XAVIER RODRIGUEZ, District Judge.
On this date, the Court considered Magistrate Judge John W. Primomo's report and recommendation (docket no. 12), in which he recommends that Petitioner Rudy Vallado's petition for a writ of habeas corpus under 28 U.S.C. § 2254 be dismissed in part and denied in part. Petitioner objected thereto (docket no. 16) and moved the Court to appoint counsel (docket no. 17). After careful consideration, the Court ACCEPTS the Magistrate Judge's recommendation, DISMISSES Petitioner's petition in part, and DENIES Petitioner's petition in part. The Court also DENIES Petitioner's request for the appointment of counsel.
Petitioner Rudy Vallado is currently serving a fifteen-year sentence in the custody of the Texas Department of Criminal Justice-Correctional Institutions Division after a jury convicted him of aggravated assault with a deadly weapon. State v. Vallado, No. 2008-CR-11728 (144th Dist. Ct., Bexar County, Tex. Mar. 4, 2010). The jury convicted Vallado of stabbing Roy Cortez in the midsection with a knife. Vallado directly appealed his conviction, and the Texas Fourth Court of Appeals affirmed. See Vallado v. State, 350 S.W.3d 257, 259 (Tex. App.-San Antonio 2011, pet. ref'd). Thereafter, the Texas Court of Criminal Appeals refused Vallado's petition for discretionary review. See Vallado v. State , PDR No. 1152-11, 2011 WL 5319897 (Tex. Crim. App. Nov. 2, 2011). After his direct appeals were denied, Vallado filed an application for a writ of habeas corpus with the Texas Court of Criminal Appeals, which was also denied. See Ex. Parte Vallado, Cause No. WR-78, 586-02 (Tex. Crim. App. Dec. 12, 2012).
After his state court habeas petition was denied, Vallado filed a petition for habeas corpus with this Court on March 8, 2013, the date his petition was placed in the prison mailing system. In his petition, Vallado asserted four grounds for habeas relief. First, Vallado challenged the sufficiency of the evidence to support his conviction. At trial, the State relied on hearsay testimony from two police officers, who were allowed to testify that an individual, Caleb Ruiz, subdued Vallado after he stabbed his victim, took Vallado's knife away from him, and then gave the knife to the officers. Vallado argued that the trial court should have excluded this testimony. Second, Vallado complained that his trial counsel provided ineffective assistance (1) by failing to subpoena Ruiz, (2) by failing to prepare for trial by not obtaining hospital records of Vallado's injuries, (3) by presenting Vallado with a plea bargain at their first meeting, which allegedly compelled Vallado to rely on a theory of self-defense, rather than a plea of not guilty, (4) by allegedly misrepresenting Vallado's defenses, (5) by failing to object to the exclusion of Vallado's bloody clothes from the trial evidence, and (6) by failing to exploit evidence that the victim was, in fact, the aggressor. Third, Vallado argued that the indictment was invalid because the State relied on the statements of Ruiz without requiring that he appear in court. Finally, Vallado argued that the State abused its discretion by excluding his bloody clothes from evidence. Vallado's petition was referred to Magistrate Judge John W. Primomo, who recommended that it be dismissed in part and denied in part. On October 30, 2013, after the Magistrate Judge issued his Report and Recommendation, Vallado moved for the Court to appoint him counsel. Docket No. 17.
II. The Magistrate Judge's Report and Recommendation
In his Report and Recommendation, the Magistrate Judge, first, found that Vallado had not exhausted his state court remedies on two of his allegations for ineffective assistance of trial counsel-namely, that trial counsel failed to request a subpoena of Ruiz and failed to prepare for trial by not obtaining hospital records of Vallado's injuries. Report and Recommendation ("R&R") at 8.
