Farmer v. Lumpkin

TYLER DAVID FARMER,
Petitioner,
V.
BOBBY LUMPKIN, et al. ,
Respondents.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
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§ 	CIVIL ACTION NO. 2:24-CV-00178
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ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
Before the Court is Magistrate Judge Jason Libby ' s Memorandum and Recommendation
("M&R" ). (D.E. 33). The M&R recommends that the Court grant Respondent's Motion for
Summary Judgment, (D.E. 31), dismiss Petitioner' s 28 U.S.C. § 2254 habeas petition, (D. E. 1) ,
and deny a certificate of appealability. Petitioner filed written objections to the M&R. (D .E. 37;
D.E. 41). 1
I. Legal Standard
When a party objects to the findings and recommendations of a magistrate judge, the
district judge "shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(l)(C). As
to any portion for which no objection is filed, a district court reviews for clearly erroneous factual
findings and conclusions oflaw. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989) (per
curiam). When a party raises "a new argument that was not presented to the magistrate judge," it
1 Petitioner' s objections were due August 27 , 2025 . (D. E. 33 , p. 25). Petitioner filed one set of objections
on August 25 , 2025. (D.E. 37). On August 26 , 2025, Judge Libby issued an order, (D .E. 40), denying
Petitioner' s Motion to Require State Furnish Trial Transcript, (D.E. 38), and Motion to Require State to
Furnish Any Relevant Records, (D.E. 39). In that order, Judge Libby granted Petitioner a final extension to
file an y objections on or before September 8, 2025 . (D.E. 40 , p. 2- 3). Petitioner then filed a second set of
objections on September 15 , 2025. (D.E. 41). Accordingly, both sets of Petitioner' s objections are timely.
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United States District Court
Southern District of Texas
ENTERED
January 31, 2026
Nathan Ochsner, Clerk
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is not properly before the Court. Finley v. Johnson, 243 F.3d 215 , 218 n.3 (5th Cir. 2001) ("We
have held issues raised for the first time in objections to the report of a magistrate judge are not
properly before the district judge.") (citing United States v. Armstrong, 951 F .2d 626, 630 (5th Cir.
1992)).
II. Analysis
Petitioner has raised numerous objections to the M&R. See generally (D.E. 37; D.E. 41).
The Court addresses each in turn.
A. Petitioner's request for trial transcripts and records.
Petitioner filed two sets of objections. (D.E. 37; D.E. 41). In his first set of objections,
Petitioner repeatedly requested the Court provide him with the "records that the State referenced
in their response" and "the transcripts from [his] trial." (D.E. 37, p. 1); see also id. at 2- 3, 6- 7.
Petitioner subsequently filed two motions: Motion to Require State Furnish Trial Transcript, (D.E.
38), and Motion to Require State to Furnish Any Relevant Records, (D.E. 39). On August 26,
2025, Judge Libby entered an order denying both motions and granting Petitioner a final extension
to file any objections. (D.E. 40, p. 1-3). Petitioner then filed a second set of objections. (D.E. 41).
In his second set of objections, Petitioner disputed Judge Libby's reasoning in his order denying
Petitioner' s motion, arguing that " my court appointed [counsel] may have had access to the
record[,] but I never have actually had access to it myself." (D.E. 41 , p. 1- 2).
Petitioner 's request for trial transcripts in his first set of objections is not a valid objection
to the M&R because his request does not "identify an error in a finding of fact or conclusion of
law that is relevant and material to the decision," nor is it "support[ed] ... with an argument and
relevant citations of legal authority and/or record references." McCann v. Lawson, No. 2:20-CV-
139 , 2021 WL 119190, at *1 (S .D. Tex. Jan. 13 , 2021) (Ramos, J.) (citing Battle v. US Parole
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Cmm 'n, 834 F.2d 419, 42 (5th Cir. 1987)). Rather than object to any finding or rationale in the
M&R, Petitioner requests the transcripts "to respond properly and accurately" to Respondent's
motion for summary judgment. (D.E. 37, p. 1). Likewise, Petitioner' s second set of objections do
not object to the M&R, but rather to Judge Libby ' s order denying Petitioner's request. See (D.E.
41 , p. 1- 2) .
