Boutte v. Lumpkin

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ADRIAN JULIAN BOUTTE,
Petitioner,
versus
ERIC GUERRERO,
Respondent.
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CIVIL ACTION NUMBER
4:22-cv-01921
JUDGE CHARLES ESKRIDGE
OPINION AND ORDER ON DISMISSAL
The petition by Petitioner Adrian Julian Boutte for
writ of habeas corpus under 28 USC §2254 is dismissed
with prejudice. Dkt 1.
1. Background
Petitioner was charged by indictment with one count of
theft of at least $20,000 but less than $100,000 in the 506th
District Court of Grimes County in Cause Number 17425.
Dkt 38-3 at 14–15. He pleaded guilty to the offense and
true to two enhancements on June 30, 2015. Id at 74–79.
The trial court entered an order of deferred adjudication
and sentenced him to five years of deferred-adjudication
probation. Ibid. Petitioner didn’t appeal the deferred-
adjudication order.
In May 2017, the State filed a motion to adjudicate
guilt and assess punishment, contending that Petitioner
had violated his deferred-adjudication probation by
committing a new offense, by not timely reporting his
arrest on that new offense to his probation officer, and by
failing to pay the fees for his probation. Id at 92–94.
In February 2019, the trial court held an evidentiary
hearing on the motion and found that Petitioner had
violated condition one of his deferred-adjudication
probation. Dkt 38-1 at 71–72. It adjudicated Petitioner
United States District Court
Southern District of Texas
ENTERED
April 23, 2026
Nathan Ochsner, Clerk
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guilty and assessed a sentence of forty years in prison.
Dkt 38-3 at 130–35.
The Fourteenth Court of Appeals summarized the
evidence from the revocation hearing as follows:
The State adduced testimony from two
Louisiana police officers and one of
appellant’s supervision officers. The police
officers testified that they were
investigating the theft of tires and rims
from a Buick dealership in Baton Rouge,
Louisiana, during one night in January
2017. A six-foot chain-link fence sur-
rounded the dealership, and it had been cut
through. About forty vehicles at the
dealership were “lifted up on the air on cut
wooden blocks with no tires or rims on.”
About $120,000 worth of tires and rims
were taken.
The complainant reported seeing a U-
Haul truck backed up to the hole in the
fence. When the complainant approached
the truck, the U-Haul drove away. A police
officer searched interstate license plate
readers and found one U-Haul truck that
entered Baton Rouge and then traveled
away from Baton Rouge at a time that was
consistent with the theft. An officer learned
that the truck had been rented to a woman
in Texas City, and the woman rented the
truck for the benefit of a third party. After
speaking with the woman, the officers
determined appellant’s identity and cell
phone number. She identified appellant in
a photo lineup.
The Louisiana officers, working with
the Harris County Sheriff’s Office, arrested
appellant on February 7, 2017. They
confirmed appellant’s cell phone number,
searched it pursuant to a warrant, and
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learned that the phone was in the area of
the Buick dealership at or near the time of
the theft. The officers also discovered 88 of
the 120 missing rims and tires, along with
wooden blocks, in a storage facility in
Houston “due to discussions that [they] had
with [appellant].”
A supervisor for the Probation
Department of Grimes County testified
that she assisted in the supervision of out-
of-county probationers, including appel-
lant. She testified that she maintained
records for out-of-county probationers. She
acknowledged that appellant reported to a
different supervision officer in Harris
County. She testified that appellant did not
report his February 7 arrest within forty-
eight hours of the arrest.
Boutte v State, 2020 WL 4873200, *1–2 (Tex App–Houston
[14th Dist], pet ref’d).
The Fourteenth Court of Appeals affirmed Petitioner’s
adjudication and sentence in August 2020. Id at *4. The
Texas Court of Criminal Appeals refused his pro se petition
for discretionary review on December 16, 2020. See Boutte
v State, PD-0891-20 (Tex Crim App). The CCA dismissed
his motion for rehearing as untimely on January 15, 2021.
Ibid. Petitioner didn’t seek further review in the United
States Supreme Court. See Dkt 16 at 3.
Petitioner filed a state application for writ of habeas
corpus on January 7, 2022. Dkt 38-22 at 45–98. The state
habeas trial court made no findings of fact or conclusions of
law. The CCA denied the petition without written order on
March 9, 2022. Dkt 38-27.
Petitioner filed this federal petition for writ of habeas
corpus in June 2022. Dkt 1. He filed an amended petition
in August 2022. Dkt 16. He also filed multiple
supplements, memoranda, letters, and notices. Many of his
claims appear to overlap. But he clearly asserts that the
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revocation of his deferred-adjudication probation,
adjudication of guilt, and resulting sentence are void for
multiple reasons.
His claims are reorganized here, with indication of the
original numbering in parentheses:
1. Trial counsel rendered ineffective assistance by:
a. failing to confer with Petitioner (Claim 1);
b. failing to investigate, interview, and call
defense witnesses (Claims 2 & 3);
c. failing to obtain and present exculpatory
documentary evidence (Claim 4);
d. failing to investigate the facts of the
Louisiana offense (Claim 6); and
e. failing to move to suppress Petitioner’s
statements (Claim 11).
2. The trial court erred in its rulings by:
a. revoking Petitioner’s deferred-adjudication
probation based on insufficient evidence
(Claim 5);
b. overruling trial counsel’s objection under the
Compulsory Process Clause (Claim 7);
c. accepting Petitioner’s plea to the
enhancements at the original sentencing
hearing (Claims 8 & 9);
d. overruling objections to testimony not based
on personal knowledge (Claim 10); and
e. adjudicating guilt on a “vague and indefinite”
condition of probation (Claim 14).
3. Petitioner’s arrest violated the Fourth Amendment
(Claim 15).
4. The prosecution improperly suppressed favorable
documentary evidence (Claims 12 & 17).
5. The Texas Court of Criminal Appeals erred by:
a. dismissing Petitioner’s motion for rehearing
as untimely (Claim 13); and
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b. denying Petitioner’s state habeas application
without a written order (Claim 16).
6. Petitioner is actually innocent (Claim 18).
Dkts 1 at 5–41 & 16 at 5–41 & 58 & 59.
Eric Guerrero is now the Executive Director of the
Texas Department of Criminal Justice–Correctional
Institutions Division and is automatically substituted as
Respondent. See FRCP 25(d). He answered the petition
and filed copies of the state-court records. Dkts 37 & 38.
Petitioner has responded. Dkts 44–46, 48 & 50–58.
Since this petition was filed, Petitioner has been
released from TDCJ custody to parole. Dkt 62. He remains
subject to supervision for the remainder of his forty-year
sentence. He is therefore still “in custody” for purposes of
seeking habeas corpus relief. See Maleng v Cook, 490 US
488, 491 (1989, per curiam), citing Jones v Cunningham,
371 US 236, 242 (1963).
2. Legal standard
Petitioner proceeds here pro se. A pro se petition is
construed liberally and isn’t held to the same stringent and
rigorous standards as pleadings filed by lawyers. See
Bledsue v Johnson, 188 F3d 250, 255 (5th Cir 1999).
The Antiterrorism and Effective Death Penalty Act,
28 USC §2241, et seq, governs this federal petition for
habeas corpus relief. See Woodford v Garceau, 538 US 202,
207 (2003). This has consequences for the standard of
review as to disputed questions of both law and fact.
As to disputed questions of law, AEDPA bars federal
habeas corpus relief based on claims that were adjudicated
on the merits by state courts unless the decision of the state
court “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States.”
