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McElvain v. Davis

United States District Court, N.D. Texas, Fort Worth Division

December 21, 2017

LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.



         Before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner, Russell Terry McElvain, a state prisoner confined in the Correctional Institutions Division of the Texas Department of Criminal Justice (TDCJ), against Lorie Davis, Director of TDCJ, Respondent. After considering the pleadings and relief sought by Petitioner, the Court has concluded that the petition should be denied.

         I. BACKGROUND

         Petitioner was charged in Tarrant County, Texas, Case No. 1227000D, with continuous sexual abuse of a child, K.M., his adopted daughter, while she was younger than 14 years of age. Adm. R., Clerk's R. 2, ECF No. 12-1. On April 7, 2011, a jury found him guilty of the offense and assessed his punishment at 99 years' confinement. Id. at 123. The evidence at trial was that Petitioner began sexually abusing K.M. shortly after she was placed in Petitioner's and his wife's home as a foster child at the age of four. Id., Reporter's R., vol. 5, 81, ECF No. 12-9. Petitioner and his wife eventually adopted K.M. Id. When K.M. was 14 years old, she outcried to her middle school attendance secretary. Id. at 35-36. K.M. later detailed the abuse in an interview with a forensic interviewer with Alliance for Children. Id. at 55-74. During two searches of Petitioner's home, the police seized, among other things, videotapes and photos of K.M., many pornographic in nature, in the attic and a shed in the back yard. Id. at 91-93, 117-18, 132, 139, 141-49. Following Petitioner's arrest, he gave a videotaped statement to police, in which he admitted to sexually abusing, photographing, and videotaping K.M. Id. at 122-23, 128.

         II. ISSUES

         Petitioner's claims are multitudinous and addressed as thoroughly as practicable. His claims are as follows:

(1) the second search of the shed was illegal under the Fourth Amendment;
(2) the police interrogation was illegal;
(3) Texas Penal Code § 21.02 is unconstitutional by not requiring jury unanimity;
(4) one of the outcry witnesses perjured herself;
(5) the evidence was tainted;
(6) the jury instructions were insufficient;
(7) he was denied a fair trial due to prosecutorial misconduct;
(8) he received ineffective assistance of trial counsel;
(9) he was denied a fair trial because the jury was permitted “to convict using evidence not permitted”;
(10) the trial court erred by allowing a second outcry witness to testify;
(11) the trial court erred by admitting all evidence defined by the prosecution as child pornography without reviewing the evidence;
(12) Texas Penal Code § 43.25 is unconstitutionally overbroad;
(13) Texas Penal Code § 21.02(6) is unconstitutionally sexually discriminatory;
(14) Texas Penal Code § 21.02(6) is unconstitutional because it “does not comport with other sexual offense penal codes”;
(15) Texas Penal Code § 21.02 violates the Texas Constitution;
(16) he was unaware of the penal code “by which he was charged”;
(17) he received ineffective assistance of appellate counsel; and
(18) he received ineffective assistance of counsel “due to no motion for a new trial.”

Pet. 6-7i, ECF No. 1.


         Respondent believes that the petition is neither successive nor barred by the statute of limitations, but she asserts that multiple grounds are unexhausted and/or procedurally barred. Resp't's Ans. 12, ECF No. 23.


         Respondent claims Petitioner's grounds two, six, twelve, thirteen, and fourteen were forfeited in state court because no contemporaneous request, objection, or motion was raised at trial and, thus, are procedurally barred from federal habeas review. Resp't's Am. Answer 15-18; Adm. R., Op. 4-5, ECF No. 12-2; Adm. R., State Writ 234, 239-40.[1] Respondent claims Petitioner's grounds three and five, raised for the first time in this federal petition, are unexhausted and procedurally barred by the Texas abuse-of-the-writ doctrine. Id. at 18-19. And, Respondent claims that Petitioner's grounds seven, nine, ten, and eleven are procedurally barred under “the Gardner rule.” Id. at 19-21.

