RENEE HARRIS TOLIVER, Magistrate Judge.
Pursuant to 28 U.S.C. § 636(b) and Special Order 3, this pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 was automatically referred to the United States Magistrate Judge. For the reasons that follow, it is recommended that the petition be denied.
In 2011, Petitioner was convicted of aggravated assault of a public servant with a deadly weapon and unlawful possession of a firearm by a felon, and was sentenced to imprisonment terms of 65 years and 10 years, respectively. State v. Session, Nos. F10-56869, F11-00193 (Criminal District Court No. 5, Dallas County, 2011), aff'd, Nos. 05-11-01192-CR, 05-11-01193-CR, 2012 WL 1511261 (Tex. App.-Dallas 2012, no pet.). The Texas Court of Criminal Appeals subsequently denied him state habeas relief. See Ex parte Session, Nos. WR-82,504-01 & -02,
In his timely federal petition, Petitioner asserts ineffective assistance of counsel at trial and on appeal, insufficient evidence, prosecutorial misconduct, and deficient indictments.
Petitioner raised his insufficient evidence claim on direct appeal, but did not file a timely petition for discretionary review (PDR) and was subsequently denied extension of time to do so.
Petitioner's failure to challenge the sufficiency of the evidence in a timely PDR constitutes a procedural default that bars review of his claim on the merits. See Reed v. Thaler, 428 Fed. App'x. 453, 454 (5th Cir. 2011) (unpublished per curiam) (when a petitioner raises a sufficiency claim only in his state habeas application, "the Texas Court of Criminal Appeals' denial of his application [is] based on an independent and adequate Texas procedural ground such that his sufficiency claim is procedurally defaulted."); see also Debbs v. Thaler, No. 3:11-CV-0562-L-BK, 2011 WL 7554582, at *2 (N.D.Tex.2011), recommendation accepted, 2012 WL 912724, at *2 (N.D.Tex. 2012) (collecting cases and finding sufficiency-of-the-evidence claim procedurally barred because not raised in PDR). While Petitioner may overcome a procedural default by showing cause for the default and actual prejudice, or that a fundamental miscarriage of justice would occur if the Court were to refuse to consider his claims, here, he does not offer anything to meet that heavy burden. See Coleman v. Thompson, 501 U.S. 722, 750 (1991), modified by Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309 (2012). In his reply, Petitioner only states that filing a PDR is discretionary, not mandatory, and that Respondent "misdirect[s]" the Court on this issue.
Thus, Petitioner's sufficiency claim is procedurally barred from federal habeas review.
Petitioner is not entitled to habeas corpus relief unless the state court's adjudication on the merits:
28 U.S.C. § 2254(d).
Petitioner bears the burden of establishing that he is entitled to relief. Woodford v. Visciotti, 537 U.S. 19, 25 (2002). However, that burden is "difficult to meet," as the decision of the state court is reviewed under a highly deferential standard" and afforded the "benefit of the doubt." Harrington v. Richter, 562 U.S. 86, 102, 105 (2011); Woodford, 537 U.S. at 24 (citation and internal quotation marks omitted).
In addition, the Court reviews Petitioner's ineffective assistance of counsel claims under a "doubly deferential" standard, taking "a `highly deferential' look at counsel's performance," under Strickland v. Washington, 466 U.S. 668, 689 (1984), "through the `deferential lens of § 2254(d).'" Cullen v. Pinholster, 563 U.S. 170, 190 (2011) (quoted cases omitted). In light of the deference accorded by section 2254(d)(1), "[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable." Richter, 562 U.S. 86, 101.
To establish ineffective assistance of counsel at trial, a petitioner must show that counsel's performance was deficient and that the deficient performance prejudiced the defense.
Petitioner asserts generally that defense counsel rendered ineffective assistance in failing to object to the admission of certain evidence, as well as an "improper" jury charge.
As in the state habeas court, Petitioner's one-sentence assertions that counsel was deficient in failing to raise various objections are plainly conclusory.
In addition, even when liberally construed, Petitioner does not allege a non-frivolous basis for trial counsel to have objected to the evidence and testimony in question. See Counsel's affidavit,
Based on the above, Petitioner cannot overcome the strong presumption that he received effective assistance of counsel at trial. The state court's decision rejecting his claims of ineffective assistance of counsel was a reasonable application of federal law. Therefore, his first claim has no merit.
Next, Petitioner asserts the State relied on false, conflicting testimony in obtaining his conviction.
The state habeas court rejected this claim, concluding:
The state court's decision rejecting this ground was not an unreasonable application of clearly established federal law. Petitioner fails to offer any factual or legal support for his allegations of prosecutorial misconduct. Ross, 694 F.2d at 1011 (Without evidence in the record, "a court cannot consider a habeas petitioner's bald assertions on a critical issue in his pro se petition . . ., unsupported and unsupportable by anything else contained in the record, to be of probative evidentiary value."). First, Petitioner's bare assertions do not establish that material, false or misleading testimony was admitted at trial. See Knox v. Johnson, 224 F.3d 470, 477 (5th Cir. 2000) (quoting Giglio v. United States, 405 U.S. 150, 153 (1972)) (to prove a Due Process Clause violation based on the state's reliance on false testimony, the defendant must establish: "(1) that a witness for the State testified falsely; (2) that such testimony was material; and (3) that the prosecution knew that the testimony was false."); see also Napue v. Illinois, 360 U.S. 264, 269, 271 (1959). Second, even assuming the officers' testimony was false, Petitioner has wholly failed to establish that the prosecutors were aware of that fact.
As in the state habeas court, Petitioner has not established that any false testimony was admitted at trial. He produces no evidence to support his perjured testimony claim and relies entirely on his own self-serving statements that he does not trust the police officer's testimony.
Therefore, Petitioner's third claim also fails.
Petitioner asserts his appellate counsel rendered ineffective assistance in failing to argue on direct appeal the claims alleged in his federal petition.
Petitioner cannot show that counsel's performance was deficient and that it prejudiced him. See Smith v. Robbins, 528 U.S. 259, 285-86 (2000) (applying Strickland v. Washington standard in evaluating the ineffective assistance of appellate counsel). Appellate counsel "need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Id. (citing Jones v. Barnes, 463 U.S. 745, 751-52 (1983)).
Here, as detailed above, the issues Petitioner raises here have no merit. Consequently, appellate counsel was not deficient in failing to raise them on direct appeal. See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994) (quoting Smith v. Puckett, 907 F.2d 581, 585 n. 6 (5th Cir. 1990) ("Counsel is not deficient for, and prejudice does not issue from, failure to raise [on direct appeal] a legally meritless claim."). Because Petitioner cannot demonstrate the state court's decision rejecting his ineffectiveness claim was unreasonable, his claim fails.
Petitioner also asserts the indictments were defective because his name was inverted from "Tujuan Estaisy Session" to "Session Tujuan Estaisy, and, thus, claims he is falsely imprisoned.
Nevertheless, Petitioner's assertions fail to raise a federal constitutional claim. He has not alleged, much less established, that the state indictment was so defective that it deprived the trial court of jurisdiction. See McKay v. Collins, 12 F.3d 66, 68 (5th Cir. 1994) ("The sufficiency of a state indictment is not a matter for federal habeas relief unless it can be shown that the indictment is so defective that it deprives the state court of jurisdiction."). Accordingly, this claim has no merit.
For the foregoing reasons, it is recommended that the petition for writ of habeas corpus be
