Spillman Jr v. Director, TDCJ-CID

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
DAVID EARL SPILLMAN, 	§
ID # 02258744, 	§
Petitioner, 	§
§
v. 	§ 	No. 3:23-CV-668-E-BW
§
DIRECTOR, TDCJ-CID, 	§
Respondent. 	§ 	Referred to U.S. Magistrate Judge1
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Before the Court is the Petition for a Writ of Habeas Corpus by a Person in
State Custody, received on March 29, 2023. (Dkt. No. 3.) Based on the relevant
filings and applicable law, the Court should DENY the petition with prejudice.
I. BACKGROUND
David Earl Spillman, an inmate of the Texas Department of Criminal Justice,
Correctional Institutions Division (“TDCJ-CID”), filed a habeas corpus petition
under 28 U.S.C. § 2254 challenging three 2019 convictions and sentences in Hunt
County, Texas. (See Dkt. No. 3 at 2.)2 The respondent is the Director of TDCJ-CID
(“State”). (See id. at 1.)
1 By Special Order No. 3-251, this habeas case has been automatically referred for
full case management. By Special Order No. 3-354, it was transferred and reassigned to the
undersigned on August 23, 2024. (See Dkt. No. 26.)
2 Citations to the record refer to the CM/ECF system page number at the top of each
page rather than the page numbers at the bottom of each filing.
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A. State Court Proceedings
In 2017, a Hunt County grand jury indicted Spillman in: (1) Cause No. 31765
for assault on a public servant, Officer Kendall Reeves; (2) Cause No. 31766 for
assault on a public servant, Officer Steven Carper; and (3) Cause No. 31767 for
possession of a controlled substance. (See Dkt. No. 11-30 at 6; Dkt. No. 11-31 at 6;
Dkt. No. 11-32 at 6.) For each charge, the State filed a notice of its intent to enhance
Spillman’s punishment range as a habitual felony offender. (See Dkt. No. 11-14 at
23; Dkt. No. 11-16 at 23; Dkt. No. 11-17 at 18.) He pled not guilty to each charge
and proceeded to trial where a jury found him guilty on all three charges and
sentenced him as a habitual felony offender to concurrent sentences of 50 years, 50
years, and 60 years of imprisonment, respectively. (See Dkt. No. 11-30 at 8-11; Dkt.
No. 11-31 at 8-11; Dkt. No. 11-32 at 8-11.)
The Texas Fifth Court of Appeals affirmed the judgments on direct appeal.
See Spillman v. State, Nos. 05-19-00530-CR, 05-19-00531-CR, 05-19-00532-CR, 2020
WL 4013142 (Tex. App—Dallas July 16, 2020, pet. granted). The Texas Court of
Criminal Appeals (“TCCA”) granted Spillman’s petition for discretionary review
(“PDR”) and affirmed the judgment of the Texas Fifth Court of Appeals. See
Spillman v. State, Nos. PD-0695-20, PD-0696-20, PD-0697-20, 2022 WL 946347
(Tex. Crim. App. Mar. 30, 2022). On October 19, 2022, the state trial court received
Spillman’s state habeas applications on each conviction. (See Dkt. No. 11-30 at 16-
34; Dkt. No. 11-31 at 16-34; Dkt. No. 11-32 at 16-34.) On February 22, 2023, the
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TCCA denied Spillman’s state habeas applications without written order. (See Dkt.
Nos. 11-33, 16.)
B. Substantive Claims
In his § 2254 petition, Spillman asserts multiple grounds of relief based on
alleged state trial court error, insufficient evidence to support his convictions,
ineffective assistance of trial counsel, and actual innocence. (See Dkt. No. 3 at 6-11.)
The State filed a response on September 6, 2023. (See Dkt. No. 21.) Spillman filed a
reply on October 31, 2023. (See Dkt. No. 25.) Because resolution of some grounds
for relief may impact some of the remaining claims, the Court will address them in
an order different than that presented by Spillman.
II. APPLICABLE LAW
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
substantially changed the way federal courts handle habeas corpus actions by, in
part, imposing a relitigation bar to obtaining relief. See, e.g., Neal v. Vannoy, 78 F.4th
775, 782 (5th Cir. 2023) (citations omitted). Under the AEDPA, a state prisoner
may not obtain federal habeas relief
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
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28 U.S.C. § 2254(d). “In the context of federal habeas proceedings, a resolution (or
adjudication) on the merits is a term of art that refers to whether a court’s disposition
of the case was substantive, as opposed to procedural.” Miller v. Johnson, 200 F.3d
274, 281 (5th Cir. 2000). A state habeas application that is denied without written
order by the TCCA is an adjudication on the merits for purposes of § 2254. See
Harrington v. Richter, 562 U.S. 86, 103 (2011).