         First, Respondent asserts that grounds two, six, twelve, thirteen, and fourteen are procedurally barred under Texas's contemporaneous-objection rule. Resp't's Am. Answer 15-18, ECF No. 16. Under the procedural default doctrine, a federal court may not consider a state prisoner's federal habeas claim when the last state court to consider the claim expressly and unambiguously based its denial of relief on an independent and adequate state procedural default. See Coleman v. Thompson, 501 U.S. 722, 729, (1991); Fisher v. Texas, 169 F.3d 295, 300 (5th Cir. 1999). “This doctrine ensures that federal courts give proper respect to state procedural rules.” Glover v. Cain, 128 F.3d 900, 902 (5th Cir. 1997). Here, the state courts clearly relied upon a firmly established and regularly followed state procedural rule to deny the claims. See Ex parte Crispen, 777 S.W.2d 103, 105 (Tex. Crim. App. 1989) (explaining its adherence to the contemporary- objection rule). See also Dowthitt v. Johnson, 230 F.3d 733, 752 (5th Cir. 2000) (recognizing that the Texas contemporaneous-objection rule, which requires a timely objection to preserve error for appeal, is strictly and regularly applied, and is therefore an adequate state procedural bar to federal review). Accordingly, federal habeas review of the claims is barred unless Petitioner can demonstrate cause for the default and actual prejudice, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice-i.e., that he is actually innocent of the offense for which he was convicted. Coleman, 501 U.S. at 750.

         Next, Respondent asserts that grounds three and five were raised for the first time in this federal petition and are unexhausted and procedurally barred from federal habeas review. Resp't's Am. Answer 18-19, ECF No. 16. Petitioners seeking habeas-corpus relief under § 2254 are required to exhaust all claims in state court before requesting federal collateral relief. 28 U.S.C. § 2254(b)(1); Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999). The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest court of the state. O'Sullivan v. Boerckel, 526 U.S. 838, 842-48 (1999); Fisher, 169 F.3d at 302; Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982). In Texas, the highest state court for criminal matters is the Texas Court of Criminal Appeals. Richardson v. Procunier, 762 F.2d 429, 431-32 (5th Cir. 1985). Therefore, a Texas prisoner may satisfy the exhaustion requirement by presenting both the factual and legal substance of a claim to the Texas Court of Criminal Appeals in either a petition for discretionary review or a state habeas-corpus proceeding pursuant to article 11.07 of the Texas Code of Criminal Procedure in a procedurally proper manner. See Tex. Code Crim. Proc. Ann. art. 11.07 (West 2015); Depuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988).

         Contrary to Respondent's assertion, a review of the state court records reveals that ground three was raised in Petitioner's petition for discretionary review and that ground five was raised in the context of an ineffective-assistance-of-counsel claim under his second ground in Petitioner's state habeas application. Adm. R., Pet. for Discretionary Review 1, ECF No. 12-6 & State Writ 9, ECF No. 12-19. Consequently, the claims are addressed in this opinion to the extent they were exhausted in state court.

         On the other hand, the record does reveal that Petitioner's fifteenth ground was not fully exhausted in the state courts. In his federal petition, Petitioner claims that “Texas Penal Code § 21.02 violates the Texas Constitution and by doing so violates due process and due course of the U.S. Constitution.” Pet. 7(h), ECF No. 1. In his state habeas application, Petitioner claimed that § 21.002 “violates the Texas Constitution by its title, ” with no reference to a federal constitutional violation. Adm. R., State Writ 29-30, ECF No. 12-19. Thus, to the extent he now asserts a federal constitutional claim for the first time, the claim is unexhausted for purposes § 2254(b)(1)(A). Under the Texas abuse-of-the-writ doctrine, however, Petitioner cannot now return to state court for purposes of exhausting the claim. See Tex. Code Crim. Proc. Ann. art. 11.07, § 4(a)-(c) (West 2015). The abuse-of-the-writ doctrine represents an adequate state procedural bar to federal habeas review. See Smith v. Johnson, 216 F.3d 521, 523-24 (5th Cir. 2000); Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997). Therefore, absent a showing of cause and prejudice or a miscarriage of justice, the claim is unexhausted and procedurally barred from this Court's review. Coleman, 501 U.S. at 750.