28 USC §2254(d); see also Early v Packer, 537 US 3, 7–8
(2002, per curiam); Cobb v Thaler, 682 F3d 364, 372–73
(5th Cir 2012). A state-court decision is contrary to clearly
established federal law “if it reaches a legal conclusion in
direct conflict with a prior decision of the Supreme Court
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or if it reaches a different conclusion than the Supreme
Court based on materially indistinguishable facts.” Gray v
Epps, 616 F3d 436, 439 (5th Cir 2010), citing Williams v
Taylor, 529 US 362, 404–08 (2000). A state-court decision
involves an unreasonable application of federal law when
the decision is “‘objectively unreasonable,’ not merely
wrong; even ‘clear error’ will not suffice.” White v Woodall,
572 US 415, 419 (2014), quoting Lockyer v Andrade,
538 US 63, 75–76 (2003). This is a high bar. To satisfy it, a
petitioner must “show that the state court’s ruling on the
claim being presented in federal court was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” Woods v Donald, 575 US 312,
316 (2015, per curiam) quoting Harrington v Richter,
562 US 86, 103 (2011).
As to disputed questions of fact, AEDPA precludes
federal habeas relief unless the state-court’s decision “was
based on an unreasonable determination of the facts in
light of the evidence presented in the State court
proceeding.” 28 USC §2254(d)(2); see Martinez v Caldwell,
644 F3d 238, 241–42 (5th Cir 2011). A state court’s factual
determinations are “presumed to be correct” unless the
petitioner rebuts those findings with “clear and convincing
evidence.” 28 USC §2254(e)(1). This presumption of
correctness extends not only to express factual findings,
but also to implicit or “unarticulated findings which are
necessary to the state court’s conclusions of mixed law and
fact.” Murphy v Davis, 901 F3d 578, 597 (5th Cir 2018),
quoting Valdez v Cockrell, 274 F3d 941, 948 n 11 (5th Cir
2001).
A federal court reviewing a petition for writ of habeas
corpus may only consider the factual record that was before
the state court when determining the reasonableness of
that court’s findings and conclusions. Cullen v Pinholster,
563 US 170, 180–81 (2011). And the reviewing court “may
not characterize the state-court factual determinations as
unreasonable ‘merely because [it] would have reached a
different conclusion in the first instance.’” Brumfield v
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Cain, 576 US 305, 313–14 (2015), quoting Wood v Allen,
558 US 290, 301 (2010). To the contrary, §2254(d)(2)
requires the federal court to “accord the state trial court
substantial deference.” Brumfield, 576 US at 314.
A petitioner seeking a writ of habeas corpus must also
demonstrate injury of a certain character. To warrant relief
based on state-court error, a petitioner must show the
alleged error “had substantial and injurious effect or
influence in determining the jury’s verdict.” Brecht v
Abrahamson, 507 US 619, 623 (1993), quoting Kotteakos v
United States, 328 US 750, 776 (1946). This, too, is a high
bar that requires more than a mere reasonable possibility
that the error contributed to the verdict. Brecht, 507 US at
637. This high bar isn’t met when evidence of the
defendant’s guilt is overwhelming. Burgess v Dretke,
350 F3d 461, 472 (5th Cir 2003). But when a court is
confident the error caused grave harm—or even if the
record is evenly balanced in this regard—the petitioner is
entitled to relief. See Fry v Pliler, 551 US 112, 121 n 3
(2007), citing O’Neal v McAninch, 513 US 432, 435 (1995);
see also Robertson v Cain, 324 F3d 297, 305 (5th Cir 2003).
3. Ineffective assistance of trial counsel (Claims
1–4, 6 & 11)
Petitioner raises six claims of ineffective assistance of
trial counsel. To establish ineffective assistance of trial
counsel, a habeas petitioner must demonstrate both
deficient performance and ensuing prejudice. See
Strickland v Washington, 466 US 668, 687 (1984); see also
Alvarez v Guerrero, 162 F4th 570, 579 (5th Cir 2025).
To establish deficiency, the petitioner must show that
trial counsel’s performance fell below an objective standard
of reasonableness based on “prevailing norms of practice.”
Loden v McCarty, 778 F3d 484, 494 (5th Cir 2015). In that
regard, courts should be “highly deferential” to counsel.
Strickland, 466 US at 689. This means that “counsel is
strongly presumed to have rendered adequate assistance
and to have made all significant decisions in the exercise of
reasonable professional judgment.” Id at 690.
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This deference is particularly applicable to “strategic
choices made after thorough investigation of law and facts
relevant to plausible options,” which are “virtually
unchallengeable.” Id at 690–91; see also United States v
Jones, 287 F3d 325, 331 (5th Cir 2002). “[S]trategic choices
made after less than complete investigation are reasonable
precisely to the extent that reasonable professional
judgments support the limitations on the investigation”
Strickland, 466 US at 690–91. But courts are “not required
to condone unreasonable decisions parading under the
umbrella of strategy, or to fabricate tactical decisions on
behalf of counsel when it appears on the face of the record
that counsel made no strategic decision at all.” Richards v
Quarterman, 566 F3d 553, 564 (5th Cir 2009). Beyond this,
the Fifth Circuit has described the deficient-performance
standard as requiring counsel to have “blundered through
trial, attempted to put on an unsupported defense,
abandoned a trial tactic, failed to pursue a reasonable
alternative course, or surrendered his client.” Jones,
287 F3d at 331.
To establish prejudice, the petitioner must show a
reasonable probability that, absent the deficient
performance, the outcome of the proceedings would have
been different. Reed v Stephens, 739 F3d 753, 773 (5th Cir
2014), quoting Strickland, 466 US at 694. In this context,
a reasonable probability is one that is sufficient to
undermine confidence in the outcome of the proceedings.
Strickland, 466 US at 694.
Lastly, when claims of ineffective assistance of counsel
are raised in a federal habeas corpus petition, AEDPA’s
deferential standard raises an additional hurdle. The
inquiry on federal habeas review isn’t whether defense
counsel’s performance fell below the Strickland standard.
Instead, “[t]he pivotal question is whether the state court’s
application of the Strickland standard was unreasonable.”
Harrington, 562 US at 101. “If this standard is difficult to
meet, that is because it was meant to be.” Id at 102.
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a. Failing to confer with Petitioner (Claim 1)
Petitioner first contends that trial counsel rendered
ineffective assistance by failing to confer with him about
his case, thus denying him the opportunity to tell counsel
about his alibi witnesses. He points to an affidavit from his
wife and counsel’s time sheets as supporting his claim that
counsel didn’t confer with him before the revocation
hearing. Dkts 16 at 5–6 & 16-1 at 5, 18–19.
Petitioner’s exhibits contradict his allegation that he
never conferred with counsel. Counsel’s time sheets show
phone calls between counsel and Petitioner on February
13th and 27th of 2019. Dkt 16-1 at 19. Both calls occurred
before the February 28th revocation hearing. Dkt 38-1 at
1. While the exhibits don’t document the substance of the
phone calls, they demonstrate that Petitioner had the
opportunity to confer with counsel before the revocation
hearing and provide him with information on potential
alibi witnesses. Counsel can’t be ineffective for failing to
confer with Petitioner when Petitioner’s own exhibits show
that he spoke with counsel on at least two occasions before
the revocation hearing.
The state habeas court didn’t unreasonably apply the
Strickland standard in denying this claim. Claim 1 is
without merit and will be dismissed.
b. Failing to investigate, interview, and call
defense witnesses (Claims 2 & 3)
Petitioner next contends that trial counsel provided
ineffective assistance by failing to investigate, interview,
and call witnesses to testify on Petitioner’s behalf. He
attaches several affidavits from family and friends, who
state that they saw him at his house in Houston on the
evening of the theft in Louisiana. Dkts 16 at 5–10 & 1-1 at
2–5. He also contends that counsel should have called
Harris County Supervision Officer Latoya Santee to testify
that he reported his Louisiana arrest to her within forty-
eight hours. Dkt 16 at 5–10.
