United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. MILLER, UNITED DISTRICT JUDGE.
a state inmate proceeding pro se, filed this section
2254 habeas petition challenging his conviction and life
sentence for sexual assault of a child. Respondent filed a
motion for summary judgment (Docket Entry No. 33), to which
petitioner filed a response (Docket Entry No. 35).
reviewed the motion, the response, the record, and the
applicable law, the Court GRANTS the motion for summary
judgment and DISMISSES this case for the reasons that follow.
Petitioner was convicted of sexual assault of a child in
Harris County, Texas, and sentenced to life incarceration in
October 2013. The conviction was affirmed on appeal,
Cavitt v. State, 507 S.W.3d 235 (Tex. App.-Houston
[1st Dist.] 2015, pet. ref'd), and the Texas Court of
Criminal Appeals refused discretionary review.
Petitioner's application for state habeas relief was
denied. Ex parte Cavitt, No. 5, 496-15 (Tex. Crim.
App. 2016). Petitioner raises the following grounds for
federal habeas relief:
Insufficiency of the evidence; 2. Ineffective assistance of
trial counsel based on
a. counsel's failure to present certain testimony;
b. counsel's failure to inform him adequately of the
advantages and disadvantages of testifying;
c. counsel's failure to object to certain expert witness
d. counsel's eliciting evidence of petitioner's prior
e. counsel's failure to inform him of a plea offer;
f. counsel's failure to challenge the indictment; and
g. the cumulative effect of counsel's errors;
Prosecutorial misconduct in presenting perjured testimony;
Denial of a speedy trial.
Denial of due process caused by a defense witness's jail
attire. Respondent argues that these claims are without merit
and should be dismissed.
intermediate state court of appeals set forth the following
statement of facts in its opinion affirming petitioner's
R.R., the 14-year-old complainant, testified that she met the
59-year-old appellant through a classmate, D.R., who lived
with appellant. R.R. and D.R. had been friends since third
grade, and R.R. started spending time at appellant's
apartment with D.R. when they were in the eighth grade. R.R.
initially thought that appellant and D.R. were related
because appellant called D.R. his granddaughter, and D.R.
referred to appellant as her grandfather.
R.R. testified that D.R. had her own bedroom both at
appellant's apartment and at D.R.'s mother's
house. Most days, R.R. and D.R. would go to appellant's
apartment after school. R.R. and D.R. would “chill and
smoke” marihuana there. Appellant supplied marihuana
and other drugs to D.R., which D.R. in turn shared with R.R.
R.R. would occasionally spend the night with D.R., and they
would alternate these sleepovers between appellant's
place and D.R.'s mother's nearby house. Usually, when
R.R. stayed with D.R., they would sleep in D.R.'s
R.R. testified that, on January 2, 2012, she and D.R. were
smoking in appellant's bedroom room [sic]. They
were in appellant's room because the furniture had
recently been removed from D.R.'s bedroom by a relative
that moved out of the apartment, leaving only appellant's
bed in the apartment. Appellant was there, and gave D.R. a
drink containing “handlebars, ” a slang term for
prescription Xanax. Appellant left for a few hours, during
which time D.R. drank most of the drink, and gave the
remainder to R.R. D.R. and R.R. then feel asleep on
R.R. later woke with the weight of appellant lying on top of
her. She testified that she was laying on her stomach, her
pajama bottoms had been pulled down around her ankles, her
socks pulled off, and she felt pain from appellant trying to
force his penis into her vagina. When R.R. demanded to know
what he was doing, appellant moved away and said,
“I'm just playing with you.” Although it was
dark, R.R. saw appellant clearly, and she testified that he
was wearing a blue shirt and no pants. After unsuccessfully
trying to rouse D.R., R.R. went to an apartment upstairs
where some of appellant's relatives live[d].