         Finally, Respondent asserts that grounds seven, nine, ten, and eleven are barred under Ex parte Gardner, 959 S.W.2d 189 (Tex. Crim. App. 1996). In Ex parte Gardner, the Texas Court of Criminal Appeals held that record-based claims not raised on direct appeal are forfeited from state habeas review. 959 S.W.2d at 199. Although raised in Petitioner's state habeas application, the state habeas court clearly relied upon the “Gardner rule” in denying these claims. Adm. R., State Writ 235-39, ECF No. 12-20. See also Busby v. Dretke, 359 F.3d 708, 719 (5th Cir. 2004) (recognizing that the Texas procedural rule as stated in Ex parte Gardner as being “firmly established” and “an adequate state ground capable of barring federal habeas review”). Therefore, absent a showing of cause and prejudice or a miscarriage of justice, the claim is unexhausted and procedurally barred from this Court's review. Coleman, 501 U.S. at 750.

         In an effort to establish cause for his state procedural defaults, Petitioner merely asserts that the forfeiture of the claims was the result of attorney error or inadvertence. Pet'r's Traverse 5-8, ECF No. 33. However, to the extent he contends counsel should have made different or additional requests, objections, or motions at trial or raised his claims on appeal, he fails to identify what those challenges should have been and how counsel's decisions not to bring them resulted in harm. Petitioner's conclusory assertion, without more, is insufficient to demonstrate cause and prejudice. United States v. Holmes, 406 F.3d 337, 361 (5th Cir. 2005). See also Green v. Johnson, 160 F.3d 1029, 1042 (5th Cir. 1998) (stating that mere conclusory allegations in support of a claim of ineffective assistance of counsel are insufficient to raise a constitutional issue). Under the familiar Strickland standard, see infra, ineffective assistance of counsel requires a showing of both deficient performance and prejudice in order to constitute cause to excuse a procedural default. The mere fact that counsel did not make a request, objection, or motion at trial or raise an issue on appeal is insufficient to show that counsel's decision not to do so was deficient. Petitioner also makes a passing reference to actual innocence. Pet'r's Travers 7, ECF No. 33. However, he presents no new, reliable evidence that was not presented at his trial to make a colorable showing that he is actually innocent of the offense for which he stands convicted. See House v. Bell, 547 U.S. 518, 537 (2006). Consequently, absent a showing of cause and prejudice or a miscarriage of justice, such showing not having been demonstrated, Petitioner's grounds two, six, seven, nine, ten, eleven, twelve, thirteen, fourteen, and fifteen, in part, are procedurally barred from the Court's review.

         V. DISCUSSION

         A § 2254 habeas petition is governed by the heightened standard of review provided for in 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 federal law as established by the Supreme Court or that is based on an unreasonable determination of the facts in light of the record before the state court. 28 U.S.C. § 2254(d)(1)-(2); Harrington v. Richter, 562 U.S. 86, 100 (2011). 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.

         Additionally, 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. A 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, 568 U.S. 289, 298 (2013); Harrington, 562 U.S. at 99; Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir. 2004).

         In this case, the state habeas court entered express findings of fact relevant to one or more of Petitioner's claims, which he has failed to rebut with clear and convincing evidence, and the Texas Court of Criminal Appeals adopted the habeas court's findings. Under these circumstances, this Court must defer to the state courts' factual findings and, absent any indication to the contrary, may assume the Texas Court of Criminal Appeals applied correct standards of federal law to the facts.

