant holding her

baby and talking loudly in another language on

the telephone. The baby was limp and

unmoving, and Larowe stood in appellant’s

doorway and asked if she needed help.

Appeilant did not answer and remained on the

telephone. Larowe, dressed in her nightgown,

went back to her apartment and threw some

clothes on.

Approximately two minutes later, Larowe

returned to appellant’s apartment and again

12a

asked if appellant was okay. Appellant did not

answer but, when Larowe said she was going to

call 911, appellant said somebody knocked on

her door, came in, took her baby, beat it and

threw it outside. Larowe took the baby from

appellant and put the baby on the couch.

Throughout this exchange, appellant remained

on the telephone. Larowe checked the baby for

a pulse and found none. When Larowe tilted the

baby’s head back, her hand sank into the baby’s

scalp. Frantic, Larowe asked if appellant had

called 911. Appellant did not respond. Soon

thereafter, appellant’s husband and daughter

came in the door of the apartment, and

appellant’s husband did not pick up the baby

but called someone on the telephone instead.

Larowe could not understand what appellant’s

husband was saying. When appellant’s husband

got off the telephone, Larowe called 911 and

remained in the apartment until police and

paramedics arrived.

Appellant argues there is no evidence to show

her husband murdered the baby, and an

instruction on the law of parties was therefore

inappropriate. Although appellant’s husband

was not present in the apartment when Larowe

came to investigate appellant’s loud talking, the

baby had already suffered a massive head

wound and stopped breathing by that time. We

have already concluded the evidence was legally

and factually sufficient to show appellant

murdered her baby. If the evidence clearly

supports appellant’s guilt as a principal actor,

any error in charging on the law of parties is

harmless. Black v. State, 723 S.W.2d 674,675

L3a

(Tex. Crim. App. 1986); Reyes v. State, 910

S.W.2d 585, 593 (Tex. App.-Amarillo 1995, pet.

refd). In addition, we conclude a rational jury

could have found beyond a reasonable doubt

that, if appellant did not murder her baby, she

encouraged, aided, or directed her husband to

do so. See Ransom, 920 S.W.2d at 302. We

overrule appellant’s third issue.

In her fourth issue, appellant argues the trial

court erred in overruling her objection to the

submission of the law of parties because she

was not under a legal duty to prevent a criminal

offense against her baby. In her fifth issue,

appellant makes the related argument that

family code _ section 151.001 is

unconstitutionally vague in imposing on a

parent a duty of “protection” otf the parent’s

child. The penal code provides that a person is

criminally responsible for an offense committed

by the conduct of another if, having a legal duty

to prevent commission of the offense and acting

with intent to promote or assist its commission,

he fails to make a reasonable effort to prevent

commission of the offense. Tex. Pen. Code Ann

§ 7.02(a)(3) (Vernon 1994). The jury instructions

in this case, quoting section 151.001 of the

Texas Family Code, stated that a parent has

“the duty of care, control, protection of the child,

and reasonable discipline of the child.” See Tex

Fam. Code Ann. § 151.001(a)(2) (Vernon Supp.

2002). The charge further instructed the jury to

find appellant guilty of capital murder if it

found beyond a_ reasonable doubt that

appellant’s husband killed the baby and

appellant, “having a legal duty to prevent

l4a

commission of the offense and acting with intent

to promote or assist its commission, failed to

make a reasonable effort to prevent commission

of the offense.” See Tex. Pen. Code Ann.

§ 7.02(a)(3) (Vernon 1994).

Appellant argues it is contrary to the intent of

the family code to impose on a parent the legal

duty to protect a child from the commission of a

criminal act by a third party. However, the

charge in this case does not impose such a duty.

Instead, the charge authorized a conviction only

if, having a legal duty to prevent commission of

the offense and acting with intent to promote or

assist its commission, appellant failed to make

a reasonable effort to prevent the offense. We

conclude that, to authorize a conviction, this

instruction required appellant to have the

intent to promote or assist her husband in

murdering her baby and, contrary to appellant’s

arguments, did not unreasonably require

appellant to protect her child from every

potential threat to avoid prosecution for capital

murder.

Appellant complains further that the language

referring to “protection of a_ child” is

impermissibly vague. A statute is void for

vagueness when it fails to give a person of

ordinary intelligence fair notice of what the

statute requires or is so indefinite that it

encourages arbitrary arrests and convictions

See Long v. Siate, 931 S.W.2d 285, 287 (Tex.

