United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 filed by petitioner, Desmond Ledet, a state
prisoner incarcerated in the Correctional Institutions
Division of the Texas Department of Criminal Justice (TDCJ),
against Lorie Davis, Director of TDCJ, respondent. After
having considered the pleadings, state court records, and
relief sought by petitioner, the court has concluded that the
petition should be denied.
2009 petitioner was indicted in Tarrant County, Texas, Case
No. 1152016D, with aggravated sexual assault. (Clerk's R.
2, ECF No. 25-17.) Petitioner's jury trial commenced on
June 22, 2010, at the conclusion of which the jury found
petitioner guilty of the lesser-included offense of sexual
assault, and the trial court assessed his punishment at 20
years' imprisonment. (Id. at 205.) The Second
District Court of Appeals of Texas affirmed the trial
court's judgment, and the Texas Court of Criminal Appeals
refused petitioner's petition for discretionary review.
(Mem. Op. 10, ECF No. 25-3.) Petitioner also filed a state
postconviction habeas-corpus application challenging his
conviction, which was denied without written order by the
Texas Court of Criminal Appeals on the findings of the trial
court. ("Action Taken, " ECF No. 26-10.) This
federal petition followed.
state appellate court summarized the evidence at trial as
The complainant testified that appellant approached her in
his truck at Jasmine Food Store on East Berry Street in Fort
Worth and asked if she wanted a ride; she was walking to find
a telephone, so she agreed. She also said that appellant told
her he needed to stop at a friend's house along the way.
Appellant drove to an apartment complex and left the
complainant alone in the truck for about five minutes. When
he returned, he drove to the back of the complex, and the
complainant started to feel nervous. She told appellant that
she would find another way home.
According to the complainant, when she tried to step out of
the truck, appellant pulled a gun from the driver's side
door, pointed it at her, told her to get back in the truck,
and threatened to kill her if she screamed.
The complainant testified that appellant told her to pull off
her panties; she began to beg him not to "do this."
Appellant became more aggressive, pulled off the
complainant's panties, ordered her to face backward in
the seat, placed his hands around her neck, and forced her to
have sex with him. Appellant then got back in the
driver's seat and drove off with the complainant still in
the truck. She jumped out on a bridge and ran across the
street to a pay phone where she called 911.
The evidence shows that police took the complainant to the
hospital where hospital personnel performed a sexual assault
examination. Semen with unidentified DNA was taken from the
complainant's vagina, ankle, and panties and preserved;
that DNA was determined to originate from appellant after the
complainant identified him in a photo lineup approximately
five years later.
(Mem. Op. 2-3, ECF Mo. 25-3.)
defensive theory at trial was to discredit the victim with
her admission to using alcohol and crack cocaine at the time
of the offense and Petitioner's testimony that she
approached him at a car wash and propositioned him with sex
in exchange for money to buy crack cocaine; that he gave her
money for crack cocaine; that the sex was consensual; and
that he believed she was in a "cocaine-induced,
paranoid, schizophrenic, panic attack" based on her
"schized out" behavior. (Reporter's R., vol. 5,
112- 32, 163, 171, ECF No. 25-9.)
eleven grounds for relief, petitioner claims that he received
ineffective assistance of trial counsel. (Pet. 6-7 &
Attach. 1-10, ECF No. 1.)
Rule 5 Statement
believes that petitioner has sufficiently exhausted his state
court remedies as to the claims raised and that the petition
is not time-barred or subject to the successive-petition bar.
(Resp't's Answer 5, ECF No. 21.) 28 U.S.C.
§§ 2244(b), (d) & 2254(b).
Standard for Granting Habeas Corpus Relief
§ 2 2 54 habeas petition is governed by the heightened
standard of review provided for by the Anti-Terrorism and
Effective Death Penalty Act (AEDPA). 28 U.S.C. § 2254.
Under the Act, a writ of habeas corpus should be granted only
if a state court arrives at a decision that is contrary to or
an unreasonable application of clearly established Supreme
Court precedent or that is based on an unreasonable
determination of the facts in light of the record before the
state court. Harrington v. Richter, 562 U.S. 86,
100-01 (2011); 28 U.S.C. § 2254(d) (l}-(2). This
standard is difficult to meet and "stops short of
imposing a complete bar on federal court relitigation of
claims already rejected in state proceedings."
Harrington, 562 U.S. at 102.
the statute requires that federal courts give great deference
to a state court's factual findings. Hill v.
Johnson, 210 F.3d 481, 485 (5th Cir. 2000). Section
2254(e)(1) provides that a determination of a factual issue
made by a state court shall be presumed to be correct. The
petitioner has the burden of rebutting the presumption of
correctness by clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1); Miller-El v. Cockrell, 537 U.S.
