OPINION AND ORDER

REED C O'CONNOR, District Judge.

Before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by Petitioner, Robert V. Woodard, a state prisoner confined in the Correctional Institutions Division of the Texas Department of Criminal Justice (TDCJ), against William Stephens, Director of TDCJ, Respondent. The prior referral to the Magistrate Judge is withdrawn. After considering the pleadings and relief sought by Petitioner, the Court has concluded that the petition should be denied.

I. BACKGROUND

Petitioner was charged in Tarrant County, Texas, in a multi-count indictment with sexually assaulting A.O., a child younger than 14 years of age, in January 2003 and March and April 2004.1 Adm. R., SH7-Writ WR-79,347-02, 178-79, ECF No. 23-2. The indictment also included a repeatoffender notice. Id. Petitioner's four-day jury trial commenced on June 2, 2008.

At trial, A.O. testified that when she was 11 or 12 years of age and had no place to stay, she moved in with Petitioner, a friend of A.O.'s mother who was a crack addict and prostitute, and his wife and stepson. When A.O. was 13, Petitioner began to engage in sexual activity with her, including sexual intercourse. He made A.O. perform sexual acts for school supplies, new clothes and other things she needed. During that time, A.O. contracted a sexually-transmitted disease (STD). A.O. eventually told her best friend, Julie, and Julie's mother about the abuse. Julie's mother asked A.O. to go back to the house and "do it one more time" to make sure there would be evidence. That night, Petitioner initiated sexual relations with A.O., and the next day A.O., accompanied by Julie and her mother, reported the abuse. A.O. told the sexual assault nurse examiner (SANE) that the night before Petitioner made her shower and then sexually assaulted her and that it was an "ongoing pattern." A.O. was 14 at the time and six weeks pregnant. A.O. terminated the pregnancy, and DNA testing performed on the six-week-old fetus and samples from A.O. and Petitioner, although inconclusive, indicated that of the markers examined, Petitioner could not be excluded as a contributor of the fetal material. Y-STR testing also indicated that the paternal parent of the fetus came from Petitioner's "paternal line" and that 99.7 percent of the African-American male population in the testing facility's database were excluded as donors of the fetal material. A.O. denied that someone other Petitioner sexually abused her. Adm. R., DA12-RR, vol. 3, 22-24, 26, 35,123-30, 149-50, 162, 175, 177, 181-82, ECF No. 20-2.

Petitioner's written statement to police was also admitted into evidence, wherein he stated (all spelling, punctuation and grammatical errors are in the original):

Adm. R., DA13-RR, vol. 6, State's Ex. 3, ECF No. 21-1.

Finally, the state elicited testimony from a law enforcement officer that Petitioner jumped bail in August 2007 and several months later was apprehended in Temple, Texas, where he was living and working under the assumed name of Jeffrey Johnson. Adm. R., DA12-RR, vol. 3, 197-98, ECF No. 20-2.

Petitioner, who was 50 years old at the time of trial, testified on his own behalf. He testified that he was a deacon in his church and, in 2003, took responsibility for A.O. as a favor to her parents, with whom he was acquainted. He and his family tried to assimilate A.O. into the family, but A.O. was a problem child. A.O. did not obey them and was several grades behind in school. A.O. did not like to clean or bathe and had "bad body odor." Petitioner tried to find other places for A.O. to stay, but it never worked out. He denied sexually abusing A.O. and testified that his statement to police was true. He also testified that he had never had an STD, that he was incapable of having an erection, and that he suffered from high blood pressure and diabetes. Petitioner indicated that he has three brothers and many nephews, all of whom had visited and/or stayed at his home at one time or another and had access to A.O. According to Petitioner, he jumped bail because he had a fight with his wife, missed his court date, was "in a bad situation," and was scared. His explanation for A.O.'s actions was that she was angry with him and wanted to set him up and was coached by Julie's mother. Id. at 208, 211-12, 219-20, 222-29.