Upstairs, R.R. told appellant's niece, Dee, and
appellant's granddaughter, Gabriale, what appellant had
done and that she was unable to wake D.R. before she fled
appellant's apartment. Dee and Gabriale then went down to
appellant's apartment and Gabriale carried a sleeping
D.R. back upstairs to their apartment. Dee or Gabriale called
D.R.'s mother, Juanita, who sent her boyfriend, Germane,
to pick up D.R. and R.R. and take them back to Juanita's
R.R. testified that she did not call her mother to tell her
what appellant had done because she was scared and did not
want her mother to know that she was doing drugs. When R.R.
returned home the following day, however, she told her mother
what had happened. Her mother accompanied her to school and
told the principal, who in turn contacted the police. R.R.
was uncooperative when the first officer tried to interview
her, but she eventually talked with a different officer and
was then interviewed and examined at the Children's
R.R. testified that, about one year later, D.R. and Gabriale
pressured her to recant her accusation against appellant.
Specifically, on January 28, 2013, D.R. wrote out a statement
for R.R. and told R.R. to copy it in her own handwriting and
sign it. R.R. did so, but testified at trial that she signed
the statement only because she had been feeling pressure from
appellant's friends and family to “make this go
away.” She reiterated at trial that despite her written
recantation, her original accusations against appellate were
The State also presented testimony from the investigating
police officer and a doctor from the Children's
Assessment Center about their interviews with R.R. The
director of therapy and psychological services from the
Children's Assessment Center also testified about ways in
which a sexual predator will groom children of different
ages, and the characteristics of certain targets.
The defense called Gabriale, who also testified about the
events of January 2, 2012. Gabriale and Dee had gone to see
appellant at his apartment that evening, and had seen D.R.
and R.R. sleeping in appellant's bed. While there,
Gabriale expressed to Dee that she was concerned about the
girls sleeping in appellant's bed given that appellant
has a history as a sex offender.
According to Gabriale, it was only about five minutes after
she and Dee returned upstairs to their apartment that R.R.
appeared banging on their door. R.R. was visibly shaken and
told them that appellant had tried to molest her. Gabriale
noticed that R.R. no longer had on the socks Gabriale had
seen her wearing when she saw R.R. in appellant's bed.
R.R told Gabriale that R.R. [sic] had tried to
penetrate her and that it was painful. R.R. told Gabriale
that she did not want to call the police or her mother
because she had been doing drugs, but that she was upset that
D.R. was still passed out in appellant's apartment.
Gabriale testified about her and Dee going to retrieve D.R.,
carrying her upstairs, and then calling Juanita to have
someone come pick up D.R. and R.R. Gabriale testified to
seeing R.R. and D.R. at appellant's apartment the
following day. Finally, Gabriale explained that after she and
D.R. ran into R.R. about a year later, they took R.R. back to
Gabriale's apartment to write a retraction letter.
Gabriale admitted to “proofread[ing] it only, ”
but denied that she or D.R. assisted R.R. in writing it.
Appellant testified on his own behalf. He testified to
several prior convictions that led to a total of thirty-five
years of incarceration, including a sixteen-year sentence for
sexual assault. He explained that he had pleaded guilty to
previous offenses because he was guilty, but that he was not
guilty of the current charge.
Appellant testified that D.R.'s mom, Juanita, is his
hospice provider. Among other ailments, he suffers from
Hepatitis B and C, asthma, lung cancer, bone cancer, and
diabetes. In his bedroom, he has oxygen tanks, a computer,
and a headboard shelf that holds his medications. He denied
allowing anyone to smoke anywhere in his apartment.
Appellant lets D.R. live with him because Juanita cannot
control her behavior. R.R. spent a lot of time at
appellant's apartment because she was friends with D.R.,
but appellant has made R.R. go home before. Appellant denied
using any drugs that have not been properly prescribed, or
giving drugs to anyone in his apartment.
Appellant testified that, on January 2, 2012, he got up about
6:30 a.m. and drove himself to Juanita's apartment, where
he stayed until about 2:00 a.m. the next morning. When he
returned to his apartment, he cleaned up his kitchen, and
Gabriale and Dee came by to visit. After they left, he went
in his room, took his medicine, and laid down. He saw D.R. in
his bed, but testified that he did not see R.R. at all that
day. He said that there was furniture in D.R.'s room on
that date, but testified that he did not ask D.R. to move to
her own bed because the air conditioner in his room was
better. He also testified that some nights D.R. gets up in
the middle of the night and comes to sleep in his room
because she is scared or hears voices. He also denied owning
a blue shirt.