Crim. App. 1996). We conclude that the

language referring to “protection of a child” gave

fair notice that appellant should not feed her

ld5a

baby ground glass, strangle her baby with a

ligature, or crush her baby’s skull, nor should

she permit another individual to do so. We

overrule appellant’s fourth and fifth issues.

We affirm the trial court’s judgment.

Kavaliv. State, No. 05-01-00835-CR (Tex. App.—Dallas

November 4, 2002, pet. ref’d).

Federal Habeas Corpus Relief

The role of federal courts in reviewing habeas

corpus petitions by prisoners in state custody is

exceedingly narrow. A person seeking federal habeas

corpus review must assert a violation of a federal

constitutional right. Lowery v. Collins, 988 F.2d 1354,

1367 (5th Cir. 1993). Federal habeas corpus relief will

not issue to correct errors of state constitutional,

statutory, or procedural law, unless a federal issue is

also present. Estelle v. McGuire, 502 U.S. 62, 67-68,

1128S. Ct. 475, 479-80, 116 L. Ed.2d 385 (1991); West

v. Johnson, 92 F.3d 1385, 1404 (5th Cir. 1996). In the

course of reviewing state proceedings, a federal court

does not sit as a super state appellate court. Dillard

v. Blackburn, 780 F.2d 509, 513 (5th Cir. 1986).

The prospect of federal courts granting habeas

corpus relief to state prisoners has been further

limited by the Antiterrorism and Effective Death

Penalty Act of 1996. The new provisions of Section

2254(d) provide that an application for a writ of habeas

corpus “shall not be granted with respect to any claim

that was adjudicated on the merits in state court

loa

proceedings unless the adjudication of the claim:

(1) resulted in a decision that 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) resulted in

a decision that was based on an unreasonable

determination of the facts in light of the evidence

presented in the State court proceeding.” See Williams

v. Taylor, 529 U.S. 362, 402-03, 120 S. Ct. 1495,

1517-18, 146 L. Ed.2d 389 (2000); Childress v.

Johnson, 103 F.3d 1221, 1224-25 (5" Cir. 1997). The

statutory provision requires federal courts to be

deferential to habeas corpus decisions on the merits by

state courts. Moore v. Cockrell, 313 F.3d 880, 881 (5th

Cir. 2002).

A decision by a state court is “contrary to” the

Supreme Court’s clearly established law if it “applies

a rule that contradicts the law set forth in” the

Supreme Court’s cases. Williams, 529 U.S. at 405-06.

A federal court’s review of a decision based on the

“unreasonable application” test should only review the

“state court’s ‘decision’ and not the written opinion

explaining that decision.” Neal v. Puckett, 286 F.3d

230, 246 (5th Cir. 2002) (en banc). “Under

§ 2254(d)(1)’s ‘unreasonable application’ clause, then,

a federal habeas corpus court may not issue the writ

simply because that court concludes in its independent

judgment that the relevant state-court decision applied

clearly established federal law erroneously or

incorrectly.” Williams, 529 U.S. at 411. Rather, that

application must be objectively unreasonable. /d. at

409. The standard is satisfied only if “reasonable

jurists considering the question would be of one view

that the state court ruling was incorrect.” Davis «

17a

Johnson, 158 F.3d 806, 812 (5th Cir 1998) (internal

quotation marks and citations omitted).

The trial court’s factual findings are entitled to a

presumption of correctness unless the petitioner can

rebut the presumption with clear and convincing

evidence to the contrary. Valdez v. Cockrell, 274 F.3d

941, 947 (5th Cir. 2001). A federal district court must

be deferential to state court findings supported by the

record. See Pondexter v. Dretke, 346 F.3d 142, 149-152

(5th Cir. 2003). A state application denied without

written order by the Texas Court of Criminal Appeals,

as in the present case, is an adjudication on the merits.

Singleton v. Johnson, 178 F.3d 381, 384 (5th Cir.

1999); Ex parte Torres, 943 S.W.2d 469, 472 (Tex.

Crim. App. 1997) (holding a “denial” signifies an

adjudication on the merits while a “dismissal” means

the claim was declined on grounds other than the

merits).

Interpreter

In ner first issue, Petitioner asserts that she was

denied the right to confront witnesses and a fair trial

when the trial court did not appoint a qualified

interpreter. She raised the same issue in her state

court writ application. See Ex parte Kavali,

Application No. 60,986-01 at 10, 106.