“[C]omplaints of uncalled witnesses are not favored in
federal habeas corpus review because the presentation of
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testimonial evidence is a matter of trial strategy and
because allegations of what a witness would have stated
are largely speculative.” Day v Quarterman, 566 F3d 527,
538 (5th Cir 2009). To prove that counsel was ineffective
for failing to call a witness, “the petitioner must name the
witness, demonstrate that the witness was available to
testify and would have done so, set out the content of the
witness’s proposed testimony, and show that the testimony
would have been favorable to a particular defense.” Ibid;
see also Evans v Cockrell, 285 F3d 370, 377 (5th Cir 2002).
Absent allegations showing that a particular witness
would have offered testimony favorable to the defense, a
petitioner’s claim is speculative and conclusory,
demonstrating neither deficient performance nor resulting
prejudice. See Sayre v Anderson, 238 F3d 631, 635–36 (5th
Cir 2001).
The Fourteenth Court of Appeals addressed
Petitioner’s claim concerning the alibi witnesses on direct
review:
In his second issue, appellant contends
that he was denied effective assistance of
counsel by failing to investigate alibi
witnesses and call them at the adjudication
hearing. Appellant relies on two purported
affidavits attached to his motion to abate
the appeal, which this court denied.
A. Legal Principles
To prevail on a claim of ineffective
assistance, an appellant must prove by a
preponderance of the evidence that
(1) counsel’s performance was deficient by
falling below an objective standard of
reasonableness and (2) counsel’s deficiency
caused the appellant prejudice such that
there is a reasonable probability that, but
for counsel’s errors, the result of the
proceeding would have been different. See
Strickland v Washington, 466 US 668, 687–
88, 694 (1984); Perez v State, 310 SW3d
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890, 892–93 (Tex Crim App 2010). An
appellant must prove both prongs of the
Strickland test by a preponderance of the
evidence. See Perez, 310 SW3d at 893.
Often a claim of ineffective assistance
may not be addressed on direct appeal
because the record is not sufficient to
conclude that counsel’s performance was
deficient under the first Strickland prong.
See Andrews v State, 159 SW3d 98, 103
(Tex Crim App 2005); see also Salinas v
State, 163 SW3d 734, 740 (Tex Crim App
2005). “Review of counsel’s representation
is highly deferential, and the reviewing
court indulges a strong presumption that
counsel’s conduct fell within a wide range
of reasonable representation.” Salinas, 163
SW3d at 740. “To overcome the
presumption of reasonable professional
assistance, any allegation of ineffective-
ness must be firmly founded in the record,
and the record must affirmatively
demonstrate the alleged ineffectiveness.”
Id. (quotation omitted). If counsel has not
had an opportunity to explain their actions,
we may not find deficient performance
unless the conduct was “so outrageous that
no competent attorney would have engaged
in it.” Goodspeed v State, 187 SW3d 390,
392 (Tex Crim App 2005) (quotation
omitted).
B. Analysis
Appellant has not established deficient
performance and prejudice by a
preponderance of the evidence.
Regarding the alleged deficient
performance, nothing in the record
indicates that counsel failed to investigate
an alibi defense or lacked a strategic reason
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for not calling witnesses. See Lumpkin v
State, 129 SW3d 659, 665 (Tex App—
Houston [1st Dist] 2004, pet ref’d) (refusing
to find ineffective assistance based on
failure to call witnesses when the record
was silent as to counsel’s strategy; refusing
to “speculate about the reasons that
appellant’s trial counsel did not call these
witnesses to testify”). The record does not
show that the two purported alibi
witnesses would have been available to
testify. See, eg, Stokes v State, 298 SW3d
428, 431 (Tex App—Houston [14th Dist]
2009, pet ref’d) (“A claim of ineffective
assistance based on trial counsel’s failure
to call a witness cannot succeed absent a
showing that the witness was available to
testify and that the witness’s testimony
would have benefitted the defense.”).
Moreover, appellant has not
established prejudice because the
purported alibi witnesses’ testimony would
have had no effect on the trial court’s
finding that appellant violated a condition
of community supervision by failing to
report his arrest to his supervision officer
within forty-eight hours. See Smith v State,
286 SW3d 333, 342–44 (Tex Crim App
2009) (no prejudice from failure to adduce
evidence that related to only one of four
violations of the conditions of community
supervision that the trial court found the
defendant had committed because, even
assuming that the defendant could have
successfully challenged one of the
violations, the trial court was justified in
revoking community supervision based on
the other violations).
Appellant’s second issue is overruled.
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Boutte, 2020 WL 4873200 at *3–4 (cleaned up).
Petitioner doesn’t show that the state appellate court’s
application of the Strickland standard to his claims
relating to the alibi witnesses was unreasonable. This is
particularly true given that none of the affidavits address
whether the alleged alibi witnesses were available and
willing to testify at the revocation hearing.
Likewise, Petitioner doesn’t allege facts showing that
Officer Santee was available to testify at the revocation
hearing. Without such allegations, he hasn’t met the Day
standard for showing that counsel provided ineffective
assistance of counsel.
Claims 2 and 3 are without merit and will be dismissed.
c. Failing to present exculpatory
documentary evidence (Claim 4)
Petitioner next contends that trial counsel rendered
ineffective assistance by failing to investigate “exculpatory
existing material favorable evidence.” Dkt 16 at 10. He
doesn’t specifically allege what evidence counsel failed to
investigate, but it appears that he’s referring to a letter
from the East Baton Rouge Parish District Attorney
stating that criminal charges hadn’t yet been filed on the
Louisiana arrest, and a contact report concerning Grimes
County Supervision Officer Maria Lopez’s initial notice of
Petitioner’s Louisiana arrest. Dkt 16-1 at 7, 13–15.
Even if Petitioner could show that trial counsel was
deficient for not obtaining and using these documents at
the revocation hearing, his claim fails because he doesn’t
demonstrate prejudice.
As to the letter about the Louisiana charges, Petitioner
doesn’t show prejudice because revocation of deferred-
adjudication probation may be upheld even when charges
aren’t brought on the underlying events or when the charge
upon which the revocation was based is subsequently
dismissed. See Amaya v Beto, 424 F2d 363, 364 (5th Cir
1970, per curiam). Any decision by the Louisiana District
Attorney about whether to pursue criminal charges thus
wasn’t material to whether Petitioner’s deferred-
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adjudication probation could be revoked. Petitioner can’t
show that he was prejudiced by trial counsel’s failure to
obtain or use the letter.
As to the contact report, Petitioner fails to show
prejudice because the report, on its face, doesn’t establish
that he complied with condition one of his probation.
Condition one required Petitioner to “report to your
Supervision Officer” within forty-eight hours of an arrest
or questioning by law enforcement. Dkt 38-3 at 76. The
motion to adjudicate states that the Louisiana arrest
warrant was executed on February 6, 2017. Id at 93. The
contact report states that on February 8, 2017, Officer
Lopez “received a phone call from Probation Officer Latoya
Santee notifying me that [Petitioner] has a warrant for his
arrest in Louisiana.” Dkt 16-1 at 14.
This report doesn’t state that Petitioner reported his
arrest to Officer Santee. The source of the information—
whether from Petitioner or the Harris County Sheriff’s
Office—isn’t identified. The report therefore isn’t
exculpatory on its face. Petitioner can’t show that he was
prejudiced by any deficient performance by trial counsel in
failing to obtain or use this report at the revocation
hearing.