Section 2254(d)(1) concerns pure questions of law and mixed questions of law
and fact. Martin v. Cain, 246 F.3d 471, 475 (5th Cir. 2001). A decision is “contrary
to” clearly established federal law “if the state court arrives at a conclusion opposite
to that reached by [the Supreme] Court on a question of law or if the state court
decides a case differently than [the Supreme] Court has on a set of materially
indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Under the
“unreasonable application” standard, a court may grant habeas relief “if the state
court identifies the correct governing legal principle from [the Supreme] Court’s
decisions but unreasonably applies that principle to the facts of the prisoner’s case.”
Id. at 413. The “unreasonable application” inquiry is an objective one, rather than a
subjective one. See id. at 409.
Section 2254(d)(2) concerns questions of fact. See Martin, 246 F.3d at 475.
Under § 2254(d)(2), federal courts “give deference to the state court’s findings unless
they were ‘based on an unreasonable determination of the facts in light of the
evidence presented in the state court proceeding.’” Chambers v. Johnson, 218 F.3d
360, 363 (5th Cir. 2000) (quoting 28 U.S.C. § 2254(d)(2)). The resolution of factual
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issues by the state court is presumptively correct and will not be disturbed unless the
state prisoner rebuts the presumption by clear and convincing evidence. See 28
U.S.C. § 2254(e)(1). This presumption of correctness applies to both express and
implied factual findings. See Ford v. Davis, 910 F.3d 232, 234-35 (5th Cir. 2018).
Section 2254 thus creates a “highly deferential standard for evaluating state-
court rulings, which demands that state-court decisions be given the benefit of the
doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (internal citation and quotation
marks omitted). This highly deferential standard applies even when a state habeas
application is summarily denied without written order. See Harrington, 562 U.S. at
103. In the absence of a reasoned state court decision, a court “‘must determine
what arguments or theories . . . could have supported . . . the state court’s decision;
and then it must ask whether it is possible fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a prior decision of th[e]
[Supreme] Court.’” Sexton v. Beaudreaux, 585 U.S. 961, 965 (2018) (quoting Richter,
562 U.S. at 102). To overcome this standard, 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.” Harrington, 562 U.S. at
103. Failure to make this showing precludes federal habeas relief. See id. at 101
(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
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III. TRIAL COURT ERROR
In his first ground, Spillman contends that he was denied counsel at his initial
appearance before a judicial officer. (See Dkt. No. 3 at 6.) He states that, on August
14, 2016, he “appeared before a judicial officer and [was] told of the form[al]
accusations against him and the restrictions imposed on his liberty and there[]after
arraigned on charges[.]” (Id.) He asserts that “the trial court appointed trial counsel
. . . [on] August 15th, 2016, a day after petitioner had made his initial appearance
before a judicial officer [on] August 14th, 2016. (Id. at 7 (emphasis and parentheses
omitted).) Spillman raised this claim in each of his state habeas applications. (See
Dkt. No. 11-30 at 21; Dkt. No. 11-31 at 21; Dkt. No. 11-32 at 21.) The TCCA
rejected the claim when it denied the applications. (See Dkt. Nos. 11-33, 16.)
Generally, Texas law requires that a person who has been arrested be brought
before a magistrate for a hearing no later than 48 hours after the arrest. See Tex.
Code Crim. Proc. art. 15.17(a). At this Article 15.17 hearing, the magistrate informs
the arrested person “of the accusation against him and of any affidavit filed
therewith, of his right to retain counsel, of his right to remain silent, of his right to
have an attorney present during any interview with peace officers or attorneys
representing the state, of his right to terminate the interview at any time, and of his
right to have an examining trial.” Id. The magistrate also informs the arrested
person about his right to appointed counsel if he cannot afford counsel. See id.
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The right to counsel under the Sixth Amendment, made applicable to the
states through the Fourteenth Amendment, attaches when an accused appears for an
Article 15.17 hearing. See Rothgery v. Gillespie Cnty., Tex., 554 U.S. 191, 212-13
(2008). As such, “counsel must be appointed within a reasonable time after
attachment to allow for adequate representation at any critical stage before trial, as
well as at trial itself.” Id. at 212 (emphasis added).
Here, the record shows that Spillman was arrested on August 12, 2016 for the
events that ultimately led to his indictments on the offenses of conviction. (See Dkt.
No. 11-30 at 7; Dkt. No. 11-31 at 7; Dkt. No. 11-32 at 7.) According to Spillman, his
Article 15.17 hearing occurred on August 14, 2016. (See Dkt. No. 3 at 6-7.) The
record further shows that the state trial court appointed state trial counsel Peter
Morgan to represent Spillman on August 15, 2016. (See Dkt. No. 11-14 at 6; Dkt.
No. 11-16 at 6; Dkt. No. 11-17 at 6.) After a Hunt County grand jury indicted
Spillman, Morgan was again appointed to represent Spillman under the indicted
cause numbers. (See Dkt. No. 11-14 at 11; Dkt. No. 11-16 at 11; Dkt. No. 11-17 at
11.) In a February 21, 2018 affidavit for payment filed during the state criminal
proceedings, Morgan swore that he was appointed to represent Skillman on the three
criminal charges on August 15, 2016 and had rendered services from that date
through February 5, 2018. (See Dkt. No. 3 at 16; Dkt. No. 11-14 at 59-60; Dkt. No.
