Barr v. Director, TDCJ-CID

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
ABILENE DIVISION
TODD WILLIAM BARR,
Petitioner,
No. l:23-CV-00034-H
DIRECTOR, TDCJ-CID,
Respondent
OPIMONANDORDER
Petitioner Todd William Barr, a self-represented state prisoner, filed a petition for writ of
habeas corpus under 28 U.S.C. 0 2254 challengng his arson conviction and 40-year sentence out
of Taylor County. He asserts that he is actually innocent, that he received ineffective assistance
oftrial and appellate counsel, and that the State engaged in prosecutorial misconduct during its
closing argument. Dkt, No. I .
Respondent frled an answer with copies of Petitioner's relevant state-court records. Dkt.
Nos. 9, 10. Respondent argues that Petitioner's actual-innocence claim is not cognizable here,
that Petitioner's prosecutorial misconduct claim and part ofhis ineffective-assistance claims are
unexhausted and procedurally defaulted, and that his claims otherwise lack merit. Dkt. No. i0.
Petitioner replied. Dkt. No. 17-1.
As explained below, Petitioner's actual-innocence claim is not viable as a freestanding
ground for relief, and in any event, he fails to present a credible showing ofactual innocence.
Moreover, Petitioner otherwise fails to show cause or prejudice to excuse his failure to properly
exhaust the majority of his claims, which are now procedurally barred. Otherwise, the Court
finds that Petitioner has failed to overcome the difficult, deferential standard of 28 U.S.C.
5 2254(d). Thus, the petition must be denied and dismissed with prejudice.
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l. Background
Petitioner chailenges his state-court conviction and prison sentence out ofthe 42nd
District Court of Taylor County, Texas. In cause number27680-4, styled State of Texas v. Todd
llilliam Bar, Petitioner was charged by indictment with three counts of arson enhanced with
one prior felony conviction. Dkt. No. 9-l at 16-ll . Petitioner pled not guilry and elected to
proceed with a jury trial. See id at 37 . After the close of evidence but before the jury was
charged, the State abandoned Counts Two and Three and proceeded only on Count One. Dkt.
No.9-14 at29. The jury found him guilty. Id.at76. Petitioner pled true to the enhancement,
and after hearing additional evidence, thejury sentenced him to 40 years in prison with a $5,000
fme. Dkt. No. 9-15 at 45; Dkt. No. 9-1 at 36.
Petitioner appealed, and the Eleventh Court of Appeals afflrmed his conviction. Dkt.
No. 9-4. He fi.led a petition for discretionary review (PDR), but it was refused by the Texas
Court of Criminal Appeals (TCCA).
Petitioner then filed his hrst state habeas application, asserting eight grounds for relief.
Dkt. No. 9-17. The TCCA determined that most of Petitioner's claims lacked merit, but it
remanded the writ back to the trial court for additional evidence or findings on three of
Petitioner's ineffective-assistance-of-counsel claims. Dkt. No. 9-18.
In response to the TCCA's remand, the trial coun obtained affidavits from Petitioner's
trial and appellate counsel. Dkt. No. 9-22 at 1l-16. Based on counsels' affrdavits, the trial
court determined that neither attomey's performance was deficient, so it recommended that the
TCCA deny the application. Id. at10. Before ruling on the application, the TCCA noted that
the record appeared to be missing page 5 ofPetitioner's memorandum and the trial court's
findings, if any, as to Petitioner's fourth, fifth, sixth, seventh, or eighth grounds. I The TCCA
I The trial court made findings on Petitioner's first three grounds for reliefbefore forwarding the wnt
to the TCCA. Dkt. No. 9-17 at 73-74.
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ordered the district clerk to either forward these documents or certiry that they were not part of
the record. Dkt. No. 9-23. The district clerk complied and forwarded the missing
memorandum page with a few other miscellaneous documents from the trial court's records.
Dkt. No. 9-24. Then, the trial court entered supplemental findings of fact and conclusions of
law addressing each of Petitioner's original claims more fully, including those that the TCCA
had already determined lacked merit. Dkt. No. 9-25 at 5-13.