Considering the legal deficiencies in these documents,
the record doesn’t show that the state habeas court
unreasonably applied the Strickland standard in denying
this claim. Claim 4 is without merit and will be dismissed.
d. Failing to investigate the underlying
offense (Claim 6)
Petitioner contends in his sixth claim that trial counsel
rendered ineffective assistance by failing to investigate the
events and circumstances underlying the Louisiana
offense. Dkt 16 at 18–19.
As explained above, even if trial counsel’s performance
could be construed as deficient, Petitioner doesn’t show
prejudice because deferred-adjudication probation may be
revoked even when charges aren’t brought on the
underlying events or when the charge upon which the
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revocation was based is subsequently dismissed. See
Amaya, 424 F2d at 364. The specific facts surrounding the
Louisiana offense were therefore not material to whether
his deferred-adjudication probation could be revoked.
The record doesn’t support a finding of prejudice and so
doesn’t show that the state habeas court unreasonably
applied the Strickland standard in denying this claim.
Claim 6 is without merit and will be dismissed.
e. Failing to move to suppress Petitioner’s
statements (Claim 11)
Petitioner contends that trial counsel provided
ineffective assistance by failing to move to suppress
statements he made to law enforcement officers after his
arrest on the Louisiana warrant. Dkt 16 at 28–29. But he
doesn’t identify the statements he contends counsel should
have moved to suppress. Further, no statements from
Petitioner were elicited during the revocation hearing.
Without allegations that could support a finding of
either deficient performance or prejudice, Petitioner
doesn’t show that the state habeas court unreasonably
applied the Strickland standard in denying this claim.
Claim 11 is without merit and will be dismissed.
4. Trial court error (Claims 5, 7–10 & 14)
Petitioner raises six claims based on alleged errors
made by the state trial court during the revocation
proceedings.
His claims are based on what the Supreme Court has
characterized as trial error. See Brecht, 507 US at 629.
Trial error “occur[s] during the presentation of the case to
the jury.” Ibid, quoting Arizona v Fulminante, 499 US 279,
307–08 (1991). It can be distinguished from a structural
defect, which challenges “the constitution of the trial
mechanism” and “infect[s] the entire trial process.” Ibid,
quoting Fulminante, 499 US at 309–10.
Claims of trial error raised in a federal habeas corpus
petition are subject to the harmless-error standard of
review, which requires the petitioner to show that “the
error ‘had substantial and injurious effect or influence in
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determining the jury’s verdict.’” Brecht, 507 US at 637,
quoting Kotteakos, 328 US at 776; accord United States v
Lane, 474 US 438, 449 (1986) (habeas relief isn’t available
based on assertion of trial error absent showing of actual
prejudice). This requires a showing that the errors were of
such magnitude as to render the trial fundamentally
unfair. See Neder v United States, 527 US 1, 8–9 (1999).
a. Insufficient evidence (Claim 5)
Petitioner first contends that his deferred-adjudication
probation was revoked based on insufficient evidence
because he was never formally charged with a criminal
offense in Louisiana. He also alleges that any finding that
he didn’t timely report his Louisiana arrest to his probation
officer is contradicted by the documentary evidence. Dkt 16
at 16–17.
To the extent that Petitioner challenges the factual
sufficiency of the evidence to support the revocation, his
claim isn’t cognizable on federal habeas corpus review. The
sole question on federal habeas review is whether an error
of constitutional magnitude infected his state trial. See
Estelle v McGuire, 502 US 62, 67–68 (1991); Pemberton v
Collins, 991 F2d 1218, 1223 (5th Cir 1993). Because a
challenge to the factual sufficiency of the evidence doesn’t
implicate a constitutional issue, federal habeas corpus
review isn’t available and relief isn’t warranted.
To the extent that Petitioner challenges the legal
sufficiency of the evidence, his claim is governed by the
standard set out in Douglas v Buder, 412 US 430 (1973, per
curiam). Under that standard, which addresses concerns of
due process, a revocation of probation is constitutional as
long as it isn’t “totally devoid” of evidentiary support. Id at
432. In reviewing the evidence for legal sufficiency, a
federal court mustn’t substitute its view of the evidence for
that of the fact finder, but instead must consider the
evidence in the light most favorable to the trial court’s
decision. See Alexander v McCotter, 775 F2d 595, 598 (5th
Cir 1985).
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Petitioner raised a challenge to the sufficiency of the
evidence in his direct appeal. The Texas Court of Appeals
reviewed the evidence and found it sufficient to support the
revocation of his deferred adjudication probation:
Each of the Louisiana offenses that the
State alleged appellant had committed to
support the violation of the terms of his
community supervision required proof that
appellant lacked the complainant’s consent
or permission to engage in the proscribed
conduct. See State v Brown, 3 So3d 547, 551
(La Ct App 2008) (unauthorized entry into
a place of business); State v Ramsdell, 949
So2d 508, 511 (La Ct App 2006) (theft);
State v Shaw, 850 So2d 868, 875 (La Ct App
2003) (simple criminal damage to
property). Appellant contends that
evidence of this element is lacking.
In both Texas and Louisiana, lack of
consent may be proven by circumstantial
evidence. See, eg, State v Perry, 408 So2d
1358, 1363 (La 1982); Long v State, 525
SW3d 351, 364 (Tex App—Houston [14th
Dist] 2017, pet ref’d) (citing Hathorn v
State, 848 SW2d 101, 107 (Tex Crim App
1992), and Taylor v State, 508 SW2d 393,
394–97 (Tex Crim App 1974)). For example,
in Williams v State, the Court of Criminal
Appeals held that there was sufficient
evidence of a lack of consent for theft when
the defendant removed a dress from a
store’s clothing rack, put it in his coat, and
left the store with it almost completely
concealed. See 591 SW2d 873, 876 (Tex
Crim App 1979) (reasoning, when the
owner did not testify, that it was a
“completely unreasonable hypothesis” that
the owner had provided consent for the
taking of the dress).
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Here, the trial court could have
reasonably inferred by a preponderance of
the evidence that appellant lacked the
owner’s consent to cut through the
property’s chain link fence at night, remove
$120,000 worth of tires and rims from
vehicles on the property by leaving the
vehicles on wooden blocks, load the tires
and rims into a U-Haul truck, and
transport them from Baton Rouge to a
storage facility in Houston, where most,
but not all, of the missing tires and rims
were discovered. There is sufficient
evidence to support the “lack of consent”
element for each offense appellant was
alleged to have committed as a violation of
the conditions of his community
supervision.
Boutte, 2020 WL 4873200, at *2 (cleaned up).
To the extent that Petitioner asks this Court to re-
weigh the evidence and decide if the trial court’s decision
was correct, such re-weighing is beyond the scope of review
permitted by Douglas.
In any event, the record also demonstrates that the
revocation of his deferred-adjudication probation isn’t
totally devoid of evidentiary support. Further, under both
Texas and federal law, revocation of probation may be
upheld even when the charge upon which the revocation
was based is subsequently dismissed. See Amaya, 424 F2d
at 364. In addition, Officer Lopez’s testimony provides
evidentiary support for a finding that Petitioner violated
his deferred-adjudication probation by failing to report his
arrest on the Louisiana warrant within forty-eight hours.
Revocation on this basis isn’t totally devoid of evidentiary
support either.
Federal habeas corpus relief isn’t warranted on this
claim under the governing standard of review. Claim 5 is
without merit and will be dismissed.
