United States District Court, E.D. Texas, Tyler Division
ORDER OF DISMISSAL
Clark, United Slates District Judge
Aaron Lamon Muse, an inmate confined in the Texas prison
system, filed the above-styled and numbered petition for a
writ of habeas corpus challenging his October 30, 2009 Smith
County conviction for aggravated robbery in cause number
007-0413-09 of the 7th District Court of Smith County, Texas.
See Petition at 2. (Dkt. # 1). The Twelfth Court of
Appeals affirmed his conviction on direct appeal on May 31,
2011, in case no. 12-09-00370-CR. Id.; see also
Muse v. State, 2011 WL 2130349 (Tex. App. - Tyler May
31, 2011, pet. ref'd).
federal petition was referred to United States Magistrate
Judge K. Nicole Mitchell, who issued a Report and
Recommendation on August 29, 2016, concluding that the
petition for a writ of habeas corpus should be dismissed with
prejudice. Muse filed objections, challenging the Report as
to grounds 2, 5, 7, 8, 10, 12, 15, 17, 19, 20, 22, and 23.
See Objections to Magistrate Judge's Report, at
*1. (Dkt.#75). Muse also states that he wishes to waive
grounds 1, 3, 4, 6, 9, 11, 13, 14, 16, 18, 21, and 24.
of Review and Reviewability
magistrate judge's report has been objected to, the
district court reviews the recommendation de novo
pursuant to Federal Rule of Civil Procedure 72. See
also 28 U.S.C § 636(b) (1) (“A judge of the
court shall make a de novo determination of those
portions of the report or specified proposed findings and
recommendations to which objection is made.”). During a
de novo review a court examines the entire record
and makes an independent assessment of the law. When no
objections are filed, petitioner is barred from de
novo review by the district judge of those findings,
conclusions, and recommendations and, except upon grounds of
plain error, from appellate review of the unobjected-to
factual findings and legal conclusions accepted and adopted
by the district court. Douglass v. United Services
Automobile Association, 79 F.3d 1415, 1430 (5th
Cir.1996) (en banc ).
attempts to enlarge certain claims in his objections.
Compare Objections at 1-50 with Fed. Pet. at 6-16.1
Most of what Muse filed originally including his supporting
memorandum was stricken by this Court. See Dkt.
#2-5, 43. The only arguments before the Court are those
presented in his federal petition. See Cupit v.
Whitley, 28 F.3d 532, 535 n.5 (5th Cir.1994);
see also Paterson-Leitch Co. v. Massachusetts
Municipal Wholesale Electric Co., 840 F.2d 985, 990-91
(1st Cir. 1988)(explaining that a party “has a duty to
put its best foot forward” before the Magistrate
Judge-i.e., “to spell out its arguments squarely and
distinctly” and does not allow him to raise expanded or
new allegations not before the Magistrate Judge). This court
will not review new claims presented for the first time in
Petitioner's objections. See Long v. McCotter,
792 F.2d 1338, 1345 (5th Cir. 1986) (“we ordinarily do
not consider issues that have not been presented to the court
of first instance”). Therefore, the court is not
considering these new arguments raised by petitioner in his
objections to the Report.
imposes an almost-complete bar to relitigation of any
constitutional claim that was adjudicated on the merits in
state court. See 28 U.S.C. § 2254(d) (West 2016). The
statute provides three narrow “exceptions to §
2254(d)'s relitigation bar.” Harrington v.
Richter, 562 U.S. 86, 100-101 (2011). To satisfy one of
those exceptions, the prisoner must show (1) that the state
court's decision was contrary to federal law that was
clearly established in Supreme Court holdings, 28 U.S.C.
§ 2254(d)(1); (2) that the decision was an unreasonable
application of such law, id.; or (3) that the
decision was based on an unreasonable factual determination,
id. § 2254(d)(2) (West 2016).
award habeas relief to a prisoner in state custody, a federal
court must consider every justification that the state court
provided - and it must hypothesize every justification that
the state court could have provided - and conclude that the
denial of habeas relief is so outrageous and unreasonable
that every fairminded jurist unanimously would condemn it.
Richter, 562 U.S. at 101-102. AEDPA also provides
that the state court's factual findings “shall be
presumed to be correct” unless the petitioner carries
“the burden of rebutting the presumption of correctness
by clear and convincing evidence.” 28 U.S.C. §
2254(e)(1). “The presumption of correctness not only
applies to explicit findings of fact, but it also applies to
those unarticulated findings which are necessary to the state
court's conclusions of mixed law and fact.”
Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir.
presumption of correctness is especially strong when the
trial court and the habeas court are the same. Clark v.
Johnson, 202 F.3d 760, 764 (5th Cir. 2000); Amos v.
Scott, 61 F.3d 333, 347 (5th Cir. 1995); James v.
Collins, 987 F.2d 1116, 1122 (5th Cir. 1993). When a
state trial judge is also the judge hearing the state habeas
claim, that judge is in an optimal position to assess the
credibility of the affidavits. The state judge had the
benefit of observing the witnesses and attorneys and hearing
testimony at trial. The state trial judge could make
credibility determinations based on the demeanor of the
witnesses he heard at trial, without holding a separate
hearing to take live testimony from the witnesses.
Baldree v. v. Johnson, 99 F.3d 659, 663 (5th Cir.
1996); see also Buxton v. Collins, 879 F.2d
140, 146 (5th Cir. 1989). The record indicates that the
Honorable Kerry Russell presided over both the trial and
state habeas proceeding; consequently, his findings are
entitled to additional deference. See SHCR-13 at
cover (Clerk's Summary Sheet). The adjudication of
Muse's claims in state court was not so outrageous and
unreasonable that every fairminded jurist unanimously would
of Petitioner's Objections
Tampering with the Evidence (ground two).
re-urges his claim that the State planted a pair of his
tennis shoes at the crime scene. See Objections at
2-8. Muse claims the tennis shoes were initially depicted
sitting on the tailgate of his father's truck, then
planted in his mother's house. See id. at 2.
According to Muse, the State then altered a photograph of the
shoes making them appear to be lying on
“‘green-colored' carpet.” See
Id. at 2. Muse specifically claims that the Court should
have held an evidentiary hearing to explore his
evidence-tampering claim and that it should have granted his
motion to hire a forensic video examiner to determine whether
there was tampering. See Objections at 8-9.
a new claim by Muse. He did not claim in his federal petition
that the State manipulated the photograph of the shoes by
adding a “green-colored” carpeted background.
See Fed. Pet. at 6. Further, the Report correctly
states that the planted-evidence claim was fully vetted not
only during the state-habeas process but also at trial.
See Report at 8-9. A jury heard this argument and
found it unpersuasive as did the judge who presided over both
his state-habeas application and his trial. Judge Russell
“There is no evidence in the record of this case that
the State, this Court, the official court reporter of this
Court, or any member of law enforcement involved in the
investigation and/or prosecution of this case, tampered with
or altered or replaced or substituted any piece of evidence
before, or after, it was admitted into evidence at the trial
of this cause.”
SHCR-13 at 895.
Russell's findings are accorded additional deference.
See Clark, 202 F.3d at 764. Further, sufficient
evidence besides the alleged planted shoes linked Muse with
the robbery. See Muse v. State, No. 12-09-00370-CR,
2010 Tex.App. LEXIS 10418, at **1-5 (Tex. App.-Tyler 2010,
request for an evidentiary hearing on this issue is denied.
The Fifth Circuit has “repeatedly found that a paper
hearing is sufficient to afford a petitioner a full and fair
hearing on the factual issues underlying his claims,
especially where . . . [as here] the trial court and the
state habeas court were one and the same.” Murphy
v. Johnson, 205 F.3d 809, 816 (5th Cir. 2000);
see also Perillo v. Johnson, 79 F.3d 441,
446-47 (5th Cir. 1996). As the state-habeas trial court noted
and as Muse acknowledges, there is a substantial amount of
documentation already found in the record. Where the record
is fully documented, a district court does not abuse its
discretion in failing to hold an evidentiary hearing. See
Judge Russell presided over both Muse's trial and
state-habeas application, he had firsthand knowledge of the
proceedings. His findings are afforded an additional
presumption of correctness. See Clark v. Johnson,
202 F.3d 760, 765 (5th Cir. 2000); see also
Perillo, 79 F.3d at 446-447).
the Supreme Court held that a federal court cannot expand the
record on a claim adjudicated on the merits in state court.
See Cullen v. Pinholster, 131 S.Ct. 1388, 1398
(2011). Specifically, the Court said, “We now hold that
review under § 2254(d)(1) is limited to the record that
was before the state court that adjudicated the claim on the
merits.” Id. Issues that are mixed questions
of law and fact are evaluated under section 2254(d)(1).
Martin v. Cain, 246 F.3d 471, 475-476 (5th Cir.