The failure to grant a motion to appoint an

interpreter when a criminal defendant does not

understand and speak the English language can

violate Texas law and implicate both the due process

and confrontation clauses of the Texas and United

States Constitutions. See Van Nguyen v. Cockrell,

2003 WL 21295077 (N.D. Tex May 29, 2003) (not

18a

reported in F. Supp.2d). The Fifth Circuit held in 1982

that the petitioner was not denied due process of law

and the right of confrontation by the trial court’s

failure to sua sponte appoint an interpreter for the

petitioner, where it was clear that the petitioner had

sufficient command of English to request an

interpreter, but did not doso. See Rubio v. Estelle, 689

F.2d 533, 535 (5" Cir. 1982). Further, where the

defendant did not apprise the trial court of any

language difficulty, the trial court’s failure to provide

an interpreter can be grounds for reversal only if the

defense can show prejudice. /d.

The state habeas court entered findings of fact on

the issue of an interpreter:

i. Applicant was born in India and her native

tongue is the Telegu dialect.

Z. Applicant is not indigent and has enjoyed

retained counsel throughout these criminal

proceedings.

3. At her bond hearing, Applicant’s husband

translated for her. See. State’s Habeas

Exhibit “A.”

4. Applicant speaks and understands some

English. See State’s Habeas Exhibit “B”

(Affidavit of D. Mulder). During trial

preparation, Applicant conversed in English

with her trial counsel. Jd.

we

For the purposes of trial, Applicant required

a translator Id At) her counsel’s

suggestion, she furnished her own

6.

10.

19a

translators who spoke her native tongue. Id.

See Applicant’s Exhibits Nos. 5, 6, 10, 11.

At the beginning of jury — selection,

Applicant’s husband translated for her. A

friend of Mr. Kavali, Venkatta Kolli,

translated for the remainder of jury

selection. At trial, another friend of Mr.

Kavali, Radhika Kedela, translated. See

Applicant’s Exhibits Nos. 5, 6, 10, 11.

Counsel advised the translators that they

were to translate without interpreting,

digesting, or generalizing. See State’s

Exhibit “B.” Applicant selected competent

translators so she could hear and

understand the proceedings. Id.

None of Applicant’s translators indicate that

Applicant requested them to translate

anything more than they did translate. See

Applicant’s Exhibits Nos. 5, 6, 11.

Applicant’s husband provided her with a

general idea of what was happening. See

Applicant’s Exhibit No. 6. Also, her primary

translator at trial, Kodela, summarized

three quarters of the testimony. See

Applicant’s Exhibit No. 11.

During trial, counsel learned that Applicant

had instructed her translator not to

translate portions of the testimony. See

State’s Exhibit “B.” But she also asked

counsel appropriate questions about the

be

13.

14.

20a

proceedings and was attentive to the

proceedings. /d.

Applicant never advised counsel that she did

not understand the proceedings, and none of

the translators indicated that they could not

communicate with Applicant. Jd. She even

concedes that her interpreters gave her a

general idea of what was happening. See

Applicant’s Exhibit No. 5.

Because Appellant’s trial counsel had

extensively consulted with her prior to trial,

counsel did not require the input of

Applicant to advocate the defense at trial.

See State’s Habeas Exhibit “B.” Counsel’s

ability to conduct effective cross-examination

was not hampered by Applicant’s inability to

understand any part of the proceedings. Id.

The testimony of no less than eight law

enforcement and medical professionals and

the fact that Applicant’s English-speaking

neighbor communicated with Applicant

before trial reflects that Applicant possessed

quite a high level of English comprehension

and some ability to communicate in English.

3 RR 34-36, 89, 96, 110-23, 134, 138-41,

208-10, 217-18, 225-26, 4 RR 25, 28, 185,

211, 215-16, 5 RR 7, 15-16, 1 CR 159, 169.

At jury selection, Applicant’s translator was

tardy so Applicant’s husband translated for

her. See State’s Exhibit “B.”

16.

if.

18.

19.

2la

During trial, Applicant and her husband

remained together when arriving or leaving

the courthouse and during the recesses. Id.

Applicant neither requested a translator

during trial nor indicated at trial that she

did not understand any of the proceedings.

The affidavit of Ms. Smith throws no light on

Applicant’s understanding of her trial where

she had translators available to her. See

Applicant’s Exhibit No. 21 (number

designated by the State). Applicant’s ability

to comprehend matters in the prison system

without translators after her trial is a

separate unconnected matter. Further, in

light of the testimony at trial and her trial

counsel’s statements, it appears that

initially Applicant successfully concealed her

understanding of English from the staff at

TDCJ-CID.

Mr. Udashen’s opinion that Applicant could

not understand the English used during the

trial does not assist in resolving the issue at

hand. He was retained to represent

Applicant after her conviction, and he does

not assert that he was present throughout

Applicant’s trial. See Applicant’s Exhibit

No. 4.