11-16 at 57-58; Dkt. No. 11-17 at 49-50.)
Because the record shows that Spillman was appointed counsel within a
reasonable time—namely, within a day—after the Article 15.17 hearing at which his
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Sixth Amendment rights attached, he fails to show that the TCCA’s rejection of the
claim was unreasonable or contrary to clearly established federal law. Accordingly,
the Court should deny the claim.
IV. SUFFICIENCY OF EVIDENCE
In his second and fifth grounds, Spillman contends that there was insufficient
evidence to support his convictions for assault on a public servant. (See Dkt. No. 3 at
6-7, 10-11; Dkt. No. 4 at 2, 6.) He argues that he “never intended to cause any
bodily injury to Officer [Steven] Carper, in the alleged offense nor did petitioner
possess any weapons[.]” (Dkt. No. 4 at 6 (emphasis and parentheses omitted).) He
points to alleged inconsistencies in the officers’ testimony at trial and asserts that
“they both indirectly admitted during jury trial that petitioner did[ ]not attempt to
hit, kick nor assault them which implies Petitioner did[ ]not intentionally, knowingly
or act recklessly in causing Officer Carper bodily injury.” (Id. (emphasis and
parentheses omitted).) He states that “the real reckless[] people who knowingly,
intentionally slammed petitioner are the officers,” and he blames the officers for
causing their own injuries. (Id.; see also Dkt. No. 3 at 6-7.)
Federal courts conduct an extremely limited review of habeas claims based on
the sufficiency of the evidence using the standard in Jackson v. Virginia, 443 U.S. 307
(1979). In Jackson, the Supreme Court held that the correct standard of review when
a state prisoner challenges the sufficiency of the evidence in a federal habeas
proceeding is “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
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crime beyond a reasonable doubt.” Id. at 319 (emphasis in original). The standard
“gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts.” Id. Any required credibility determinations made by the trier of
fact are viewed in the light most favorable to the verdict, and courts do not “second-
guess[ ] the weight or credibility given the evidence” by the trier of fact. United States
v. Ramos-Garcia, 184 F.3d 463, 465 (5th Cir. 1999).
Spillman challenged the sufficiency of the evidence for his convictions of
assault on a public servant on direct appeal, in his PDR, and in his state habeas
applications for said convictions. (See Dkt. No. 11-30 at 23-24; Dkt. No. 11-31 at 23-
24); See Spillman, 2022 WL 946347, at *1-2; Spillman, 2020 WL 4013142, at *1. The
TCCA rejected the challenges when it affirmed the intermediate state appellate
court’s decision and when it denied Spillman’s state habeas applications on the
assault convictions without written order. (See Dkt. No. 11-33; Dkt. No. 16 at 6);
Spillman, 2022 WL 946347, at *6. Because the TCCA’s decision on Spillman’s PDR
provided the last rationale on this issue, the Court “look[s] through” the denial
without written order to that decision and assumes the TCCA adopted the same
reasoning. Wilson v. Sellers, 584 U.S. 122, 125 (2018).
On discretionary review of the intermediate state appellate court’s decision
affirming Spillman’s convictions, the TCCA considered Spillman’s PDR arguments
that “he did not use any force against either officer (such as hitting or kicking), and
the officers caused their own injuries,” which arguments “challenge[d] the mens rea
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and causation elements of the offenses.” Spillman, 2022 WL 946347, at *2-3. The
TCCA first determined that “a rational juror could have found the element of
recklessness beyond a reasonable doubt as judged by the sufficiency standard” to
satisfy the mens rea of the charged assault offenses. Id. at 3. In so finding, the TCCA
noted there was evidence at trial that, “after Carper grabbed [Spillman’s] arm,
[Spillman] tensed up, jerked his hand in a clenched fist forward and above Carper’s
head, grabbed Carper, pulled and jerked, and tried to go between the officers.” Id. at
*6; see also id. at *3-4. Identifying contradicting and corroborating testimony by the
officers at trial, the TCCA concluded that a rational jury could find that Spillman’s
actions indicated that he “was aware of and disregarded a substantial and
unjustifiable risk that he could hurt the officers” and that an ordinary person in the
same circumstances would not have acted as Spillman had. Id. at *4. It also noted
that “it [was] within the purview of the jury to resolve inconsistencies in the
evidence,” and the jury was free to believe the officers’ testimony of Spillman’s
actions even with audio evidence presented at trial in which Spillman makes
statements contrary to the officers’ testimony. Id.