Next, the Magistrate Judge found that the evidence clearly supported Vallado's conviction. The Magistrate Judge noted that the trial record contained testimony from an eyewitness that Vallado stabbed his victim with a knife; testimony from the victim that he had been cut by Vallado in several places; testimony from two San Antonio police officers that the knife used by Vallado was a deadly weapon; and testimony from the victim and the victim's mother that he suffered a serious bodily injury. Id. at 10-12. The Magistrate Judge rejected the assertion that had the hearsay from the officers been excluded, Vallado would have been found not guilty. Id. The Magistrate Judge, therefore, found that the determination by the state courts that the evidence was sufficient to support Vallado's conviction, was not contrary to and did not involve an unreasonable application of clearly-established federal law. Id. at 13.
The Magistrate Judge then rejected Vallado's properly exhausted assertions that his trial counsel provided ineffective assistance. First, the Magistrate Judge found that Vallado's counsel was not deficient in presenting Vallado with a plea bargain, and, in fact, would have been remiss if he had not. Id. at 15-16. The fact that the plea bargain was presented to Vallado at his first meeting with counsel was found to be insignificant. Id. at 16. Second, the Magistrate Judge found that the state habeas court reviewed counsel's representation and found no misrepresentation. Id. at 16-17. Since Vallado did not rebut the state court's finding with clear and convincing evidence, the Magistrate Judge rejected Vallado's claim that counsel misrepresented Vallado's defense. Id. Third, the Magistrate Judge found that counsel did not err in failing to object to the exclusion of Vallado's bloody clothes from evidence. Since testimony established that the clothes were covered only with the blood of the victim, the Magistrate Judge found that Vallado could gain nothing by admission of the clothes into evidence; therefore, Vallado's counsel did not err in failing to object to their exclusion from evidence. Id. at 17-18. Finally, the Magistrate Judge found that Vallado's counsel had pursued all avenues to adduce testimony that the victim was, in fact, the aggressor. Id. at 18. After rejecting all of Vallado's arguments for ineffective assistance of counsel, the Magistrate Judge recommended that the state courts' determination that Vallado was not denied the effective assistance of counsel, be left undisturbed. Id. at 19. The Magistrate Judge found the state courts' determination to be neither contrary to, nor involve an unreasonable application of, clearly-established federal law. Id.
Next, the Magistrate Judge turned to Vallado's claim that the indictment was invalid because it relied on the statements of Ruiz, without requiring that he appear in court. The Magistrate Judge noted that Vallado's assertion did actually challenge the validity of the indictment, but rather challenged the sufficiency of the evidence. Id. at 19. Nevertheless, the Magistrate Judge rejected Vallado's argument since the Texas Court of Criminal Appeals was squarely presented with Vallado's challenge and rejected it. Id at 19-20. Because the highest state appellate court was squarely presented with Vallado's challenge, the Magistrate Judge determined that federal habeas review was foreclosed.
Finally, the Magistrate Judge rejected Vallado's challenge to the State's exclusion of the bloody clothes from evidence. The Magistrate Judge found that the clothes were not favorable evidence for Vallado, that there was no indication that the clothes had actually been suppressed by the State, and that no prejudice ensued to Vallado because the clothes were not admitted at trial. Id. at 21. For these reasons, the Magistrate Judge found that Vallado had not proved a Brady violation, and that the determination by the state courts that the State did not withhold exculpatory evidence, is not contrary to and did not involve an unreasonable application of clearly-established federal law. See Brady v. Maryland, 373 U.S. 83 (1963); R&R at 21.
III. Standard of Review and Applicable Law
Where, as here, the Magistrate Judge's Report and Recommendation is objected to, the Court reviews the Report and Recommendation de novo. 28 U.S.C. § 636(b)(1)(C). Such a review means that the Court will examine the entire record and will make an independent assessment of the law. Any portions of the Report and Recommendation not objected to will be reviewed by the Court only for clear error. Id .; United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).
A petition for a writ of habeas corpus is reviewed under the standards set forth in the Antiterrorism and Effective Death Penalty Act ("AEDPA"). Pub L. No. 104-132, 110 Stat. 1214 (1996). Pursuant to 28 U.S.C. § 2254(d), as amended by AEDPA, a petitioner may not obtain federal habeas corpus relief with respect to any claim that was ...