Appellant dropped off to sleep and testified that he woke up
when Dee came in and started shaking him. Dee told him
“that girl” said somebody touched her. Appellant
claims he did not know who “that girl” was, but
that he immediately grabbed his phone and called 911 to
report it. By the time the police arrived, appellant had
learned from Dee that it was R.R. that claimed she was
touched. When the police came out, appellant told them that
he had not seen a girl in his apartment that day except D.R.,
and that he wanted to file a complaint.
Appellant testified that he heard noise outside when
Juanita's boyfriend picked up D.R. and R.R., so he went
outside and saw R.R. and D.R. getting into the car. That is
the only time he saw R.R. and he testified that she was
wearing a school uniform, not pajama pants.
Appellant testified that he left his apartment again on the
morning of January 3, 2012, returning home about 4:30 in the
afternoon. When he arrived back at his apartment, D.R. and
R.R. were there. Appellant testified that he “spoke
to” R.R., who told him “I didn't say you did
that.” According to appellant, D.R. and R.R. stayed
that night in D.R.'s bed in D.R.'s bedroom. Appellant
went into his room and locked his door for the night. The
next morning, appellant gave R.R. some of his pants to wear
to school because she did not have a clean school uniform.
Sometime later, R.R.'s mother came to his apartment and
confronted him. A few days after that, a police officer asked
appellant to come in to be interviewed. Appellant took
written statements by his brother and Juanita to give to the
police. Appellant testified that he did not attempt to molest
R.R. He claimed that his bedroom would have been too dark for
R.R. to identify him, and that his medications prevent him
from maintaining an erection.
Appellant was cross-examined about several inconsistencies
between his trial testimony and earlier interviews with
police. For example, contrary to his testimony at trial that
he could not get an erection, he told police that his
medication interfered with erections “sometimes,
” that he was sexual active, and that he had had sex
one week before the alleged January 2, 2012 assault. Although
D.R. and Juanita were subpoenaed and sworn in the first day
of trial, they did not return to testify during
appellant's case. Accordingly, after appellant testified,
the trial court granted the defense a continuance until the
following morning, and it issued attachments for D.R. and
Juanita. It was eventually discovered that Juanita was out of
town for work. D.R. was finally located and showed up at the
courthouse several hours late where she was detained. After
D.R. told the court that her mother was not available to come
pick her up, the court then ordered her held in juvenile
confinement so she could testify the next day. When D.R. was
brought into court the following morning to testify, she was
in handcuffs and in a brown jumpsuit. At defense
counsel's request and in front of the jury, the court
noted that D.R. was not charged with a crime and ordered her
D.R. testified that she lived with appellant for a couple of
years and that he never touched her inappropriately. Contrary
to appellant's testimony, she testified that there was
not a bed in her bedroom on January 2, 2012. She and R.R.
smoked marihuana all that day in appellant's bedroom
while appellant was gone. D.R. denied that appellant gave
drugs to her, testifying instead that she helped herself to
appellant's Xanax when he was not there, and that she
gave one to R.R. at R.R.'s request on January 2, 2012.
She could not recall if she fell asleep first or R.R. fell
asleep first in appellant's bed that night. D.R. did not
wake up until after Gabriale carried her upstairs. She thus
testified that she did not have any firsthand knowledge of
anything that happened to R.R. while she was asleep. D.R.
testified that she and R.R. went to her mother's house
later that night. She also testified that R.R. told everyone
that appellant “raped me . . . . He tried to stick it
The next day, according to D.R., she and R.R. went back to
appellant's apartment. She said R.R. did not want to go
home and instead wanted to stay wherever D.R. was. D.R. and
R.R. stayed at appellant's that night, and went to school
the next morning. D.R. provided R.R. a pair of
appellant's shorts to wear to school because R.R. did not
have any clean clothes. D.R. testified that she was there at
Gabriale's house in January 2013 when R.R. wrote out and
signed the letter recanting her accusations against
appellant. D.R. denied that she or Gabriale told R.R. what to
put in the letter.
