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, Jonathan Paul Sikes, a state prisoner confined in the Correctional Institutions Division of the Texas Department of Criminal Justice (TDCJ), against Lorie Davis, Director of TDCJ, Respondent. After considering the pleadings and relief sought by Petitioner, the Court has concluded that the petition should be denied.
Petitioner was charged with four counts of aggravated sexual assault of a child and two counts of indecency with a child in Tarrant County, Texas, Case No. 0993572D. Clerk's R. 2, ECF No. 12-14. On December 10, 2009, following a jury trial, the jury found Petitioner guilty on all counts and, the next day, assessed his punishment at 12 years' confinement and a $2,000 fine on each count of aggravated sexual assault of a child and 5 years' confinement and a $1,000 fine on each count of indecency with a child. Id. at 220-22, 231-36. The trial court ordered that the sentences be served consecutively. Id. at 240-57.
The evidence at trial was summarized by the state appellate court as follows:
Mem. Op. 2-4, ECF No. 12-3.
Petitioner appealed his convictions, but the appellate court affirmed the trial court's judgments, the Texas Court of Criminal Appeals refused his petition for discretionary review, and the United States Supreme Court denied writ of certiorari. Docket Sheet 1-2, ECF No. 12-2. Petitioner also filed a postconviction state habeas-corpus application challenging his convictions, which was denied by the Texas Court of Criminal Appeals without written order. Action Taken, ECF No. 12-37.
Petitioner's grounds for relief are multifarious and are addressed as thoroughly as practicable. They fall within the following general categories:
Pet. 6-7D3, ECF No. 1.
Respondent believes that the petition is not barred by successiveness, the statute of limitations, or a failure to exhaust state court remedies. Resp't's Ans. 7, ECF No. 16.
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." Richter, 562 U.S. at 102.
The statute further 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. The presumption of correctness applies to both express and implied factual findings. Young v. Dretke, 356 F.3d 616, 629 (5th Cir. 2004); Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir. 2001). Absent express findings, a federal court may imply fact findings consistent with the state court's disposition. Townsend v. Sain, 372 U.S. 293, 314 (1963); Pondexter v. Dretke, 346 F.3d 142, 148 (5th Cir. 2003); Catalan v. Cockrell, 315 F.3d 491, 493 n.3 (5th Cir. 2002). Further, when the Texas Court of Criminal Appeals denies a federal claim in a state habeas-corpus application without written opinion, a federal court may presume "that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary" and applied the correct "clearly established federal law" in making its decision. Johnson v. Williams, 568 U.S. 289, 298 (2013); Richter, 562 U.S. at 99; Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir. 2004).
Under his first, fourth, and tenth grounds, Petitioner claims that the trial court erred and abused its discretion by (1) allowing the state to present extraneous offense evidence of his past juvenile offenses involving the same complainant during the guilt/innocence phase of his trial; (2) verbally ordering his sentences to run consecutively without signing the written order at the time of oral pronouncement and failing to enter a proper cumulation order listing the sentences to be served consecutively in sequence; (3) denying his only motion for a continuance "based upon the emergence of Andrew Bennett and Kimberly Sikes Bennett" as new material-fact witnesses and due to his attorney's personal illness; (4) failing to ensure that Petitioner signed the court's certification of his right to appeal; (5) failing to grant the defense motion to quash the indictment; (6) failing to have Petitioner sworn in until after he was arraigned; and (7) failing to provide case law supporting defense counsel's contention that the letter written by Petitioner's father was inadmissible based upon a confrontation clause violation. These claims do not warrant federal habeas relief.
Petitioner asserts that the trial erred and abused its discretion by allowing the state to present extraneous offense evidence of his past juvenile offenses involving K.S. during the guilt/innocence phase of his trial. Pet. 6-6A1, ECF No. 1. A state court's evidentiary rulings are not inherently suspect and are generally not cognizable on federal habeas review of a state conviction. See Estelle v. McGuire, 502, U.S. 62, 67 (1991); Wood v. Quarterman, 503 F.3d 408, 414 (5th Cir. 2007); Derden v. McNeel, 978 F.2d 1453, 1458 (5th Cir. 1983). A federal habeas court will disturb state court evidentiary rulings on habeas review only if they render the trial fundamentally unfair. Payne v. Tennessee, 501 U.S. 808, 825 (1991). The admission of extraneous offense evidence does not violate due process if the state "makes a strong showing that the defendant committed the offense and if the extraneous offense is rationally connected with the offense charged." Wood, 503 F.3d at 414. Assuming the jury believed the state witnesses' testimony, and especially K.S.'s account of the abuse, the state made a strong showing that Petitioner committed the offenses. And, Petitioner's sexual abuse of K.S. as a juvenile bears a rational relationship to the offenses charged. As such, Petitioner cannot demonstrate that his trial was rendered fundamentally unfair as a result of admission of the evidence.
Petitioner asserts that the trial court erred and abused its discretion by verbally ordering his sentences to run consecutively without signing the written order at the time of oral pronouncement and failing to enter a proper cumulation order listing the sentences to be served consecutively in sequence. Pet. 6A1, 7, 7B1, ECF No. 1. Article 42.08 of the Texas Code of Criminal Procedure provides, in relevant part:
TEX. CODE CRIM. PROC. ANN. art. 42.08(a) (West Supp. 2017).
The record reflects that on December 11, 2009, after the jury's verdicts as to punishment were read, the state moved the trial court to run the sentences consecutively. Reporter's R., vol. 9, 115-18, ECF No. 12-12. The trial court granted the motion, and such was reflected in the court's written judgments entered on December 15, 2009. Clerk's R. 240, 243, 246, 249, 252, 255, ECF No. 12-14. The statute contains no requirement, and the Court finds no authority to support Petitioner's claims, that the written judgments must be signed and entered on the same date as oral pronouncement of the sentence or must list the sentences in sequence corresponding to the order of counts. Nevertheless, the misapplication of state law and state procedural rules is not cognizable in a federal habeas proceeding unless the petitioner can establish that the error deprived him of a fair trial. See Jackson v. Johnson, 194 F.3d 641, 656 (5th Cir.1999); Ables v. Scott, 73 F.3d 591, 592 n.2 (5th Cir. 1996) (quoting Johnson v. Beto, 383 F.2d 197, 198 (5th Cir. 1967)); Pringle v. Beto, 424 F.2d 515, 516 (1970). Petitioner makes no such showing.
Petitioner asserts that the trial court erred and abused its discretion by denying his only motion for a continuance "based upon the emergence of Andrew Bennett and Kimberly Sikes Bennett" as new material-fact witnesses and based upon his attorney's illness. Pet. 6A1, 7, ECF No. 1; WR-79,134-02 Clerk's R. 7-8, ECF No. 12-38. The record reflects that defense counsel filed a motion for a continuance on December 7, 2009, the day before trial was to commence, and that, after hearing argument, the trial court denied the motion. Reporter's R., vol. 5, 6-19, ECF No. 12-8; Clerk's R. 159-60, ECF No. 12-14. Petitioner's first allegation based on surprise evidence involves a state court evidentiary ruling, and Petitioner fails to establish that the trial court's denial of the motion rendered his trial fundamentally unfair or prejudiced him in any way. Both witnesses were present and available to testify at trial. Reporter's R., vol. 8, 18, ECF No. 12-11. The second allegation involves the state court's application of state law concerning the grant or denial of a motion for continuance, however, as previously noted, the misapplication of state law and state procedural rules is not cognizable in a federal habeas proceeding unless the petitioner can establish that the error deprived him of a fair trial. Petitioner makes no such showing. Counsel was present throughout the duration of Petitioner's trial and nothing in the record indicates that counsel was hampered in any way due to illness.
Petitioner asserts that the trial court erred and abused its discretion by failing to have him sworn in until after he was arraigned and to ensure that he signed the court's certification of his right to appeal. Pet. 7B1, ECF No. 1. Again, the misapplication of state law and state procedural rules is not cognizable in a federal habeas proceeding unless the petitioner can establish that the error deprived him of a fair trial. Petitioner makes no such showing.
Petitioner asserts that the trial court erred and abused its discretion by failing to grant the defense motion to quash the indictment "as the application paragraph of the indictment failed to track the outcry allegations; allegations by State that alleged illegal conduct of Petitioner in 2003, when he was an adult, not contained within the outcry allegations made by [K.S.]." Id. at 7B1. The indictment alleged that the acts of sexual abuse occurred on or about May 1, 2003, when Petitioner was 17 years of age or older. At the motion to quash/motion to suppress hearing, defense counsel argued that the allegations in the indictment occurred when Petitioner was under 17 years of age based on K.S.'s outcry and Petitioner's confession and that the conduct should have been charged in juvenile court. Reporter's R., vol. 2, 8, ECF No. 12-5. The trial court denied the motion to quash, stating:
Id. at 14.
The validity 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." McKay v. Collins, 12 F.3d 66, 68 (5th Cir. 1994); Alexander v. McCotter, 775 F.2d 595, 598 (1985). However, where the highest state criminal court has held, expressly or implicitly, that the indictment is sufficient under state law, the federal habeas inquiry is at an end. Alexander v. McCotter, 775 F.2d 595, 598-99 (5th Cir. 1985). The Texas Court of Criminal Appeals denied Petitioner's state habeas application raising this claim without written order, thus this Court may presume that that court has implicitly held that the indictment is sufficient.
Finally, Petitioner asserts that the trial court erred and abused its discretion by failing to provide case law supporting defense counsel's contention that the letter he wrote to his father, who was deceased at the time of trial, was inadmissible based on a confrontation clause violation and by admitting the letter into evidence. The first allegation is frivolous. The claim is conclusory and lacks any legal basis. Respondent asserts the second allegation is procedurally barred. Under the procedural default doctrine, a federal court may not consider a state prisoner's federal habeas claim when the last state court to consider the claim expressly and unambiguously based its denial of relief on an independent and adequate state procedural default. See Coleman v. Thompson, 501 U.S. 722, 729, (1991); Fisher v. Texas, 169 F.3d 295, 300 (5th Cir. 1999). "This doctrine ensures that federal courts give proper respect to state procedural rules." Glover v. Cain, 128 F.3d 900, 902 (5th Cir. 1997).
Petitioner raised this claim on appeal, but the state appellate court determined that the claim was forfeited by Petitioner's failure to make a contemporaneous objection each time the letter was offered. Mem. Op. 13-14, ECF No. 12-3. The state court clearly relied upon a firmly established and regularly followed state procedural rule to deny the claim. Ex parte Gardner, 959 S.W.2d 189, 199 (Tex. Crim. App. 1996); Ex parte Crispen, 777 S.W.2d 103, 105 (Tex. Crim. App. 1989) (explaining its adherence to the contemporaneous-objection rule). See also Busby v. Dretke, 359 F.3d 708, 719 (5th Cir. 2004) (recognizing that the Texas procedural rule as stated in Ex parte Gardner as being "firmly established" and "an adequate state ground capable of barring federal habeas review"); Dowthitt v. Johnson, 230 F.3d 733, 752 (5th Cir. 2000) (providing that the Texas contemporaneousobjection rule, which requires a timely objection to preserve error for appeal, is strictly and regularly applied, and is therefore an adequate state procedural bar to federal review). Accordingly, federal habeas review of the claim is barred unless Petitioner can demonstrate "cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice[-i.e., that he is actually innocent of the offense for which he was convicted]." Coleman, 501 U.S. at 750.
Toward that end, Petitioner asserts that trial counsel was ineffective by not requesting a running objection to admission of the letter. Pet'r's Reply 4-8, ECF No. 22. The record reflects that counsel objected to the letter's admission on several legal theories at the time the state first offered it into evidence and that the trial court overruled the objections. Reporter's R., vol. 7, 87-88, ECF No. 12-10. Counsel did not further object when the state asked K.S.'s mother to read the letter for the jury. To prevail on a claim of ineffective assistance of counsel, a petitioner must show that (1) his counsel's performance was deficient and (2) the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Both prongs of the Strickland test must be met to demonstrate ineffective assistance. Id. at 687, 697.
Even assuming deficient performance, Petitioner fails to demonstrate prejudice. The letter, as read by K.S.'s mother at trial, provides (all punctuation and/or grammatical errors are in the original):
Reporter's R., vol. 7, 89-90, ECF No. 12-10 & vol. 10, State's Ex. 6.
Petitioner fails to demonstrate that, given the content of the letter, is it reasonably likely that the result of his trial would have been different if counsel had lodged a running objection. The letter is nonspecific and could be construed as an apology for any number of past transgressions by Petitioner. Petitioner makes no showing of prejudice in order to constitute cause to excuse the procedural default. Nor does he present any new, reliable evidence that was not prsented at trial to make a colorable showing of actual innocence. See House v. Bell, 547 U.S. 518, 537 (2006). Therefore, the claim is procedurally barred from the Court's review.
Under his second ground, Petitioner claims he is actually innocent in light of the absence of any physical evidence of "anal or genital trauma," K.S.'s inconsistent statements to the various individuals involved, and K.S.'s mother's animus toward Petitioner and his father. Pet. 6, 7B1, ECF No. 1. The United States Supreme Court has not yet resolved whether a habeas petitioner may be entitled to habeas relief based on a freestanding actual-innocence claim. See McQuiggin v. Perkins, 569 U.S. 383, 392 (2013). However, Fifth Circuit precedent precludes consideration of such a claim. In re Swearingen, 556 F.3d 344, 348 (5th Cir. 2009). Consequently, this claim is not cognizable on federal habeas review.
Under his third ground, Petitioner claims he received ineffective assistance of trial counsel based on counsel's following acts or omissions:
Pet. 7-7A2, ECF No. 1.
A criminal defendant has a constitutional right to the effective assistance of counsel at trial. U.S. CONST. amend. VI, XIV; Evitts v. Lucey, 469 U.S. 387, 393-95 (1985); Strickland, 466 U.S. at 688; Anders v. California, 386 U.S. 738, 744 (1967). As previously noted, to establish ineffective assistance of counsel a petitioner must show that (1) counsel's performance was deficient and (2) the deficient performance prejudiced the defense. 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 that—
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 is 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 was represented at trial by Lisa Hoobler and Ray Hall Jr. He raised his ineffectiveassistance claims in his state habeas application, and the state habeas court conducted a hearing by affidavit. Hoobler responded to Petitioner's allegations as follows (all spelling, punctuation, and/or grammatical errors are in the original):
WR-79,134-02 Clerk's R. 55-60, ECF No. 12-38.
Ray also filed an affidavit, in which he avers (all spelling, punctuation, and/or grammatical errors are in the original)—
Id. at 34-35.
Although the state habeas court reccommended dismissal of Petitioner's state habeas application for noncompliance with the state's form requirements, the Texas Court of Criminal Appeals denied the application without written order. By doing so, the Texas Court of Criminal Appeals did not clearly and expressly deny Petitioner's claims on an independent and adequate procedural ground, and, as noted above, a denial of Petitioner's state application without written order would typically indicate an adjudication on the mertis. See Johnson, 568 U.S. at 298 (quoting Richter, 562 U.S. at 99). Thus, under these circumstances, this Court presumes that the state court made findings consistent with its rejection of the claims and applied the Strickland standard to those implied findings. Richter, 562 U.S. 86 at 99. Petitioner has not presented clear and convincing evidence in rebuttal. Thus, relying on the presumptive correctness of the state court's implied factual findings, and having independently reviewed Petitioner's claims in conjunction with the state court records, the state court's adjudication of the claims is not contrary to or an unreasonable application of Strickland.
Petitioner's claims are largely conclusory, with no legal and/or evidentiary basis, refuted by the record, involve state evidentiary rulings or other matters of state law, involve strategic and tactical decisions made by counsel, or would have required counsel to make frivolous objections or motions, all of which generally do not entitle a state Petitioner to federal habeas relief. See, e.g., Strickland, 460 U.S. at 689 (holding strategic decisions by counsel are virtually unchallengeable and generally do not provide a basis for postconviction relief on the grounds of ineffective assistance of counsel); Johnson v. Cockrell, 306 F.3d 249, 255 (5th Cir. 2002) (concluding that counsel is not required to make futile motions or frivolous objections); Green v. Johnson, 160 F.3d 1029, 1037, 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"). A petitioner shoulders a heavy burden 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 presents 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). A petitioner is required to demonstrate that counsel's performance, in light of the entire proceeding, was so inadequate as to render his trial unfair. Washington v. Watkins, 655 F.2d 1346, 1355 (5th Cir. 1981). Having reviewed the entirety of the record, counsel's performance was well within the wide range of professionally competent assistance.
Under his fifth ground, Petitioner claims he was denied a speedy trial. Pet. 7C1, ECF No. 1. In support of his claim, he provides the following alleged facts:
Id. (citations to the record omitted).
The Sixth Amendment guarantees every criminal accused "the right to a speedy . . . trial." U.S. CONST. amend. VI. The right to a speedy trial is applied to the states via incorporation by the Due Process Clause of the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 222-23 (1967). The Supreme Court has identified four factors that should be weighed in determining whether a defendant has been denied his speedy trial right: length of delay, reason for the delay, assertion of the right by the defendant, and prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972).
Here, the record reflects that the case was filed on September 15, 2005, and that Petitioner was indicted on September 28, 2005. Reporter's R., vol. 9, 95, ECF No. 12-12; Clerk's R. 3, ECF No. 12-14. Petitioner bonded out of jail on July 25, 2007, and last reported to his community supervision officer on October 21, 2008. Reporter's R., vol. 7, 181-83, ECF No. 12-10. After Petitioner failed to report on November 11, 2008, an arrest warrant issued for his arrest on November 18, 2008. Id. at 183, 186. Petitioner was eventually taken into custody out of state on March 7, 2009. Id. at 181-88. His trial commenced on December 8, 2009, over four years later. Reporter's R., vol. 3, 8-9, ECF No. 12-6. Although the extent of the delay weighs in Petitioner's favor, he precipitated the delay by absconding to avoid prosecution for over one and a half years. Doggett v. United States, 505 U.S. 647, 651-52 n.1 (1992). Nor does the record suggest that the state intentionally caused the delay for the purpose of hindering the defense or otherwise gaining a tactical advantage. See Barker, 407 U.S. at 531.
Further, the record does not indicate that Petitioner asserted his right at any time prior to trial. In fact, as noted by Respondent, the defense filed a motion for continuance two days before trial. "[F]ailure to assert the right will make it difficult for the defendant to prove that he was denied a speedy trial." Id. at 532.
Finally, Petitioner fails to make an affirmative showing of actual prejudice. Prejudice may be established in three ways: (1) proof of oppressive pretrial incarceration; (2) proof of anxiety and concern of the accused; and (3) proof that the defense was impaired by the delay. Barker, 407 U.S. at 533. Petitioner provides no proof of oppressive pretrial incarceration other than to allege that he was confined for two years before making bond. Pet. 7C1, ECF No. 1. As to Petitioner's anxiety and concern, the Supreme Court "has suggested that living `under a cloud of suspicion and anxiety' for four years constitutes only `minimal' prejudice absent an effect on a defendant's trial." Laws v. Stephens, 536 Fed. App'x 409, 414 (5th Cir. 2013) (quoting Barker, 407 U.S. at 534). Finally, Petitioner asserts loss of a witness, however his assertion that his father's testimony would have been favorable to his defense is unsupported by any proof in the record and is not persuasive. In sum, on balance, the Barker factors do not show that Petitioner was denied his federal constitutional right to a speedy trial.
Under his sixth ground, Petitioner claims that the evidence was legally and factually insufficient to prove the elements of each offense "because the testimony comprised evidence of offenses that occurred before [he] turned seventeen years of age." Pet. 7D1, ECF No. 1. In reviewing the sufficiency of the evidence in the context of habeas corpus proceedings challenging the judgment of a state court, a federal court's review is limited to determining whether, based upon the record evidence adduced at trial, no rational trier of fact could have found proof of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324 (1979). The court's review of the evidence is conducted in the light most favorable to the verdict. Selvage v. Lynaugh, 823 F.2d 845, 847 (5th Cir. 1987).
To the extent Petitioner raises a factual-sufficiency claim, the claim is not cognizable on federal habeas review. See Woods v. Cockrell, 307 F.3d 353, 358 (5th Cir. 2002). Acknowledging the fact that the Texas Court of Criminal Appeals had overruled the factual-sufficiency standard as a matter of state law, the state appellate court addressed Petitioner's claims under the Jackson standard as follows:
In our due-process review of the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
We must remember that the Jackson standard is not a no-evidence standard. In her concurring opinion, Judge Cochran reminds us that
Mem. Op. 4-8, ECF No. 12-3 (footnotes omitted).
In this case, the jury was the fact-finder, and it was within its sole province to assess the credibility of the witnesses and resolve any conflicts in the evidence. See United States v. Green, 180 F.3d 216, 220 (5th Cir.1999); United States v. Monroe, 178 F.3d 304, 307 (5th Cir.1999) ("it is the sole province of the jury, and not within the power of this Court, to weigh conflicting evidence and evaluate the credibility of witnesses"). The state courts' adjudication of the claim comports with Jackson, and "[t]he habeas corpus statute obliges federal judges to respect credibility determinations made by the trier of fact." Pemberton v. Collins, 991 F.2d 1218, 1225 (5th Cir. 1993) (citing Sumner v. Mata, 455 U.S. 591, 597 (1982)).
Under his seventh ground, Petitioner claims that, in violation of double jeopardy, his conviction for aggravated sexual assault under count one and his conviction for indecency with a child under count six "may both be proved by evidence of penis-to-female sexual organ contact." Pet. 7D2, ECF No. 1. Relying solely on state law, the state appellate court rejected this claim, stating:
Mem. Op. 8-10, ECF No. 12-3 (footnotes omitted).
The double jeopardy clause protects against a second prosecution after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense. Ohio v. Johnson, 467 U.S. 493, 498 (1984). Petitioner's claim implicates the latter of the three. Petitioner was convicted of aggravated sexual assault by causing K.S.'s sexual organ to contact his sexual organ on or about May 1, 2003, and indecency by engaging in sexual contact by touching any part of K.S.'s genitals on or about May 1, 2013. Clerk's R. 2, ECF 12-14. As the state appellate court explained in its memorandum opinion, under state law the "on or about" language allows the state to prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment or return of the indictment and within the statutory limitations period. Mem. Op. 8, ECF No. 12-3. When an indictment alleges that some relevant event transpired "on or about" a particular date, the accused is put on notice to prepare for proof that the event happened at any time within the statutory limitation period. See Garcia v. State, 981 S.W.2d 683, 685-86 (Tex. Crim. App. 1998); Thomas v. State, 753 S .W.2d 688, 692 (Tex. Crim. App. 1988); Ferrell v. State, 968 S.W.2d 471, 473 (Tex. App.-Fort Worth 1998, pet. ref'd) (involving allegations of aggravated sexual assault of a child and indecency with a child). Under the facts of Petitioner's case, the appellate court found that there was evidence that Petitioner engaged in separate and distinct acts of contact within the relevant time period. Accordingly, he was not subjected to multiple punishments for the same incident.
Lastly, under his ninth ground, Petitioner claims the jury charge allowed him to be convicted on non-unanimous verdicts in violation of the Texas Constitution. Pet. 7D2, ECF No. 1. "Under § 2254, federal habeas courts sit to review state court misapplications of federal law." Charles v. Thaler, 629 F.3d 494, 500-01 (5th Cir. 2011) (emphasis in original). This claim does not allege any violation of "the Constitution, laws, or treaties of the United States." An alleged violation of the Texas state constitution is not cognizable on federal habeas review. Fuller v. Johnson, 158 F.3d 903, 908 (5th Cir. 1998). Petitioner did not raise a federal constitutional violation as to this claim in the state courts for exhaustion purposes, and his fleeting reference to the Sixth Amendment herein is insufficient to raise a federal claim. Appellant's Pet. for Discretionary Review 11, ECF No. 12-22; Pet. 7D3, ECF No. 1; Wilder v. Cockrell, 274 F.3d 255, 260 (5th Cir. 2001).
For the reasons discussed herein, Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED and a certificate of appealability is DENIED.