Based on the evidence, a jury found Petitioner guilty of three counts of aggravated sexual assault of a child under 14 years of age and two counts of sexual assault of a child under 17 years of age. SH7-Writ WR-79,347-02, 180-90, ECF No. 23-2. Petitioner pleaded true to the repeatoffender notice, and the jury assessed his punishment at 50 years' confinement for each count of aggravated sexual assault and 30 years' confinement for each count of sexual assault of child. Id. The trial court ordered that the 50-year sentence for count two run consecutively to the 50-year sentence for count one and the 30-year sentences in counts four and five. Id. The Seventh District Court of Appeals of Texas affirmed the trial court's judgments, and the Texas Court of Criminal Appeals refused Petitioner's petition for discretionary review. Mem. Op, ECF No. 18-1; Cover Sheet, ECF No. 17-1. Petitioner also filed a state habeas application challenging his conviction, which was denied by the Texas Court of Criminal Appeals without written order on the findings of the trial court. Appl. for Writ of Habeas Corpus, cover, ECF No. 17-6. This petition for federal habeas relief followed.

II. ISSUES

In one ground, Petitioner claims his trial counsel, Fred Cummings, was ineffective because counsel—

Pet. 6, ECF No. 1. In the supplemental memorandum attached to the petition, Petitioner also claims counsel was ineffective by failing to investigate, interview, and present witnesses for "defense/mitigation purposes." Id. Pet'r's Supp. Mem., 2, ECF No. 1.

III. RULE 5 STATEMENT

Respondent believes that the petition is neither barred by the statute of limitations nor successive and that the claims have been exhausted in state court. Resp't's Ans. 12, ECF No. 16.

IV. DISCUSSION

A. Legal Standard for Granting Habeas-Corpus Relief

A § 2254 habeas petition is governed by the heightened standard of review provided for in the Anti-Terrorism and Effective Death Penalty Act (AEDPA). 28 U.S.C. § 2254. Under the Act, a writ of habeas corpus should be granted only if a state court arrives at a decision that is contrary to or an unreasonable application of clearly established federal law as established by the Supreme Court or that is based on an unreasonable determination of the facts in light of the record before the state court. 28 U.S.C. § 2254(d)(1)-(2); Harrington v. Richter, 562 U.S. 86, 100 (2011). This standard is difficult to meet and "stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings." Harrington, 562 U.S. at 102.

Additionally, the statute requires that federal courts give great deference to a state court's factual findings. Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. A petitioner has the burden of rebutting the presumption of correctness by clear-and-convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); Williams v. Taylor, 529 U.S. 362, 399 (2000).

Finally, when the Texas Court of Criminal Appeals denies relief in a state habeas-corpus application without written order, as in this case, it is an adjudication on the merits, which is also entitled to the presumption of correctness. Singleton v. Johnson, 178 F.3d 381, 384 (5th Cir. 1999); Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997). Under these circumstances, a federal court may assume the state court applied correct standards of federal law to the facts, unless there is evidence that an incorrect standard was applied. Townsend v. Sain, 372 U.S. 293, 314 (1963)2; Catalan v. Cockrell, 315 F.3d 491, 493 n.3 (5th Cir. 2002); Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir. 2001); Goodwin v. Johnson, 132 F.3d 162, 183 (5th Cir. 1997).

B. Ineffective Assistance of Counsel

A criminal defendant has a constitutional right to the effective assistance of counsel at trial. U.S. Const. amend. VI, XIV; Strickland v. Washington, 466 U.S. 668, 688 (1984). To establish ineffective assistance of counsel a petitioner must show (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that but for counsel's deficient performance the result of the proceeding would have been different. Strickland, 466 U.S. at 688. Both prongs of the Strickland test must be met to demonstrate ineffective assistance. Id. at 687, 697. In applying this standard, a court must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance or sound trial strategy. Id. at 668, 688-89. Judicial scrutiny of counsel's performance must be highly deferential and every effort must be made to eliminate the distorting effects of hindsight. Id. at 689. The Supreme Court recently emphasized in Harrington v. Richter the manner in which a federal court is to consider an ineffective assistance of counsel claim raised in a habeas petition subject to AEDPA's strictures:

562 U.S. at 101 (quoting Williams v. Taylor, 529 U.S. 362, 410 (2000) (emphasis in original)). Accordingly, it is necessary only to determine whether the state courts' adjudication of petitioner's ineffective assistance claims was contrary to or an objectively unreasonable application of Strickland. Bell v. Cone, 535 U.S. 685, 698-99 (2002); Kittelson v. Dretke, 426 F.3d 306, 315-17 (5th Cir. 2005); Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th Cir. 2003).

In the state habeas proceedings, counsel, who has been licensed since 1986 and board certified in criminal law since 1996, responded to Petitioner's claims by affidavit as follows:

1. Applicant alleges Counsel failed to object to leading questions by the prosecutor3

I did not fail to object to leading questions by the prosecutor. Mr. Woodard identified five questions in his Application as leading questions that were asked without objection. Black's Law Dictionary defines a leading question as "one which instructs witness how to answer or puts into his mouth words to be echoed back." None of the prosecutor's questions listed by the Applicant violated Rule 611(c), in my opinion, and I did not object for that reason.

Testimony pertaining to the complainant's age had been provided earlier in the trial by the SANE nurse and the complainant herself. The relevant testimony from the SANE nurse is excerpted from the Reporter's Record below:

At the beginning of her testimony, prior to the questions misidentified by Applicant as leading, the complainant testified she was 18 years of age and that her birthday was July 18th. The jurors knew the date of her testimony was June 3, 2008 and with that information could determine the complainant's age on the dates alleged in the indictment.

2. Applicant alleges Counsel failed to preserve error for appeal

Applicant's complaint derives from the following direct examination of the complainant by the prosecutor:

3. Applicant alleges Counsel failed to challenge the indictment for double jeopardy purposes

4. Applicant alleges Counsel failed to object to prosecutor's improper closing arguments4

5. Applicant alleges Counsel failed to subject the prosecution's case to meaningful adversarial testing by asserting his personal opinion of petitioner's guilt

Applicant alleges that the above underlined statement is an assertion of my personal opinion of his guilt. Placed in context of the entire opening of my argument, the court can see that I was referring to my responsibility to defend and speak for my client. During the rest of my argument I summarized the evidence from the client's testimony and perspective and pointed out the weaknesses in the State's case, arguing reasonable doubt.

In the punishment phase argument, Applicant calls the Court's attention to the following underlined statement as an assertion of my personal opinion of his guilt. I have included portions of my argument before and after his excerpt to show the true context of my statement:

My argument was a reference to Applicant's testimony of his innocence during the punishment phase and an attempt to minimize any negative reaction to that testimony in their punishment verdict. The state argued very passionately for a life sentence. The jurors, who did not know the Trial Court would stack their sentences, assessed 50 years as the longest of his sentences instead.

6. Applicant alleges Counsel failed to investigate, interview, and present witnesses for defense/mitigation purposes.

I thoroughly reviewed the State's file and investigated the State's evidence. The Tarrant County Criminal District Attorney's Office has an open file policy. I was permitted to photocopy the entire State's file other than material withheld as work product. As I became aware of additional information in the possession of the police, I continued to acquire that information through our defense investigator and through the District Attorney's office. I obtained copies of police reports, medical records, CPS records, and DNA test reports from two different laboratories through discovery. We acquired the client's medical records, interviewed potential witnesses, obtained a professional review of the state's DNA testing, and had additional independent DNA analysis performed on the client's behalf.

