TERRY R. MEANS, District Judge.
Before the Court is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner, Larry Joe Morgan, a state prisoner, against Lorie Davis, director of the Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. After having considered the pleadings and relief sought by Petitioner, the Court has concluded that the petition should be denied.
On March 22, 2013, petitioner was convicted by a jury in the 396th Judicial District Court, Tarrant County, Texas, Case No. 1249395D. aggravated assault with a deadly weapon. (Clerk's R. 94, doc. 21-2.) Subsequently, the trial court found the repeatoffender notice in the indictment true and sentenced Petitioner to twenty years' confinement. (Id. at 7, 94.) Petitioner appealed his conviction, but his appellate counsel filed an Ander's brief, and the appellate court, finding no arguable grounds, affirmed his conviction. The Texas Court of Criminal Appeals refused then Petitioner's petition for discretionary. (Mem. Op. 2, doc. 22-15; Docket Sheet 2, doc. 21-1.) Petitioner also filed a postconviction state habeas-corpus application challenging his conviction, which was denied by the Texas Court of Criminal Appeals without written order on the findings of the trial court. (Action Taken, doc. 23-2.) This is Petitioner's second federal habeas petition challenging the same conviction. The first was dismissed on exhaustion grounds. (Op. and Order 6-8, Morgan v. Stephens, No. 4:14-CV-635-Y, doc. 29.)
The evidence at trial reflected that Petitioner met Anthony Moore at Cobb Park in Fort Worth, Texas, where people often gathered to drink beer and socialize. (Reporter's R. 28, doc. 21-6.) The two bought beers from Michael Connor, who was there with his girlfriend, Terri Carrol, and a group of friends. A dispute over the beer occurred between Petitioner and Connor. Petitioner left the park but returned shortly thereafter and confronted Connor who was sitting in a lawn chair next to Carrol. Connor, who was unarmed, testified that at some point he thought Petitioner was pulling a weapon out of his pocket and he put Petitioner in a bear hug and the two went down on the ground. When Connor realized that he was being cut by Petitioner, he attempted to get up and run but his right foot had been nearly severed from his leg. He hopped around a pickup truck in an effort to escape Petitioner, who continued to pursue him. Petitioner was then subdued by several bystanders, one of whom hit Petitioner over the head with a folding stool and one of whom admitted to pulling his own knife on Petitioner. Petitioner's industrial sheetrock knife was found at the scene. With some inconsistencies, Carrol and five other eyewitnesses testified similarly to the events. All the witnesses testified that at no time did Connor hit, kick, stab, or threaten Petitioner or act as the aggressor. The defense elicited testimony on cross-examination that the injury was likely caused by a larger weapon and presented expert testimony that, due to the nature of the injury, a heavier "instrument" such as a machete was likely used and not the sheetrock knife. Petitioner did not testify at trial, but defense counsel attempted to establish through cross-examination that Petitioner was acting in self-defense and Petitioner testified at the punishment phase that Connor's ankle was cut while Connor was "stomping" and kicking Petitioner as he sat on the ground. According to Petitioner, he was shielding his face with the knife during Connor's assault.
Petitioner's claims fall within the following general categories: (1) ineffective assistance of counsel; (2) violation of his rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments; and (3) defects in the state-habeas proceedings. (Pet. 6-7, doc. 1; Am. Pet. 7-8, doc. 18.) His claims are multifarious and addressed as thoroughly as practical below.
Respondent believes that the petition is neither time-barred nor successive but, because of the multifarious nature of Petitioner's claims, reserves the exhaustion and procedural-default defenses. (Resp't's Answer 7, doc. 27.)