Meanwhile. after the TCCA's limited remand of Petitioner's three ineffective-assistance
claims, and before the trial court entered its additional findings, Petitioner filed a motion to
amend his state habeas application to add a ninth claim-actual innocence. Dkt. No. 9-20. In
support of his motion to amend and his newly asserted actual-innocence claim, Petitioner
submitted a one-paragraph, unsworn declaration fiom his codefendant, Tyler Lee, stating that
Petitioner "had no knowledge ofthe events occurring that day nor did he participate in starting
the fue." Id. at8. The trial court did not address Petitioner's motion to amend or his proposed
new actual-innocence claim. Dkt. No. 9-25 at 5-13. The TCCA ultimately denied Petitioner's
habeas application without written order on the fhdings of the trial coun without a hearing and
on the court's independent review ofthe record. Dkt. No. 9-26.
Petitioner then frled a second state habeas application asserting only his acrual-innocence
claim. Dkt. No. 9-27. He attached the same one-page statement from Tyler Lee as well as a
new, longer, and more detailed declaration from Lee. ld.at67,69-71. The trial court certified
that there were not any controverted, previously unresolved facts material to the legality of
Petitioner's confinement, and there appeared to be no reason that Petitioner's subsequent claim
and factual allegations could not have been raised in his fust application. Dkt. No. 9-28. The
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TCCA dismissed the application without written order as a subsequent application under Tex.
Code Crim. Proc. Art 11.07 0 4(aHc). Dkt. No. 9-29.
Petitioner then timely filed this federal petition. Dkt. No. 1. Petitioner raises the
following grounds for relief:
I . He is actually innocent based on the statements of his codefendant, Tyler Lee;
2. He received ineffective assistance of trial counsel when his attomey failed to
investigate material evidence, an alibi witness, and factual witnesses;
3. The State engaged il prosecutorial misconduct when it vouched for the truthfulness
of the accomplice witness and injected facts into its closing argument that were not
contained in the testimony presented at trial; and
4. He received ineffective assistance of appellate counsel when his attomey raised only
suffrciency of the evidence even tfuough there were more plausible arguments.
Dk. Nos. 1.
Respondent argues that the Court cannot properly review Petitioner's freestanding
actual-innocence claim under Section 2254 because of longstanding Fifth Circuit precedent.
Moreover, Respondent contends that Petitioner wholly failed to exhaust his prosecutorial
misconduct claim and partially failed to exhaust his ineffective-assistance-of-counsel claims,
which are now procedurally barred from review. Finally, Respondent contends that Petitioner's
claims otherwise fail to overcome the deferential standard imposed by the Antiterrorism and
Effective Death Penalty Aa of 1996 (AEDPA).
In reply, Petitioner focuses on the somewhat convoluted procedural path of his state
habeas application, insisting that he properly raised his actual-innocence claim in his original
proceeding, but the trial court overlooked it. He asserts that he fairly presented his actual-
innocence claim to the state habeas court by moving to amend before his claims were forwarded
back to the TCCA for disposition. And he claims that he only frled his second habeas
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application, with a second, more detailed declaration from Lee, after he realized that the state
habeas court had ignored his actual-innocence claim during his fust habeas proceeding.
Next, Petitioner does not necessarily dispute that he failed to exhaust some ofhis
ineffective-assistance claims, but he contends that " [e]verything, facrually, in those sections is
contained in the state habeas courl record." Dkt. No. l7-i at 15. He insists that the record
shows that his trial counsel's performance was deficient and that he was prejudiced as a result.
Likewise, he repeats his claim that his appellate counsel was deficient for failing to raise errors
that were preserved by objection. And he asserts that he raised his prosecutorial misconduct
argument in his state habeas application, but he admits that "[t]here were undertones ofan
'abuse of discretion' argument conceming the trial court allowing the improper argument. "
Dkt. No. 17-I at 16. Finally, Petitioner concludes that "[t]he state-court decision, considering
[his] aaual innocence claim, runs contrary to facts presented to the state courl; the decision to
deny relief without considering those facts, i.e., to remain silent violates clearly established
federal law. "
2. Legal Standard
Section 2254 provides federal courts with a limited, but important opponuniry to review
a state prisoner's conviction and sentence. See Hanington v. Richter,562 U.S.86, 103 (2011).
