KAREN WELLS ROBY, Magistrate Judge.
This matter was referred to a United States Magistrate Judge to conduct hearings, including an evidentiary hearing if necessary, and to submit proposed findings and recommendations pursuant to
The petitioner, Ray A. Brooks ("Brooks"), appearing through counsel, is a convicted inmate incarcerated in the Louisiana State Penitentiary in Angola, Louisiana.
The record reflects that Ramsey was known to make his living by selling crack cocaine.
In the early morning hours of February 22, 2006, Melissa Hull and Ramsey were sitting on the screened porch of a house located at 1021 North Polk Street in Covington, Louisiana. At some point, Brooks approached them, pointed a gun at Ramsey, and demanded that he "empty his pockets." Ramsey jumped off of the porch through a hole in the screen, and Brooks shot him. Ramsey unsuccessfully attempted to escape, and he begged for his life. Brooks again demanded that Ramsey surrender his belongings. Ramsey ultimately gave Brooks the cash and some crack cocaine. Brooks then shot Ramsey again before walking away.
When the police arrived, they found Ramsey's lifeless body lying in front of the Polk Street residence. Ramsey died of multiple gunshot wounds to the back, chest, and buttocks.
After the State announced it would not seek the death penalty, Brooks was tried before a jury on March 9 through 12, 2010, and was found guilty as charged of first degree murder.
On direct appeal, Brooks's counsel asserted five errors:
The Louisiana First Circuit affirmed Brooks's conviction and sentence on May 6, 2011, finding the fourth issue to be procedurally barred and the remaining issues to be without merit.
On November 18, 2011, the Louisiana Supreme Court denied without reasons the writ application filed by Brooks's counsel.
On September 18, 2012, Brooks submitted pro se an application for post-conviction relief to the Trial Court raising the following grounds for relief:
After receiving a response from the State, the Trial Court denied the application on November 14, 2012, declaring the claims to be without merit.
On January 13, 2014, Brooks through counsel filed a federal petition for habeas corpus relief asserting the following grounds for relief:
The State filed an answer and memorandum in opposition to Brooks's petition conceding its timely filing and the exhaustion of state remedies.
In response, Brooks argues that he is entitled to a federal evidentiary hearing on his ineffective assistance of counsel claims because Brooks was unable to afford counsel on state post-conviction review and the summary denial of his claims was contrary to federal law.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214,
The State concedes the timeliness of the petition and exhaustion of state remedies on each of the claims. The State also does not raise a procedural default defense and no such defense is apparent from the record. The Court will proceed to address the substance of Brooks's claims.
The AEDPA standard of review is governed by § 2254(d) and the Supreme Court's decision in Williams v. Taylor, 529 U.S. 362 (2000). It provides different standards for questions of fact, questions of law, and mixed questions of fact and law.
A state court's determinations of questions of fact are presumed correct and the court must give deference to the state court findings unless they were based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d)(2) (2006); see Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 532 U.S. 1039 (2001). The amended statute also codifies the "presumption of correctness" that attaches to state court findings of fact and the "clear and convincing evidence" burden placed on a petitioner who attempts to overcome that presumption. 28 U.S.C. § 2254(e)(1) (2006).
A state court's determination of questions of law and mixed questions of law and fact are reviewed under § 2254(d)(1), as amended by the AEDPA. The standard provides that deference be given to the state court's decision unless the decision is "contrary to or involves an unreasonable application of clearly established federal law" as determined by the United States Supreme Court. Hill, 210 F.3d at 485. The "critical point" in determining the Supreme Court rule to be applied "is that relief is available under § 2254(d)(1)'s unreasonable-application clause if, and only if, it is so obvious that a clearly established rule applies to a given set of facts that there could be no `fairminded disagreement' on the question." (citation omitted) White v. Woodall, ___ U.S. ___, 134 S.Ct. 1697, 1706-07 (2014) (citing Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 787 (2011) and Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)). "Thus, `if a habeas court must extend a rationale before it can apply to the facts at hand,' then by definition the rationale was not `clearly established at the time of the state-court decision.'" White, 134 S. Ct. at 1706 (quoting Yarborough v. Alvarado, 541 U.S. 652, 666 (2004)).