The defense rested, noting that it made a decision not to
call Juanita and that it was withdrawing the motion for
continuance based on the need to get her testimony.
Cavitt v. State, 507 S.W.3d at 239-43.
Applicable Legal Standards
petition is governed by the applicable provisions of the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). 28 U .S.C. § 2254. Under AEDPA, federal habeas
relief cannot be granted on legal issues adjudicated on the
merits in state court unless the state adjudication was
contrary to clearly established federal law as determined by
the Supreme Court, or involved an unreasonable application of
clearly established federal law as determined by the Supreme
Court. Harrington v. Richter, 562 U.S. 86, 98-99
(2011); Williams v. Taylor, 529 U.S. 362, 404-05
(2000); 28 U.S.C. §§ 2254(d)(1), (2). A state court
decision is contrary to federal precedent if it applies a
rule that contradicts the governing law set forth by the
Supreme Court, or if it confronts a set of facts that are
materially indistinguishable from such a decision and arrives
at a result different from the Supreme Court's precedent.
Early v. Packer, 537 U.S. 3, 7-8 (2002).
court unreasonably applies Supreme Court precedent if it
unreasonably applies the correct legal rule to the facts of a
particular case, or unreasonably extends a legal principle
from Supreme Court precedent to a new context where it should
not apply, or unreasonably refuses to extend that principle
to a new context where it should apply. Williams,
529 U.S. at 409. In deciding whether a state court's
application was unreasonable, this Court considers whether
the application was objectively unreasonable. Id. at
411. “It bears repeating that even a strong case for
relief does not mean the state court's contrary
conclusion was unreasonable.” Richter, 562
U.S. at 102. As stated by the Supreme Court in
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 farther. 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
Id., at 102-03 (emphasis added; internal citations
affords deference to a state court's resolution of
factual issues. Under 28 U.S.C. § 2254(d)(2), a decision
adjudicated on the merits in a state court and based on a
factual determination will not be overturned on factual
grounds unless it is objectively unreasonable in light of the
evidence presented in the state court proceeding.
Miller-El v. Cockrell, 537 U.S. 322, 343 (2003). A
federal habeas court must presume the underlying factual
determination of the state court to be correct, unless the
petitioner rebuts the presumption of correctness by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1); see
also Miller-El, 537 U.S. at 330-31.
deciding a motion for summary judgment, the district court
must determine whether the pleadings, discovery materials,
and the summary judgment evidence show that there is no
genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c). Once the movant presents a properly
supported motion for summary judgment, the burden shifts to
the nonmovant to show with significant probative evidence the
existence of a genuine issue of material fact. Hamilton
v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir.
summary judgment rules apply with equal force in a section
2254 proceeding, the rules only apply to the extent that they
do not conflict with the federal rules governing habeas
proceedings. Therefore, section 2254(e)(1), which mandates
that a state court's findings are to be presumed correct,
overrides the summary judgment rule that all disputed facts
must be construed in the light most favorable to the
nonmovant. Accordingly, unless a petitioner can rebut the
presumption of correctness of a state court's factual
findings by clear and convincing evidence, the state
court's findings must be accepted as correct by the
federal habeas court. Smith v. Cockrell, 311 F.3d
661, 668 (5th Cir. 2002), overruled on other grounds by
Tennard v. Dretke, 542 U.S. 274 (2004).
of the Evidence
claims that the evidence is insufficient to support the
conviction for sexual assault of a child. Respondent
correctly argues that this claim has been procedurally
defaulted and may not be considered by the Court.
federal habeas petitioner may not obtain relief unless it
appears that he has exhausted the remedies available in state
court. 28 U.S.C. § 2254(b). State courts must be given
the initial opportunity to address and if necessary correct
alleged deprivations of federal constitutional rights.
Castille v. Peoples, 489 U.S. 346, 349 (1989). For a
claim to be exhausted, the state court system must have been
apprised of the same facts and legal theory upon which the
petitioner bases his federal assertions, Picard v.