This statute, as amended by AEDPA, creates a "highly deferential standard for evaluating state-
court rulings, . . . which demands that state-court decisions be given the benefit ofthe doubt."
lVoodford v. Viscotti,537 U.S. 19, 24 (2002) (per atriam) (internal quotation mark omitted).
The basic structure ofthe federal habeas statute is "designed to confirm that state courts
are the principal forum for asserting constitutional challenges to state convictions." Richter,562
U.S. at 103. First, the statute requires that a habeas petitioner exhaust his claims in state court.
28 U.S.C. $ 2254(b). Ifthe state court dismisses the claim on procedural grounds, then the
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claim is barred from federal review unless the petitioner shows cause and prejudice. Richtet 562
U.S. at 103. And if the state court denies the claim on the merits, then AEDPA's relitigation
barapplies. Lucio v. Lumpkin, 987 F.3d451, 464-65 (5th Ct. 2021).
A. Exhaustion and Procedural Default
Couns may not grant habeas reliefunless the petitioner frst exhausts all available state
remedies. 28 U.S.C. $ 2254OX1XA). "The exhaustion requtement of 0 2254(b) ensures that
the state courts have the opportunity fully to consider federal-law challenges to a state custodial
judgment before the lower federal courts may entertain a collateral attack upon that judgment. "
Duncan v. Walker,533 U.S. 167, 178-79 (2001). Although unexhausted claims prevent courts
from granting relief, courts may deny a petition on the merits despite the petitioner's failure to
exhaust the state remedies. 28 U.S.C. 5 2254@)(2).
"The exhaustion requirement is satisfied when the substance ofthe federal habeas claim
has been fairly presented to the highest state court." Witehead v. Johnson, 157 F.3d 384, 387
(5th Cn. 1998), which in Texas is the TCCA. Richardson v. Procunier,762 F.2d 429,43i-32 (5th
Cir. 1985). More than mere presentation of claims to the high cout is requhed. Raising a claim
"in a procedural context in which its merits will not be considered" does not constitute "fair
presentation"; thus, it cannot satisry the exhaustion requirement. Castille v. Peoples,489 U.S.
346, 351 (1989). To present claims to the TCCA, a petitioner must pursue his claims through
direct appeal and a PDR or through a state habeas application. See Mym v. Collirc, 919 F.2d
t074, 1076 (sthCir. 1990).
Additionally, ifa petitioner presents new legal theories or factual claims in his federal
habeas petition, then he has not met the exhaustion requirement. Nobles v. Johnson, 127 F .3d
409, 420 (5th Cir. 1997) (citng Anderson v. Harless,459 U.S. 4, 6-7 (1982)). "It is not enough
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that aU the facts necessary to support the federal claim were before the state courts or that a
somewhat similar state-law claim was made." Harless,459 U.S. at 6 (intemal citations omitted).
In the context of federal habeas proceedings, a resolution (or adjudication) on the merits
is a term ofart that refers to whether a court's disposition ofthe case was substantive, rather
than procedural . Millerv. Johnson,200 F.3d 274,281 (5th Cir.2000) (citing Gremv. Johnson, 116
F.3d 1115, 1121 (5th Cn. 1997)). In Texas writ jurisprudence, a "denial" signifies that the state
high court "addressed and rejected the merits of a particular claim," but a "dismissal" means
that the court "declined to consider the claim for reasons unrelated to the claim's merits. " E:
parte Torres,943 S.W .2d 469, 472 (Tex. Crim. App. 1997); Banimtes v. Johnson, 221 F .3d 741,
780 (sth Cir. 2000).
Along with the exhaustion requirement, the doctrine ofprocedural default provides "[a]
distina but related limit on the scope of federal habeas review." Nobles, 127 F.3d at420.