A state court's decision can be "contrary to" federal law if: (1) the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law; or (2) the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams, 529 U.S. at 405-06, 412-13; Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Hill, 210 F.3d at 485. A state court's decision can involve an "unreasonable application" of federal law if it correctly identifies the governing rule but then applies it unreasonably to the facts. White, 134 S. Ct. at 1706-07; Williams, 529 U.S. at 406-08, 413; Penry, 532 U.S. at 792.
The Supreme Court in Williams did not specifically define "unreasonable" in the context of decisions involving unreasonable applications of federal law. See Williams, 529 U.S. at 410. The Court, however, noted that an unreasonable application of federal law is different from an incorrect application of federal law. Id. "`[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied [a Supreme Court case] incorrectly.'" Price v. Vincent, 538 U.S. 634, 641 (2003) (quoting Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002)) (brackets in original); Bell v. Cone, 535 U.S. 685, 699 (2002)).
Thus, under the "unreasonable application" determination, the Court need not determine whether the state court's reasoning is sound, rather "the only question for a federal habeas court is whether the state court's determination is objectively unreasonable." Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002). The burden is on the petitioner to show that the state court applied the precedent to the facts of his case in an objectively unreasonable manner. Price, 538 U.S. at 641 (quoting Woodford, 537 U.S. at 24-25); Wright v. Quarterman, 470 F.3d 581, 585 (5th Cir. 2006). In addition, review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits. Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1398 (2011).
As an initial matter, the Court considers Brooks's claim that the state courts erred in denying him post-conviction relief without first conducting an evidentiary hearing and that this Court should conduct its own evidentiary hearing on the issues raised. Brooks is not entitled to an evidentiary hearing in this federal court.
It is well settled doctrine that "infirmities in State habeas proceedings do not constitute grounds for relief in federal court." Rudd v. Johnson, 256 F.3d 317, 319 (5th Cir. 2001). An attack on the State habeas proceeding is an attack on a proceeding collateral to the detention and not the detention itself, which is the concern in federal habeas review. Id., at 320; see also, Drevino v. Johnson, 168 F.3d 173, 180 (5th Cir. 1999); see also, Lackawanna County Dist. Atty. v. Coss, 532 U.S. 394, 402-403 (2001) (no constitutional mandate that states provide post-conviction review) (citing Pennsylvania v. Finley, 481 U.S. 551, 557 (1987) (no constitutional right to state post-conviction review)). Thus, any challenge by Brooks as to the manner in which his state application for post-conviction relief was handled, summarily or otherwise, is not the concern of this Court nor the focus of this Court's review under the standards set forth above.
Furthermore, Brooks is not entitled to a federal evidentiary hearing. As discussed by the Supreme Court in Cullen, 131 S. Ct. at 1400-01, the decision to hold an evidentiary hearing is a
The Court in Cullen further recognized that where these factors are not met, evidence presented for the first time on federal habeas review may not be considered on federal habeas review to address the merits of the claims under § 2254(d)(1). Id. Thus, the federal habeas court is limited to review of only the evidence and record before the state courts that reviewed the federal claim presented. See Cullen, 131 S. Ct. at 1400; Blue v. Thaler, 665 F.3d 647, 656 (5th Cir. 2011); Gallow v. Cooper, 505 F. App'x 285, 295-96 (5th Cir. 2012); Thomas v. Thaler, No. 12-50280, 2013 WL 1297269, at *4-*5 (5th Cir. Apr. 2, 2013). In other words, this Court does not and will not consider evidentiary materials that were not first presented to the state courts.
As addressed in the following discussion of his claims, Brooks has made no showing of entitlement to relief from his conviction by clear and convincing evidence. He also has not based his claim on a new, retroactive rule of law as otherwise required under the provisions of § 2254(e)(2). There is no basis in this record to grant an evidentiary hearing in this case.
The Court further finds that Brooks reliance on the Supreme Court decisions in Maples v. Thomas, ___ U.S. ___, 132 S.Ct. 912 (2012), and Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309 (2012), is misplaced, and neither holding gives basis for this Court to conduct an evidentiary hearing in this case. In Maples, the Supreme Court held that attorney abandonment (as opposed to attorney negligence) constituted an extraordinary circumstance that could be sufficient "cause" to relieve a federal habeas petitioner from the consequences of a procedural default in state court. Id., 132 S. Ct. at 917, 919. Brooks did not have counsel to abandon him on post-conviction review and none of his claims were placed in procedural default.