The TCCA then determined that “the but-for causation requirement” of the
assault offenses was satisfied “[b]ecause [Spillman’s] conduct and the officers’
conduct together caused the harm” charged. Id. at *5. It rejected Spillman’s
argument that the officers’ own “actions were the cause of their injuries” because
“they would not have responded in the manner they did had it not been for
[Spillman’s aforementioned] conduct in reacting to Carper’s search.” Id. (footnote
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omitted). The TCCA further determined that the jury could have rationally decided
that Spillman’s movements during the altercation were voluntary, thereby exposing
Spillman to criminal liability. See id. at *5-6.
Although Spillman points to testimony and evidence from trial that allegedly
fails to support the jury’s verdicts, “[d]etermining the weight and credibility of the
evidence is within the sole province of the jury,” and the Court does not second-
guess these determinations, as discussed. United States v. Martinez, 975 F.2d 159, 161
(5th Cir. 1992); see also Ramos-Garcia, 184 F.3d at 465. Spillman has not shown that
the TCCA’s rejection of his claim challenging the sufficiency of the evidence to
support his convictions for assault on a public servant was unreasonable or contrary
to clearly established federal law. His conclusory statements and disagreement with
the TCCA’s analysis are insufficient to carry his burden under § 2254. See, e.g., Koch
v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990) (“‘[M]ere conclusory allegations on a
critical issue are insufficient to raise a constitutional issue.’”). He therefore is not
entitled to habeas relief on this claim, and the Court should deny it.3
3 Spillman also states that “resisting[] search, arrest or transportation was not
presented fully state never presented jury with formal instructions charge on paper for them
to consider lesser charge, just verbally to have on record knowing that on the 31st day of
January, 2019, charge of resisting arrest, search, or transport was (dismissed).” (Dkt. No. 3
at 7 (emphasis omitted).) Although unclear, to the extent he may be arguing that the jury
was not properly charged on the lesser included offense of resisting arrest, search, or
transportation, his argument is refuted by the record and therefore without merit; the jury
was charged on the lesser included offense both in writing and orally. (See Dkt. No. 11-14 at
78; Dkt. No. 11-27 at 165-66); State v. Meru, 414 S.W.3d 159, 162 (Tex. Crim. App. 2013)
(“The elements of the lesser-included offense do not have to be pleaded in the indictment if
they can be deduced from facts alleged in the indictment.”). Even assuming that the lesser
included charge was improper, Spillman was not convicted of the lesser offense, and he
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V. INEFFECTIVE ASSISTANCE OF COUNSEL
In his fourth ground, Spillman contends that his state trial counsel rendered
ineffective assistance. (See Dkt. No. 3 at 8-9; Dkt. No. 4 at 4-5.)
The Sixth Amendment to the United States Constitution provides, in relevant
part, that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have
the Assistance of Counsel for his defense.” U.S. Const. amend. VI. It guarantees a
criminal defendant the effective assistance of counsel, both at trial and on appeal.
Strickland v. Washington, 466 U.S. 668, 686 (1984); Evitts v. Lucey, 469 U.S. 387, 396
(1985). To successfully state a claim of ineffective assistance of counsel, the
petitioner must demonstrate that counsel’s performance was deficient and that the
deficient performance prejudiced his defense. Strickland, 466 U.S. at 687. A failure
to establish either prong of the Strickland test requires a finding that counsel’s
performance was constitutionally effective. Id. at 697. The Court may address the
prongs in any order. Smith v. Robbins, 528 U.S. 259, 286 n.14 (2000).
In determining whether counsel’s performance is deficient, courts “indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Strickland, 466 U.S. at 689. “The reasonableness of
counsel’s actions may be determined or substantially influenced by the defendant’s
own statements or actions.” Id. at 691. To establish prejudice, a petitioner must
show that “there is a reasonable probability that, but for counsel’s unprofessional
offers no arguments or authorities to show a constitutional violation. To the extent asserted,
his conclusory claim is without merit, and the Court should deny it.
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errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id.
at 694; see Williams, 529 U.S. at 393 n.17 (recognizing that the inquiry focuses on
“whether counsel’s deficient performance renders the result of the trial unreliable or
the proceeding fundamentally unfair.”). Reviewing courts must consider the totality
of the evidence before the finder of fact in assessing whether the result would likely
have been different absent counsel’s alleged errors. Strickland, 466 U.S. at 695-96.
When a claim of ineffective assistance of counsel is adjudicated on the merits
by the state habeas court, the federal court’s review of the claim is conducted under
the “doubly deferential” standards of both Strickland and 28 U.S.C. § 2254(d). Cullen
v. Pinholster, 563 U.S. 170, 190 (2011); see also Rhoades v. Davis, 852 F.3d 422, 434 (5th
Cir. 2017). As such, the “pivotal question” is not “whether defense counsel’s
performance fell below Strickland’s standard,” but rather, “whether the state court’s
application of the Strickland standard was unreasonable.” Harrington, 562 U.S. at
101.