Federal habeas courts are barred fiom reviewing a question offederal law decided by a state
court "ifthe decision ofthat court rests on a state law ground that is independent ofthe federal
question and adequate to support the judgment," whether the ground is substantive or
procedural. Coleman v. Thompson,50l U.S. 722,729-30 (1991). In Texas, the high court's
dismissal ofa habeas application as subsequent provides an adequate and independent state
ground, barring federal review. See Nobles, 127 F.3dat423.
"[A] habeas petitioner who has failed to properly present his federal constitutional
claims to the state courts can still be considered to have exhausted his state remedies if
the state courts are no longer open to his claim because of a procedural bar. " Busby r,. Dretke,
359 F.3d 708,724 (5rh Cir.2004). But "the same procedural bar that satisfies the exhaustion
requirement at the same time provides an adequate and independent state procedural ground to
support the state judgrnent and thus prevents federal habeas corpus review ofthe defaulted
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claim." Id. A petitioner may overcome this bar only if he can show "cause for the default and
actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to
consider the claims will result in a fundamental miscarriage ofjustice." Id. at750.
But ifa federal claim was fairly presented to the state court, then the federal habeas coun
cannot assume that the state court overlooked the claim. Johnson v. (Tara) Williams,568 U.S.
289,298 (2013). Instead, the federal court must presume that the state court adjudicated the
federal claim on the merits, and thus the relitigation bar of Section 2254(d) applies. Lucio, 98'l
F .3d at 464-65 (citng (Tara) Williams,568 U.S. at 298).
B. AEDPA's Relitigation Bar
Once a state court has rejected a claim on the merits, a federal court may grant reliefon
that clarm only ifthe state court's decision was (l) "contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court ofthe
United States," or (2) was "based on an unreasonable determination ofthe facts in light ofthe
evidence presented in the state coun proceeding." 28U.S.C. $2254(d); Adekeye t Davis,938
F.3d 678,682 (5th Cir. 2019). And "[t]he question under AEDPA is not whether a federal court
believes the state court's determination was incorrect but whether that determination was
unreasonable-a substantially higher threshold ." Schriro v. Landigan,550 U.S. 465,473 (2007).
A state-court decision is contrary to clearly established federal law if "it relies on legal
rules that directly conflict with prior holdings ofthe Supreme Court or if it reaches a different
conclusion than the Supreme Court on materially indistinguishable facts." Busby,359F.3dat
713. A decision constitutes an unreasonable application ofclearly established federal law if "the
state court identifies the correct goveming legal principle from [the Supreme] Court's decisions
but unreasonably applies that principle to the facts ofthe prisoner's case." l4/illiams v. Taylor,
529 U.S. 362, 413 (2000); see abo Piene v. Vannoy,89l F .3d 224,227 (5rh Cir. 2018) (explaining
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that a petitioner's lack of"Supreme Court precedent to support" a ground for habeas relief
"ends [his] case" as to that ground).
"[A] state-court factual determination is not unreasonable merely because the
federal habeas court would have reached a different conclusion in the fust instance." Wood v.
Allen,558 U.S.290,301 (2010). Federal habeas relief is precluded even when the state court's
factual determination is debatable. Id. at 303. State-court factual determinations are entitled to
a "presumption ofcorrectness" that a petitioner may rebut only by clear and convincing
evidence. 28 U.S.C. $ 2254(e)(1). This "deference extends not only to express findings offact,
but to the implicit findings of the state court." Ford v. Davis, 910 F .3d 232,234-35 (5th Cir.
2018).
The focus of federal review under Se ction 2254(d) "should be on the ultimate legal
conclusion that the state court reached and not on whether the state court considered and
discussed every ang)e." Neal v. Puckett,286 F.3d 230, 246 (2002). State courts need not provide
reasons for their decisions, and even summary denials ofreliefare entitled to substantial
deference. Richter,562 U.S. at 100-01.
Ofcourse, when the state high court "explains its decision on the merits in a reasoned
opinion," then the federal court's review is straightforward-it "simply reviews the specific
reasons given by the state court and defers to those reasons ifthey are reasonable." I4/ilson v.