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b. Sixth Amendment objection (Claim 7)
Petitioner next contends that the trial court erred by
overruling trial counsel’s objection to Officer Lopez’s
testimony. Specifically, he contends that trial counsel
objected to such testimony about whether Petitioner had
timely reported his arrest to Officer Santee as a violation
of the Sixth Amendment’s Compulsory Process Clause. But
no such objection appears in the record. Petitioner asserts
that the objection must have been “edited out” of the
Reporter’s Record. Dkt 16 at 20–21.
Relief isn’t warranted on this claim for two reasons.
First, Petitioner’s allegations are legally insufficient.
“A habeas petitioner must make specific allegations;
‘conclusory allegations unsupported by specifics,’ or
‘contentions that in the face of the record are wholly
incredible’” don’t entitle a petitioner to federal habeas
relief. Perillo v Johnson, 79 F3d 441, 444 (5th Cir 1996),
quoting Blackledge v Allison, 431 US 63, 74 (1977).
Petitioner’s contention that some unidentified person
edited this single objection out of the Reporter’s Record is
the type of wholly incredible allegation that won’t support
federal habeas corpus relief.
Second, even if Petitioner’s editing allegation is
accepted, he’s not entitled to relief on the merits because
the Sixth Amendment doesn’t apply to deferred-
adjudication revocation proceedings. By its terms, the
Sixth Amendment applies only to criminal prosecutions.
US CONST amend VI. Neither a parole revocation hearing
nor a probation revocation hearing is a criminal
prosecution. See Morrissey v Brewer, 408 US 471, 480
(1972) (parole revocation); Gagnon v Scarpelli, 411 US 778,
782 (1973) (probation revocation). Both the Fifth Circuit
and the Texas Court of Criminal Appeals have found that
deferred adjudication is a type of probation. See Spier v
Quarterman, 278 F Appx 303, 304 n 1 (5th Cir 2008,
per curiam) (recognizing deferred adjudication as a form of
probation); Davis v State, 968 SW2d 368, 369 (Tex Crim
App 1998) (same). Such revocation proceedings therefore
need only meet the minimum requirements of due process
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by providing (i) written notice of claimed violations;
(ii) disclosure of the evidence against the probationer;
(iii) an opportunity to be heard in person and to present
witnesses and documentary evidence; (iv) the right to
confront and cross-examine adverse witnesses; (v) a
neutral and detached hearing body; and (vi) a written
statement of the evidence relied on the reasons for
revocation. Morrissey, 408 US at 489.
Petitioner doesn’t allege that he was denied any of
these rights. And his Sixth Amendment claim falls outside
the rights to which he is entitled at a deferred-adjudication
revocation hearing. Claim 7 is without merit and will be
dismissed.
c. Sentencing enhancements (Claims 8 & 9)
Petitioner contends in two overlapping claims that the
trial court erred by finding the charged sentencing
enhancements to be true at the original sentencing hearing
rather than at the revocation hearing. Dkt 16 at 22–25.
This claim is barred by the applicable statute of
limitations.
AEDPA imposes a one-year statute of limitations for
federal habeas corpus petitions. The statute provides in
part:
(1) A 1-year period of limitation shall
apply to an application for a writ of habeas
corpus by a person in custody pursuant to
the judgment of a State court. The
limitation period shall run from the latest
of—
(A) the date on which the judgment
became final by the conclusion of direct
review or the expiration of the time for
seeking such review;
(B) the date on which the impediment
to filing an application created by State
action in violation of the Constitution or
laws of the United States is removed, if the
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applicant was prevented from filing by
such State action;
(C) the date on which the constitutional
right asserted was initially recognized by
the Supreme Court, if the right has been
newly recognized by the Supreme Court
and made retroactively applicable to cases
on collateral review; or
(D) the date on which the factual
predicate of the claim or claims presented
could have been discovered through the
exercise of due diligence.
28 USC §2244(d)(1).
Most directly at issue here is §2244(d)(1)(A), pertaining
to limitations running from judgment finality at the
conclusion of direct review. The Fifth Circuit has explained
that “a decision becomes final ‘by the conclusion of direct
review or the expiration of the time for seeking such
review.’” Roberts v Cockrell, 319 F3d 690, 694 (5th Cir
2003), quoting 28 USC §2244(d)(1)(A). Absent appeal to the
state’s highest court, a judgment becomes final when the
time for seeking such review expires. Gonzalez v Thaler,
565 US 134, 137 (2012).
Petitioner’s AEDPA limitations period began to run on
“the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review.” 28 USC §2244(d)(1)(A). A deferred-
adjudication order is a judgment for purposes of AEDPA.
See Caldwell v Dretke, 429 F3d 521, 528 (5th Cir 2005).
Hence, “the statute of limitations for a federal habeas
application raising claims that address his deferred
adjudication begins to run when his deferred-adjudication
order becomes final, whether or not he is later convicted
and sentenced.” Tharpe v Thaler, 628 F3d 719, 723 (5th Cir
2010).
Petitioner proceeds as if the revocation of his deferred-
adjudication probation restarted his time to seek federal
habeas review of issues arising from the earlier deferred-
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22
adjudication order. But the Fifth Circuit has specifically
rejected that argument, holding instead that a deferred-
adjudication order and a later revocation order “involve
two different judgments for AEDPA purposes.” Tharpe,
628 F3d at 724 (cleaned up). Because there are two
different judgments, “we are dealing with two separate and
distinct limitations periods under the AEDPA.” Id. The
limitations period applicable to claims arising from entry
of the deferred-adjudication order therefore begins to run
upon that order becoming final, regardless of any later
judgment of conviction and sentence. Id.
Petitioner’s claim that the trial court erred by
accepting his plea to the enhancements at the original
sentencing hearing is an attack on the validity of the
original deferred-adjudication order. That order became
final for purposes of federal habeas corpus review on July
30, 2015, the date on which his time to file an appeal from
that order expired. See Roberts, 319 F3d at 694; see also
TRAP 26.2 (appeal is perfected when the notice of appeal
is filed within thirty days after the day sentence is
imposed). Under §2244(d), the deadline for Petitioner to file
a timely federal habeas corpus petition raising issues
challenging the deferred-adjudication order was one year
later, on July 30, 2016. But he didn’t file this federal
petition until June 2022—well outside the one-year
limitations period. The subsequent revocation of his
deferred-adjudication probation didn’t revive the
limitations period as to claims arising from the original
deferred-adjudication order. His claims arising from that
order are therefore time-barred unless a later accrual date
applies.
After a judgment becomes final in state proceedings,
the limitations period under §2244(d)(1)(A) doesn’t proceed
inexorably forward. AEDPA instead provides, “The time
during which a properly filed application for State post-
conviction or other collateral review with respect to the
pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this
subsection.” 28 USC §2244(d)(2). And so the clock that ticks
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23
onward pursuant to §2244(d)(1)(A) is paused to the extent
and during the period to which §2244(d)(2) applies. But a
state habeas application filed after the federal limitations
period has expired doesn’t extend the limitations period.
See Scott v Johnson, 227 F3d 260, 263 (5th Cir 2000). In
short, belatedly filing a state habeas application doesn’t
extend or restart an already-expired federal habeas
limitations period.
Petitioner’s state habeas application was filed January
7, 2022—more than five years after the federal habeas
limitations period for claims arising from the deferred-
adjudication order had expired. His state habeas
application neither revived nor extended the already-
expired federal limitations period as to that order. This
claim is time-barred unless another statutory exception
applies. But Petitioner fails to allege facts showing that
any other statutory exception to the limitations period
applies. He doesn’t allege that any unconstitutional state
action prevented him from filing his federal habeas petition
before the expiration of the limitations period. 28 USC
§2244(d)(1)(B). He doesn’t allege that his claims are based
on a newly recognized constitutional right. 28 USC
§2244(d)(1)(C). And he doesn’t allege facts showing that the
factual basis for his claims couldn’t have been timely
discovered if he had acted with due diligence. 28 USC
§2244(d)(1)(D). His claims are thus time-barred unless an
equitable exception to the limitations period applies.