         A. Search and Seizure

         Under his first ground, Petitioner claims that, in violation of the Fourth Amendment, the second search warrant did not comply with the requirements of article 18.02 of the Texas Code of Criminal Procedure and, thus, the search and seizure of items from the shed was illegal. Pet. 6, ECF No. 1; Tex. Code Crim. Proc. Ann. art. 18.02 (West 2015). To the extent Petitioner claims the search was illegal because the warrant failed to comply with article 18.02, the claim is not cognizable in federal habeas review. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Federal habeas relief lies only to rectify a violation of the “Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); McGuire, 502 U.S. at 67-68. To the extent Petitioner raises a Fourth Amendment claim, this Court's consideration of the claim is precluded by Stone v. Powell, 428 U.S. 465, 494 (1976).

         B. Texas Penal Code § 21.02

         Under his third ground, Petitioner challenges the constitutionality of the state's continuous-sexual-abuse statute found under Texas Penal Code § 21.02 on the basis that it does not require jury unanimity as to “which predicate acts [he] committed.” Pet. 7, ECF No. 1. Relying solely on state law, the state appellate court addressed the claim as follows:

[Petitioner] complains that Section 21.02 of the Texas Penal Code (Continuous Sexual Abuse of Young Child or Children), under which [Petitioner] was convicted, violates [Petitioner]'s right to a unanimous jury verdict under Article V, section 13 of the Texas Constitution because it fails to require that jurors agree on the underlying offenses a defendant has committed. A number of courts of appeals have rejected [Petitioner]'s contention and have determined that section 21.02 does not violate the Texas constitutional right to a unanimous jury verdict. The law on this issue is well-settled, and we decline to evaluate it further.

Adm. R., Op. 6, ECF No. 12-2 (citations omitted).

         To the extent Petitioner claims § 22.01 violates the Texas Constitution, the claim fails. As previously noted, federal habeas relief lies only for violations of the “Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); McGuire, 502 U.S. at 67-68. Furthermore, the Due Process Clause requires proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. See In re Winship, 397 U.S. 358, 364 (1970). It does not, however, require that juries in state trials be unanimous. See Schad v. Arizona, 501 U.S. 624, 631-32 (1991) (plurality op.) (providing rule that jurors not required to agree upon single means of commission of crime applies equally to contention they must agree on one of alternative means of satisfying mental state element of crime); Johnson v. Louisiana, 406 U.S. 356, 359 (1972) (rejecting due process challenge to 9-3 state jury verdict). If state juries need not be unanimous on the ultimate question of guilt, it stands to reason that they not be unanimous on which particular acts constituted the illegal course of conduct. See Schad, 501 U.S. at 631 (stating “[w]e have never suggested that in returning general verdicts in . . . cases [alleging alternative manner or means of committing an offense] the jurors should be required to agree upon a single means of commission, any more than the indictments were required to specify one alone”); Verfes v. Newland, No. CV-97-3707-FMS, 1998 WL 1148898, at *10 (N.D.Cal. June 29, 1998) (providing absence of unanimity requirement in California's continuing sexual abuse statute does not violate due process), aff'd, 198 F.3d 256 (9th Cir. 1999), and cert. denied, 529 U.S. 1020 (2000). The Supreme Court has not created a federal jury unanimity requirement nor has it held that “continuous course of conduct” statutes violate the federal constitution. When there is no Supreme Court precedent that controls on the legal issue raised by a petitioner in state court, the state court's decision cannot be contrary to, or an unreasonable application of, clearly established law from the Supreme Court. Carey v. Musladin, 549 U.S. 70, 77 (2006).