I requested a court-appointed private investigator to assist me in my investigation of this case. The court appointed David Marlow who met with the Applicant, located and interviewed witnesses, and attempted to obtain additional evidence for our defense of the client. Mr. Marlow obtained the client's medical records from his personal physician. Both Mr. Marlow and I attempted to obtain information from the client about potential fact and character witnesses to assist us with his defense. Applicant was uncooperative with our efforts. He moved without notifying me or his bondsman. He changed his telephone numbers without notifying me or his bondsman. He missed or cancelled appointments with me. He would not return Mr. Marlow's telephone calls when Mr. Marlow left detailed voicemail messages about needing the client's assistance in identifying potential defense witnesses. Mr. Marlow prepared several reports contemporaneous with his investigation that document his efforts that are attached to this affidavit.

Applicant's medical records do, in fact, indicate the Applicant complained of erectile dysfunction to his physician but they also reveal that the condition was being treated with Viagra. I decided not to call Applicant's personal physician for that reason. Applicant's medical condition was presented to the jury through his statement to the Police Detective as well as through his testimony without discussing his Viagra prescription.

Applicant complains that I did not produce records that he had never had a sexually transmitted disease. I discussed the impossibility of proving a negative with him prior to trial. I knew Applicant would testify and he informed the jury on direct examination that he had never had an STD.

Adm. R., SH7-Writ WR-79,347-02, 65-74, ECF No. 23-1 (citations to the record omitted).

The state habeas judge, who also presided at trial, found counsel's affidavit credible and entered findings, too numerous to list, consistent with the affidavit and the documentary record, which were later adopted by the Texas Court of Criminal Appeals. Id. at cover; Adm. R., SH7-Writ WR-79,347-02, 166-71, ECF No. 23-2. Relevant here, and based on the totality of counsel's representation, the state court found that counsel did not object to questions Petitioner alleges were leading because they were not leading questions that violated Texas Rule of Evidence 611(c); that counsel did not challenge the indictment on double jeopardy grounds because all counts alleged separate offenses as a matter of state law; that counsel met with Petitioner, located and interviewed witnesses, reviewed the state's file, investigated the state's evidence, and obtained a private investigator to assist in his investigation; that counsel and his investigator attempted to obtain information about potential fact and character witnesses from Petitioner but Petitioner was uncooperative; that counsel's complained-of jury arguments were not personal comments on Petitioner's guilt and were reasonable trial strategy; that counsel did not object to the state's complained-of jury arguments because they fell within the permissible areas of argument under state law; that counsel conveyed all plea bargain offers to Petitioner and counter offers to the state; that counsel properly evaluated the evidence and advised Petitioner accordingly; that counsel properly subjected the state's case to meaningful adversarial testing; and, additionally, that Petitioner had failed to show that, but for counsel's acts or omission, there is a reasonable probability that the outcome of his trial would have been different. Adm. R., SH7-Writ WR-79,347-02, 171-74, ECF No. 23-2.

Absent clear and convincing evidence in rebuttal, the Court defers to the state court's factual findings. Applying the appropriate deference and having independently reviewed Petitioner's claims in conjunction with the state court records, it appears that the Supreme Court has not specifically addressed one or more of the claims raised by Petitioner or that, where the Supreme Court has done so, the state court's application of Strickland was reasonable. Petitioner's claims are conclusory, with no legal and/or evidentiary basis, refuted by the record, involve state evidentiary rulings or other matters of state law, and/or involve strategic and tactical decisions made by counsel, all of which generally do not entitle a state Petitioner to federal habeas relief.6 Furthermore, even if Petitioner could demonstrate defective assistance based on one or more of his claims, he has not made a showing of Strickland prejudice. Strickland, 466 U.S. at 694-96. Assuming the jury believed A.O., it had overwhelming evidence by which to convict Petitioner, and his sentences are within the statutory range for the offenses as a repeat offender. Further, even though counsel failed to preserve for appeal one or more of Petitioner's claims, Petitioner has failed to establish a meritorious claim.

V. CONCLUSION

For the reasons discussed herein, Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED. Further, pursuant to 28 U.S.C. § 2253(c), for the reasons discussed herein, a certificate of appealability is DENIED.

SO ORDERED.