Applicant has not identified any specific,

material testimony or proceedings that she

did not understand at trial. See Applicant’s

Exhibit No. 5. Accordingly, she has not

22a

demonstrated any harm flowing from any

untranslated event at trial.

20. Asis the case with any other defendant on

trial, Applicant understood the trial

proceedings to the extent she wished to do so

at the time. See State’s Habeas Exhibit “B.”

Ex parte Kavali, Application No. 60, 986-01 at 252-54.

The Texas Court of Criminal Appeals adopted these

findings when it denied Petitioner’s state habeas

application without written order. These findings are

presumptively correct under 28 U.S.C. § 2254(e)(1).

See Clark v. Johnson, 202 F.3d 760, 764 (5" Cir.) cert.

denied, 531 U.S. 831, 121 S. Ct. 84, 148 L. Ed.2d 46

(2000). Therefore, federal courts in habeas corpus

proceedings are required to accord a presumption of

correctness to state court findings of fact, unless they

lack even fair support in the record. See Demosthenes

v. Baal, 495 U.S. 731, 735, 110 S. Ct. 2223, 109 L.

Ed.2d 762 (1990). The Fifth Circuit has confirmed that

“any state-court factual determinations must be

presumed correct unless rebutted by clear and

convincing evidence.” Dauis v. Johnson, 158 F.3d 806,

812 (5" Cir. 1998). Thus, in the absence of affirmative

proof of error, the state court findings are deemed to be

correct. See Teague v. Scott, 60 F.3d 1167, 1170 (5"

Cir. 1995). Mere disagreement with the state court

findings is not. sufficient to overcome those findings,

even when the record is ambiguous. Jd. However,

section 2254 (d) (2) authorizes issuance of a writ if the

state court decision “was based on an unreasonable

determination of the facts in light of the evidence

presented.” Childress v. Johnson, 103 F.3d 1221, 1226

n. 7 (5" Cir. 1997).

23a

In the present case, Petitioner had a reasonable

command of the English language, evidenced by the

affidavits of her trial attorneys and the various police

and medical personnel with which she conversed. Her

attorneys stated that she asked questions in English

and responded appropriately to answers given in

English. While not fluent, the attorneys believed that

Petitioner understood the trial proceedings and

appeared to understand matters discussed with her in

English. She never stated that she did not understand

the proceedings or was receiving an insufficient

translation.

Furthermore, the record demonstrates that

Petitioner’s friends and family interpreted proccedings

for her during the trial proceedings. The only portions

that were not interpreted were at Petitioner’s request

— testimony concerning the injuries to her child. Thus,

with an absence of affirmative proof of error, the state

ccurt findings are deemed to be correct. See Teague,

60 F.3d at 1170.

Petitioner’s claim is also barred by Teague v. Lane

to the degree that her petition complains about the

trial court’s failure to appoint an interpreter. See

Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L.

Ed.2d 334 (1989). The Supreme Court has never held

that a defendant who is not indigent is entitled to a

court-appointed interpreter, particularly when the

defendant does not testify. If this Court determined

that Petitioner, who is not indigent, was

constitutionally entitled to have a court-appointed

translator translating during her tmal, it would

constitute a new rule being announced in a habeas

corpus case, which would be barred by Teague.

24a

Moreover, the record fails to show that Petitioner

or her counsel, at any time during trial proceedings,

requested an interpreter. Further, even if it could be

found that the trial court should have appointed an

interpreter sua sponte, Petitioner has failed to show

the required prejudice. Denial of the right to

confrontation is subject to a harmless error analysis.

See United States v. Jimenez, 464 F.3d 555, 558 (5

Cir. 2006). Petitioner’s attorneys stated that the use

of the interpreters did not negatively impact their

ability to defend Petitioner at trial. Further, Petitioner

does not pinpoint the testimony that she was unable to

respond to based on the lack of a court-appointed

interpreter nor how it would have made a difference in

the outcome of the trial.

Petitioner has not shown that the state court

proceedings (1) resulted in a decision that 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) resulted in

a decision that was based on an _ unreasonable

determination of the facts in light of the evidence

presented in the State court proceeding. See Williams,

529 U.S. at 402-03; Childress, 103 F.3d at 1224-25.

Petitioner’s issue lacks merit.

Ineffective Assistance of Counsel

Legal Standard

In order to succeed on a claim of ineffective

assistance of counsel, a habeas corpus petitioner must

show that “counsel’s representation fell below an

objective standard of reasonableness,” with

reasonableness judged under professional norms

25a

prevailing at the time counsel rendered assistance.