A. Impartial Jury
Spillman contends that state trial counsel rendered ineffective assistance
because he allowed Spillman to be tried before a jury that was not impartial and was
not comprised of his peers.4 (See Dkt. No. 3 at 8-9; Dkt. No. 4 at 4.) Spillman raised
4 Spillman seeks relief because state trial counsel allowed him to be “judged,
prosecuted in front of impartial jury, not jury of peers.” (Dkt. No. 3 at 9 (emphasis
omitted); see also Dkt. No. 4 at 4 (emphasis omitted).) Given that the Sixth Amendment
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this claim in his state habeas applications, and the TCCA rejected it when it denied
the applications without written order. (See Dkt. No. 11-30 at 27-28; Dkt. No. 11-31
at 27-28; Dkt. No. 11-32 at 27, 42; Dkt. Nos. 11-33, 16.)
Aside from making conclusory assertions and citing Batson v. Kentucky, 476
U.S. 79 (1986),5 Spillman provides no facts or evidence in support of a Batson
challenge or to show that his jury was not an impartial jury of his peers. Nor has he
provided any facts or evidence beyond conclusory assertions to show a reasonable
probability that the outcome of his trial would have been different but for state trial
counsel’s alleged deficiency. Spillman’s conclusory allegations of deficient
performance and resulting prejudice, respectively, are insufficient to satisfy the first
and second prongs of Strickland.6 	See Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir.
1983) (“Absent evidence in the record, a court cannot consider a habeas petitioner’s
bald assertions on a critical issue in his pro se petition[ ], unsupported and
unsupportable by anything else contained in the record, to be of probative
evidentiary value.”); Miller, 200 F.3d at 282 (holding that “conclusory allegations of
gives a defendant the right to an “impartial jury,” the Court assumes that Spillman intended
to allege that his jury was not impartial. U.S. Const. amend. VI.
5 In Batson, the Supreme Court held that “the Equal Protection Clause forbids the
prosecutor to challenge potential jurors solely on account of their race or on the assumption
that black jurors as a group will be unable impartially to consider the State's case against a
black defendant.” 476 U.S. at 89.
6 To the extent Spillman contends that “prejudice need not be shown” due to
“structural error,” he provides no argument, facts, or evidence to support this conclusory
statement. (Dkt. No. 3 at 4.) His conclusory and unsubstantiated statement does not
warrant § 2254 relief, and his claim is without merit on this additional basis.
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ineffective assistance of counsel do not raise a constitutional issue in a federal habeas
proceeding”).
Having failed to show that state trial counsel rendered ineffective assistance as
alleged, Spillman also fails to show that the TCCA’s rejection of this claim was
unreasonable or contrary to clearly established federal law. The Court therefore
should dismiss the claim.
B. Trial Witnesses and Preparation
Spillman contends that state trial counsel rendered ineffective assistance
because he “failed to inform me of state[] witnesses against me and assist me to
prepare myself.” (Dkt. No. 4 at 4; see also Dkt. No. 3 at 8.) He also complains that
state trial counsel “failed to inform defendant of his witnesses[], allowed to speak on
his behalf.” (Dkt. No. 4 at 5; see also Dkt. No. 3 at 8.) Spillman generally states, with
case citations, that “counsel must prepare and present an adequate defense” and
“counsel has a duty also to interview state witnesses.” (Dkt. No. 4 at 4.) Spillman
asserted these claims in his state habeas applications for the assault convictions, and
the TCCA rejected them when it denied those applications without written order.
(See Dkt. No. 11-30 at 27-28; Dkt. No. 11-31 at 27-28; Dkt. No. 11-33; Dkt. No. 16 at
6.)
Considering the disjointed allegations in the § 2254 petition and the ground for
relief in the state habeas applications that include the same allegations, Spillman
appears to assert claims based on state trial counsel’s alleged failures to investigate.
“[C]ounsel has a duty to make reasonable investigations or to make a reasonable
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decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at
691. To establish the ineffective assistance of counsel based on a failure to
investigate, “a petitioner must allege with specificity what the investigation would
have revealed and how it would have changed the outcome of the trial.” Miller v.
Dretke, 420 F.3d 356, 361 (5th Cir. 2005). Additionally, “complaints of uncalled
witnesses are not favored in federal habeas corpus review because the presentation of
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 F.3d 527,
538 (5th Cir. 2009). In order “to prevail on an ineffective assistance claim based on
counsel’s failure 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.” Id.; see also Alexander v. McCotter, 775 F.2d 595,
602 (5th Cir. 1985).
Here, aside from his disjointed and conclusory statements, Spillman fails to
provide any facts or evidence to support his claims. For instance, although he
complains that state trial counsel did not “inform me of the state[] witnesses against
me” or “assist me to prepare myself,” he does not identify or explain what state trial
counsel failed to inform him about relating to the State’s witnesses or what assistance
counsel should have provided so that Spillman could prepare himself, much less
allege with specificity how the outcome of his trial would have been different had
state trial counsel so informed and assisted him. (Dkt. No. 4 at 4; see also Dkt. No. 3
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at 8.) Additionally, to the extent Spillman also appears to complain that state trial
counsel did not inform him that the defense could call witnesses to speak on
Spillman’s behalf, he fails to identify any witness who was available to testify and
would have done so, set out the content of any proposed testimony, and show that
the testimony would have been favorable to a particular defense.7 See Day, 566 F.3d
at 538; Alexander, 775 F.2d at 602. Spillman also provides no facts or evidence to
show how—much less a reasonable probability that—the result of his trial would
have been different absent state trial counsel’s alleged deficiencies; his conclusory
allegations of prejudice are insufficient to satisfy his burden. See Koch, 907 F.2d at
530.