322, 340 (2003); Williams v. Taylor, 529 U.S. 362,
399 (2000). Further, when the Texas Court of Criminal Appeals
denies a federal claim in a state habeas-corpus application
without written opinion, a federal court may presume
"that the state court adjudicated the claim on the
merits in the absence of any indication or state-law
procedural principles to the contrary" and applied the
correct "clearly established federal law, as determined
by the Supreme Court of the United States" unless there
is evidence that an incorrect standard was applied, in making
its decision. Johnson v. Williams, __U.S.__, 133
S.Ct. 1088, 1094 (2013); Harrington, 562 U.S. at 99;
Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir.
criminal defendant has a constitutional right to the
effective assistance of counsel at trial. U.S. Const, amend.
VI, XIV; Evitts v. Lucey, 469 U.S. 387, 396 (1985);
Strickland v. Washington, 466 U.S. 668, 688 (1984).
To establish ineffective assistance of counsel, a petitioner
must show (1) that counsel's performance fell below an
objective standard of reasonableness, and (2) that but for
counsel's deficient performance the result of the
proceeding would have been different. Strickland,
466 U.S. at 688. In applying this test, a court must indulge
a strong presumption that counsel's conduct fell within
the wide range of reasonable professional assistance.
Id. at 668, 688-89. Judicial scrutiny of
counsel's performance must be highly deferential and
every effort must be made to eliminate the distorting effects
of hindsight. Id. at 689.
Supreme Court recently emphasized in Harrington v.
Richter the manner in which a federal court is to
consider an ineffective-assistance-of-counsel claim raised in
a habeas petition subject to AEDPA's strictures:
The pivotal question is whether the state court's
application of the Strickland standard was
unreasonable. This is different from asking whether defense
counsel's performance fell below
Strickland's standard. Were that the inquiry,
the analysis would be no different than if, for example, this
Court were adjudicating a Strickland claim on direct
review of a criminal conviction in a United States district
court. Under AEDPA, though, it is a necessary premise that
the two questions are different. For purposes of §
2254(d) (1), "an unreasonable application of
federal law is different from an incorrect application of
federal law." A state court must be granted a deference
and latitude that are not in operation when the case involves
review under the Strickland standard itself.
562 U.S. at 101 (quoting Williams, 529 U.S. at
410)). Accordingly, it is necessary only to determine whether
the state courts' rejection of petitioner's
ineffective assistance claims was contrary to or an
objectively unreasonable application of Strickland. Bell
v. Cone, 535 U.S. 685, 698-99 (2002); Kittelson
v, Dretke, 426 F.3d 306, 315-17 (5th Cir. 2005);
Schaetzle, 343 F.3d at 443.
was represented at trial by Curtis L. Fortinberry and Lindsay
M. Gilland. In response to petitioner's allegations,
Fortinberry filed an affidavit in the state habeas
proceedings, which the state habeas court found to be
credible. (State Habeas R., vol. 2, 48 9, ECF No. 27-9.) The
state habeas court adopted the state's proposed findings
of fact, which are largely consistent with counsel's
affidavit and the documentary record.
Texas Court of Criminal Appeals, in turn, denied relief based
on the trial court's findings. Petitioner has not
presented clear and convincing evidence in rebuttal. Thus,
relying on the presumptive correctness of the state
courts' factual findings, in conjunction with the state
court records, the court conducts an independent review of
his first ground, petitioner claims Fortinberry was
ineffective by failing to adequately prepare for trial
because he did not make a request to the state for evidence
favorable to the accused or attempt to discover any such
evidence on his own.
he asserts that counsel should have discovered police reports
involving the victim that could have been used as impeachment
evidence against her. (Pet. 6, ECF No. 1; State Habeas R.,
vol. 1, 292-312.) To the extent raised in petitioner's
state habeas application, counsel denied the allegations and
discussed them in his affidavit as follows:
Ms. Gilliland [sic] and I worked many hours on
Petitioner's case. We read all of Petitioner's
letters (approximately 20) which included areas of
questioning for trial. Petitioner was very engaged in the
defense of his case. We discussed the strategy and theme of
his case. He knew what we were attempting and was in full
Petitioner asserts that the victim had "multiple
convictions" I saw no evidence of this. There are two
offense reports in which the victim is the complainant but
none where she is the suspect. The State produced no criminal
histories of the victim even after a motion to do so was
filed. The officer also denied the existence of a criminal
history for the victim under oath.
This ground alleges impeachment evidence regarding two
offense reports in which the victim was the injured party. In
one case, after making the deadly conduct-family member
report, she refused to cooperate in the investigation and the
detective wasn't convinced complainant did not embellish
the story. The other offense report was another assault
family violence. The police interviewed both her and the
suspect and the detective determined that the complainant
really didn't care about the case so he cleared it and
said that all the elements of assault were not met.
I do not believe this is impeachment evidence as she was not
questioned about it so she did not deny anything regarding
these reports. Furthermore the mere fact that the police did
not file a case against the two suspects does not mean the
assaults did not happen.
(State Habeas R., vol. 2, 403-04, ECF No. 27-9.)
state court found that petitioner's first attorney, who
filed a plethora of motions, filed a motion for production of
evidence favorable to the accused, which included a request
for "the arrest and/or conviction record of each State
witness"; that there was no evidence the state was ever
in possession of the reports or knew of their existence; that
counsel saw no evidence that the victim had prior
convictions; that the police reports are not evidence that
the victim had prior convictions; and that there was no
evidence that the state failed to disclose evidence favorable
to petitioner because counsel did not file a second motion.