A magistrate judge is entitled to broad discretion in the resolution of non-dispositive
motions. Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(l)(A). If a party objects to a magistrate judge's
ruling on a non-dispositive matter, the district court will disturb that ruling only when it "is clearly
erroneous or is contrary to law." Fed. R. Civ. P. 72(a); Castillo v. Frank, 70 F.3d 382, 385 (5th
Cir. 1995). A finding is clearly erroneous when a reviewing court is "left with the definite and firm
conviction that a mistake has been committed." United States v. U S Gyps um Co. , 333 U.S. 364,
395 (1948).
As Judge Libby explained in his order, in the absence of a particularized need, indigent
habeas petitioners do not have a constitutional right to free copies of state criminal trial records.
(D. E. 40, p. 2) . Having reviewed Judge Libby's order denying Petitioner' s motions for his trial
transcripts and records, the Court does not find the order's conclusions are clearly erroneous or
contrary to law. Accordingly, the Court OVERRULES these objections.
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B. Petitioner's objections to the M&R.
The Court summarizes Petitioner's remaining objections as follows:
1. 	Petitioner objects to the M&R' s finding of procedural default and requests his default
be excused "on the fact that [his] direct appeal and PDR was filed by a court appointed
attorney who had access to all applicable records" whereas he is now proceeding pro
se. (D.E. 37, p. 3).
2. 	Petitioner objects to the lower court's findings "that there was error in the jury charge
but no ' egregious harm' was done[.]" Id.
3. 	Petitioner objects to the M&R' s finding that his ineffective assistance of counsel claims
are without merit and argues he "had the right to affordable bond, [he] never had a[n]
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affordable bond." Id. at 5.
4. 	Petitioner objects to the M&R' s finding that his McCoy claim is without merit. Id. at
5- 6.
5. 	Petitioner objects to the M&R's finding that a motion for new trial was not filed. Id. at
6- 7.
6. 	Petitioner objects to the M&R' s finding a that a certificate of appealability be denied
and contends " [he has] not yet had the chance to properly defend against [the] State[' ]s
argument[.]" Id. at 7.
The Court addresses each objection in turn.
First, Petitioner objects to the M&R' s procedural default finding. (D.E. 37 , p. 3). The only
claims Petitioner raised on direct appeal or in his Petition for Discretionary Review are the failure
to include jury instructions and ineffective assistance of counsel under Strickland and McCoy.
(D .E. 15 - 17 , p. 26 - 31; D.E. 15 -27; D.E. 16-1; D.E. 16-2, p. 15-19; D.E. 28-1 , p. 76 - 77). Because
the previous claims were not raised, the magistrate judge found these claims are procedurally
barred. (D.E. 33 , p. 7-13). Petitioner acknowledges these claims "were not raised on the first two
appeals," but argues that his failure should be excused because "those appeals were not filed pro
se ." (D .E. 37 , p. 3).
Under § 2254, state prisoners seeking habeas relief must exhaust all their claims in state
court before seeking federal habeas relief. 28 U.S .C. § 2254(b)(l). This exhaustion requirement is
met when the substance of the prisoner' s federal habeas claim has been fairly presented to the
highest court in the state, in this case the Texas Court of Criminal Appeals, on direct appeal or in
state post-conviction habeas proceedings. O 'Sullivan v. Boerckel, 526 U.S. 838 , 842-48 (1999).
In contrast, this requirement is not met " if the petitioner presents new legal theories or factual
claims in his federal habeas petition." Reedv. Stephens, 739 F.3d 753 , 780 (5th Cir. 2014) (quoting
Anderson v. Johnson, 338 F.3d 382, 386 (5th Cir. 2003)).
Petitioner's claims, raised for the first time in his federal petition, are unexhausted for
purposes of 28 U.S.C. § 2254(b)(l)(A). In limited circumstances, "a petitioner may overcome a
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procedural bar and obtain federal habeas review of a claim by demonstrating an independent
objective cause for the failure to properly raise the claim and actual prejudice resulting therefrom."