Petitioners seeking to avoid the limitations period may
also invoke the doctrine of equitable tolling. This preserves
claims in situations “when strict application of the statute
of limitations would be inequitable.” United States v
Patterson, 211 F3d 927, 930 (5th Cir 2000, per curiam),
quoting Davis v Johnson, 158 F3d 806, 810 (5th Cir 1998).
The Fifth Circuit holds that cases presenting “rare and
exceptional circumstances” can equitably toll the one-year
AEDPA statute of limitations. Jackson v Davis, 933 F3d
408, 410 (5th Cir 2019), quoting Hardy v Quarterman,
577 F3d 596, 598 (5th Cir 2009, per curiam). Equitable
tolling “applies principally where the plaintiff is actively
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24
misled by the defendant about the cause of action or is
prevented in some extraordinary way from asserting his
rights.” United States v Wheaten, 826 F3d 843, 851 (5th Cir
2016) (discussing equitable tolling in context of §2255).
A petitioner has the burden to prove entitlement to
equitable tolling. Phillips v Donnelly, 216 F3d 508, 511 (5th
Cir 2000, per curiam). To do this, he must show that he
diligently pursued his rights but that some extraordinary
circumstance prevented timely filing. Manning v Epps, 688
F3d 177, 183 (5th Cir 2012) (citations omitted). The
required diligence is that which is reasonable, not that
which is maximumly feasible. Ibid, quoting Holland v
Florida, 560 US 631, 653 (2010).
Petitioner doesn’t show that any extraordinary
circumstance prevented him from timely filing his federal
habeas corpus petition. The record in no way suggests that
the State of Texas misled him about the time to file such a
petition. And his pro se status and lack of legal knowledge
aren’t sufficient to entitle him to equitable tolling. See
Felder v Johnson, 204 F3d 168, 171 (5th Cir 2000).
Petitioner fails to allege facts showing that any
statutory or equitable exception to the AEDPA limitations
period applies to his claims relating to the original
deferred-adjudication order. They are therefore barred by
the statute of limitations. Claims 8 and 9 will be dismissed
as untimely filed.
d. Lack of personal knowledge (Claim 10)
Petitioner next contends that the trial court violated
Texas law by overruling his objections based on lack of
personal knowledge to testimony from the Louisiana police
officers about his cell-phone location. Dkt 16 at 26–27.
The admissibility of evidence is governed by state law,
which isn’t within the purview of federal habeas corpus
review. Federal habeas courts “‘do not sit as a “super” state
supreme court’ in such a proceeding to review errors under
state law.” Dickerson v Guste, 932 F2d 1142, 1145 (5th Cir
1991), quoting Martin v Wainwright, 428 F2d 356, 357
(5th Cir 1970, per curiam). As the Supreme Court has
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25
repeatedly held, “federal habeas corpus relief does not lie
for errors of state law.” Estelle, 502 US at 67–68, quoting
Lewis v Jeffers, 497 US 764, 780 (1990); see also Pulley v
Harris, 465 US 37, 41 (1984). Relief from state-court
evidentiary rulings therefore isn’t available unless the
rulings result in a “denial of fundamental fairness” under
the Due Process Clause. Neal v Cain, 141 F3d 207, 214 (5th
Cir 1998), quoting Porter v Estelle, 709 F2d 944, 957 (5th
Cir 1983).
Petitioner objects to the rulings that permitted the two
Louisiana police officers to testify to information gathered
during their investigation. He primarily asserts that the
testimony shouldn’t have been admitted because it wasn’t
based on the officers’ personal knowledge.
Rule 602 of the Texas Rules of Evidence provides that
a witness may not testify to a matter unless “evidence is
introduced sufficient to support a finding that he has
personal knowledge of the matter.” Tex R Evid 602. Rule
701 of the Texas Rules of Evidence permits lay witnesses
to testify to reasonable inferences from facts as long as they
have personal knowledge of those facts. See Osbourn v
State, 92 SW3d 531, 535 (Tex Crim App 2002) (a witness’s
testimony can include opinions, beliefs, and inferences as
long as they are drawn from the witness’s own experiences
or observations).
The challenged ruling occurred during cross-
examination of the Louisiana detective concerning cell-
phone records:
Q. [Defense counsel]: Okay. So I want to
understand this. As the phone goes, there
was nothing that connected Mr. Boutte as
far as that being his phone. You didn’t have
a contract or anything else, correct?
A. [Witness]: I’m trying to because -- omit
some of the -- no.
Q. I’m asking you if you had a contract that
-- between the phone service and Mr.
Boutte?
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26
A. No.
Q. Okay. And you said that you were able
to locate the phone near the Louisiana -- in
Baton Rouge; is that right, sir?
A. Correct.
Q. Is that information that you got from
another source?
A. It’s information we received from our
warrant.
Q. Okay. And would that be from another
source then?
A. Yes, sir.
Q. That’s not your personal knowledge,
that’s somebody else’s personal knowledge?
A. Yes, sir.
MR. CANTRELL: Okay. Judge, I would
move to strike his testimony concerning the
location of the phone in that it’s not based
on his own personal knowledge. And they
don’t have any other predicate. They
haven’t done any other effort to prove up
the basis of that information.
THE COURT: Your cell phone location data
was what was received under the warrant,
if I understood that correctly?
MR. DODSON: Yes, sir.
THE COURT: I will allow him to testify to
what he saw and learned from what he
received with the search warrant.
MR. CANTRELL: Just for the record, if I
may, Your Honor?
THE COURT: You are overruled, sir.
MR. CANTRELL: For the record, may I
continue just for the record in case this is
appealed?
THE COURT: Yes, sir. Yes, sir. Absolutely.
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MR. CANTRELL: Our concern here, Judge,
is that under the Sixth Amendment
somebody else is interpreting data and I’m
assuming writing a report that would be a
report written for the purpose of
prosecution. So there would be no exception
under the hearsay rule in that this specific
report is designed for litigation purposes
under a warrant, from a -- I’m assuming a
cell phone provider with specific
information that they’re seeking and
asking somebody else to interpret data. So
that would be also an objection in that he is
not an expert on the interpretation of that
data and that they would have been relying
on another individual’s testimony to come
up with that data. And, therefore, it would
be a violation of my client’s rights under
the Sixth Amendment and Texas law. And
it is hearsay.
THE COURT: So noted, and overruled.
Dkt 38-1 at 33–36.
Petitioner contends that this objection should have
been sustained, which would have prevented the State
from connecting his cell phone to the crime scene in Baton
Rouge. But Texas courts permit a police officer to testify as
to a cell phone’s location based on cell phone records. For
example, see Alyea v State, 2021 WL 5117972, *3 (Tex
App–Houston [14th Dist], pet ref’d); Thompson v State,
425 SW3d 480, 489 (Tex App–Houston [1st Dist] 2012, pet
ref’d); Robinson v State, 368 SW3d 588, 601 (Tex App–
Austin 2012, pet ref’d). Because such testimony is
permissible under Texas state law, Petitioner can’t show
that the trial court erred in overruling the objection.