Sellm,584U.S. 122,125 (2018). But when reviewing a summary denial, "the federal coutt
should'look through'the unexplained decision to the last related state-court decision that does
provide a relevant rationale." Id. If the lower court's rationale is reasonable, the federal court
must "presume that the unexplained decision adopted the same reasoning." .Id This
presumption may be rebutted, however, by evidence that the summary decision "relied or most
likely did rely on different grou nds." Id. at 125-26. And when the lower state court decision is
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uffeasonable, then it is more lil(ely that the state high court's single-word decision rests on
altemative grounds. Id. at 132.
In short, a reviewing court cannot "overlook[] arguments that would otherwise justiS
the state court's result." Richter,562 U.S. at 102. A federal habeas court "must determine what
arguments or theories supported, or . . . could have supported, the state court's decision" before
considering "whether it is possible fairminded jurists could disagree that those arguments or
theories are inconsistent" with Supreme Court precedent . Id. " As a condition for obtaining
habeas corpus from a federal court, a state prisoner 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 eror
well understood and comprehended in existing law beyond any possibility for fairminded
disagreement." Id
Moreover, "federal habeas reliefdoes not lie for erors ofstate law," and "it is not the
province of a federal habeas court to reexamine state-court determinations on state-law
questions." E*ellev.McGuire,502U.S.62,67-68(1991);I4testv.Johnson,92F.3d1385,1404
(5th Cir. 1996). AEDPA "modified a federal habeas court's role in reviewing state prisoner
applications in order to prevent federal habeas 'retrials' and to ensure that state court
convictions are given effect to the extent possible under law." Bellv. Cone,535 U.S.685,693
(2002). Federal habeas review is reserved only as a "guard against extreme malfunctions in the
state criminal justice systems, not a substitute for ordinary error correction through appeal."
Richto,562 U.S. at 102-03. This standard is intentionally "diffrcult to meet." Id.
Finally, federal habeas review is limited "to the record that was before the state court
that adjudicated the claim on the merits. " Cullm v. Pinholsto,563 U.S. 170, 181-82 (2011). In
sho(, to overcome AEDPA's highly deferential, difficult standard, a petitioner "must show,
based on the state-court record alone, that any argument or theory the state habeas court could
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have relied on to deny . . . relief was contrary to or an unreasonable appiication ofclearly
established federal law as determined by the Supreme Colurl." Evans v. Davis,875F.3d210,217
(sth Cir.20l7).
3. Analysis
The Court thoroughly examined Petitioner's pleadings, Respondent's answer, the
relevant state coun records, and the applicable law. The Court finds that an evidentiary hearing
is not necessary to resolve the instant petition. See Youngr Herring,938F.2d 543,560 n.12 (5th
Cir. 1991) (" [A] petitioner need not receive an evidentiary hearing if it would not develop
material facts relevant to the constitutionality of his conviction. "). As explained below and
based on the facts and law set forth in Respondent's answer, the Court finds Petitioner is not
entitled to federal habeas relief.
A, Petitioner's actual-innocencs shim is not viable as either a fi'eestanding
ground for relief or as a gateway to excuse other procedural bars.
"The Fifth Circuit does not recognize freestanding claims ofactual innocence on federal
habeas review." Inre Swearingen,556 F.3d 34,348 (5th CL.2009); Graves v. Cockrell, 351F.3d
143, 151 (sth Cir. 2003) (collecting cases). However, a credible claim ofactual innocence may
serve as a gateway to overcome impediments such as procedural defauit or the expiration of the
statute of limitations. McQuiggin v. Perkins,569 U.S. 383, 386 (2013).
This rule, also known as the "fundamental miscarriage ofjustice exception," is based on
equitable principles to ensure that "constitutional errors do not result in the incarceration of
innocent persons." Id. at392 (qtotrngHmerav. Collins,506 U.S. 390,404 (1993)). Importantly,
innocence here refers to factual innocence and not mere legal insufficiency. Bousley v. United
States,523 U.S. 614, 623 (1998); Sawyer v. Whitley,505 U.S. 333, 339 (1992).