Whatley v. Davi s, No. 4:16-CV-826-O, 2018 WL 3438939, at *3 (N.D. Tex. July 17 , 2018)
(O'Connor, J.) (citing Coleman v. Thompson , 501 U.S. 722, 759 (1991)). Petitioner can avoid this
procedural bar in two ways. First, the cause and prejudice standard, which permits an objective
factor that is external to the petitioner and "cannot be fairly attributed to him" to excuse procedural
default. Id. (citing Coleman, 501 U.S. at 753). Under this standard, "a federal habeas court [is not
barred] from hearing a substantial claim of ineffectiveness assistance at trial if, in the [State' s]
initial-review collateral proceeding, there was no counsel or counsel in that proceeding was
ineffective." Martinez v. Ryan, 566 U.S. 1, 17 (2012). This requires a petitioner to "demonstrate
that [his] underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to
say that the prisoner must demonstrate that the claim has some merit." Id. at 14. And second, the
miscarriage of justice standard, which requires a petitioner to establish that a fundamental
miscarriage of justice would result from application of the procedural bar. Whatley, 2018 WL
3438939, at *3. This standard also requires a statement and persuasive showing that petitioner is
actually innocent. Id. (first citing Hou se v. Bell, 547 U.S. 518, 537 (2006); then citing Coleman,
501 U.S. at 750)).
Petitioner fails to satisfy either standard to excuse his procedural default. Coleman, 501
U.S. at 729- 32 . As to the cause and prejudice standard, Petitioner contends his failure should be
excused because his previous appeals were not filed pro se and his "court appointed attorney [had]
access to all applicable records." (D.E. 37 , p. 3) . Petitioner fails to demonstrate that his counsel' s
failure to raise the grounds constituted ineffective assistance of counsel. See (D.E. 37 ; D.E. 41).
Petitioner also does not argue that he is actually innocent- 	an argument that, if presented, would
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be unsupported by the record. (D.E. 37; D.E. 41 ). Because Petitioner does not demonstrate he is
actually innocent nor that his counsel was ineffective, the Court finds his unraised grounds are
procedurally barred and OVERRULES Petitioner' s objection.
Second, Petitioner objects to the M&R' s finding as to his improper jury instructions
argument. Petitioner argues "[t]he lower court admitted that there was a[n] error in the jury charge
but no ' egregious harm' was done. I object to that." (D.E. 37 , p. 3).
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDP A"), a state
prisoner cannot obtain relief with respect to any claim adjudicated on the merits in state court
proceedings unless the adjudication of the claim resulted in a decision that (1) "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) "based on an unreasonable determination of the facts
in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d).
When reviewing Petitioner' s claim under AEDPA' s deferential standard, "the Court must
look to the last reasoned state judgment that considered and rejected Petitioner's claim." Gardner
v. Lumpkin, No. W-20-CV-772-ADA, 2021 WL 9314945, at *14 (W.D. Tex. Aug. 12 , 2021)
(Albright, J.). The state court's factual findings are presumed to be correct, and a state prisoner
may only rebut this presumption with clear and convincing evidence. 28 U.S.C. § 2254(e).
In addressing Petitioner' s jury instructions argument, the last state court judgment
contained the following findings:
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Having found error in the charge, we proceed to a harm analysis. When
error in the charge is not preserved by timely objection at the charge conference, as
here, the error will only result in reversal of the conviction upon a showing of
"egregious harm" to the appellant. Price v. State, 457 S.W.3d 437, 440 (Tex. Crim.
App. 2015); Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013) (citing
Almanza v. State , 686 S.W.2d 157 , 171 (Tex. Crim. App. 1985) (op. on reh'g)).
Egregious harm deprives an appellant of a "fair and impartial trial." Price , 457
S.W.3d at 440. "Errors that result in egregious harm are those that affect the ' very
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basis of the case,' ' deprive the defendant of a valuable right,' or ' vitally affect a
defensive theory. "' Warner v. Stat e, 245 S.W.3d 458, 461-62 (Tex. Crim. App.
2008) (quoting Hutch v. State , 922 S.W.2d 166 , 171 (Tex. Crim. App. 1996)).
Farmer argues that he was egregiously harmed by the error because "the
only defense to the felony murder charge was that Farmer was reckless in
committing the aggravated assault." We disagree. The predicate felony offense
specified in the jury charge was aggravated assault by threat, but there was no
evidence that Farmer "threatened" anyone recklessly, as opposed to intentionally
or knowingly. See TEX. PENAL CODE ANN. § 6.03(c) ("A person acts recklessly, or
is reckless, with respect to circumstances surrounding his conduct or the result of
his conduct when he is aware of but consciously disregards a substantial and
unjustifiable risk that the circumstances exist or the result will occur." ). Farmer
admitted to police that he and his companions intentionally fired their guns with
the intent to "scare" Cruz and the others who were waiting at the basketball court,
and Lockhart corroborated that statement at trial. There was never an y suggestion
at trial that anyone fired their weapons accidentally or with any intent other than to
threaten. We therefore find it vanishingly unlikely that the jury based its guilty
verdict on a finding that Farmer recklessly committed aggravated assault. The error
did not affect the very basis of the case or a defensive theory, nor did it deprive
Farmer of a fair and impartial trial. Se e Warner, 245 S.W.3d at 461 - 62.
