United States District Court, E.D. Texas, Tyler Division
ORDER OF DISMISSAL
Charles Edward Lusk, an inmate confined in the Texas prison
system, proceeding pro se, filed the above-styled
and numbered petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. The petition was referred to United
States Magistrate Judge John D. Love, who issued a Report and
Recommendation (Dkt. #20) concluding that the petition should
be denied. Mr. Lusk has filed objections (Dkt. #22).
Lusk is in custody pursuant to three Smith County convictions
for the offense of manufacture/delivery of a controlled
substance. He argues that he was entrapped. His objections
focus on a claim that his attorney was ineffective in
presenting his entrapment defense. He wanted the defense
presented to the jury, as opposed to the trial court in a
assistance of counsel claims are governed by the Supreme
Court's standard established in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984).
Strickland provides a two-pronged standard, and a
petitioner bears the burden of proving both prongs.
Id. at 687, 104 S.Ct. at 2064. A petitioner must
show that counsel's performance was deficient and that
his attorney's deficient performance resulted in
ineffective assistance of counsel claim was fully developed
in the state habeas proceedings. Trial counsel, Donald S.
Davidson, filed an affidavit in response to the allegations
of ineffective assistance of counsel. Trial counsel noted
that he “repeatedly informed [Mr. Lusk] before the
entrapment hearing that this was not a viable defense but he
insisted that he wanted to pursue it.” SHCR at 76.
Despite misgivings, trial counsel presented the defense
“to the best of [his] abilities.” Id.
considering the record, along with the affidavit of counsel,
the state trial court issued the following findings of fact
and conclusions of law with respect to whether trial counsel
was ineffective in presenting the entrapment defense:
[Mr. Lusk] also attacks the effectiveness of trial counsel
under this ground in a complaint that is vague but appears to
assert that his trial attorney filed a motion regarding
entrapment that he did not believe had any merit. Mr.
Davidson replies that he did in fact believe that there was
no real merit in an entrapment claim because “after
conducting extensive research of the law and the facts in his
cases  the legal criteria required to prove entrapment was
not a viable defense.” (Affidavit of Mr. Donald
Davidson at 3). Nevertheless, Mr. Davidson avers that,
“after many consultations regarding this matter and
after reviewing the overwhelming evidence establishing his
guilt, [Mr. Lusk] knowingly instructed me to file the
[entrapment] motion.” Id. The 12th Court of
Appeals agreed with Mr. Davidson's opinion when it held
that there was no abuse of the trial court's discretion
in overruling [Mr. Lusk's] entrapment motion. See
Lusk, 2015 Tex.App. LEXIS 4434 at *8-9.
The law does not require that frivolous motions be filed in
order for counsel to be considered to have provided effective
assistance. Wood v. State, 4 S.W.3d 85, 91 (Tex.
App. - Forth Worth 1999, pet. ref'd) (trial counsel is
not obligated to present frivolous motions or objections);
Edmond v. State, 116 S.W.3d 110, 115 (Tex. App. -
Houston [14th Dist.] 2002, pet. ref'd) (trial counsel is
not ineffective for failing to make a frivolous objection).
Mr. Davidson could have rightfully refused to file the
entrapment motion in this case, yet he acceded to [Mr.
Lusk's] wishes only to have to now defend that decision.
In recognition of the 12th Court's opinion, [Mr. Lusk]
has not met his two-pronged burden under Strickland
under this ground to show that Mr. Davidson rendered
ineffective assistance of counsel or that he suffered
b. [Mr. Lusk] alleges under a second ground that Mr. Davidson
was ineffective at the entrapment hearing because he failed
to “argue the facts.” (Writ App. at 8-9). [Mr.
Lusk] neglects to explain what specific “facts”
there were presented by the testimony at the entrapment
hearing should have been argued but were not. He likewise
fails to offer any authority to show how he was prejudiced by
the alleged failure to argue unspecified facts - especially
given that the 12th Court has decided the entrapment motion
was properly overruled.
Consequently, [Mr. Lusk] has not met his two-pronged burden
under Strickland to show ineffective assistance of
counsel and a resultant prejudice.
SHCR at 102-03. The state trial court concluded that trial
counsel provided effective assistance and that relief should
be denied. Id. at 105. The Texas Court of Criminal
Appeals subsequently denied the application without written
order on findings of the trial court without a hearing.
Lusk asserts that he wanted the entrapment defense presented
to the jury, as opposed to the trial court in a pretrial
proceeding. Counsel was not, however, required to make
frivolous or futile motions or objections. Johnson v.
Cockrell, 306 F.3d 249, 255 (5th Cir. 2002); Koch v.
Puckett, 907 F.2d 524, 527 (5th Cir. 1990). The failure
to make meritless objections does not result in the
ineffective assistance of counsel. Clark v. Collins,
19 F.3d 959, 966 (5th Cir. 1994) (the “[f]ailure to
raise meritless objections is not ineffective lawyering; it
is the very opposite.”). Mr. Lusk has not shown, as
required by 28 U.S.C. § 2254(d), that the State court
findings resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
federal law as determined by the Supreme Court of the United
States, or resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceedings.
context of § 2254(d), the deferential standard that must
be accorded to counsel's representation must also be
considered in tandem with the deference that must be accorded
state court decisions, which has been referred to as
“doubly” deferential. Harrington v.
Richter, 562 U.S. 86, 105, 131 S.Ct. 770, 788 (2011).
“When § 2254(d) applies, the question is not
whether counsel's actions were reasonable. The question
is whether there is any reasonable argument that counsel
satisfied Strickland's deferential
standard.” Id. Mr. Lusk has not satisfied his
burden of overcoming the “doubly” deferential
standard that must be accorded to trial counsel. The
ineffective assistance of trial counsel claim lacks merit.
Report of the Magistrate Judge, which contains his proposed
findings of fact and recommendations for the disposition of
such action, has been presented for consideration, and having
made a de novo review of the objections raised by
Mr. Lusk to the Report, the court is of the opinion that the
findings and conclusions of the Magistrate Judge are correct,
and Mr. Lusk's objections are without merit. Therefore,
the court adopts the findings and conclusions of the
Magistrate Judge as the findings and conclusions of the
court. It is accordingly ORDERED that the petition for a writ