A § 2254 habeas petition is governed by the heightened standard of review provided for in the AEDPA. See 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 United States Supreme Court or that is based on an unreasonable determination of the facts in light of the record before the state court. See 28 U.S.C. § 2254(d)(1)-(2); Harrington v. Richter, 562 U.S. 86, 100 (2011). This standard is difficult to meet but "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. When the Texas Court of Criminal Appeals denies relief on a state habeas-corpus application without written order, typically it is an adjudication on the merits, which is likewise entitled to this presumption. Harrington, 562 U.S. at 100; Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997). In such a situation, a federal court may assume that 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); Schartzle v. Cockrell, 343 F.3d 440, 443 (5th Cir. 2003); Catalan v. Cockrell, 315 F.3d 491, 493 n.3 (5th Cir. 2002); Valdez, 274 F.3d at 948 n.11; Goodwin v. Johnson, 132 F.3d 162, 183 (5th Cir. 1997). 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).
A criminal defendant has a constitutional right to the effective assistance of counsel at trial and on the first appeal as of right. U.S. CONST. amend. VI, XIV; Evitts v. Lucey, 469 U.S. 387, 396 (1985); 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 test, a court must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. 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 set out in Harrington v. Richter the manner in which a federal court is to consider an ineffective-assistanceof-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)). Accordingly, it is necessary only to determine whether the state courts' rejection 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).
Petitioner claims his trial counsel was ineffective by failing to investigate; failing to assert the defense of self-defense; failing to present the police report, including the eyewitness statements, for impeachment purposes at trial; failing to present evidence that the victim was "cut across the bottom of his stomach" to counter the testimony of the state's witnesses; failing to have the 911 CD-ROMs transcribed; failing to request DNA testing or investigate whether DNA testing had been done; failing to subpoena and call eyewitnesses who were listed on the offense report; and "suppressing tangible evidence." (Pet. 6-7, doc. 1; Am. Pet. 7, doc. 18.) According to Petitioner, the following evidence was "concealed": a favorable "911 caller," a picture proving selfdefense, "DNA testing," crime-scene photos showing the scene was "staged," and "911 callers of the events." (Pet. 7, doc. 1.)
Counsel, Scott Walker, responded via affidavit in the statehabeas proceedings to one or more of Petitioner's allegations as follows:
(State Habeas R. 59-62, doc. 23-18.)
Counsel and the court-appointed investigator also testified at the new-trial hearing regarding the nature and extent of the investigation conducted in the case. (Reporter's R., Hr'g on Mot. for New Trial, 10-11, 16-19, 26-29, 33-36, doc. 21-15.)
Based on the documentary record, counsel's affidavit, and his own recollection of the trial-court proceedings, the state habeas judge found defense counsel's testimony and affidavit credible and supported by the record. He then entered factual findings, too numerous to list here, refuting Petitioner's claims. (State Habeas R. 113-20, doc. 23-18.) Applying Strickland to the totality of counsel's representation, the state court concluded that Petitioner failed to prove that counsel was ineffective, that counsel's representation fell below objective standards of reasonableness, or that there existed a reasonable probability that, but for counsel's alleged acts of misconduct, the result of his trial would have been different. (Id. at 120-23.)