Further, trial counsel’s Sixth Amendment objection was
properly denied because, as explained above, the Sixth
Amendment doesn’t apply in deferred-adjudication
revocation proceedings. See Gagnon, 411 US at 782; Spier,
278 F Appx at 304 n 1.
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Petitioner hasn’t shown that the trial court’s rulings
were erroneous or that any errors resulted in a denial of
fundamental fairness. Claim 10 is without merit and will
be dismissed.
e. Vague and indefinite condition of
supervision (Claim 14)
Petitioner next contends that the trial court erred by
revoking his deferred-adjudication probation when the
underlying condition was so vague and indefinite as to
constitute a due process violation. Dkt 16 at 34–35.
A statute may violate due process when it is “so vague
that it fails to give ordinary people fair notice of the conduct
it punishes, or so standardless that it invites arbitrary
enforcement.” Johnson v United States, 576 US 591, 595
(2015). This principle also applies to conditions governing
various types of supervised release. For example, see
United States v Paul, 274 F3d 155, 166 (5th Cir 2001). But
a probation condition’s lack of specificity doesn’t
necessarily render it void. Instead, a probation condition is
void for vagueness only if it is so indefinite that no
“commonsense understanding of what activities the
categories encompass” is possible. Id at 167.
Condition one of Petitioner’s deferred-adjudication
probation ordered him to comply with the following:
Commit no offense against the laws of this
state or any other state or of the United
States or of any governmental entity, and
report to your Supervision Officer within
forty-eight (48) hours if arrested or
questioned by a law enforcement officer.
[Art. 42.12 Sec. 11(a)(1)].
Dkt 38-3 at 76. Allegations 1a and 1b of the motion to
revoke and adjudicate alleged that Petitioner violated the
first and second phrases of this condition. Id at 92–93.
Petitioner contends that the second phrase of this
condition is so vague and indistinct as to violate due
process because it didn’t clearly tell him which Supervision
Officer to contact. He alleges that he was originally
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29
assigned to Officer Lopez in Grimes County because that’s
where he was convicted. But because he lives in Harris
County, he was also assigned to Officer Santee. He
contends that he timely reported his Louisiana arrest to
Officer Santee, which he believed was sufficient to comply
with condition one. But at the hearing, the prosecutor
presented evidence showing that Petitioner did not timely
report to Officer Lopez.
Even if an aspect of the conditions could be said to be
vague in Petitioner’s specific situation, he can’t show that
the error “had substantial and injurious effect or influence”
on the revocation proceedings. Brecht, 507 US at 637,
quoting Kotteakos, 328 US at 776. The trial court found
that the State had proved a violation of condition one
without making a specific finding as to which phrase of the
condition was violated. As explained above, the State
presented sufficient evidence to prove a violation of the
first phrase of condition one, and revocation of Petitioner’s
supervision was proper on that basis alone. See Smith,
286 SW3d at 342–44 (when defendant is charged with
violations of multiple provisions of probation, no prejudice
arises from failure to adduce sufficient evidence as to one
alleged violation if trial court is justified in revoking
probation based on other violations).
Petitioner doesn’t show that the alleged vague or
indefinite nature of the second phrase of the condition had
a substantial or injurious effect on the revocation
proceedings when there was sufficient evidence to support
revocation on a different basis. He therefore doesn’t meet
the required standard for federal habeas corpus relief.
Claim 14 is without merit and will be dismissed.
5. Fourth Amendment violation (Claim 15)
Petitioner next contends that his arrest on both the
Louisiana warrant and the alleged deferred-adjudication
probation violation were without probable cause and so
violated his Fourth Amendment rights. Dkt 16 at 36–37.
He isn’t entitled to relief on this claim for two reasons.
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First, federal courts don’t have authority to review
alleged Fourth Amendment violations in habeas corpus
proceedings unless the petitioner was denied a full and fair
opportunity to litigate the issue in the state-court
proceedings. See Stone v Powell, 428 US 465, 494 (1976);
see also Wallace v Kato, 549 US 384, 395 n 5 (2007). The
Fifth Circuit states:
An “opportunity for full and fair litigation”
means just that: an opportunity. If a state
provides the processes whereby a
defendant can obtain full and fair litigation
of a Fourth Amendment claim, Stone v.
Powell bars federal habeas corpus
consideration of that claim whether or not
the defendant employs those processes.
Caver v Alabama, 577 F2d 1188, 1192 (5th Cir 1978); see
also United States v Alanis, 88 F Appx 15, 21 (5th Cir 2004,
per curiam): “[W]hen a defendant fails to raise his Fourth
Amendment claim at trial (as occurred here), then Stone
precludes habeas relief on Fourth Amendment grounds,
even though no state hearing was held on the claim.”
Petitioner had the opportunity to raise his Fourth
Amendment claims either before or during the revocation
hearing. Because he had such an opportunity, the issue of
the legality of that arrest can’t be raised and reviewed in
this federal habeas proceeding.
Second, even if not barred by Stone, Petitioner’s claim
fails on the merits. The Fourth Amendment guarantees
that “no warrants shall issue, but upon probable cause.” US
CONST amend IV. An arrest executed pursuant to a
warrant issued by a detached and neutral magistrate upon
a finding of probable cause is presumptively valid. See
United States v Leon, 468 US 897, 914-15 (1984); United
States v McCarley-Connin, 148 F4th 808, 814 n 3 (6th Cir
2025); see also United States v Fulton, 192 F Supp 3d 728,
730 (SD Tex 2016): “Searches and seizures are reasonable,
and therefore lawful, if they are based on probable cause
and executed pursuant to a warrant issued by a neutral,
detached magistrate.”
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The record contains a signed order for an arrest
warrant based on the motion to revoke and adjudicate,
together with a signed arrest warrant. Dkt 38-3 at 95–96.
That order specifically finds that probable cause exists to
believe that Petitioner violated his deferred-adjudication
probation in multiple respects. Ibid. This facially valid
order for an arrest warrant bars his claim for a Fourth
Amendment violation.
Petitioner doesn’t allege any facts showing that either
the arrest warrant or the procedures used in issuing it were
deficient. Instead, he contends that the later decision by
the Louisiana District Attorney to forgo prosecution on the
new charge demonstrates that probable cause for the
revocation warrant was lacking. Probable cause exists
when the “‘facts and circumstances within the officer’s
knowledge . . . are sufficient to warrant a prudent person,
or one of reasonable caution, in believing, in the
circumstances shown, that the suspect has committed, is
committing, or is about to commit an offense.’” Piazza v
Mayne, 217 F3d 239, 245–46 (5th Cir 2000, per curiam),
quoting Michigan v DeFillippo, 443 US 31, 37 (1979). The
test is an objective one, and probable cause will exist “if the
officer was aware of facts justifying a reasonable belief that
an offense was being committed, whether or not the officer
charged the arrestee with that specific offense.” Club Retro,
LLC v Hilton, 568 F3d 181, 204 (2009), citing Devenpeck v
Alford, 543 US 146, 153–54 (2004); see also United States
v Alhemoud, 2025 WL 1617322, *5 n 1 (SD Tex)
(recognizing that extrinsic reasons might preclude
prosecution but don’t negate probable cause).
Probable cause for an arrest may thus exist even if
formal charges aren’t filed. The Louisiana prosecutor’s
decision not to pursue prosecution on the Louisiana charge
doesn’t retroactively negate the probable cause that existed
for issuance of the warrant for Petitioner’s arrest.
For both reasons, Petitioner isn’t entitled federal
habeas corpus relief based on a Fourth Amendment
violation. Claim 15 is without merit and will be dismissed.
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6. Prosecutorial misconduct (Claims 12 & 17)
Petitioner contends in two claims that the prosecutor
violated Brady v Maryland, 373 US 83 (1963), by
suppressing favorable documentary evidence before the
revocation hearing. Dkt 16 at 30–31, 40–41.
