United States District Court, W.D. Texas, San Antonio Division
JIM BRITE, TDCJ No. 1471684 Petitioner,
LORIE DAVIS, Director, Texas Dep't Of Criminal Justice, Correctional Institutions Division, Respondent.
MEMORANDUM OPINION AND ORDER
ORLANDO L. GARCIA, CHIEF UNITED STATES DISTRICT JUDGE.
to 28 U.S.C. § 2254, Jim Brite, a/k/a "Jimmy Acosta
Brite, " an inmate in the custody of the Texas
Department of Criminal Justice-Correctional Institutions
Division ("TDCJ-CID"), has filed a Motion for an
Evidentiary Hearing (Docket Entry "DE" 17), along
with his application for a writ of habeas corpus (DE 1),
challenging the constitutionality of his underlying
convictions for three counts of indecency with a child
(Counts I, III and VI), one count of aggravated sexual
assault (Count II), and one count of sexual assault (Count
IV) . Petitioner, who was sentenced to four terms of twenty
years' imprisonment and one term of life imprisonment,
maintains that 1) he is actually innocent and trial counsel
was ineffective for failing to challenge prosecutorial
misconduct; 2) trial counsel was ineffective for failing to
raise a collateral estoppel objection to extraneous-offense
evidence, failing to know the law regarding the victim's
age, and failing to secure the testimony of Mary Ann Harris,
a material witness; and 3) his prosecution on the second and
third counts violated double jeopardy. (Id.) . As
required by Rule 4 of the Rules Governing Section 2254 Cases,
the Court has conducted a preliminary review of the petition.
Having considered the habeas application (DE 1),
Respondent's Answer (DE 13 and 21), Petitioner's
Traverse (DE 16 and 22), and the applicable law, the Court is
of the opinion the petition should be
DENIED. (DE 1). Petitioner's Motion for
an Evidentiary Hearing is also DENIED. (DE
November 2007, Brite was convicted of three counts of
indecency with a child by sexual contact, one count of
aggravated sexual assault of a child, and one count of sexual
assault of a child. State v. Brite, No. 2006-CR-5362
(186th Dist. Ct., Bexar County, Tex., Nov. 2, 2007); (DE
11-15 at 192-202) . He was given four twenty-year sentences,
and one life sentence, all to run concurrently. Id.
Brite's convictions and sentences were affirmed on direct
appeal by the Fourth Court of Appeals in June of 2009. Brite
v. State, No. 04-07-820-CR, 2009 WL 1617741 (Tex.
App.-San Antonio, June 10, 2009, pet. ref'd). Brite was
subsequently granted the opportunity to file an out-of-time
petition for discretionary review by the Texas Court of
Criminal Appeals ("TCCA"), which the state court
eventually refused. Brite v. State, No. PD-1706-13
(Tex. Crim. App. July 23, 2014) . He then appealed his case
to the United States Supreme Court, but his petition for writ
of certiorari was denied on January 12, 2015. Brite v.
Texas, 135 S.Ct. 963 (2015).
a year later, Brite filed a state habeas corpus application
challenging his convictions and sentences. Ex parte
Brite, No. 79, 647-02 (Tex. Crim. App.) (DE 12-17, pg.
394). In two separate pleadings to this Court, Brite asserts
that he filed his application on January 7, 2016, by
depositing it in the prison mail-box. (DE 4, pgs. 2-4; DE 16,
pg. 3). However, records provided by Respondent Davis
indicate that Brite placed his application in the prison
mailing system on January 8, 2016. (DE 13-1, pg. 28).
Brite's state habeas petition was subsequently denied
without written order by the Texas Court of Criminal Appeals
on June 1, 2016. (DE 12-13). Brite filed the current federal
habeas petition on June 7, 2016. (DE 1, pg. 10) .
factual background was summarized as follows by the Fourth
Court of Appeals in its Memorandum Opinion, dated June 10,
At the time of trial, Nancy M., the mother of S.M., who was
one of the complainants, was separated from her husband Rick
M., who was S.M.'s father. Brite was the boyfriend of
S.M.'s paternal grandmother. Nancy M. initially liked
Brite, and he attended numerous family outings. In October or
November of 2005, Nancy M. and Rick M. were having marital
problems, and Rick M. moved to his mother's house. S.M.
and her siblings would visit Rick M. at their
grandmother's house, and they stayed the night
approximately five times. In December of 2005, S.M.'s
younger sister, CM., who was three or four years old, told
Nancy M. something that made her concerned. Nancy M. asked
S.M., who was approximately seven years old, about the
information, and S.M. told her that "she was sleeping
and that she woke up and [Brite] touched her middle."