Petitioner fails to rebut the state court's findings of fact by clear-and-convincing evidence. See 28 U.S.C. § 2254(e)(1). Thus, the findings, including the court's credibility findings, are entitled to a presumption of correctness. Richards v. Quarterman, 566 F.3d 553, 563-64 (5th Cir. 2009); Galvan v. Cockrell, 293 F.3d 760, 764 (5th Cir. 2002). Applying the appropriate deference and having independently reviewed Petitioner's claims in conjunction with the state court records, it does not appear that the state courts' application of Strickland was objectively unreasonable. Petitioner's claims are largely conclusory, refuted by the record, or involve strategic and tactical decisions made by counsel, all of which generally do not entitle a state petitioner to federal habeas relief. See Strickland, 460 U.S. at 689 (providing strategic decisions by counsel are "virtually unchallengeable" and generally do not provide a basis for post-conviction relief on the grounds of ineffective assistance of counsel); Evans v. Cockrell, 285 F.3d 370, 377 (5th Cir. 2002) (providing petitioner must "bring forth" evidence, such as affidavits, from uncalled witnesses, including expert witnesses, in support of an ineffective-assistance claim); Green v. Johnson, 160 F.3d 1029, 1042 (5th Cir. 1998) (providing "[m]ere conclusory allegations in support of a claim of ineffective assistance of counsel are insufficient to raise a constitutional issue"); United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989) (providing "[a] defendant who alleges a failure to investigate on the part of his counsel must allege with specificity what the investigation would have revealed and how it would have altered the outcome of the trial"); Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985) (providing ineffective assistance claims "based upon uncalled witnesses [are] not favored because the presentation of witness testimony is essentially strategy and thus within the trial counsel's domain, and . . . speculations as to what these witnesses would have testified [to] is too uncertain"). Petitioner has not demonstrated deficient performance or shown any reasonable probability that the outcome of his trial would have been different but for counsel's representation. A petitioner shoulders a heavy burden to overcome a presumption that his counsel's conduct is strategically motivated, and to refute the premise that "an attorney's actions are strongly presumed to have fallen within the wide range of reasonable professional assistance." Messer v. Kemp, 760 F.2d 1080, 1090 (11th Cir. 1985). Petitioner has presented no evidentiary, factual, or legal basis in this federal habeas action that could lead the Court to conclude that the state courts unreasonably applied the standards set forth in Strickland based on the evidence presented in state court. 28 U.S.C. § 2254(d).
Petitioner also claims his appellate counsel was ineffective by failing to investigate; failing to present Petitioner's "laundry list of errors" and his claim that the court-appointed investigator did not investigate on his behalf in his motion for new trial; and failing to ask for a continuance so as to obtain a completed trial record.
Petitioner claims his constitutional rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments were violated because of the prosecution's tampering with and fabricating physical evidence, prosecutorial misconduct, mishandling of the physical evidence, vindictiveness, "aggravated perjury," conspiracy, and collusion. (Am. Pet. 7, doc. 18.) According to Petitioner, the female assistant prosecutor initially assigned to his case was a friend of the victim and "had it out for" Petitioner and was romantically involved with the trial judge. (Pet'r's Mem. 3, doc. 19.) Petitioner further alleges that the trial judge engaged in "court overreach" by allowing "changes in the pretrial transcripts" in favor of the prosecution and that the judge was biased against Petitioner based upon several comments he made. (Id. at 4-5.) However, absent evidence in the record, a court cannot consider such bald assertions, unsupported and unsubstantiated by anything else in the record, to be of probative evidentiary value. Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983).
Petitioner also asserts that his constitutional rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments were violated "in the manner in which the state conducted their finding of fact and conclusion of law which rendered the results in error." (Id. at 6.) However, alleged defects in state habeas proceedings are not a basis for federal habeas relief. Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir. 1999); Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995). Further, a paper hearing is sufficient to afford a petitioner a full and fair hearing, especially where, as here, the trial judge and the state habeas judge are one and the same. Murphy v. Johnson, 205 F.3d 809, 816 (5th Cir. 2000).
Petitioner seeks an evidentiary hearing and/or expansion of the record for purposes of further developing the record in support of his claims. See 28 U.S.C. § 2254(e)(2); Rules Governing Section 2254 Cases 7. However, review under § 2254(d)(1) is generally limited to the record that was before the state court that adjudicated the claim(s) on the merits. Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011). Further, § 2254(e)(2) provides:
Id.
Petitioner has not met the statutory criteria and further development of the record is not necessary in order to assess the claims.
For the reasons discussed, the Court DENIES Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Further, a certificate of appealability will not be issued. Such a certificate may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "Under this standard, when a district court denies habeas relief by rejecting constitutional claims on their merits, `the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.'" McGowen v. Thaler, 675 F.3d 482, 498 (5th Cir. 2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Petitioner has not made a showing that reasonable jurists would question this Court's resolution of his constitutional claims. Therefore, a certificate of appealability should not issue.