Accordingly, Spillman fails to show deficient performance under the first
prong of Strickland and resulting prejudice under the second prong of Strickland.
Having failed to satisfy both prongs of Strickland, Spillman has not shown that state
trial counsel rendered ineffective assistance based on any of his alleged failures to
investigate and that the TCCA’s rejection of the claims was unreasonable or contrary
to clearly established federal law. The Court therefore should deny these claims.
7 In his state habeas applications, Spillman identifies a judge and former bailiff as
witnesses who he would have called on his behalf. (See Dkt. No. 11-30 at 27; Dkt. No. 11-
31 at 27.) Even if the Court assumes that Spillman intended to incorporate those same
witnesses in his federal habeas claim, Spillman’s claim still fails because he has not shown
that they were available and would have testified, set out the content of their proposed
testimony, and shown that the testimony would have been favorable to a particular defense.
See Day, 566 F.3d at 538; Alexander, 775 F.2d at 602.
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C. Edited Recording
Under the label “Prosecutorial Misconduct,” Spillman contends that state trial
counsel rendered ineffective assistance because he “never informed me that state’s
exhibit (#2) had been edited for court purposes and failed to object and move to
exclude it as being inadmissible under Tex. R. Evidence (901 a) as unauthenticated
due to being edited.” (Dkt. No. 4 at 5 (emphasis omitted); see also Dkt. No. 3 at 8.)
He alleges that “except for trial counsel errors, there’s a reasonable pro[b]abili[]ty the
outcome of petitioner’s trial would have been different in that the trial judge would
have sustained petitioner’s objection and excluded the state’s exhibit [](#2) audio
video and a reasonable pro[b]ability petitioner would have been acquitted of the
charge assault on a public servant.” (Dkt. No. 4 at 5.) Spillman raised this claim in
his state habeas applications, and the TCCA rejected it when it denied the
applications without written order. (See Dkt. No. 11-30 at 28; Dkt. No. 11-31 at 28;
Dkt. No. 11-32 at 27; Dkt. Nos. 11-33, 16.)
Under Texas Rule of Evidence 901, “[t]o satisfy the requirement of
authenticating or identifying an item of evidence, the proponent must produce
evidence sufficient to support a finding that the item is what the proponent claims it
is.” Tex. R. Evid. 901(a). Regarding the complained-of exhibit here, the record
shows that the State presented a video recording during trial from Carper’s police
vehicle of events leading to Spillman’s arrest and the charged offense conduct. (See
Dkt. No. 11-27 at 45.) Carper testified that he had reviewed the video recording, and
he confirmed that the video recording had “been somewhat edited for court
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purposes” and was a “fair and accurate depiction of all the essential things that
happened that night[.]” (Dkt. No. 11-27 at 45-46.)
Because the “testimony of a witness with knowledge” that the evidence “is
what it is claimed to be” satisfies the authentication requirement of Rule 901(a), and
Carper provided such testimony at trial, Spillman fails to identify any meritorious
basis under Rule 901(a) on which state trial counsel could or should have objected to
the video recording. Tex. R. Evid. 901(b)(1) (capitalization altered). For example,
he provides no facts or evidence to rebut Carper’s testimony authenticating the
recording;8 nor does he explain how state trial counsel’s alleged failure to inform him
that the recording was edited for court purposes constituted constitutionally deficient
performance. Because state trial counsel is not deficient for failing to make a
meritless objection and conclusory allegations are insufficient to show deficient
performance, Spillman fails to satisfy the first prong of Strickland. See Sones v. Hargett,
61 F.3d 410, 415 n.5 (5th Cir. 1995) (“Counsel cannot be deficient for failing to press
a frivolous point.”); Miller, 200 F.3d at 282.
Spillman also fails to provide any facts or evidence, beyond conclusory
assertions, to show a reasonable probability that the result of the trial would have
been different absent state trial counsel’s alleged deficiencies relating to the
8 Spillman states that “the unedited portion of the visual video not admitted into
evidence at trial will clearly show petitioner was not resisting arrest his hands were in the air
above his head which was exculpatory evidence excluded by the trial court.” (Dkt. No. 4 at
3 (emphasis omitted).) Spillman fails to identify any evidence in the record to substantiate
this statement regarding the contents of the “unedited” recording. Because his “bald
assertions,” unsupported by the record, are not “of probative evidentiary value,” his
unsubstantiated allegations do not save his claim. Ross, 694 F.2d at 1011.