Nancy M. set up an appointment for S.M. to see a counselor,
Mary Ann Harris, on December 28, 2005. After Harris spoke
with S.M., she instructed Nancy M. that she needed to call
child protective services and make a police report. Harris
referred Nancy M. to Child Safe where S.M. was interviewed on
videotape and medically evaluated. S.M. started counseling
with Marianne Torres and continued in counseling for a little
over a year. Nancy M. did not immediately call the police,
but eventually both Nancy M. and S.M. gave statements to
Detective Lisa Miller. Nancy M. testified that the incident
made S.M. scared and angry and caused her to have trouble
sleeping. Nancy M. admitted that her separation from Rick M.
also could cause S.M. to be angry and have trouble sleeping.
Nancy M. further stated that S.M. would express anger towards
Rick M. because he would yell at S.M. and sometimes curse her
S.M., who was nine years old at the time of trial, testified
that in October or November of 2005, she was sleeping on the
couch at her grandmother's house, and Brite "put his
hand in [her] pants" and touched her private part, which
she stated was her vagina, underneath her pan ties [sic].
S.M. stated Brite's hand was touching the skin of her
private part. Although S.M. told Brite to stop, he continued
touching her. S.M. said when Brite touched her, his hand
would stay still. S.M. did not tell anyone because she
thought her mom would get mad at her. S.M. said Brite touched
her about four times. S.M. recalled one time when Brite was
eating hot wings, and "he touched [her] there and it
started to burn." Brite told her to get a washcloth and
put it on her "middle" so it would stop burning.
S.M. said she told her little sister because she was afraid
to tell her mom. S.M. testified that no one told her to say
bad things about Brite or told her to make up stories about
him because they were mad at him. In response to whether
Brite's "fingers were on the outside of her private
part or something else, " S.M. responded that she did
not remember. Detective Lisa Miller took Nancy M.'s
statement and sent S.M. to Child Safe for a medical
evaluation and interview. On March 6, 2006, Detective Miller
interviewed S.M. and later interviewed Brite on March 26,
2006. Detective Miller testified that Brite did not respond
directly to her questions but qualified his answers. For
example, Brite would respond that he "cannot see myself
doing that" or "I don't remember doing
that." During the interview, Brite did corroborate that
the family ate hot wings on the night of one of the alleged
incidents; however, Brite told Detective Miller that S.M. got
the sauce on her hands when she cleaned up the kitchen and
later complained that she was burning after she went to the
restroom. Brite further stated that he examined S.M.,
determined that she must not have washed her hands before
using the restroom, and instructed her to go wash her hands
and clean herself with a wash rag. Brite explained that he
examined her to see if something had bitten her.
After Detective Miller turned S.M.'s case over to the
district attorney's office for their review, she was
contacted by Brite's daughter, A.B., who subsequently
came to the station for an interview regarding sexual
offenses Brite committed against her. Based on that
interview, Detective Miller referred A.B.'s case to the
district attorney for aggravated sexual assault of a child.
Nancy Kellogg, a pediatrician who specializes in treating
child sexual abuse victims, testified that S.M. told her she
was asleep on the couch when Brite put his hand inside and it
felt uncomfortable. S.M. was anxious and difficult to
interview because she did not want to elaborate on details.
Dr. Kellogg further stated that S.M. indicated through her
gestures that Brite's hand was inside of her private. Dr.
Kellogg testified that S.M.'s description of the burning
also indicated to her that Brite had penetrated S.M. with his
finger. Dr. Kellogg testified that S.M.'s physical exam
was normal which is most common when examining children in
A.B. testified that when she was six years old, Brite, her
father, placed his penis between her legs. Although Brite
tried to place his penis inside her vagina, she told him it
hurt, and he stopped. He continued, however, rubbing his
penis in between her legs. A.B. testified that Brite would do
this to her at least three or four times a week. Brite also
touched A.B.'s vagina with his fingers a lot and placed
his mouth on her vagina at one point. These incidents
continued after September 1, 1987, until her parents divorced
when she was around fourteen years old. When A.B. was in
third grade, she was called to the counselor's office and
told the counselor about Brite's actions. Child
protective services and the police were called. A.B. stated
that the family went to counseling for about a year after she
told the counselor. After the counseling, Brite started
fondling A.B. again, and Brite continued placing his sexual
organ between A.B.'s legs and touching her sexual organ
with his sexual organ. After her parents' divorce, Brite
attempted to touch A.B. when she was seventeen; however, she
stopped him. A.B. was afraid to call the police because
nothing happened the other time they were called. When asked
why she finally decided to pursue charges against her father,
A.B. stated Nancy M. told her about the incident involving
S.M. A.B. further stated, "I just don't want him to
do this to anybody anymore. "
Brite, 2009 WL 1617741, at *l-3.
Standards of Review
Review of State Court Adjudications
federal petition is governed by the heightened standard of
review provided by the Antiterrorism and Effective Death
Penalty Act ("AEDPA"). 28 U.S.C.A. § 2254.
