United States District Court, E.D. Texas, Tyler Division
ORDER OF DISMISSAL
Clark, United Slates District Judge
Keith Earl Jones, an inmate confined in the Texas prison
system, filed the above-styled and numbered petition for a
writ of habeas corpus challenging his Anderson County
conviction for the felony offense of driving while
intoxicated, in violation of the state laws of Texas. After a
jury trial in which a guilty verdict was returned, Petitioner
was sentenced to a sentence of sixty years in prison.
federal petition was referred to United States Magistrate
Judge K. Nicole Mitchell, who issued a Report and
Recommendation on January 25, 2017, concluding that the
petition for a writ of habeas corpus should be dismissed with
prejudice. (Dkt. #20). Petitioner filed objections to the
Report and Recommendation. (Dkt. #25).
first objection, Mr. Jones re-urges his claim that he was
afforded constitutionally ineffective assistance of counsel.
See Objections at 2. Mr. Jones generally argues that
his counsel was ineffective and that “records clearly
establishes that the petitioner was not allowed to
participate in the caricature labeled an evidentiary hearing
in the trial court”. Id. He further argues
that trial counsel's affidavit was unreliable and that he
should be permitted to introduce his own evidence.
Jones repeats the argument from his petition that his trial
attorney provided deficient voir dire performance and that
his performance resulted in his conviction. See
Objections at 2. In Grounds four and five of his habeas
petition, Jones argued that his trial attorney provided
ineffective assistance of counsel during voir dire.
See Fed. Writ Pet. at 6; Petitioner's Memorandum
at 14-17. He claims counsel failed to object to a
misstatement of law regarding the legal definition of
intoxication and did not properly educate the jury about its
burden of proof and the definition of intoxication.
See Petitioner's Memorandum at 16.
the State's voir dire, counsel explained the offense of
driving while intoxicated and the manners that it could prove
intoxication. 2 RR 16-22. Counsel also compared the
differences in a .08 blood alcohol concentration, loss of use
of normal mental faculties, and loss of use of normal
physical faculties. 2 RR 22-26.
attorney reiterated the requirements that the State must
prove to obtained a driving while intoxication conviction.
Counsel explained that it is the jury's job to determine
normal use after hearing the evidence. 2RR 67-70. The jury
charge provided the definition of intoxication and the
elements of the offense, and defense counsel argued to the
jury that the State failed to prove any evidence of physical
or mental impairment by the introduction of alcohol into his
system. CR at 125-29; 4 RR 125-26.
has failed to establish the State's voir dire was so
objectionable that trial counsel lacked any strategic reason
for not objecting or that he inadequately conducted his voir
dire. No error is discernable. See Koch v. Puckett,
907 F.2d 524, 530 (5th Cir. 1990) (holding that
conclusory allegations are insufficient to obtain habeas
relief); Lovett v. State of Fla., 627 F.2d 706, 709
(5th Cir. 1980)(holding that the failure to object to
admissible evidence does not constitute ineffective
assistance of counsel). Proof of intoxication under the Texas
statute provides means, including proof of loss of
“normal use of mental or physical faculties” or
“an alcohol concentration of 0.08.” Tex. Penal
Code §49.01(2); cf. Petitioner's Memorandum at 15.
a trial counsel's method of voir dire is a strategic
question, thus it “cannot be the basis for a claim of
ineffective assistance of counsel unless counsel's
tactics are shown to be ‘so ill chosen that it
permeates the entire trial with obvious
unfairness.'” Teague v. Scott, 60 F.3d
1167, 1172 (5th Cir.1995). Considering that the jury was
correctly instructed with regard to the law, including the
State's burden, the elements of the crime and the
jury's role in determining the facts, Jones cannot
establish that his attorney performed deficiently or that his
performance caused harm. Strickland, 466 U.S. at
689. The state court's decision to reject his claims that
trial counsel provided ineffective assistance of counsel
during voir dire was not contrary to, and did not involve an
unreasonable application of clearly established federal law.
These claims are meritless, and should be dismissed with
Jones also requests an evidentiary hearing in order to
present additional evidence regarding trial counsel's
handling of voir dire. See Objections at 2. Mr.
Jones, however, may not produce evidentiary support in
federal courts that he did not present to the state courts.
See Cullen v. Pinholster, 131 S.Ct. 1388, 1398
(2011). Further, Mr. Jones has failed to demonstrate that
counsel was ineffective for the manner in which he conducted
voir dire. Thus, this claim lacks merit.
Jones also re-urges his argument that his trial attorney
deficiently challenged certain evidence offered during the
trial and that such a challenge would have altered the result
of his trial. See Objections at 2. Mr. Jones further
claims that court records prove his “trial was a
farce.” See id.
Jones argued in his habeas petition that his trial attorney
should have objected to the State's discussion of an
unreliable version of retrograde extrapolation evidence.
See Fed. Writ Pet. at 6; Petitioner's Memorandum
at 18-20. He further claims that the State's attorney
“invited the jury panel to perform its own, barnyard
version of retrograde extrapolation” and permitted an
officer to testify despite his lack of qualification to
testify as an expert on the subject. Petitioner's
Memorandum at 19-20.
counsel filed an affidavit stating that he did not recall a
formal retrograde extrapolation analysis but believed he did
make an objection. SHCR-02 (EventID 2545369) at 4.
trial court's findings establish that counsel
unsuccessfully objected to testimony regarding the effects of
alcohol from the paramedic at the scene but did not object to
testimony from the trooper regarding Jones's .07 blood
alcohol or that he believed he was intoxicated at the time of
the accident. Id. at 1-2. Instead, trial counsel
vigorously examined the officer the basis for his belief that