         C. Outcry-Witness Testimony

         Under his fourth ground, Petitioner claims that Lindsey Dula, a child forensic interviewer with Alliance for Children, perjured herself by fabricating testimony that was disproved by the victim and that the conflicting testimony “impeached [the] victim or witness.” Pet. 7, ECF No. 1; Pet'r's Traverse 11, ECF No. 33. Specifically, he complains of Dula's testimony that K.M. reported during her interview that Petitioner had forced K.M. to perform oral sex on him by “forcing her mouth open by continuously putting his penis to her mouth.” Adm. R., Reporter's R., vol. 5, 65-66, ECF No. 12-9. Dula also testified that K.M. reported certain “sensory details” about the act:

She talked about how when it was -- when -- when he would do that, that he would put his penis to her mouth and that he continuously pressed his penis to her mouth until she was forced to open her mouth. So she's describing that pressure. She described ejaculation. She said that it was a clear liquid that came from his penis that went in her mouth. She described that it tasted salty and that it was nasty and she said that she had to swallow it because his penis was still in her mouth and she couldn't spit it out.

Id. at 72-73. At trial, K.M. denied that Petitioner ever forced her “to put her mouth on his private parts.” Id. at 91.

         A petitioner must prove that the prosecution knowingly presented or failed to correct materially false testimony during trial. Kutzner v. Cockrell, 303 F.3d 333, 336 (5th Cir. 2002). The state habeas court found that there was no proof Dula committed perjury. Adm. R., State Writ 212, ECF No. 12-20. Further, relying solely on state case law, the state court concluded that “[i]nconsistent testimony goes to the credibility of the State's witnesses and does not establish the use of perjured testimony.” State Writ 227-28. ECF No. 12-20. Petitioner fails to demonstrate that the state courts' adjudication of the claim is contrary to or an unreasonable application of Supreme Court precedent. Perjury is not established by mere contradictory testimony from witnesses, inconsistencies within a witness's testimony, and conflicts between reports, written statements and the trial testimony of prosecution witnesses. Koch v. Puckett, 907 F.2d 524, 531 (5th Cir. 1990).

         D. Tainted Evidence

         Under his fifth ground, Petitioner claims that evidence was tainted because the second search-warrant return states that police seized one videotape, but two videotapes were admitted at trial. Pet. 7(b), ECF No. 1; Adm. R., Reporter's R. vol. 5 149, ECF No. 12-9. This claim was raised by Petitioner in the context of an ineffective-assistance-of-counsel claim in the state habeas proceedings. In her affidavit filed in those proceedings, trial counsel addressed the issue, in that context:

[Petitioner] complains that I failed to challenge the “admission of tainted evidence.” At trial, the State presented two Hi-8 video tapes which were discovered during the execution of a search warrant of a shed in the backyard of [Petitioner]'s home which occurred on October 20, 2009. State's Exhibit 44A is a white, 120-minute tape which depicted the child complainant performing sexual acts on herself. State's Exhibit 44B is a black, 60-minute tape which did not contain any depictions of the complainant nor did it contain any pornographic material. The search warrant return on the October 20, 2009 search did not list the black, 60-minute tape, but listed only the white, 120-minute tape amongst the items seized. However, the black, 60-minute tape was not played for the jury, did not contain any evidence pertinent to this case, and did not harm [Petitioner] in any way. [Petitioner] apparently complains that the black tape should not have been admitted since the search warrant return did not list it as evidence seized during the October 20, 2009 search. The extent of the testimony at trial specific to State's Exhibit 44B (which was not listed on the search warrant return) is as follows:
Q (prosecutor). And what's on State's 44B?
A (Detective Trevino). I don't recall.
Q. But it wasn't K.M.?
A. No.
Q. Okay. It wasn't anything --
A. No
Q. -- pornographic in nature?
A. No.

Adm. R., State Writ 181, ECF No. 12-20 (record citations omitted).

         The state habeas court found that there was no evidence that Petitioner was harmed by the admission of the black Hi-8 videotape and, thus, rejected Petitioner's ineffective-assistance claim. Id. at 228. “Admissibility of evidence is a matter of state law, and only a contention that the admission of the evidence rendered the trial fundamentally unfair or violated a specific constitutional right will be considered in a federal collateral proceeding.” Johnson v. Blackburn, 778 F.2d 1044, 1050 (5th Cir. 1985). Petitioner fails to assert constitutional error or establish any prejudice as a result of admission of the second videotape.