Under § 2254(d), a petitioner may not obtain federal
habeas corpus relief on any claim that was adjudicated on the
merits in state court proceedings, unless the adjudication of
that claim either: (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, or (2) resulted in a decision
that was based on an unreasonable n
determination of the facts in light of the evidence presented
in the state court proceeding. Brown v. Payton, 544
U.S. 133, 141 (2005) . This intentionally difficult standard
stops just short of imposing a complete bar on federal court
relitigation of claims already rejected in state proceedings.
Harrington v. Richter, 562 U.S. 86, 102 (2011)
(citing Felker v. Turpin, 518 U.S. 651, 664 (1996)).
federal habeas court's inquiry into unreasonableness
should always be objective rather than subjective, with a
focus on whether the state court's application of clearly
established federal law was "objectively
unreasonable" and not whether it was incorrect or
erroneous. McDaniel v. Brown, 558 U.S. 120, 132-33
(2010); Wiggins v. Smith, 539 U.S. 510, 520-21
(2003). Even a strong case for relief does not mean the state
court's contrary conclusion was unreasonable, regardless
of whether the federal habeas court would have reached a
different conclusion itself. Richter, 562 U.S. at
102. Instead, a petitioner must show that the decision was
objectively unreasonable, which is a "substantially
higher threshold." Schriro v. Landrigan, 550
U.S. 465, 473 (2007); Lockyer v. Andrade, 538 U.S.
63, 75-76 (2003). So long as "fair minded jurists could
disagree" on the correctness of the state court's
decision, a state court's determination that a claim
lacks merit precludes federal habeas relief.
Richter, 562 U.S. at 101 (citing Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). In other words, to
obtain federal habeas relief on a claim previously
adjudicated on the merits in state court, Brite 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." Richter, 562 U.S. at
103; see also Bobby v. Dixon, 565 U.S. 23, 24
except for the narrow exceptions contained in §
2254(e)(2), a habeas petitioner is precluded from further
factual development in federal court and must rely on the
evidence presented to the state court when challenging a
state court finding. Cullen v. Pinholster, 563 U.S.
170, 181-82 (2011). Reasoning that "[i]t would be
strange to ask federal courts to analyze whether a state
court's adjudication resulted in a decision that
unreasonably applied federal law to facts not before the
state court, " Pinholster explicitly held that
"[i]f a claim has been adjudicated on the merits by a
state court, a federal habeas petitioner must overcome the
limitation of § 2254(d)(1) on the record that was before
that state court." Id. Thus, "evidence
introduced in federal court has no bearing on § 2254(d)
(1) review" and this Court's review "is limited
to the record in existence at the time [of the state court
decision], i.e., the record before the state court."
Review of Sixth Amendment Claims
Court reviews Sixth Amendment claims concerning the alleged
ineffective assistance of trial counsel ("IATC"
claims) under the familiar two-prong test established in
Strickland v. Washington, 466 U.S. 668 (1984). Under
Strickland, a petitioner cannot establish a
violation of his Sixth Amendment right to counsel unless he
demonstrates (1) counsel's performance was deficient and
(2) this deficiency prejudiced his defense. 466 U.S. at
687-88, 690. According to the Supreme Court,
"[s]urmounting Strickland's high bar is
never an easy task." Padilla v. Kentucky, 559
U.S. 356, 371 (2010).
determining whether counsel performed deficiently, courts
"must be highly deferential" to counsel's
conduct, and a petitioner must show that counsel's
performance fell beyond the bounds of prevailing objective
professional standards. Strickland, 466 U.S. at
687-89. Counsel is "strongly presumed to have rendered
adequate assistance and made all .significant decisions in
the exercise of reasonable professional judgment."
Burt v. Titlow,134 S.Ct. 10, 17 (2013) (quoting
Strickland, 466 U.S. at 690). "A conscious and
informed decision on trial tactics and strategy cannot be the
basis for constitutionally ineffective assistance of counsel
unless it is so ill chosen that it permeates the entire trial
with obvious unfairness." Cotton v. Cockrell,343 F.3d 746, 752-53 (5th Cir. 2003). As the Supreme Court
explained, "[j]ust as there is no expectation that
competent counsel will be a flawless strategist or tactician,
an attorney may not be faulted for a reasonable
miscalculation or lack of foresight or for failing to prepare
for what appear to be remote possibilities."
Richter, 562 U.S. at 110. For this reason, every
effort must be made to eliminate the "distorting effects
of hindsight." Strickland, 466 U.S. at 689;
Yarborough v. Gentry,540 U.S. 1, 6 (2003)
("The Sixth Amendment guarantees reasonable competence,
not perfect advocacy judged with the ...