The Supreme Court in Brady held that suppression by
the prosecution of evidence favorable to an accused after a
request violates due process when the evidence is material
either to guilt or punishment, irrespective of the good or
bad faith of the prosecution. Brady, 373 US at 87. To
establish a Brady violation, a petitioner must prove that
the prosecutor suppressed or withheld evidence that was
both favorable and material to the defense. Moore v
Illinois, 408 US 786, 794–95 (1972); Ogle v Estelle, 641 F2d
1122, 1124 (5th Cir 1981). Evidence is material only if there
is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would
have been different. United States v Bagley, 473 US 667,
682 (1985). A reasonable probability is a probability
sufficient to undermine confidence in the outcome of the
trial. Ibid.
Petitioner’s Brady claim is based on (i) a letter from
Louisiana authorities stating that Petitioner hadn’t yet
been charged with a criminal offense, and (ii) a contact
report relating to the charge that he failed to contact his
probation officer within forty-eight hours of his arrest for
the Louisiana offense.
As to the letter about the Louisiana charges, Petitioner
can’t show that it was material because a revocation of
deferred-adjudication probation may be upheld even when
charges either aren’t brought at all or are subsequently
dismissed. See Amaya, 424 F2d at 364. The status of the
Louisiana proceedings was therefore not material to
whether deferred-adjudication probation could be revoked.
There’s thus no reasonable probability that the result of
the proceeding would have been different had this letter
been disclosed.
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As to the contact report, the prosecutor presented
testimony from Officer Lopez that Petitioner didn’t report
his arrest within the required time. The contact report
shows only that Officer Santee learned of Petitioner’s
arrest and notified Officer Lopez about it within the forty-
eight-hour window. But the document doesn’t show that
Petitioner reported his arrest to either officer, as required
by condition one of his probation. It instead shows only that
Officer Santee became aware of the arrest during that
time. Because the source of the information isn’t identified,
it isn’t clear that the contact report is favorable evidence
that the prosecutor should have disclosed. Petitioner also
doesn’t show that this evidence is material because he can’t
show a reasonable probability that the outcome of the
proceeding would have been different had the document
been disclosed. As explained above, the prosecution
presented sufficient evidence to prove that Petitioner
violated condition one by committing a new criminal
offense. Even if Petitioner could show that he timely
reported his arrest, there’s no reasonable probability that
the trial court would have declined to revoke his deferred-
adjudication probation.
Absent evidence of materiality, Petitioner isn’t entitled
federal habeas corpus relief based on a Brady violation.
Claims 12 and 17 are without merit and will be dismissed.
7. Improper state habeas procedures (Claims 13
& 16)
Petitioner contends in two claims that the Texas Court
of Criminal Appeals abused its discretion by (i) finding his
motion for rehearing untimely, and (ii) denying his state
habeas corpus application without a written order. Dkt 16
at 32–33 & 38–39.
“[T]he essence of habeas corpus is an attack by a person
in custody upon the legality of that custody, and . . . the
traditional function of the writ is to secure release from
illegal custody.” Preiser v Rodriguez, 411 US 475, 484
(1973). But “an attack on the state habeas proceeding is an
attack on a proceeding collateral to the detention and not
the detention itself.” Rudd v Johnson, 256 F3d 317, 320
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(5th Cir 2001). Therefore, “errors in a state habeas
proceeding cannot serve as a basis for setting aside a valid
original conviction.” Nichols v Scott, 69 F3d 1255, 1275 (5th
Cir 1995).
Petitioner’s claims challenging the procedures used by
the CCA in ruling on his state habeas application don’t
challenge his conviction and detention. They instead
challenge the procedures used in collateral proceedings. As
such, they can’t serve as a basis for federal habeas corpus
relief. Claims 13 and 16 are without merit and will be
dismissed.
8. Actual innocence (Claim 18)
In a supplemental petition, Petitioner alleges that he
is actually innocent of the charge of violating his deferred-
adjudication probation. He generally repeats the
allegations he makes in his other claims, contending that
he didn’t commit the Louisiana offense and didn’t violate
the other provisions of his probation. Dkt 58.
Petitioner’s claim appears to arise from a
misunderstanding of a claim of actual innocence under
Schlup v Delo, 513 US 298 (1995). The Supreme Court
hasn’t yet recognized a freestanding claim of actual
innocence. McQuiggin v Perkins. 569 US 383, 392 (2013). A
viable claim of actual innocence instead serves as a
gateway to bypass a procedural bar (such as the expiration
of the statute of limitations) so that a constitutional claim
may be heard. Id at 386, 392. To fall within the gateway,
the petitioner must support the allegations with new and
reliable evidence that wasn’t presented at trial, while
establishing that it is “more likely than not that no
reasonable juror would have convicted him in the light of
the new evidence.” Fairman v Anderson, 188 F3d 635, 644
(5th Cir 1999), quoting Schlup, 513 US at 327. New
evidence for purposes of an actual-innocence claim means
evidence that wasn’t “within the reach of [petitioner’s]
personal knowledge or reasonable investigation.”
Hancock v Davis, 906 F3d 387, 390 (5th Cir 2018), quoting
Moore v Quarterman, 534 F3d 454, 465 (5th Cir 2008).
Further, “the Schlup standard ‘does not merely require a
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showing that a reasonable doubt exists in the light of the
new evidence, but rather that no reasonable juror would
have found the defendant guilty.’” Bosley v Cain, 409 F3d
657, 664 (5th Cir 2005, per curiam), quoting Schlup,
513 US at 329 (emphasis added).
Petitioner doesn’t identify any new, reliable evidence
that wasn’t presented at trial. He points to affidavits from
friends and family who he contends can provide an alibi for
the night of the Louisiana theft. But those witnesses, as
friends and family, were within Petitioner’s knowledge at
the time of the revocation hearing, and their affidavits
could have been obtained with a reasonable investigation.
These affidavits aren’t new evidence as required by Schlup.
To the extent that Petitioner relies on the allegedly
newly discovered contact report from Officer Santee, it
doesn’t establish his actual innocence because sufficient
other evidence supports the conclusion that Petitioner
violated his probation by committing the Louisiana offense.
Petitioner’s allegations don’t satisfy the requirements
of Schlup and so don’t entitle him to habeas corpus relief
based on actual innocence. Claim 18 is without merit and
will be dismissed.
9. Certificate of appealability
Rule 11 of the Rules Governing Section 2254 Cases
requires a district court to issue or deny a certificate of
appealability when entering a final order that is adverse to
the petitioner. A certificate of appealability will not issue
unless the petitioner makes “a substantial showing of the
denial of a constitutional right.” 28 USC §2253(c)(2). This
requires a petitioner to demonstrate “that reasonable
jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Tennard v
Dretke, 542 US 274, 282 (2004), quoting Slack v McDaniel,
529 US 473, 484 (2000). When the court denies relief based
on procedural grounds, 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 they “would find it debatable whether the
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district court was correct in its procedural ruling.” Slack,
529 US at 484.
The Court concludes that jurists of reason would not
debate whether any procedural ruling in this case was
correct. Petitioner hasn’t made the necessary showing for
a certificate of appealability.
10. Conclusion
The petition and amended petition for writ of habeas
corpus brought by Petitioner Adrian Julian Boutte lack
merit and are DENIED. Dkts 1 & 16.
This action is DISMISSED WITH PREJUDICE.
Any other pending motions are DENIED AS MOOT.
A certificate of appealability is DENIED.
Final judgment will enter separately.
SO ORDERED.
Signed on , at Houston, Texas.
__________________________
Honorable Charles Eskridge
United States District Judge
April 23, 2026
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