United States District Court, W.D. Texas, Austin Division
PITMAN UNITED STATES DISTRICT JUDGE
is pro se in this matter and has paid the full filing fee for
this case. Before the Court are Petitioner's Application
for Writ of Habeas Corpus under 28 U.S.C. § 2254 and his
memorandum in support of his application (Docket Entry
“DE” 1), Respondent's Answer (DE 7), and
Petitioner's Reply (DE 11). For the reasons set forth
below, Petitioner's Application for Writ of Habeas Corpus
OF THE CASE
has custody of Petitioner pursuant to a conviction entered by
the 22nd District Court of Hays County, Texas. Petitioner was
found guilty of three counts of aggravated sexual assault of
a child, and sentenced to concurrent terms of fifty
years' imprisonment. Petitioner asserts he is entitled to
federal habeas relief because he was denied his right to the
effective assistance of counsel.
following facts are taken from the Texas Court of
Appeals' decision denying Petitioner's appeal:
Appellant's stepdaughter, “Anna, ” told her
mother in 2008 that appellant had put his fingers in her
vagina two years earlier. Anna testified at trial that he
assaulted her seven or eight times on different days.
Anna's mother, “Mary” testified that she
called appellant to confront him and that he responded by
saying “he knew eventually that I was going to find out
and that everything she said he did, he did and not to worry
about the police or anybody else because he was going to kill
himself for what he had done.” Mary testified that
appellant then drove out to a lake and attempted to kill
himself by slitting his throat. His medical records include
reports that he told doctors that he had touched his
stepdaughter inappropriately and that he was remorseful.
At trial, appellant denied committing the offenses. He
admitted to having been suicidal but attributed that to his
belief that his marriage was ending. He also described an
incident on a camping trip when Anna asked if he would
massage her feet, which was something he had done before. He
said that, as he was massaging her feet, he noticed that she
put her hand on her private parts over her clothes. He
testified that he stopped the massage immediately and told
her to go to bed. Thereafter, he said, he did not feel
comfortable around Anna. He felt awkward and did not trust
her. He testified that, when Mary called him two weeks later,
Anna's accusations made him want to die. He did not
recall telling hospital personnel that he had touched his
stepdaughter inappropriately, but said he might have simply
agreed that he committed the offenses because he was confused
and medicated because of what he described as false
accusations and his failing marriage. He also indicated that
Mary had threatened that the only way to save their marriage
was to seek counseling for the alleged sex offenses.
Appellant testified that he continued to live with Mary and
her daughters periodically after the allegations were made.
He said that he filed for divorce in 2010, and only then did
Mary obtain a protective order against him. He testified that
the divorce proceedings were contentious and that Mary told
him that she would leave him penniless and that he would have
a hard time explaining why he checked himself into the
Marquez v. State, No. 03-13-00386-CR, 2014 WL
4414820, at *1-*2 (Tex. App.-Austin 2014, pet. ref'd).
Petitioner's Criminal Proceedings
jury indictment returned October 3, 2012, charged Petitioner
with three counts of aggravated sexual abuse of a child
younger than 14 years of age, alleging these assaults
occurred in October, November, and December of 2006. (DE 6-24
at 4). Prior to trial, Petitioner's counsel
filed a motion to suppress and a motion in limine with regard
to evidence of Petitioner's suicide attempt upon learning
of the outcry, and his ensuing in-patient psychiatric
treatment at a VA hospital. (DE 6-8 at 6-9, 12-78; DE 6-15 at
18-19). Petitioner's counsel argued Petitioner's VA
hospital records were comprised of hearsay and raised issues
regarding Petitioner's right to confront witnesses
against him. (DE 6-8 at 6-7, 12-78). Defense counsel also
objected to the form of the business record affidavit
authenticating the medical records, which objection was
overruled. (DE 6-8 at 74-77). The trial court ultimately
concluded that the records were admissible as authenticated,
but that defense counsel could raise other objections to the
admission of discreet portions of the records, (DE 6-8 at
74-76, 77), and ruled that portions of the medical records
were inadmissible. (DE 6-8 at 31, 36, 40, 41, 42, 44, 46).
counsel also moved to exclude testimony by Mr. Steege, a
clinical social worker, based on attorney-client privilege.