         E. Ineffective Assistance of Counsel

         Under grounds eight, seventeen, and eighteen, Petitioner claims that he received ineffective assistance of trial and appellate counsel. Pet. 7(c)-7(e), 7(I), ECF No. 1. A criminal defendant has a constitutional right to the effective assistance of counsel at trial and on a first appeal as of right. U.S. Const. amend. VI, XIV; Evitts v. Lucey, 469 U.S. 387, 393-95 (1985); Strickland v. Washington, 466 U.S. 668, 688 (1984); Anders v. California, 386 U.S. 738, 744 (1967). See also Styron v. Johnson, 262 F.3d 438, 450 (5th Cir. 2001) (applying the Strickland standard to ineffective assistance claims against appellate counsel). An ineffective-assistance claim is governed by the familiar standard set forth in Strickland v. Washington. 466 U.S. at 668. To establish ineffective assistance of counsel under this standard, 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. Both prongs of the Strickland test must be met to demonstrate ineffective assistance. Id. at 687, 697. In applying this standard, a court must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance or sound trial strategy. 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. The Supreme Court emphasized in Harrington v. Richter that-

[t]he 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 v. Taylor, 529 U.S. 362, 410 (2000) (emphasis in original)). Accordingly, it is necessary only to determine whether the state courts' adjudication of Petitioner's ineffective-assistance claims is 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 v. Cockrell, 343 F.3d 440, 443 (5th Cir. 2003).

         Under grounds eight and eighteen, Petitioner claims his trial counsel, John Stickels and Kimberly Campbell, were ineffective for the following reasons:

(1) failing “to put” a lesser-included-offense instruction in the jury charge and verdict form;
(2) failing to separate extraneous evidence from evidence that can be used;
(3) failing to inform the jury how they were to use extraneous evidence at the time it was admitted;
(4) calling Petitioner a pedophile and having “preconceived feelings” of his guilt;
(5) failing to question school officials on cross-examination about any observed interactions between K.M. and Petitioner;
(6) failing to raise an “inadequate time to prepare defense”;
(7) failing to clearly present the plea bargain offer;
(8) leaving two jurors on the jury;
(9) failing to present arguments, objections, or request “an adversary hearing to raise [the] issue that all evidence admitted as child porn was not all child porn”;
(10) failing to hire a private investigator;
(11) failing to locate, interview, or subpoena witnesses on Petitioner's behalf;
(12) failing to present “any mitigating circumstances to help” Petitioner;
(13) refusing to consider “the possibility of supernatural, satanic influences playing any role in” Petitioner's behavior;
(14) refusing to send Petitioner his case file so “he could pursue post-conviction work”;
(15) failing to investigate Petitioner's claim that the oral sex reported to the forensic interviewer occurred when K.M. lived with her biological family;
(16) failing to make an attempt to obtain a bond reduction;
(17) failing to properly preserve Petitioner's “motion to suppress confession for review on appeal;” and
(18) failing to file a motion for new trial.

Pet. 7(c)-7(e), 7(I), ECF No. 1.

         John Stickels, who had practiced criminal law for 31 years and was board certified in criminal law, responded briefly to Petitioner's allegations in an affidavit filed in the state habeas proceedings:

The most striking thing I remember about [Petitioner]'s trial was the overwhelming video and photographic evidence documenting [Petitioner]'s sexual abuse of the injured party over multiple years. In fact, the state admitted so much evidence that the jury ask[ed] the Judge not to show then [sic] more evidence and to just admit it into evidence. I have reviewed the complaints made by [Petitioner] in his Application for Writ of Habeas Corpus and they are entirely without merit. Every decision that I made during [Petitioner]'s trial was made for strategic purposes.

Adm. R., State Writ 168, ECF No. 12-20.

         Kimberly Campbell, who had practiced criminal law for 29 years, responded in a lengthy affidavit (all spelling, grammatical, ...

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