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recording. His conclusory allegations of prejudice are insufficient to satisfy the
second prong of Strickland. See Ross, 694 F.2d at 1011; Schlang v. Heard, 691 F.2d
796, 799 (5th Cir. 1982) (“Mere conclusory statements do not raise a constitutional
issue in a habeas case.”).
Because Spillman fails to satisfy his burden under both prongs of Strickland to
show that state trial counsel rendered ineffective assistance relating to the
complained-of recording, he has not shown that the TCCA’s denial of the claim was
unreasonable or contrary to clearly established federal law. He is not entitled to
§ 2254 relief on this conclusory claim, and the Court should deny it.
D. Motion to Suppress
Spillman appears to contend that state trial counsel rendered ineffective
assistance because he failed to file a motion to suppress based on the alleged
unlawfulness of his detention and search under the Fourth Amendment.9 (See Dkt.
No. 3 at 8; Dkt. No. 4 at 3; Dkt. No. 25 at 3-6.) Spillman raised this claim in his
state habeas application challenging his conviction for possession of a controlled
substance. (See Dkt. No. 11-32 at 25-26.) The TCCA rejected the claim when it
denied that application without written order. (See Dkt. No. 16 at 4.)
To the extent Spillman asserts this claim here in connection with his
possession offense, he fails to show resulting prejudice under the second prong of
9 The State interpreted Spillman’s allegation in his third ground that “fruit of the
poisonous tree led to extra activity,” as an argument that state trial counsel should have
moved to suppress evidence. (Dkt. No. 3 at 8 (emphasis removed and capitalization
altered); see also Dkt. No. 21 at 18-21.) Spillman then adopted this interpretation and
asserted arguments in support of this ground in his reply. (See Dkt. No. 25 at 3-6.)
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Strickland. The record shows that state trial counsel argued for a jury instruction
under Article 38.23(a) of the Texas Code of Criminal Procedure on the same bases
Spillman asserts should have been raised in a suppression motion, namely, that the
methamphetamine for which he was convicted was unconstitutionally seized and
therefore inadmissible.10 (See Dkt. No. 11-27 at 143-51.) The state trial court
rejected the arguments and denied the requested instruction. (See id. at 148-51.)
Given that the state trial court rejected the arguments that the methamphetamine
was obtained unconstitutionally, Spillman fails to show a reasonable probability that
the same arguments would have been sustained had state trial counsel raised them in
a motion to suppress and that the outcome of the trial would have been different.11
See, e.g., Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (holding that prejudice under
Strickland requires a “‘substantial,’ not just ‘conceivable,’ likelihood of a different
result.” (citing Harrington v. Richter, 562 U.S. 86, 112 (2011))). Spillman therefore
10 Article 38.23(a) of the Texas Code of Criminal Procedure states:
No evidence obtained by an officer or other person in violation of any
provisions of the Constitution or laws of the State of Texas, or of the
Constitution or laws of the United States of America, shall be admitted in
evidence against the accused on the trial of any criminal case.
In any case where the legal evidence raises an issue hereunder, the jury shall
be instructed that if it believes, or has a reasonable doubt, that the evidence
was obtained in violation of the provisions of this Article, then and in such
event, the jury shall disregard any such evidence so obtained.
Tex. Crim. Proc. art. 38.23(a).
11 Spillman appears to argue that the state trial court erred in denying the Article
38.23(a) instruction. (See Dkt. No. 4 at 2 (“trial court clearly denied petitioner request
(38.23) erred in affirming violating constitutional right.”).) His conclusory allegation is
insufficient to warrant § 2254 relief, and to the extent it can be liberally construed as an
independent, unexhausted claim for relief, the Court should deny it. See Ross, 694 F.2d at
1011.
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fails to satisfy his burden under Strickland and fails to show that the TCCA’s rejection
of the claim was unreasonable or contrary to clearly established federal law.12 The
Court therefore should deny this claim on this basis as it pertains to Spillman’s
possession offense.
For the first time in his reply, Spillman also appears to raise this ground as a
basis for habeas relief on his assault convictions, alleging that “the two assault cases
but for counsel’s unprofessional error, they too, would have had a different result in
my opinion, because those allegations stem from unreasonable detention.” (Dkt.
No. 25 at 6.) 	According to Spillman, “[b]ecause the state could not have mentioned
the portion of the illegal stop relating to the drugs, the predicate reason for the
alleged assaults, would not have reached the ears of a jury and therefore they would
not have been able to figure out why the supposed assaults took place.” (Id.) To the
extent his allegations can be liberally construed to assert a claim independent of that
raised as to his possession offense, the claim appears to be unexhausted and
procedurally barred from federal habeas review because he did not raise it in his state
habeas applications challenging the assault convictions, and it would now be barred
by the Texas abuse-of-the-writ doctrine if raised in a subsequent state habeas
application. See, e.g., Bautista v. McCotter, 793 F.2d 109, 110 (5th Cir. 1986); Coleman
v. Thompson, 501 U.S. 722, 735 n.1 (1991).