In Martinez, the Supreme Court discussed the long-standing holding in Coleman v. Thompson, 501 U.S. 722, 752 (1991), that habeas petitioners have no constitutional right to counsel on post-conviction review and that deficient performance by post-conviction counsel therefore does not excuse a procedural default. The Supreme Court carved out an exception to that rule limited to situations in which state law prohibits a defendant from raising an ineffective assistance of trial counsel on direct appeal, when he would have been entitled to appointed counsel,
Clearly, both Maples and Martinez addressed attorney performance, or lack thereof, as "cause" to excuse a state imposed procedural bar to a pro se prisoner's ineffective assistance of trial counsel claims on collateral review. Neither case considered or was called upon to address whether an evidentiary hearing should be held under the circumstances of Brooks's case.
Brooks's ineffective assistance of counsel claims were
The holdings in Maples or Martinez simply do not apply here. Under the proper standards addressed above, Brooks is not entitled to federal evidentiary hearing.
Brooks alleges that his trial counsel was ineffective for failing to allow him to testify, failing to discuss plea negotiations, and failure to investigate potential defense witnesses. The State argues that Brooks does not establish that denial of relief on these claims was contrary to the standards set forth in Strickland v. Washington, 466 U.S. 668 (1984).
As outlined above, Brooks raised these claims on post-conviction review and was denied relief at each level of the state courts. Ylst. The state trial court resolved that Brooks failed to prove a basis for relief and found the claims to be without merit. This finding was adhered to on review by the higher state courts. Ylst.
The issue of ineffective assistance of counsel is a mixed question of law and fact. Clark v. Thaler, 673 F.3d 410, 416 (5th Cir. 2012); Woodfox v. Cain, 609 F.3d 774, 789 (5th Cir. 2010). The question for this Court is whether the state courts' denial of relief was contrary to, or an unreasonable application of, federal law as determined by the Supreme Court.
The Supreme Court's holding in Strickland, 466 U.S. at 668, is the appropriate standard for judging the performance of counsel. In Strickland, the Court established a two-part test for evaluating claims of ineffective assistance of counsel in which the petitioner must prove deficient performance and prejudice therefrom. See Strickland, 466 U.S. at 697. The petitioner has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Montoya v. Johnson, 226 F.3d 399, 408 (5th Cir. 2000); Jernigan v. Collins, 980 F.2d 292, 296 (5th Cir. 1992). In deciding ineffective assistance claims, a court need not address both prongs of the conjunctive Strickland standard, but may dispose of such a claim based solely on a petitioner's failure to meet either prong of the test. Amos v. Scott, 61 F.3d 333, 348 (5th Cir. 1995).
To prevail on the deficiency prong, petitioner must demonstrate that counsel's conduct failed to meet the constitutional minimum guaranteed by the Sixth Amendment. See Styron v. Johnson, 262 F.3d 438, 450 (5th Cir. 2001). "The defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88. The analysis of counsel's performance must take into account the reasonableness of counsel's actions under prevailing professional norms and in light of all of the circumstances. See Strickland, 466 U.S. at 689; Carty v. Thaler, 583 F.3d 244, 258 (5th Cir. 2009). The reviewing court must "judge ... counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (quoting Strickland, 466 U.S. at 690). Petitioner must overcome a strong presumption that the conduct of his counsel falls within a wide range of reasonable representation. Harrington, 131 S. Ct. at 787 (citing Strickland, 466 U.S. at 689). "[I]t is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight." Bell, 535 U.S. at 697 (citing Strickland, 466 U.S. at 689). As a result, federal habeas courts presume that trial strategy is objectively reasonable unless clearly proven otherwise. Strickland, 466 U.S. at 689; Johnson v. Dretke, 394 F.3d 332, 337 (5th Cir. 2004) (counsel's "`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.'") (quoting United States v. Jones, 287 F.3d 325, 331 (5th Cir. 2002)); Geiger v. Cain, 540 F.3d 303, 309 (5th Cir. 2008).