"The meaning of actual innocence . . . does not merely require a showing that a
reasonable doubt exists in the light ofthe new evidence, but rather that no reasonable juror
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would have found the defendant guilty." Schlup v. Delo,5l3 U.S. 298, 329 (1995). "lT)he Schlup
standard is demanding and permits review only in the 'extraordinary' case." House v. Bell,547
U.S. 518, 538 (2006) (ciring Schlup v. Delo,513 U.S. at 329). The Supreme Court has
emphasized that this exception applies to a very narrow category ofcases. McQuiggin,569 U.S.
at 394-95. To present a credible claim of actual innocence, a petitioner must present new
evidence that was unavailable at the time of trial, based on which it is more likely than not that
no reasonable juror would have convicted the petitioner. See Calderon v. Thompson,523 U.S.
538, 559 (1998) (explaining that, to be credible, a claim ofactual innocence must be based on
reliable evidence not presented at trial).
Here, it is well established that Petitioner's actual-innocence claim is not cognizable as a
freestanding ground for relief. But in any event, because Petitioner failed to meet the
demanding standard to present a credible showing of acrual innocence, his claim also fails to
present a viable gateway to overcome the procedural bars that apply to many of his other claims.
At most, Petitioner argues that the outcome of his trial could have been different if Lee testified
consistent with his affrdavit. But Schlup requires more. Presented with the contradictory
testimony of Plaintiffs two codefendants, a reasonable finder of fact would be free to believe
either side. Petitioner has not made the required showing that no reasonable juror would have
found him guilty.
B. Petitioner failed to exhaust his prosecutorial misconduct claim and most ofhis
ineffective-assistance claims, and those claims are now procedurally bared.
Petitioner failed to exhaust his prosecutorial misconduct claim and most of his
ineffective-assistance claims. First, although Petitioner complained about the prosecutor's
improper jury argument in his state habeas application, he did so only under a theory oftrial-
court error. In other words, Petitioner complained only that the trial court ened in permitting
the improper jury argument, not that the prosecutor engaged in misconduct. Thus, the factual
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basis ofhis claim may have been before the state habeas court, but he did not fairly present the
legal basis ofhis claim to the state court.
Then, while Petitioner raised several ineffective-assistance-of-counsel (lAC) claims in his
state habeas application, he bases his federal IAC claims on almost entirely different faaual
allegations. Long established Fifth Circuit precedent mandates that courts treat each factually
distina IAC claim as a separate claim for purposes of an exhaustion analysis. Wilder v. Cockrell,
274F.3d255,261 (5thCir.2001). Here, Petitioner asserts that he received ineffective assistance
of trial counsel (IATC) when his lawyer failed to:
(1) object to the admission ofthe unauthenticated, cropped surveillance video from
Allsup's,
(2) investigate the existence ofpotentially exculpatory surveillance video from the 7-
Eleven across the street fiom Allsup's,
(3) independentiy investigate the phone records instead ofrelying on the prosecutor's
disclosures,
(4) impeach the testimony of Petitioner's codefendant Kory Roberts with his prior
inconsistent statements about the number of times he picked up and dropped off
Petitioner and the inconsistent report ofAgent Valdez about the events
immediately preceding Petitioner's arrest,
(5) effectively prepare for his cross-examination of Roberts so he could expose
Roberts' lies and inconsistencies,
(6) depose Roberts before trial, and
(7) investigate Petitioner's alibi witness, Donna Doyle, until a few days before trial.
Dkt. No. l-2.
Of these claims, only two are similar to claims he raised in his state habeas application-
his Ailsup's video claim and his alibi witness claim. And of those, only the alibi-witness claim
has the same factual basis as his state-court claim. In other words, only his alibi-witness claim is
fully exhausted. At best, Petitioner's IAC claim conceming the Allsup's video is only partially
exhausted. In his state habeas application, Petitioner complained that his counsel failed to
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object to the Allsup's video because it was not properly authenticated. Here, he complains that
the video was objectionable both because it was unauthenticated and because it was "cropped,"
so the jurydidnotseethe full picture. SeeDkt. No. 1-2at8. But in any event, Petitioner's other
IATC claims, numbered (2) through (6) above, are raised for the fust time in this federal habeas
petition. As a result, most of Petitioner's IATC claims are unexhausted and procedurally
barred.
