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Harrison v. Director, TDCJ-CID

United States District Court, E.D. Texas, Texarkana Division

March 31, 2017

WILLIAM JOSEPH HARRISON
v.
DIRECTOR, TDCJ-CID

          MEMORANDUM ORDER OVERRULING PETITIONER'S OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          ROBERT W. SCHROEDER III UNITED STATES DISTRICT JUDGE

         Petitioner William Joseph Harrison, an inmate confined at the Stiles Unit of the Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, brought this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

         The Court referred this matter to the Honorable Caroline M. Craven, United States Magistrate Judge, at Texarkana, Texas, for consideration pursuant to applicable laws and orders of this Court. The Magistrate Judge recommends the petition for writ of habeas corpus should be denied and dismissed.

         The Court has received and considered the Report and Recommendation of United States Magistrate Judge filed pursuant to such order, along with the record, pleadings and all available evidence.

         Petitioner filed objections to the Magistrate Judge's Report and Recommendation and requests a hearing on his objections. This requires a de novo review of the objections in relation to the pleadings and the applicable law. See Fed. R. Civ. P. 72(b). After thorough consideration of the pleadings, the Court concludes Petitioner's objections should be overruled.

         Objections and Analysis

         I. Ineffective Assistance of Counsel

         In his first objection, Petitioner contends he was denied effective assistance of counsel at trial because counsel failed to call potential alibi witnesses. Petitioner asserts that alibi witnesses were available, ready to testify, and would have changed the outcome of the case had they been called. Further, Petitioner alleges counsel lied in her affidavit submitted to the state habeas court.

         “Complaints of uncalled witnesses are not favored in federal habeas corpus review because allegations of what the witnesses would have testified are largelyspeculative.” Lockhart v. McCotter 782 F.2d 1275, 1282 (5th Cir. 1986). “Where the only evidence of a missing witness' testimony is from the defendant, this Court views claims of ineffective assistance with great caution.” Id.

         Petitioner did not provide the state court with affidavits (or similar evidence) from any of the potential favorable witnesses indicating they would have been available to testify and suggesting to what they would have testified. He presented his own unsworn affidavit in his second petition when attacking his family violence conviction, but he failed to present any affidavits from his potential alibi witnesses indicating they would have been available to testify and suggesting to what they would have testified.

         Even accepting as true petitioner's claim that counsel lied in her affidavit to the state habeas court, without evidentiary support in the form of affidavits from the potential witnesses, the Court cannot conclude that the state court's determination was either contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States or that the state court adjudication resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See Evans v. Cockrell, 285 F.3d 370, 377 (5th Cir. 2000) (reversing district court where petitioner failed to provide affidavits from alleged eyewitness or indicate what testimony the eyewitness would give.); see also Bruce v. Cockrell, 74 F. App'x 326 (5th Cir. 2003) (rejecting Strickland claim because petitioner “did not submit any affidavits by the uncalled witnesses themselves, or offer any evidence that they would have been willing to testify at the punishment phase of the trial.”). Further, given the overwhelming evidence of Petitioner's guilt, Petitioner has failed to show there is a reasonable probability the calling of his proposed witnesses would have changed the outcome of the case. Accordingly, Petitioner has failed to demonstrate prejudice with respect to his claim of counsel's alleged deficient performance. See Crane v. Johnson, 178 F.3d 309, 312 (5th Cir. 1999) (holding that the “mere possibility of a different outcome” is not sufficient proof of prejudice to support a finding of ineffective assistance of counsel).

         Federal habeas courts are not an alternative forum for trying facts and issues which were insufficiently developed in state proceedings. Williams v. Taylor, 529 U.S. 420, 437 (2000). Further, following the Supreme Court's decision in Cullen v. Pinholster, federal habeas review under 2254(d)(1) “is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

         Here, for the reasons set forth above and in the Report, Petitioner has failed to satisfy his burden of proof concerning the claims. Petitioner has failed to show the state court's determination was either contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States or the state court adjudication resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Accordingly, Petitioner's objections are overruled and his claims are denied.

         II. ...


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