2001). Section 2254(d)(1) is the standard of review this
Court will apply in evaluating Muse's Sixth Amendment
claim under Strickland v. Washington, 466 U.S. 668
(1984). See Gregory v. Thaler, 601 F.3d 347, 351
(5th Cir. 2010) (“Claims of ineffective assistance of
counsel involve mixed questions of law and fact and are
governed by § 2254(d)(1).”). Claims concerning
prosecutorial misconduct are mixed questions of law and fact.
Brazley v. Cain, 35 F. App'x 390, 2002 WL
760471, at *4 n. 4 (5th Cir. Apr. 16, 2002); see
also United States v. Emueqbunam, 268 F.3d 377,
403-04 (6th Cir.2001); Jones v. Gibson, 206 F.3d
946, 958 (10th Cir.2000); United States v. Noriega,
117 F.3d 1206, 1218 (11th Cir.1997); United States v.
Spillone, 879 F.2d 514, 520 (9th Cir.1989).
claims were adjudicated on the merits in state court.
See SHCR-10 at 894-897. Consequently, this
Court's review of these claims is limited to the record
that was before the state court. See Pinholster, 131
S.Ct. at 1398. Ultimately, the hearing will have “no
bearing” on this Court's ultimate decision. See
id. at 1400.
there is no real factual dispute that, if resolved in
Muse's favor, would entitle him to relief. See
Murphy, 205 F.3d at 816. His prosecutorial misconduct
claim rests on an allegation that the police planted a pair
of black tennis shoes. The jury heard that argument and
disbelieved it. See V RR 182-183. Judge Russell
found that there was no evidence that the tennis shoes were
taken out of the truck and planted in Muse's house. V RR
212. Judge Russell made the same conclusion in Muse's
state habeas application. SHCR-13 at 895. The claim must also
be weighed against all the evidence supporting the verdict,
such as the presence of his DNA on the clothes worn by the
suspect. See Muse, 2010 Tex.App. LEXIS 10418, at
**14-17; see also Resp. to Mot. for an Evid. Hrg. at
2-3. (Dkt. #46).
not entitled to an evidentiary hearing, nor is he entitled to
a forensic examiner. A federal habeas court may authorize
funding for investigative, expert, or other services upon
finding that such services are “reasonably necessary
for the representation of the defendant[.]” 18 U.S.C.
§ 3599(f) (West 2016). The Fifth Circuit has construed
“reasonably necessary” to mean that an indigent
petitioner “must demonstrate a ‘substantial
need' for the requested assistance.” Riley v.
Dretke, 362 F.3d 302, 307 (5th Cir. 2004); Clark v.
Johnson, 202 F.3d 760, 768 (5th Cir. 2000), and
Fuller v. Johnson, 114 F.3d 491, 502 (5th Cir.
1997). Muse has not shown a “substantial need”
for an investigation. Muse presented his evidence tampering
argument at trial. Judge Russell found that the claim had no
merit. See Report at 9-10; SHCR-13 at 895. This
objection is overruled.
False, Misleading, or Perjured Testimony (ground
fifth ground, Muse claims that the DPS chemist, Melissa Haas,
“conveyed an impression to the jury which she or the
state knew to be false.” See Objections at 8.
Haas testified that she looked for a “full DNA
Profile” using “body fluids such as blood, semen,
sweat, saliva, and even in some cases urine”. See
id. at 10. Muse claims that she gave the jury a false or
misleading impression when she testified that she had
“extracted a ‘full DNA Profile' (Vol. IV, RR,
page 108, lines 8-9) from the firearm allegedly belonging to
the petitioner and at least one unknown contributor. Muse
claims Haas mislead the jury when she did not identify the
types of “biological evidence” like his
“blood, semen, saliva, sweat, or urine.” See
id. Muse claims t h e testimony was therefore
impermissibly “vague”. See id.
State cannot knowingly use perjured testimony or allow
perjured testimony to go uncorrected. See Napue v.
Illinois, 360 U.S. 264, 269 (1959); Giglio v. United
States, 405 U.S. 150, 154 (1972). To prove a due process
violation in such a case, a petitioner must demonstrate (1)
that the testimony in question was actually false, (2) that
the prosecutor was aware of the perjury, and (3) that the
testimony was material. Faulder v. Johnson, 81 F.3d
515, 519 (5th Cir. 1996).
testimony is material only when “there is any
reasonable likelihood that the false testimony could have
affected the judgment of the jury.” Barrientes v.
Johnson, 221 F.3d 741, 756 (5th Cir. 2000); see
United States v. Washington, 44 F.3d 1271, 1282 (5th
Cir. 1995) (materiality prong not met where allegedly
perjurious statements “have nothing to do ...