12 Because Spillman’s allegations fail to demonstrate Strickland prejudice, the
performance prong need not be addressed. See Amos v. Scott, 61 F.3d 333, 348 (5th Cir.
1995).
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Even if the Court assumes for purposes of this petition only that Spillman
properly exhausted this claim in the state habeas proceedings, however, and that it is
not otherwise procedurally barred, the claim fails on the merits. Under Texas law,
“it is not a defense to assaulting a public servant in the lawful discharge of his official
duties that the arrest attempted by the public servant was illegal.” Castillo v. State,
No. 04–16–00106–CR, 2017 WL 2960406, at *4 (Tex. App.—San Antonio July 12,
2017, no pet.) (citation and internal quotation marks omitted); see also Bell v. State,
233 S.W.3d 583, 588 (Tex. App.—Waco 2007, pet. dism’d). As such, Spillman has
presented no meritorious basis on which state trial counsel could have filed a motion
to suppress as to the assault offenses.
Because state trial counsel is not deficient for failing to raise a meritless claim,
Spillman fails to satisfy the first prong of Strickland and to show resulting prejudice
under the second prong of Strickland. See United States v. Kimler, 167 F.3d 889, 893
(5th Cir. 1999) (“An attorney’s failure to raise a meritless argument . . . cannot form
the basis of a successful ineffective assistance of counsel claim because the result of
the proceeding would not have been different had the attorney raised the issue.”).
He therefore fails to show that state trial counsel was ineffective for failing to move
for suppression of evidence as alleged for his offenses of assault on a public servant,
and his claim is without merit. He is not entitled to § 2254 on this claim, and the
Court should deny it.
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VI. ACTUAL INNOCENCE
Although his third ground is unclear, he appears to contend that he is actually
innocent of the assault convictions based on the officers’ alleged “conflicting,
contradicting testimony while under oath” and because “fruit of poisonous tree led to
extra activity.” (Dkt. No. 3 at 8 (emphasis omitted and capitalization altered); see
also id. at 9; Dkt. No. 4 at 3.)
A standalone claim of actual innocence is not a cognizable ground for federal
habeas relief. See Herrera v. Collins, 506 U.S. 390, 400-01 (1993); Floyd v. Vannoy, 894
F.3d 143, 155 (5th Cir. 2018). Even if a “truly persuasive” showing of actual
innocence could merit federal habeas relief, the threshold to such relief would be
“extraordinarily high.” Herrera, 506 U.S. at 417. Spillman cannot satisfy this high
burden.
A claim of “[a]ctual innocence means ‘factual innocence, and not mere legal
insufficiency.’” United States v. Jones, 172 F.3d 381, 384 (5th Cir. 1999) (quoting
Bousley v. United States, 523 U.S. 614, 623 (1998)). Spillman’s allegations are
premised on unsubstantiated assertions and testimony and evidence presented at trial
that he contends show that he was not resisting arrest when the officers were injured.
(See Dkt. No. 3 at 8-9; Dkt. No. 4 at 3.) His allegations, at best, challenge the legal
sufficiency of the offenses of resisting arrest—of which he was not convicted—and
assault on a public servant; they do not establish his factual innocence of his assault
convictions. To the extent it is asserted, the Court should deny Spillman’s claim of
actual innocence.
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VII. EVIDENTIARY HEARING
Spillman appears to seek an evidentiary hearing in this Court on some, if not
all, of his claims. (See Dkt. No. 25 at 2.) Upon review of the pleadings and the
proceedings held in state court as reflected in the state court records, an evidentiary
hearing appears unnecessary, and Spillman has not shown he is entitled to an
evidentiary hearing before this Court on any of his claims.
VIII. RECOMMENDATION
The Court should DENY the Petition for a Writ of Habeas Corpus by a
Person in State Custody, received on March 29, 2023 (Dkt. No. 3), with prejudice.
SO RECOMMENDED on November 25, 2025.
____________________________________
BRIAN McKAY
UNITED STATES MAGISTRATE JUDGE
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INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of this report and recommendation will be served on all parties in the
manner provided by law. Any party who objects to any part of this report and
recommendation must file specific written objections within 14 days after being
served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). To be specific,
an objection must identify the finding or recommendation to which objection is
made, state the basis for the objection, and indicate the place in the magistrate
judge’s report and recommendation where the disputed determination is found. An
objection that merely incorporates by reference or refers to the briefing before the
magistrate judge is not specific. Failure to file specific written objections will bar the
aggrieved party from appealing the factual findings and legal conclusions of the
magistrate judge that are accepted or adopted by the district court, except upon
grounds of plain error. See Douglass v. United Services Automobile Ass’n, 79 F.3d 1415,
1417 (5th Cir. 1996), modified by statute on other grounds, 28 U.S.C. § 636(b)(1)
(extending the time to file objections to 14 days).
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