Strickland v. Washington, 466 U.S. 668, 688, 1045S. Ct.

2052, 2065, 80 L. Ed.2d 864 (1984). The standard

requires the reviewing court to give great deference to

counsel’s performance, strongly presuming counsel

exercised reasonable professional judgment. Id. at

690. The right to counsel does not require errorless

counsel; instead, a criminal defendant is entitled to

reasonably effective assistance. Boyd v. Estelle, 661

F.2d 388, 389 (5th Cir. 1981); see also Rubio v. Estelle,

689 F.2d 533, 535 (5th Cir. 1982); Murray v. Maggio,

736 F.2d 279 (5th Cir. 1984). Secondly, the habeas

petitioner “must show that there is a reasonable

probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been

different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694. Petitioner must

“affirmatively prove,” not just allege, prejudice. Jd. at

693. If he fails to prove the prejudice component, the

court need not address the question of counsel’s

performance. Jd. at 697. Without a showing of

prejudice, a claim of ineffective assistance fails.

Analysis - Failure to Object to Prosecutor’s

“Misstatement of Law”

Petitioner claims that her trial counsel was

ineffective by failing to object to improper jury

argument. Specifically, she complaints about the

following statement made by the prosecutor during

closing:

He’s asking you to forget your common sense,

and that’s one of the most important things

here, is your common sense. Finding her guilty

26a

as the principal, that she did it, or finding her

guilty as a party if for some reason you do not

want to believe this crazy, made-up story. Even

if you believe that she assisted, aided and

abetted, because you get to look at before, after

and during the commission of the crime. After

the crime she’s assisting by creating his alibi.

She’s assisting by telling the police this is what

happened. She’s assisting by doing that. If you

want to believe, for some reason that crazy

story, she’s still guilty as a party.

6 RR 33. Petitioner asserts that this statement

misstated the law contrary to the court’s charge and

must be reversed.

Under Texas law, a misstatement of the law is

improper jury argument. See Burk v. Dretke, 2003 WL

22364421, *5(N.D. Tex. (Oct. 14, 2003) (citing Ex parte

Drinkert, 821 S.W.2d 9538, 957 (Tex. Crim. App. 1991).

However, improper argument does not require reversal

unless it affects a substantial right of the defendant.

‘Tex. R. App. P. 44.2(b). A substantial right is affected

when the error had a substantial and injurious effect

or influence in determining the jury’s verdict. See

Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S. Ct.

1710, 1714, 123 L. Ed.2d 353 (1993); King v. State, 953

S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing

Kotteakos v. United States, 328 U.S. 750, 776, 66S. Ct.

1239, 1253, 90 L. Ed. 1557 (1946)).

The state habeas court found the following:

Y In the course of testimony, the defense

promoted the theory that someone had

27a

invaded Applicant’s home and killed her

baby. 3 RR 89, 111-15, 208-11, 217.

2. During closing argument, however, the

defense argued that Applicant’s husband

was actually responsible for the crime. 6 RR

27-30.

3. In rebuttal, the prosecutor asked the jury to

focus on Applicant’s guilt as the primary

actor. Alternatively, if the jury believed

Applicant’s argument, the prosecutor

requested that the jury consider her a party

to the offense. 6 RR 33.

4. In context, the prosecutor’s argument was a

response to the surprise argument of the

defense that Applicant’s husband killed the

baby and manufactured an alibi for himself.

Ex parte Kavali, Application No. 60, 986-01 at 254.

When the Texas Court of Criminal Appeals denied

Petitioner’s state habeas application, it adopted these

findings, which are presumed correct. Clark, 202 F.3d

at 764. Further, the prejudicial effect, if any, of the

complained argument to Petitioner was slight as the

court’s charge was clear and gave instructions

concerning the alternative charges. The jury was

instructed on the law of parties. Moreover, the jury

was also instructed to disregard any statement of law

made by counsel that was not in harmony with the law

stated in the jury charge. Even if the prosecutor’s

argument was incorrect, the jury would have

disregarded it as required by the court’s charge. When

determining whether specified errors resulted in the

required prejudice, a court should presume that the

28a

jury acted according to the law and “that the

decisionmaker is reasonably, conscientiously, and

impartially applying the standards that govern the

decision.” Strickland, 466 U.S. at 694-95. Thus, even

if counsel had properly objected and preserved error,

it is unlikely that Petitioner would have obtained a

reversal of her conviction on this basis. She has failed

to show prejudice.