(DE 6-8 at 55-56, 68). Mr. Steege had interviewed Petitioner
twice, once as a private client and once at the behest of
Petitioner's counsel. (DE 6-8 at 68-69). The trial court
ruled that Mr. Steege's testimony regarding the first
meeting was admissible, and excluded his testimony as to the
second meeting, finding this testimony barred by the doctrine
of attorney-client privilege. (DE 6-8 at 70, 72).
was represented by retained counsel at his trial, (DE 6-5 at
11), and testified during the guilt phase of his trial. (DE
6-10 at 67-123). After deliberating for less than an hour,
(DE 6-10 at 166; DE 6-11 at 7-8; DE 6-24 at 11), the jury
found Petitioner guilty on all three counts alleged in the
indictment. (DE 6-24 at 11-13). The jury was instructed to
assess punishment at not less than 5 years, or more than 99
years or life imprisonment. (DE 6-24 at 14). The jury
assessed punishment at a term of 50 years' imprisonment
and a fine of $10, 000 on each count of conviction, (DE 6-24
at 17-22), and the trial court ordered that the terms of
confinement be served concurrently. (DE 6-24 at 24-31).
through counsel, moved for a new trial. (DE 6-24 at 32-33).
Petitioner alleged the trial court had improperly admitted
evidence and erroneously denied Petitioner's request for
a continuance to review evidence, and that the verdict was
contrary to the law and the evidence. (DE 6-24 at 32-33).
Because no order denying the motion appears in the record, it
is presumed the motion was denied by application of law.
through appointed counsel, (DE 6-15 at 76), appealed his
conviction and sentence, asserting that the trial court erred
by allowing the State to bolster the victim's credibility
through her mother's testimony before the victim's
credibility was attacked. Marquez v. State, No.
03-13-00386-CR, 2014 WL 4414820, at *1-*2 (Tex. App.-Austin
2014, pet. ref'd). The Texas Court of Appeals denied
relief and the Texas Court of Criminal Appeals denied a
petition for discretionary review. Id.
filed an application for state habeas relief, asserting he
was denied his right to the effective assistance of trial and
appellate counsel. (DE 6-24 at 45-90). Petitioner's
appellate counsel filed an affidavit in his state habeas
action, refuting Petitioner's claims that counsel's
performance was deficient. (DE 6-24 at 113-19). The state
trial court issued an order denying the state writ on March
3, 2016. (DE 6-24 at 120). The Texas Court of Criminal
Appeals denied relief without written order. (DE 6-23).
Federal Habeas Claims
raises seven claims that his trial and appellate
counsels' performance was unconstitutionally deficient.
(DE 1 & 1-1). Petitioner asks this Court to vacate his
convictions and enter a judgment of acquittal. (DE 1).
allows that the petition is timely and that Petitioner
properly exhausted his federal habeas claims in the state
courts. (DE 7 at 4).
The Antiterrorism and Effective Death Penalty Act of
Supreme Court summarized the basic principles established by
the Court's many cases interpreting the 1996
Antiterrorism and Effective Death Penalty Act in
Harrington v. Richter, 562 U.S. 86, 97-100 (2011).
The Supreme Court noted that the starting point for any
federal court reviewing a state conviction is 28 U.S.C.
§ 2254, which states:
application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall
not be granted with respect to any claim that was adjudicated
on the merits in State court proceedings unless the
adjudication of the claim-
(1) 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;
(2) 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.
28 U.S.C. § 2254(d). The Court stated that “[b]y
its terms § 2254(d) bars relitigation of any claim
‘adjudicated on the merits' in state court, subject
only to the exceptions in §§ 2254(d)(1) and
(d)(2).” Harrington, 562 U.S. at 98.
2254(d) permits the granting of federal habeas relief in only
three circumstances: (1) when the state court's decision
“was contrary to” federal law as clearly
established by the holdings of the Supreme Court; (2) when
the state court's decision involved an
“unreasonable application” of such law; or (3)
when the decision “was based on an unreasonable
determination of the facts” in light of the record
before the state court. Id. at 100, citing
28 U.S.C. § 2254(d), and Williams v. Taylor,
529 U.S. 362, 412 (2000). The “contrary to”
requirement refers to the holdings, as opposed to the dicta,
of the Supreme Court's decisions at the time of the
relevant state court decision. Carey v. Musladin,
549 U.S. 70, 74 (2006); Dowthitt v. Johnson, 230
F.3d 733, 740 (5th Cir. 2000). Under the “contrary
to” clause, a federal habeas court may grant the writ
if the state court arrives at a conclusion opposite to that
reached by the Supreme Court on a question of law or if the
state court decides a case differently than the Supreme Court
on a set of materially indistinguishable facts. Thaler v.