In order to prove prejudice, 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." Strickland, 466 U.S. at 694; Williams v. Thaler, 602 F.3d 291, 310 (5th Cir. 2010). Furthermore, "[t]he petitioner must `affirmatively prove,' and not just allege, prejudice." Day v. Quarterman, 566 F.3d 527, 536 (5th Cir. 2009) (quoting Strickland, 466 U.S. at 695). In this context, "a reasonable probability is a probability sufficient to undermine confidence in the outcome." Cullen, 131 S. Ct. at 1403 (quoting Strickland, 466 U.S. at. 694). This standard requires a "substantial," not just "conceivable," likelihood of a different result. Harrington, 131 S. Ct. at 792. In making a determination as to whether prejudice occurred, courts must review the record to determine "the relative role that the alleged trial errors played in the total context of [the] trial." Crockett v. McCotter, 796 F.2d 787, 793 (5th Cir. 1986). Thus, conclusory allegations of ineffective assistance of counsel, with no showing of effect on the proceedings, do not raise a constitutional issue sufficient to support federal habeas relief. Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000) (citing Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983)).
On habeas review, the United States Supreme Court has clarified that, in applying Strickland, "[t]he question is whether an attorney's representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom." Harrington, 131 S. Ct. at 788 (citation. The Harrington Court went on to recognize the high level of deference owed to a state court's findings under Strickland in light of AEDPA standards of review:
Id., at 788 (citations and quotation marks omitted).
Thus, scrutiny of counsel's performance under § 2254(d) therefore is "doubly deferential." Cullen, 131 S. Ct. at 1403 (quoting Knowles, 556 U.S. at 123). The federal courts must take a "highly deferential" look at counsel's performance under the Strickland standard through the "deferential lens of § 2254(d)." Id. (citing Strickland, 466 U.S. at 689, and quoting Knowles, 556 U.S. at 121 n.2).
It is well settled that a criminal defendant has the right to testify on his own behalf pursuant to the Fifth, Sixth and Fourteenth Amendments. Rock v. Arkansas, 483 U.S. 44 (1987); Bower v. Quarterman, 497 F.3d 459, 473 (5th Cir. 2007); Sayre v. Anderson, 238 F.3d 631, 634 (5th Cir. 2001); Jordan v. Hargett, 34 F.3d 310, 312 (5th Cir. 1994). A defendant waives his right to testify if that waiver is knowing, intelligent and voluntary. Bower, 497 F.3d at 473 (Emery v. Johnson, 139 F.3d 191, 198 (5th Cir. 1997)). A violation of this right occurs only if the "`final decision that [the defendant] would not testify was made against his will.'" Emery, 139 F.3d at 198 (quoting United States v. Teague, 908 F.2d 752, 759 (11th Cir. 1990), reh'g granted, 953 F.2d 1525 (11th Cir.), cert. denied, 506 U.S. 842 (1992)).
A habeas petitioner has the burden of proving that he was denied this constitutional right. It is not enough for a habeas petitioner to merely state that he told his trial attorney that he wanted to testify and that his attorney forbade him from doing so. Turcios v. Dretke, No. H-97-0515, 2005 WL 3263918, at *6 (S.D. Tex. Nov. 29, 2005) (citing Underwood v. Clark, 939 F.2d 473, 475-76 (7th Cir. 1991)); see also, Davis v. Prince, No. 11-0712, 2011 WL 5878155, at *16 (E.D. La. Sept. 28, 2011) (Wilkinson, M.J.), report and recommendation adopted, No. 11-0712, 2011 WL 5878152, at *1 (E.D. La. Nov. 23, 2011) (Feldman, J.); Jones v. Cain, No. 10-213, 2010 WL 5375949, at *3 (E.D. La. Dec. 17, 2010) (Vance, J.); Davis v. Quarterman, No. H-06-3606, 2007 WL 1886272, at *6 (S.D. Tex. June 29, 2007). The United States Seventh Circuit Court of Appeals in Underwood specifically noted the potential problems likely to arise if habeas petitioners, making similar arguments, are not required to satisfy the burden of proof. Underwood, 939 F.2d at 475-76. Adopting the reasoning in Siciliano v. Vose, 834 F.2d 29, 31 (1st Cir. 1987), the Underwood Court recognized that such an assertion, even if made under oath was inadequate to meet that burden:
Id., 939 F.2d at 476.