The question to ask when a petitioner challenges

her conviction is whether, absent counsel’s errors, the

factfinder would have had a reasonable doubt about

the petitioner’s guilt. Strickland, 466 U.S. at 695. The

record shows that Petitioner stated that she left the

baby while she went. to the bathroom for a few minutes

and an intruder came in and killed him. Her husband

was not home at the time. However, autopsy results

showed that the baby had glass in his digestive

system. The same glass fragments were found in a

mortar and pestle at Petitioner’s home, in the traps to

the sink, and in the vacuum cleaner bag. The baby had

been strangled and he had suffered a severe blow to

his head. In spite of the severe head wound, there was

no blood in the front room or on the front porch, the

places Petitioner stated that she left the baby before

going to the bathroom and where she found him a few

minutes later. It was also noted that the baby’s face

was very clean, as if it had just been bathed. The

state court reasonably rejected Petitioner’s claim in

light of the evidence presented

Petitioner has not shown that the state court

proceedings (1) resulted in a decision that 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) resulted in

29a

a decision that was based on an_ unreasonable

determination of the facts in light of the evidence

presented in the State court proceeding. See Williams,

529 U.S. at 402-03; Childress, 103 F.3d at 1224-25.

This issue lacks merit.

Analysis - Failure to Object to Prosecutor’s References

to Indian Culture

Petitioner asserts that trial counsel was ineffective

for failing to object to the prosecutor’s questioning

during voir dire and his statement during closing

concerning alleged cultural beliefs of Indians.

Specifically, she complains that trial counsel] should

have objected when the prosecutor asked a prospective

juror to assume that a couple had “a religious or

cultural belief that a baby with a defect or some type

of deformity is .. . better off dead [so] . . . they kill the

baby.” Additionally, Petitioner asserts that trial

counsel was ineffective for not objecting to improper

prosecutor argument in closing when the prosecutor

said, “in the United States you don’t have that right

... to choose to get rid of the problem.”

Claims of prosecutorial misconduct are determined

on a case by case basis. Stahl v. State, 749 S.W.2d

826, 830 (Tex. Crim. App. 1988). Prosecutorial

misconduct has been found where the prosecutor's

actions deliberately violated an express court order

and where the prosecutor’s misconduct was “so blatant

as to border on being contumacious.” Jd. at 831. It

may also be shown where the prosecutor asks a

question that is clearly calculated to inflame the minds

of the jury and is of such a character as to suggest the

impossibility of withdrawing the impression produced.

See United States v. Saenz, 747 F.2d 930, 939 (5" Cir

30a

1984); Huffman v. State, 746 S.W.2d 212, 218 (Tex.

Crim. App. 1988).

Where improper prosecutorial argument is asserted

as a basis for habeas relief, “it is not enough that the

prosecutors remarks were undesirable or even

universally condemned.” Darden v. Wainwright, 477

U.S. 168, 181, 106 S. Ct. 2462, 2471, 91 L. Ed.2d 144

(1986). Rather, the relevant question is whether the

prosecutor’s comments “so infected the trial with

unfairness as to make the resulting conviction a denial

of due process.” Jd. In order to constitute a denial of

due process, the acts complained of must be of such

character as to necessarily prevent a fair trial. Nichols

uv. Scott, 69 F.3d 1255, 1278 (5 Cir. 1995). Moreover,

the burden is on the habeas petition to show a

reasonable probability that, but for the remarks, the

result would have been different. /d.

The state habeas corpus court made the following

findings of fact on this issue:

1. Applicant is a native of India.

2. The culture, religion, customs, and habits of

Indians are different from those of

Americans. One Indian custom is to smash

a coconut on the ground, as Applicant and

her husband did outside their apartment on

returning from the hospital. 5 SF 66, 69, 72.

3. Prior to Applicant’s baby’s murder, he was

fed ground-up glass. 5 RR 39043, 45, 46, 52,

60.

6.

CO

9.

3la

The State’s theory of the case that even if, as

Applicant told police, someone else strangled

the baby and crushed his head, Applicant fed

him the glass. 3 RR 16-19; 5 RR 72; 6 RR

7-8, 10-13, 34, 36, 41.

The prosecutors were concerned that the

defense could attempt to explain away the

feeding of the glass as an Indian ritual and,

if not rebutted by the State, make hay from

the State’s failure to prove the event was not

a ritual.

During jury. selection, one of the

venirepersons raised the subject of religious

beliefs when the prosecution was discussing

excuses for a killing.