Likewise, Petitioner attempts to base his ineffective-assistance-of-appellate-counsel
(IAAC) claims on somewhat different facts. In both his state and federal habeas cases,
Petitioner alleges that his appellate counsel was ineffective for disregarding "more plausible
arguments" and raising only suffrciency of the evidence. .!ee Dkt. Nos. 1at7;9-17 at 45, 51. In
his state application, Petitioner argues that his appellate lawyer should have challenged whether
the accomplice-witness testimony was properly corroborated and whether the trial court erred in
permitting the improper jury argument. Dkt. No. 9-17 at45,51. His federal claim focuses on
the same issues, but he shifts the factual bases, adding allegations that he did not present to the
state court. Dkt. No. l-2 at ll-18. Specifically, he adds that his appellate counsel should have
challenged the credibility ofthe accomplice-witness and that the "prosecutor outright lied" in
closing argument. Id. at 18. Again, to the extent that the factual bases of his IAAC claims were
not fairly presented to the state coun, they are unexhausted and procedurally barred.
Petitioner does not necessarily dispute that he failed to raise these claims in his frst state
habeas application. Instead, he argues that the factual bases for his claims are apparent in the
record, and he made at least similar or related legal arguments to give the state court an
opportunity to address his concems. But even if the state court had all the facts necessary to
support the federal claim or it had the opportunity to consider a somewhat similar legal
argument, that is not enough to satisfo the exhaustion requirement. Harless,459 U.S. at 6.
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Thus, the Court finds that Petitioner's prosecutorial misconduct claim and most of his
ineffective-assistance-of-counsel claims are unexhausted. And because Texas's abuse-of+he-writ
doctrine would prevent him fiom retuming to state court to exhaust his claims at this juncture,
his claims are procedurally barred.
C. Petitioner has not overcome AEDPA's relitigation bar on his exhausted
claims.
Petitioner did fairly present some of his IAC claims to the state habeas court, and the
TCCA rejeaed those claims based on the findings of the trial court and its own independent
review. Petitioner has not shown that the TCCA's decision was contrary to or involved an
unreasonable application ofclearly established federal law or was based on an unreasonable
determination ofthe facts in light ofthe evidence presented in the state court proceedinS.
The well-known standard applicable to IAC claims is articulated tn Strickland v.
Washington,466 U.S. 668, 689 (1984). Under the two-pronged Strickland test, a petitioner must
show that counsel's performance was both deficient and prejudicial. Id. at 687 . An attomey's
performance was deficient if the attomey made errors so serious that the attorney was not
functioning as the "counsel" guaranteed the defendant by the Sixth Amendment to the United
States Constitution. Id. That is, counsel's performance must have fallen below the standards of
reasonably competent representation as determined by the norms ofthe profession.
A reviewing court's scrutiny of trial counsel's performance is highly deferential, with a
strong presumption that counsel's performance falls within the wide range of reasonable
professional assistance. Id. at 689. A strong presumption exists "that trial counsel rendered
adequate assistance and that the challenged conduct was reasoned trial strategy. " W'ilkerson v.
Collins,950 F.2d 1054, 1065 (5th Cn.1992)(citrngStrickland,466U.S.at694).
Additionally, a petitioner must show that counsel's deficient performance prejudiced the
defense. To establish this prong, a petitioner must show that counsel's erors were so serious as
15
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to deprive petitioner ofa fair trial. StricHand,466 U.S. at 687. Specifically, to prove prejudice, a
petitioner must show "(1) there is a reasonable probability that, but for counsel's unprofessional
erors, the ultimate result ofthe proceeding would have been different . . . and (2) counsel's
deficient performance rendered the trial fundamentally unfai." Creelr Johnson, 162 F.3d 385,
395 (5th Cir. 1998). "Unreliability or unfaimess does not result if the ineffectiveness of counsel
does not deprive the defendant ofany substantive or procedural right to which the law entitles
him." Lockhart v. Fretwell,506 U.S. 364, 372 (1993). This is a heavy burden that requires a
"substantial," and notjust a "conceivable," likelihood ofa different res!1t. Richter,562 U.S. at
ll2; see also Pinholster, 563 U.S. at 189.