Haynes, 559 U.S. 43, 47 (2010).
the unreasonable application clause of § 2254(d)(1), a
federal court may grant the writ “if the state court
identifies the correct governing legal principle from . . .
[the Supreme Court's] decisions but unreasonably applies
that principle to the facts of the prisoner's
case.” Dowthitt, 230 F.3d at 741 (quotation
and citation omitted). A state court's determination that
a claim lacks merit precludes federal habeas relief so long
as “fairminded jurists could disagree” on the
legitimacy of the state court's decision. Yarborough
v. Alvarado, 541 U.S. 652, 664 (2004). To be entitled to
relief, the petitioner “‘must show that the state
court's ruling . . . was so lacking in justification that
there was an error well understood and comprehended in
existing law beyond any possibility for fairminded
disagreement.'” Bobby v. Dixon, 565 U.S.
23, 24 (2011), quoting Harrington, 562 U.S. at 103.
If this standard is difficult to meet, that is because it was
meant to be. As amended by AEDPA, § 2254(d) stops short
of imposing a complete bar on federal-court relitigation of
claims already rejected in state proceedings. It preserves
authority to issue the writ in cases where there is no
possibility fairminded jurists could disagree that the state
court's decision conflicts with this Court's
precedents. It goes no further. Section 2254(d) reflects the
view that habeas corpus is a “guard against extreme
malfunctions in the state criminal justice systems, ”
not a substitute for ordinary error correction through
appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5,
99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring
Harrington, 562 U.S. at 102-03 (some internal
citations omitted). The Supreme Court, “time and again,
has instructed that AEDPA, by setting forth necessary
predicates before state-court judgments may be set aside,
erects a formidable barrier to federal habeas relief for
prisoners whose claims have been adjudicated in state
court.” Grim v. Fisher, 816 F.3d 296, 304 (5th
Cir.) (internal quotations omitted), cert. denied,
137 S.Ct. 211 (2016).
assistance of counsel claims present mixed questions of law
and fact. Williams, 529 U.S. at 419. Section
2254(e)(1) requires a federal court to presume state court
factual determinations to be correct, although a petitioner
can rebut the presumption by clear and convincing evidence.
Miller-El v. Dretke, 545 U.S. 231, 240 (2005). This
presumption extends not only to express findings of fact, but
also to implicit findings of fact by the state court.
Register v. Thaler, 681 F.3d 623, 629 (5th Cir.
2012). The Supreme Court has “explicitly left open the
question whether § 2254(e)(1) applies in every case
presenting a challenge under § 2254(d)(2).”
Wood v. Allen, 558 U.S. 290, 300 (2010). However,
the Fifth Circuit Court of Appeals has held that, while
section 2254(e)(1)'s clear and convincing standard
governs a state court's resolution of “particular
factual issues, ” the unreasonable determination
standard of section 2254(d)(2) governs “the state
court's decision as a whole.” Blue v.
Thaler, 665 F.3d 647, 654 (5th Cir. 2011). See also
Hoffman v. Cain, 752 F.3d 430, 441-42 (5th Cir. 2014)
(“it is possible that, while the state court erred with
respect to one factual finding under § 2254(e)(1), its
determination of facts resulting in its decision in the case
was reasonable under § 2254(d)(2).” (internal
quotations omitted)), cert. denied, 135 S.Ct. 1160
standard of review applies to Petitioner's federal habeas
claims notwithstanding the fact that the Texas Court of
Criminal Appeals' decision denying relief in
Petitioner's state habeas action was unexplained.
Although the state court did not make explicit findings, that
does not mean the court “merely arrived at a legal
conclusion” unworthy of the presumption of correctness.
Cantu v. Collins, 967 F.2d 1006, 1015 (5th Cir.
1992), citing Marshall v. Lonberger, 459 U.S. 422,
433-34 (1983). If a state court summarily denies a
petitioner's claims, the Court's authority under
AEDPA is still limited to determining the reasonableness of
the ultimate decision. Charles v. Thaler, 629 F.3d
494, 498-99 (5th Cir. 2011); Catalan v. Cockrell,
315 F.3d 491, 493 (5th Cir. 2002). When state habeas relief
is denied without an opinion, the Court must assume that the
state court applied the proper “clearly established
Federal law, ” and then determine whether the state
court decision was “contrary to” or “an
objectively unreasonable application of” that law.
Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th Cir.
The Strickland Standard Governing Ineffective