At trial, the defense raised the topic of

Indian culture on cross-examination. 4 RR

206; 5 RR 73. Other references occurred

thereafter. 4 RR 210; 5 RR 17, 24.

The State attempted to present the

testimony of Professor Joseph Elder, who

has forty years’ experience in the languages

and culture of Asia. 5 RR 62. After a

hearing, the Trial Court excluded the

testimony of Professor Elder. 5 RR 64-73.

During closing argument, the defense urged

the jury to understand that, as a function of

Indian culture, Applicant was dominated by

her husband. 6 RR 25-26. Basically, the

defense would have tne jury believe she was

a victim of her husband's mapipulation to

10.

11.

13..

14.

32a

protect himself after he murdered

Venkateswar.

The prosecutors responded by explaining

that whatever her husband’s motive’s (sic)

for wanting the baby dead, under the law in

America. she could not comply with his

wishes without legal consequences.

Placed in proper context, the prosecutors did

not “improperly suggest that Indians havea

religious or cultural belief that a defective

baby is better off dead, that Applicant acted

on this belief in killing her baby, and the

jury should convict her” because it could not

be tolerated in the United States.

The prosecutor’s’ references to culture or

religion were designed to eliminate them as

a factor in the case.

Because the hearing on the admissibility of

Professor Elder’s testimony was conducted

out of the jury’s presence, the jury could not

have known that he had knowledge about

Indian religion or culture.

The State did not make any appeal, direct or

subtle, to racial prejudice.

Applicants’ (sic) counsel were not under any

obligation to object to the prosecutor’s

questions or comments.

Ex parte Kavali, Application No. 60, 986-01 at 255-56.

33a

The Texas Court of Criminal Appeals explicitly

adopted these findings when it denied Petitioner’s

state habeas application without written order, and

they are presumed correct under 28 U.S.C. § 2254(e)(1)

in the absence of affirmative proof of error. See Clark,

202 F.3d at 764; see also Teague, 60 F.3d at 1170. As

the State did not make any appeal to racial prejudice,

trial counsel was not obligated to object.

Furthermore, Petitioner has not shown that the

state court proceedings (1) resulted in a decision that

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) resulted in a decision that was based on

an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.

See Williams, 529 U.S. at 402-03; Childress, 103 F.3d

at 1224-25. Petitioner’s issue lacks merit.

Analysis — Counsel’s Failure to Present Expert

Testimony About Blood and DNA Evidence

Petitioner’s last assertion for relief is based on the

trial counsel’s failure to present expert testimony to

explain how Petitioner could have been the source of

the blood on the carpet in the master bedroom that

contained the baby’s DNA. Following are the findings

from the state habeas court on this matter:

] Police collected three drops of blood from the

Kavali’s master bedroom carpet. 4 RR 116.

Z. DNA testing of the drops revealed that (1)

the deceased was a major contributor to each

drop, (2) Applicant’s husband was excluded

34a

as a contributor to any of the drops, and (3)

Applicant or her daughter could not be

excluded as minor contributors to each drop.

5 RR 94-101.

3. The DNA expert recognized that the DNA

may have been deposited by various

vehicles: blood, saliva, urine, or soughed-off

cells. 5 RR i09-11. No time frame could be

established for the deposits or the order of

deposits. 5 RR 115.

4. Trial counsel, as a matter of strategy,

decided it was unnecessary to explain the

blood drop evidence. See State’s Habeas

Exhibit “B.” The evidence neither

inculpated Applicant nor exculpated her

husband. /d. Simply, the evidence was not

inconsistent with the defense theory. Jd.

Ex parte Kavali, Application No. 60, 986-01 at 256-57.

When the Texas Court of Criminal Appeals denied

Petitioner’s state habeas application, it adopted these

findings. Clark, 202 F.3d at 764. Any factual

determinations from the state court must be presumed

correct unless rebutted by clear and convincing

evidence. Davis, 158 F.3d at 812. Thus, in the

absence of affirmative proof of error, the state court

findings are deemed to be correct. Teague, 60 F.3d at

1170.

Furthermore, in support of their trial strategy,

defense counsel Mulder explained in an affidavit:

35a

The analysts conceded that the DNA from the

possible minor contributors was not necessarily

of blood source but could have come from other

soughed cells containing DNA. They further

conceded that all DNA wasn’t necessarily

contributed and deposited at the same time. ...

In my judgment, then and now, there was no

necessity to explain the blood drops. The

analysts didn’t testify that Ms. Kavali’s DNA

was present, only that she or her daughter were

possible contributors. The blood drop evidence

was not inconsistent with our defensive theory

in that no reasonable interpretation of the blood

drops excluded Mr. Kavali as the perpetrator or

inculpated Ms. Kavali. Some evidence (from a

defense strategy) is best left unexplained.