In the context ofSection 2254(d), the deferential standard that must be given to counsel's
representation must also be considered in tandem with the deference that must be accorded
state-court decisions, which has been called "doubly" deferential. Richter,562 U.S. at 105.
"When $ 2254(d) applies, the question is not whether counsei's actions were reasonable. The
question is whether there is any reasonable argument that counsel satisfied Stricklands
deferential standard. " Id Additionally, if a petitioner fails to show either the deficienry or
prejudice prong of the St/ickland test, then the Coun need not consider the other pron8.
Strickland, 466 U .5. at 697 .
Here, the state habeas court considered the affrdavits ofPetitioner's trial and appellate
counsel and the trial records and concluded that the attomeys' performance was neither
deficient nor prejudicial. Specifically, the state trial court found that trial counsel's failure to
object to the Allsup's video was a reasonable suategic decision because the video implicated
only Petitioner's codefendant and not Petitioner. Dkt. No. 9-25 at 7-8. Moreover, the trial
court determined that any objection to the authentication ofthe video would have been futile
because the testimony of Petitioner's codefendant-identirying himself as the person on the
l6
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t7
video purchasing gasoline-was suffrcient to authenticate the video. Id. So, the court
concluded that trial counsel's failure to object to the video was not deficient, and that Petitioner
was not prejudiced by his attomey's farlure to object. Id. Likewise, the trial court found that
trial counsel's failure to investigate Petitioner's alibi witness until three days before trial was not
deficient or prejudicial because Petitioner failed to show what an earlier investigation would
have revealed that could have changed the result ofthe case. Id. at 12. Moreover, the court
found that counsel's statement describing his prior unsuccessful attempts to contact the witness
was credible and reasonable. Id. F\nally, the court concluded that, given the witness's alibi
testimony at trial, Petitioner had failed to demonstrate that he was prejudiced by counsel's delay
in contacting the witness. Id. at 13.
The trial court also determined that Petitioner's appellate counsel's performance was not
deficient. Id.at6,8-11. First the court found that appellate counsel fully litigated the
suffrcienry of the corroboration testimony in his broader suffrcienry-of-the-evidence argument,
and there is no indication that auempting to raise the argument under a different heading would
have changed the result. /d at 6. Then, the court made more detailed findings that the
prosecutor's closing argument was proper, and that appellate counsel was not deficient for
failing to raise a fiivolous issue on appeal. Moreover, the court concluded that, in light ofthe
other evidence presented at trial, there is no reasonable probability that any error in the closing
argument would have been found harmful or resulted in a new trial.
The state habeas court reasonably concluded that Petitioner failed to demonstrate that
his attomeys' performance was deficient or that he suffered any harm as a result. See Strickland
r. llashington,466 U.S. 668,689 (1984). And he has failed to overcome the diffrcult, doubly
deferential standard required by Section 2254(d). Thus, he is not entitled to federal habeas relief
on his IAC claims.
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4, Conclusion
For the reasons discussed above and based on the facts and law set forth in Respondent's
answer, the Court denies Petitioner's claims and dismisses the petition with prejudice.
Additionally, pursuant to Rule 22 ofthe Federal Rules of Appellate Procedure and 28
U.S.C. 5 2253(c), Petitioner has failed to show that reasonable jurists would (1) find this Court's
"assessment ofthe constitutional claims debatable or wrong," or (2) find "it debatable whether
the petition states a valid claim ofthe denial ofa constitutional right" and "debatable whether
[this Court] was correct in its procedural rulng." Slack v. McDaniel,529 U.S. 473,484 (2000).
As a result, the Court denies any request for a certificate of appealabiliry.
So ordered.
J S WESLEY HENDRIX
nited States District Judge
18
The Court will enter judgment accordingly.
Datedlanuary 7l ,2926.
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