Citing Underwood, the United States Fifth Circuit Court of Appeals also has indicated having the same concerns:
United States v. Martinez, 181 F.3d 627, 628 (5th Cir. 1999) (quoting Underwood, 939 F.2d at 475).
Brooks has not presented anything but his unsupported claim that his counsel would not allow him to testify. The record also contains nothing to support his claim. In fact, the record on the decision not to testify is more detailed than Brooks's would represent.
After questioning the defense witnesses, counsel met with the trial judge at the bench while the jury was adjourned.
MR. WILLIAMS:
The exchange before the state trial court reflects that Brooks and his counsel had an extended discussion about the decision to testify. The state trial court had more than "counsel's ready assertion" before it.
As discussed previously, this Court's review is bound by the record that was before the state courts when the claim was addressed and that record contains nothing (nor does this federal record) that would support Brook's intimation that he was forced by counsel not to testify against his will. The record does not demonstrate that counsel denied Brooks the right to testify.
Furthermore, the Fifth Circuit has held that counsel's decision not to place a defendant on the stand is a strategy which seldom will support a challenge of ineffective assistance of counsel. See Jones v. Cain, 227 F.3d 228, 231 (5th Cir. 2000) (citing Robison v. Johnson, 151 F.3d 256 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999)). Federal courts have consistently recognized that such tactical decisions when supported by the circumstances are objectively reasonable and do not amount to unconstitutionally deficient performance. Lamb v. Johnson, 179 F.3d 352, 358 (5th Cir. 1999), cert. denied, 528 U.S. 1013 (1999) (citing Rector v. Johnson, 120 F.3d 551, 564 (5th Cir. 1997)).
In this case, Brooks does not and has not challenged the basis for counsel's advise that he not testify, and Brooks has never argued that this advise was unreasonable under the circumstances of his case. Brooks does not present any affidavits, not even one of his own, that would establish an improvident basis for counsel's advice that he not take the stand.
Federal habeas courts presume that trial strategy is objectively reasonable unless clearly proven otherwise. Strickland, 466 U.S. at 689; Moore v. Johnson, 194 F.3d 586, 591 (5th Cir. 1999). The Supreme Court has cautioned courts not to second-guess counsel's decisions on such matters through the distorting lens of hindsight; rather, courts must employ a strong presumption that counsel's conduct falls within a wide range of reasonable assistance and, under the circumstances, might be considered sound trial strategy. Strickland, 466 U.S. at 689. Brooks has not met his burden to defeat this presumption.
The Court defers to counsel's decision to advise against Brooks's taking the stand, and to the state courts' implicit finding that counsel acted reasonably in so advising Brooks. The state courts' denial of relief was not contrary to Strickland. Brooks is not entitled to relief on this claim.
Brooks alleges that his counsel did not pursue negotiations with the State after an initial offer of fifteen years was rejected. Brooks does not indicate who made the offer and who rejected the offer. Nevertheless, Brooks contends that both he and the State were willing to pursue further negotiations, and his counsel did not respond or further discuss the matter with anyone.
The State avers that the record contains no indication or evidence that the prosecution made a plea offer to the defense or was willing to accept a plea. As a result, the State argues, Brooks has failed to establish that counsel was deficient in failing to pursue negotiations and can not prove any prejudice as a result.
Under Strickland, when a petitioner contends that his counsel failed to properly negotiate a favorable plea, he "must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed." Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376, 1385 (2012). The Supreme Court has made clear, however, that "a defendant has no right to be offered a plea ... nor a federal right that the judge accept it." Missouri v. Frye, ___ U.S. ___, 132 S.Ct. 1399, 1410 (2012)(citations omitted). The Supreme Court warns that, "[i]f no plea offer is made, or a plea deal is accepted by the defendant but rejected by the judge" there is no basis for an ineffective assistance of counsel claim under the Sixth Amendment. Lafler, 132 S. Ct. at 1387.
When Brooks raised this claim on state post-conviction review, the State replied "[t]here is no evidence that the state would have accepted a lesser plea since this is an indictment for first degree murder."
