United States District Court, N.D. Texas, Fort Worth Division
OPINION AND ORDER
O'CONNOR, UNITED STATES DISTRICT JUDGE.
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.
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.
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
(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
(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
(12) Texas Penal Code § 43.25 is unconstitutionally
(13) Texas Penal Code § 21.02(6) is unconstitutionally
(14) Texas Penal Code § 21.02(6) is unconstitutional
because it “does not comport with other sexual offense
(15) Texas Penal Code § 21.02 violates the Texas
(16) he was unaware of the penal code “by which he was
(17) he received ineffective assistance of appellate counsel;
(18) he received ineffective assistance of counsel “due
to no motion for a new trial.”
Pet. 6-7i, ECF No. 1.
RULE 5 STATEMENT
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.
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. 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.
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.
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).
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
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.
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.
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
§ 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.
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).
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.
Search and Seizure
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).
Texas Penal Code § 21.02
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
[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).
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
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.
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
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
[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.?
Q. Okay. It wasn't anything --
Q. -- pornographic in nature?
Adm. R., State Writ 181, ECF No. 12-20 (record citations
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.
Ineffective Assistance of Counsel
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
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).
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
(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
(10) failing to hire a private investigator;
(11) failing to locate, interview, or subpoena witnesses on
(12) failing to present “any mitigating circumstances
to help” Petitioner;
(13) refusing to consider “the possibility of
supernatural, satanic influences playing any role in”
(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
(18) failing to file a motion for new trial.
Pet. 7(c)-7(e), 7(I), ECF No. 1.
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.
Campbell, who had practiced criminal law for 29 years,
responded in a lengthy affidavit (all spelling, grammatical,