(Id. at 488, 490, 501.) The court also found that
the reports "significantly predated"
petitioner's offense and had nothing to do with his case.
(Id. at 491.) Applying Strickland, the
court concluded that petitioner had failed to demonstrate
that there was a reasonable likelihood that the outcome of
the proceedings would have been different had counsel
investigated the case more or filed a second motion to
provide favorable evidence prior to trial. (Id. at
state courts' application of Strickland was not
unreasonable. It is presumed that counsel made an adequate
investigation, and, in this case, it appears counsel had the
added benefit of a court-appointed investigator. (Clerk's
R. 55, ECF No. 25-17.) Strickland, 466 U.S. at 689.
Additionally, Tarrant County has an "open file"
policy, and nothing in the record suggests that counsel
should have been aware of the reports or suspected that
impeaching evidence was being withheld. Nor does petitioner
demonstrate any resulting prejudiced by counsel's failure
to discover the reports. The reports indicate that in 2001
the victim was involved in a fight with another woman at an
apartment complex but was not arrested in connection with the
incident; that the victim was the complaining party in two
reports taken in 2002; that the victim was arrested for
outstanding traffic warrants following one of the 2002
incidents; and that sometime before the 2 0 02 reports, she
was arrested for resisting arrest and failure to identify
truthfully. Typically, evidence of an arrest may not be used
for impeachment of a witness. See United States v.
Aguilar, 754 F.2d 1202, 1206 (5th Cir. 1985). Nor is
there any evidence that, as alleged by petitioner, the
reports were false or made in retaliation. (Pet'r's
Reply 10-11, ECF No. 37.) Mere conclusory allegations in
support of a claim of ineffective assistance of counsel are
insufficient to raise a constitutional issue. Green v.
Johnson, 0 F.3d 1029');">160 F.3d 1029, 1042 (5th Cir. 1998).
his second ground, petitioner claims counsel was ineffective
by failing to object to the following argument made by the
prosecution during the guilt/innocence phase:
Driving around his hood. He was familiar with that place,
wasn't he? He knew all the hangouts. He knew everywhere
to go to have undetected sex, didn't he? All those places
he went. Let her go to the bathroom. We had sex here. He knew
that place like the back of his hand because he drives
it. He drives it. Looking for people he can do what he wants
to do with. The man's a predator.
(App. to Pet'r's Reply 16, ECF No. 38; Reporter's
R., vol. 6, 18, ECF No. 25-10 (emphasis added).) Petitioner
urges that the argument served to insinuate to the jury that
he was "habitually driving around in a predatory manner
hunting for multiple people to sexually assault." (Pet.
at 6, ECF No, 1.) Counsel responded to the allegation in his
affidavit as follows:
The state asserts in closing argument that he knew what he
was doing, that he knew the neighborhood. He knew where to go
to have undetected sex. The fact that he went to a location
and did in fact have undetected sex indicates he knew where
he was going. This is not outside the scope of the evidence
(State Habeas R., vol. 2, 403, ECF No. 27-9.)
state law, "summation of the evidence" is a proper
area of jury argument. Felder v. State, 84 8 S.W.2d
85, 94-95 (Tex. Crim. App. 1992) . Thus, the state habeas
court found that as a matter of state law, the argument was
proper as a summation of the evidence. Applying
Strickland, the court concluded that counsel's
decision to not object to the argument was therefore the
result of reasonable trial strategy. The court also concluded
that petitioner failed to demonstrate a reasonable likelihood
that the result of the proceedings would have been different
had counsel objected to the argument. (Id. at 495.)
state courts' application of Strickland was not
unreasonable. "[I]n our role as a federal habeas court,
we cannot review the correctness of the state habeas
court's interpretation of state law." Young v.
Dretke, 356 F.3d 616, 628 (5th Cir. 2004). Accepting the
state court's conclusion based on state law that the
argument was proper, counsel was not ineffective for failing
to raise an objection to it. Ries v. Quarterman, 522
F.3d 517, 531 (5th Cir. 2008). Counsel is not required to
make frivolous motions or objections. Green v.
Johnson, 16 0 F.3d 1029, 1037 (5th Cir. 1998);
United States v. Oakley, 827 F.2d 1023, 1025 (5th
his fourth ground, petitioner claims counsel was ineffective
by failing to object during voir dire to the state's use
of a "prejudicial definition" of proof beyond a
reasonable doubt based on the "Wheel of Fortune"
television show. (Pet., Attach. 1-3, ECF No, 1.) According to
petitioner, the hypothetical based on the show violated his
right to a fair trial and his right to be convicted only upon
proof of each element of the offense beyond a reasonable
doubt, lessened the state's burden of proof, and tainted
the presumption of innocence. (Id., Attach. 1.)
Relying solely ...