A thorough review of the state court pleadings and records fails to reveal any indication that the prosecutor offered a plea or was willing to negotiate a plea. On the contrary, the only reference by the State can be found in the post-conviction pleadings where the State indicated it was not willing to do so. Counsel can not be held to have deficiently performed where the State was unwilling to negotiate, and Brooks has not established prejudice where no plea was offered to him. See Lafler, 132 S. Ct. at 1387.
The state courts' denial of relief on this issue was not contrary to, or an unreasonable application of Strickland. Brooks is not entitled to relief.
Brooks alleges that his counsel failed to locate, interview, prepare, and call defense witnesses. Brooks specifically contends that counsel failed to interview Melissa Hull, Helen Richardson, and Chellander Harper before trial. He summarily argues that counsel's failure to interview these witnesses had an impact on the preparation for cross-examination.
The State responds that Brooks has failed to establish that counsel's cross-examination was inadequate or prejudicial in any specific way.
It is well settled that a habeas petitioner cannot show prejudice with respect to a claim that counsel failed to investigate a defense without adducing what the investigation would have shown. Diaz v. Quarterman, 239 F. App'x 886, 890 (5th Cir. 2007) (citing Strickland, 466 U.S. at 696, in recognizing that some evidence is required to show that "the decision reached would reasonably likely have been different."). Instead, to prevail on such a claim, the petitioner must provide factual support as to what exculpatory evidence further investigation would have revealed. See Moawad v. Anderson, 143 F.3d 942, 948 (5th Cir. 1998); see also Brown v. Dretke, 419 F.3d 365, 375 (5th Cir. 2005); Davis v. Cain, No. 07-6389, 2008 WL 5191912, at *10 (E.D. La. Dec. 11, 2008) (order adopting referenced Report and Recommendation). Brooks has not alleged much less pointed to any particular exculpatory information that counsel could have obtained from further investigation or pretrial interviews with the named witnesses. His superficial argument provides no reason to undermine the deference due to his counsel's trial decisions or the denial of relief on this issue by the state courts. Green v. Johnson, 160 F.3d 1029, 1042 (5th Cir. 1998) ("Mere conclusory allegations in support of a claim of ineffective assistance of counsel are insufficient to raise a constitutional issue."). This is not sufficient to establish a deficiency in counsel's performance. Moawad, 143 F.3d at 948.
Furthermore, Brooks has not demonstrated that counsel failed to investigate in a manner sufficient to question the referenced witnesses. The record is clear that counsel was quite familiar with the statements made by Melissa Hull and used that information to cross-examine other State witnesses and argue for the defense in the pretrial hearings.
Counsel also demonstrated detailed knowledge about Hull and her activities related to Brooks's arrest and thereafter.
The same is true of counsel's familiarity with Chellander Harper, where counsel demonstrated a detailed knowledge of her statements and anticipated testimony prior to trial.
Brooks also fails to point to any other witnesses to which counsel could have turned in the presentation of his defense. "`Complaints of uncalled witnesses are not favored, because the presentation of testimonial evidence is a matter of trial strategy and because allegations of what a witness would have testified are largely speculative.'" Graves v. Cockrell, 351 F.3d 143, 156 (5th Cir. 2003) (quoting Buckelew v. United States, 575 F.2d 515, 521 (5th Cir. 1978)). "`Failure to present [evidence does] not constitute `deficient' performance within the meaning of Strickland if [counsel] could have concluded, for tactical reasons, that attempting to present such evidence would be unwise.'" Williams v. Cockrell, 31 F. App'x 832 (5th Cir. 2002) (quoting Williams v. Cain, 125 F.3d 269, 278 (5th Cir. 1997)).
In this case, Brooks has not identified any other particular witnesses nor has he suggested to what any potential witnesses may have testified. He therefore has failed to establish a deficient performance or prejudice arising from counsel's failure to call additional witnesses or further investigate the three identified trial witnesses.
For the foregoing reasons, Brooks has failed to establish that the state courts' denial of relief on his ineffective assistance of counsel claims was contrary to, or an unreasonable application of Strickland and its progeny. Brooks is not entitled to relief on these claims.
For the foregoing reasons, it is
A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation
