TERRY R. MEANS, District Judge.
Before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by Petitioner, Matthew Allen Barksdale, 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.
Petitioner was indicted in Erath County, Texas, Case No. CR13859, for aggravated sexual assault of [L.G.], a child younger than 14 years of age. (Clerk's R. 4, doc. 16-13.) On May 13, 2013, following a jury trial, the jury found Petitioner guilty of the offense and, the next day, assessed his punishment at 99 years' imprisonment. (Id. at 36.) Petitioner appealed his conviction, but the state appellate court affirmed the trial court's judgment and the Texas Court of Criminal Appeals refused his petition for discretionary review. (Docket Sheet 2, doc. 16-2.) Petitioner also filed a post-conviction state habeas-corpus application challenging his conviction, which was denied by the Texas Court of Criminal Appeals without written order. (SHR 3-19 & Action Taken, docs. 16-29 & 16-27, respectively.
The state appellate court summarized the facts of the case as follows:
(Mem. Op. 2-3, doc. 16-4.)
Petitioner raises the following two grounds for relief:
(Pet. 6, doc. 1.)
Respondent believes that Petitioner failed to exhaust his state-court remedies as to one or more of his ineffectiveassistance-of-counsel claims but does not otherwise assert that the petition is untimely or successive. (Resp't's Answer 6, doc. 15.)
A § 2254 habeas petition is governed by the heightened standard of review provided for in the Anti-Terrorism and Effective Death Penalty Act (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." Richter, 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. This presumption of correctness applies to both express and implied findings of fact. Valdez v. Cockrell, 274 F.3d 941, 948 (5th Cir. 2001).
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. Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997). In such a situation, a federal court may infer fact findings consistent with the state court's disposition and 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).
Under his first ground, Petitioner claims that the evidence was legally and factually insufficient to prove the element of penetration. (Pet. 6, 11-13, doc. 1.) Petitioner raised this claim on appeal, but the Texas Court of Criminal Appeals refused Petitioner's petition for discretionary review without written order. Thus, this Court "should `look through' the unexplained decision to the last related state-court decision providing" particular reasons, both legal and factual, "presume that the unexplained decision adopted the same reasoning," and give appropriate deference to that decision. Wilson v. Sellers, ___ U.S. ___, 138 S.Ct. 1188, 1191-92 (2018).
Petitioner challenged both the legal and factual sufficiency of the evidence on appeal; however, in light of the Texas Court of Criminal Appeals's holding in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010), the appellate court analyzed Petitioner's insufficiency claim under only the familiar legal sufficiency standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). (Mem. Op. 4, doc. 16-4.) Likewise, for purposes of federal habeas-corpus review, a state conviction need only satisfy the Jackson v. Virginia legal-sufficiency standard. See Ramirez v. Dretke, 398 F.3d 691, 694 (5th Cir. 2005).
Federal habeas review of a legal sufficiency claim is extremely limited. The required inquiry in a legal-sufficiency analysis is only that a reviewing court determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319. This standard applies to both direct and circumstantial evidence. Schrader v. Whitley, 904 F.2d 282, 287 (5th Cir. 1990). In conducting a Jackson review, a federal habeas court may not substitute its view of the evidence for that of the factfinder, but must consider all of the evidence in the light most favorable to the prosecution, with all reasonable inferences to be made in support of the jury's verdict. United States v. Moser, 123 F.3d 813, 819 (5th C ir. 1997); Weeks v. Scott, 55 F.3d 1059, 1061 (5th Cir. 1995). Where a state appellate court has conducted a thoughtful review of the evidence, its determination is entitled to great deference. Callins v. Collins, 998 F.2d 269, 276 (5th Cir. 1993).
Based on the evidence adduced at trial, the state appellate court, applying the Jackson standard, addressed the issue as follows:
(Mem. Op. 4-7, doc. 16-4 (citations omitted).)
Petitioner's claim that the evidence is insufficient rests primarily on his contention that his confession was inadmissible for noncompliance with article 38.22 of the Texas Code of Criminal Procedure ("When statements may be used"). TEX. CODE CRIM. PROC. ANN. art. 38.22 (West Supp. 2017). However, the state appellate court determined that his statement did not stem from custodial interrogation, and, thus, the warnings required by article 38.22 were not required in Petitioner's case. (Mem. Op. 9-11, doc. 16-4.) Nevertheless, as the state court pointed out, even erroneously admitted evidence is considered in a sufficiency review. See United States v. Miller, 146 F.3d 274, 280 (5th Cir. 1998). And, it was the jury's role to resolve any conflicts or inconsistencies in the evidence. See United States v. Barksdale-Contreras, 972 F.2d 111, 114 (5th Cir. 1992). Accordingly, considering all the evidence adduced at Petitioner's trial in the light most favorable to the jury's verdict, a rational jury could have concluded that Petitioner penetrated [L.G.]'s vagina with his finger. Petitioner's confession that he "fingered" [L.G.], alone, infers penetration. Thus, the state court's application of Jackson was not unreasonable.
Under his second ground, Petitioner claims that he received ineffective assistance of trial counsel. (Pet. 6, 14-16, doc. 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, 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 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. Where a petitioner's ineffective-assistance claims have been reviewed on their merits and denied by the state courts, federal habeas relief will be granted only if the state courts' decision was contrary to or involved an unreasonable application of the Strickland standard in light of the state-court record. Richter, 562 U.S. at 100-01 (quoting Williams v. Taylor, 529 U.S. 362, 410 (2000)); Bell v. Cone, 535 U.S. 685, 698-99 (2002). Thus, a federal court's review of state-court decisions regarding ineffective assistance of counsel must be "doubly deferential" so as to afford "both the state court and the defense attorney the benefit of the doubt." Burt v. Titlow, 134 S.Ct. 10, 13 (2013) (quoting Cullen v. Pinholster, 563 U.S. 170, 190 (2011)).
Petitioner claims his trial counsel was ineffective by failing to—
(Pet. 6, 14-16, doc. 1.)
As a preliminary matter, Respondent asserts that Petitioner's claims (b) and (d) through (j) are unexhausted and procedurally barred because they were not raised in state court. (Resp't's Answer 6-11, doc. 15.)
State prisoners seeking habeas-corpus relief under § 2254 are required to exhaust all claims in state court before requesting federal collateral relief. 28 U.S.C. § 2254(b)(1); Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999). The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented in a procedurally proper manner to the highest court of the state on direct appeal or in state post-conviction habeas proceedings. O'Sullivan v. Boerckel, 526 U.S. 838, 842-48 (1999); Fisher, 169 F.3d at 302; Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982). The exhaustion requirement is "not satisfied if the petitioner presents new legal theories or factual claims in his federal habeas petition." Reed v. Stephens, 739 F.3d 753, 780 (5th Cir. 2014) (quoting Anderson v. Johnson, 338 F.3d 382, 386 (5th Cir. 2003)).
In Texas, the highest state court for criminal matters is the Texas Court of Criminal Appeals. Richardson v. Procunier, 762 F.2d 429, 431-32 (5th Cir. 1985). Therefore, a Texas prisoner may typically satisfy the exhaustion requirement by presenting both the factual and legal substance of a claim to the Texas Court of Criminal Appeals in either a petition for discretionary review or a state post-conviction habeas-corpus application. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (West 2015); Depuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988).
Petitioner raised one or more of his ineffective-assistance claims on appeal in appellant's brief but did not reassert the claims in his petition for discretionary review. (Appellant's Br. 2, doc. 16-7; Pet. for Discretionary Review, doc. 16-11.) Petitioner also raised one or more of his ineffective-assistanceof-counsel claims in his state habeas application, in addition to a plethora of tangential claims in his memorandum in support of the application. (SHR 8-12, 32-38, doc. 16-29.) Petitioner directs the Court to various pages in his supporting memorandum at which he asserts that one or more of the tangential claims were raised for exhaustion purposes. (Pet'r's Resp. 1-2, doc. 19.) However, fleeting references to an issue in a supporting memorandum is not sufficient to alert the state court of the factual and legal basis for a claim. See Phelan v. Quarterman, No. 4:06-CV-122-Y, 2006 WL 3392183, at *2 (N.D.Tex. Nov. 21, 2006). Consequently, his claims properly raised in his state habeas application sufficiently correspond with claims (a), (c), (k), and (l) raised in this petition. The remaining claims and the claims raised for the first time in this federal petition are unexhausted for purposes of § 2254(b)(1)(A).
Under the Texas abuse-of-the-writ doctrine, however, Petitioner cannot now return to state court for purposes of exhausting the claims. See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4(a)-(c). The abuse-of-the-writ doctrine represents an adequate state procedural bar to federal habeas review. Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997). Therefore, absent a showing of cause and prejudice or a miscarriage of justice, such showing not having been demonstrated, the claims are unexhausted and procedurally barred from this Court's review. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Coleman v. Thompson, 501 U.S. 722, 750 (2000). As such, the following discussion addresses only claims (a), (c), (k), and (l).
The state habeas court conducted a hearing by affidavit, and, to the extent raised in Petitioner's state habeas application, trial counsel Andrew Ottaway, an experienced criminal defense attorney, responded to the allegations as follows (all spelling, grammatical, and/or punctuation errors are in the original):
(SHR 50-51, doc. 16-29.)
Based on counsel's affidavit and the documentary record, the state habeas judge, who also presided at Petitioner's trial, entered express findings that there were no unresolved material facts requiring a hearing and that Petitioner's application lacked any legal or factual merit and concluded that relief should be denied. (Id. at 52.) In turn, the Texas Court of Criminal Appeals denied the application without written order. To the extent more particularized findings were not made by the state court as to petitioner's claims, this Court will infer fact findings consistent with the state courts' disposition and, absent any evidence that incorrect standards were applied, assume that the state courts applied the Strickland standard to Petitioner's claims. Thus, deferring to the state courts' implied factual findings, and having independently reviewed Petitioner's claims in conjunction with the state-court records, the state courts' application of Strickland was not objectively unreasonable.
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 alleged deficiencies. 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 allow the Court to conclude that the state courts unreasonably applied the standards set forth in Strickland based on the evidence presented in state court. See 28 U.S.C. § 2254(d). Petitioner's claims are largely conclusory, with no factual or legal basis; refuted by the record; involve strategic and tactical decisions made by counsel; involve state evidentiary rulings or other matters of state law; or would have required counsel to make frivolous or futile motions or objections, all of which generally do not entitle a state petitioner to federal habeas relief. See Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (reinforcing that "federal habeas corpus relief does not lie for errors of state law"); 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); Kessler v. Dretke, 137 Fed. App'x 710, 2005 WL 1515483, at *1 (5th Cir. June 28, 2005), cert. denied, 546 U.S. 1105 (2006) (providing under state law "evidence of extraneous evidence is more often admissible in cases involving sexual assaults of children, notwithstanding Texas's normal rules of evidence"); Johnson v. Cockrell, 306 F.3d 249, 255 (5th Cir. 2002) (providing counsel is not required to make futile motions or frivolous objections); 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"); Derden v. McNeel, 978 F.2d 1453, 1458 (5th Cir. 1992) (providing "[e]rrors of state law, including evidentiary errors, are not cognizable in habeas corpus as such").
For the reasons discussed, the Court DENIES Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Further, Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed unless a certificate of appealability is issued under 28 U.S.C. § 2253. A certificate of appealability may issue "only if the [Petitioner] has made a substantial showing of the denial of a constitutional right." Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). "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)). When the district court denies the petition on procedural grounds without reaching the merits, the petitioner must show "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. (quoting Slack, 529 U.S. at 484). Petitioner has not made a showing that reasonable jurists would question this Court's resolution of Petitioner's constitutional claims and/or procedural rulings. Therefore, a certificate of appealability should not issue.