Moreover, the charge accurately defined the offense of deadly conduct to
include a "knowing" mental state, and the conduct alleged to be deadly conduct
was identical to the conduct alleged to be aggravated assault- 	i.e., discharging a
firearm at or in the direction of one or more individuals. See [TEX. P EN AL COD E.
ANN.] § 22.05(b)(l). By finding Farmer guilty, the jury necessarily found that he
committed aggravated assault in this manner. Therefore, we cannot say that the
error in the application paragraph for the second element caused egregious harm.
We overrule Farmer's second issue.
(D.E. 15-20, p. 12-13). Beyond his conclusory allegations, Petitioner does not provide
clear and convincing evidence demonstrating egregious harm as a result of the improper
jury instructions. (D.E. 1; D.E. 25 ; D.E. 26; D.E. 37 ; D .E. 41). Further, he fails to provide
clear and convincing evidence that the state court's decision was contrary to, or an
unreasonable application of, federal law or that the state court' s findings are based on an
unreasonable determination of the facts. Without that evidence, and presuming the state
court' s decision to be correct, the Court OVERRULES Plaintiffs objection.
Third, Petitioner objects to the M&R's finding that his ineffective-assistance-of-counsel
claim is without merit. (D .E. 37 , p. 5). In his objection to the M&R, Petitioner argues he "had the
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right to a[n] affordable bond, [but he] never had[] affordable bond." (D.E. 37, p. 5). 2 To succeed
on an ineffective-assistance-of-counsel claim, Petitioner must satisfy the two-prong test set out in
Strickland v. Washington. 3 This requires Petitioner to demonstrate his counsel's performance fell
below an objective standard of reasonableness and that the deficient performance prejudiced the
defense. Id. at 687-88.
The Court disagrees with Petitioner 's argument-the state Court properly set Petitioner 's
bond. As the M&R noted, Petitioner 's counsel filed a motion to set reasonable bond. (D.E. 28-1,
p. 68). The state trial court denied this reduction because "the alleged murder occurred while the
Defendant was released on bond for an aggravated assault occurring only 3 months prior to the
murder charge, and the Defendant attempted to flee from police officers when he was arrested on
the murder charge." Id. Trial counsel did subsequently succeed in reducing Petitioner's bail by
agreement with the State. Id. Petitioner 's bond amount was predicated on the underlying offense
of murder, his previous aggravated assault offense, and his attempt to flee from law enforcement.
Id. ; (D.E. 33, p. 17) . These efforts do not fall below the objective standard of reasonableness.
Strickland, 466 U.S. at 687. Further, Petitioner cannot demonstrate prejudice because the outcome
of Petitioner's case would not change based on a motion for bond. Based on these facts and
Petitioner's counsel's efforts, the Court OVERRULES Petitioner 's objection.
Fourth, Petitioner objects to the M&R's finding as to his McCoy4 claim. (D.E. 37, p. 5).
The M&R found Petitioner 's McCoy claim lacks merit. Petitioner disagrees with this finding and
argues he did not agree to concede guilt of the predicate offense. Id. at 6. The state appellate court
2 The Texas Constitution provides criminal defendants with a right to bail pending trial in all cases except
for capital offenses where the proof is evident. Tex. Const. Art. I, § 11 .
3 466 U.S. 668 (1984).
4 McCoy v. Louisiana, 584 U.S. 414 (2018).
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found:
[Petitioner' s] counsel never conceded that [Petitioner] was guilty of the charged
offense; instead, he conceded that [Petitioner] was guilty of the predicate felony
offense of aggravated assault, which is only one element of felony murder. See Tex.