Ex parte Kavali, Application No. 60, 986-01 at 242.

Defense counsel Nation presented the same viewpoint.

Id. at 245-46. Petitioner has failed te show that trial

counsei’s strategy was erroneous. Even if it could be

considered to be in error, Petitioner has likewise failed

to show that there is a reasonable probability that, but

for counse!’s unprofessional errors, the result of the

proceeding would have been different.

Petitioner has not shown that the state court

proceedings (1) resulted in a decision that 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) resulted in

a decision that was based on an _ unreasonable

determination of the facts in light of the evidence

presented in the State court proceeding. See Williams,

529 U.S. at 402-03; Childress, 103 F.3d at 1224-25.

Petitioner's issue lacks merit

36a

Conclusion

When the effectiveness of counsel is at issue, state

court findings of fact made in the course of deciding an

ineffectiveness claim are subject to the deference

requirement of § 2254 (e)(1). See Strickland, 446 U.S.

at 698; Davis, 158 F.3d at 812. When a state court has

determined that counsel was reasonably effective,

federal courts “look to whether the state court decision

rested on ‘an unreasonable application of clearly

established federal law.” Kitchens v. Johnson, 190

F.3d 698, 701 (5° Cir. 1999). In the instant case,

Petitioner had the burden of rebutting such findings

by producing clear and convincing evidence that they

are incorrect. 28 U.S.C. § 2254(e)(1). She has not done

so. The trial court’s findings are amply supported by

the record. This Court, therefore, is required to accept

as conclusive both the factual findings and the

credibility choices of the state courts. See Carter v.

Collins, 918 F.2d 1198, 1202 (5" Gir. 1990).

Petitioner is not entitled to relief because she has

not shown, as required by 28 U.S.C. § 2254(d), that the

State court findings resulted in a decision that was

contrary to, or involved an unreasonable application of,

clearly established federal law as determined by the

Supreme Court of the United States, or 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. See Williams,

529 U.S. at 402-03. Accordingly, her petition should be

dismissed.

3va

Certificate of Appealability

An appeal may not be taken to the court of appeals

from a final order in a habeas corpus proceeding

“unless a circuit justice or judge issues a certificate of

appealability.” 28 U.S.C. § 2253(c)(1)(A). Although

Petitioner has not yet filed a notice of appeal, it is

respectfully recommended that this Court,

nonetheless, address whether she would be entitled to

a certificate of appealability. See Alexander uv.

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 nght 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(¢)(2).

The Supreme Court fully explained the requirement

associated with a “substantial showing of the denial of

a constitutional right” in Slack v. McDaniel, 529 U.S.

473, 484, 120 S. Ct. 1595, 1604, 146 L. Ed.2d 542

(2000). In cases where a district court rejected a

petitioner’s constitutional claims on the merits, “the

petitioner must demonstrate that reasonable jurists

would find the district court’s assessment of the

constitutional claims debatable or wrong.” Id.; Henry

v. Cockrell, 327 F.3d 429, 431 (5th Cir. 2003). “When a

district court denies a habeas petition on procedural)

grounds without reaching the petitioner’s underlying

constitutional claim, a COA should issue when the

38a

petitioner shows, at least, that jurists of reason would

find it debatable whether the petition states a valid

claim of the denial of a constitutional right and that

jurists of reason would find it debatable whether the

district court was correct in its procedural ruling.”

Slack, 529 US. at 484.

It is respectfully recommended that reasonable

jurists could not debate the denial of the Petitioner’s

§ 2254 petition on procedural grounds, nor find that

the issues presented are adequate to deserve

encouragement to proceed. Miller-El v. Cockrell, 537

U.S. 322, 327, 123 S. Ct. 1029, 134, 154 L. Ed.2d 931

(2003) (citing Slack, 529 U.S. at 484). Accordingly, it

is recommended that the Court find that the Petitioner

is not entitled to a certificate of appealability as to her

claims.

Recommendation

It is therefore recommended that the petition be

dismissed with prejudice. It is further recommended

that a certificate of appealability be denied.

Within ten (10) days after 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 ten 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 grounds of plain

error, from appellate review of unobjected-to factual

39a

findings and legal conclusions accepted and adopted by

the district court. Douglass v. United States Auto

Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en bane).

SIGNED this 26th day of February, 2008.

/s/

DON D. BUSH

UNITED STATES MAGISTRATE JUDGE