Penal Code Ann. § 19 .02(b)(3). The M cC oy Court made clear that 'strategic
disputes about whether to concede an element of a charged offense' are not within
the purview of its ruling. 	[584 U.S. 	at 	426]. 	Moreover, 	[Petitioner] 	never
complained to the trial court about counsel' s decision, and there is nothing in the
record indicating that [Petitioner] ever disapproved of counsel's decision prior to
this appeal. See Turner [v . State] , 570 S.W.3d [250], 276 [(2018)] (agreeing that "a
defendant cannot simply remain silent before and during trial and raise a McCoy
complaint for the first time after trial.") We therefore conclude that both prongs of
Strickland apply to this particular Sixth Amendment claim.
(D.E. 15-20, p. 17-18). In Petitioner' s state appeal, Petitioner' s trial counsel explained he and
Petitioner "discussed conceding to the elements of aggravated assault as a possible way of avoiding
a murder conviction." (D.E. 28-1 , p. 71). Petitioner's trial counsel further explained:
[Petitioner] knew he was facing a conviction at some level and believed his be st
chance at keeping the punishment within the range of a second-degree felony was
to admit to that offense and show at trial that there was no intent or conspiracy to
commit a murder and no conduct clearly dangerous to human life because
[Petitioner] was shooting into the ground or into the sky. [Petitioner] acknowledged
this strategy as being in his best interest and was the best chance of limiting the
conviction to a second-degree offense with the opportunity for probation.
Id. The state court found Petitioner' s trial counsel' s affidavit credible, and his trial strategy
reasonable. Id. at 77. "' [S]trategic disputes about whether to concede an element of a charged
offense' are not within the purview of the [McCoy] ruling." (D .E. 33 , p. 21) (citing D.E. 15-20, p.
17- 18). There is no evidence in the record to demonstrate Petitioner did not agree with counsel' s
trial strategy. See (D .E. 28-1, p. 71) ("[Petitioner] acknowledged this strategy as being in his best
interest and was the best chance of limiting the conviction to a second-degree offense with the
opportunity for probation." ); see also id. at 77 (finding Petitioner' s counsel credible and his trial
strategy reasonable). Without factual support to the contrary, the Court finds the state appellate
court' s findings and Petitioner' s trial counsel' s affidavits persuasive. The Court OVERRULES
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Petitioner's objection.
Next, Petitioner objects to the M&R's finding that a motion for new trial was not filed.
(D.E. 37, p. 6-7). He contends on February 19, 2020, a motion for a new trial was filed in the trial
court. Id. Upon reviewing the M&R, the Court finds no explicit finding to which Petitioner directs
his objection. See (D.E. 33). Petitioner does not raise this issue nor explain its significance in his
filings before the Court. (D.E. 25; D.E. 26). Because this argument was not previously raised, it is
not properly before the Court. Finley, 243 F.3d at 218 n.3. The Court OVERRULES this
objection.
Sixth, 	Petitioner 	objects 	to 	the 	M&R' s 	recommended 	denial 	of a 	certificate 	of
appealability. (D.E. 37, p. 7). In support of his objection, Petitioner argues he did not have access
to his trial transcripts when his direct appeal was filed. Id. Because of that, he contends he has not
had the chance to properly defend against the State's argument. Id. 	As discussed above,
Petitioner's request for his trial transcripts is without merit and his attendant objections are not
properly before the Court. Supra II.A. In any event, Petitioner' s objection fails the standard for a
certificate of appealability because it does not "demonstrate that reasonable jurists would find the
district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel,
529 U.S. 473 , 484 (2000). The Court OVERRULES this objection.
III. Conclusion
Having reviewed the proposed findings and conclusions of the M&R, the record, the
applicable law, and having made a de novo review of the portions of the M&R to which Petitioner's
objections 	are 	directed, 	28 	U.S.C. 	§ 636(b)(l)(C), the 	Court 	OVERRULES 	Petitioner's
objections, (D .E. 37 ; D.E. 41), and ADOPTS the findings and conclusions of the M&R, (D.E. 33).
Accordingly, the Court GRANTS Respondent's motion for summary judgment, (D.E. 31),
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DISMISSES Petitioner' s 28 U.S.C. § 2254 petition, (D.E. 1) , and DENIES Petitioner a certificate
of appealability.
A final judgment will be entered separately.
SO ORDERED.
Signed: Corpus Christi, Texas
January ')1> ~ 	026
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DA 	. MORALES
UNITED STATES DISTRICT JUDGE
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