Connor, 404 U.S. 270, 276 (1971), and in a procedurally
correct manner and context that will allow review of his
claims solely on the merits. Castille, 489 U.S. at
grounds raised in a federal habeas petition must first be
presented to the highest state court before being presented
to a federal court. Rose v. Lundy, 455 U.S. 509,
518-19 (1982); Deters v. Collins, 985 F.2d 789, 795
(5th Cir. 1993). For exhaustion purposes, the Texas Court of
Criminal Appeals is the highest state court with jurisdiction
to review a petitioner's conviction. See Tex.
Code Crim. Proc. art. 44.45. To proceed before that court, a
petitioner must either file a petition for discretionary
review or an application for a post-conviction writ of habeas
corpus. Tex.R.App.P. 68.1; Tex. Code Crim. Proc. art. 11.07.
state prisoner seeks federal habeas relief on a claim that
has not yet been presented to the state courts, the federal
court may find the claim unexhausted and barred. Coleman
v. Thompson, 501 U.S. 722, 735 n.1 (1991). Where a
petitioner has failed to exhaust his state court remedies but
where the state court to which he would be required to
present his unexhausted claims would now find those claims
barred, federal habeas review is precluded by the federal
procedural default doctrine. See id.; Nobles v.
Johnson, 127 F.3d 409, 423 (5th Cir. 1997).
Texas law, a sufficiency challenge may be raised only on
direct appeal and may not be raised in a state habeas
proceeding. West v. Johnson, 92 F.3d 1385, 1389 n.18
(5th Cir. 1996); Clark v. Texas 788 F.2d 309, 310
(5th Cir. 1986); Ex parte Grigsby, 137 S.W.3d 673,
674 (Tex. Crim. App. 2004). When the Texas Court of Criminal
Appeals is silent on its reasoning for denying an
insufficiency of the evidence claim raised for the first time
on state habeas review, this Court may assume that the claim
was denied because it is not cognizable on state collateral
review. Grigsby, 137 S.W.3d at 674. In these
circumstances, reliance on the procedural default by the
state court is established and presents an adequate state
procedural ground barring federal habeas review. Ylst v.
Nunnemaker, 501 U.S. 797, 801-02 (1991). The Fifth
Circuit Court of Appeals has also held that Texas's
procedural rule barring consideration of record-based claims
not raised on direct appeal in habeas proceedings is an
adequate state ground for barring federal habeas review.
Dorsey v. Quarterman, 494 F.3d 527, 532 (5th Cir.
such circumstances, a petitioner's claim is barred from
federal habeas review unless he can demonstrate cause for the
default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure to
consider the claim will result in a fundamental miscarriage
of justice in that he is actually innocent of the offense for
which he was convicted. Coleman, 501 U.S. at 750. To
establish actual innocence, a petitioner must support his
allegations with new, reliable evidence that was not
presented at trial and show that it was “more likely
than not that no reasonable juror would have convicted him in
the light of the new evidence.” Fairman v.
Anderson, 188 F.3d 635, 644 (5th Cir. 1999) (quoting
Schlup v. Delo, 513 U.S. 298, 327 (1995));
accord Finley v. Johnson, 243 F.3d 215, 221 (5th
instant case, petitioner did not challenge the sufficiency of
the evidence in the intermediate court of appeals
proceedings. Although he did raise the claim on state
collateral review, the Texas Court of Criminal Appeals denied
the claim. Ex parte Cavitt, WR-5, 496-15. In
rejecting the claim, the state trial court on collateral
review concluded that petitioner's “challenge to
the sufficiency of the evidence is not cognizable in
post-conviction habeas proceedings.” Id. at
167. Consequently, the denial of habeas relief by the Texas
Court of Criminal Appeals stands as a procedural dismissal
challenge to the sufficiency of the evidence is procedurally
defaulted and barred from consideration by this Court.
Petitioner does not argue, much less demonstrate, cause and
prejudice or fundamental miscarriage of justice, and his
challenge to the sufficiency of the evidence must be
dismissed. Even assuming the issue were properly before this
Court, the Court has reviewed the record in the interest of
justice and finds sufficient evidence to support
petitioner's conviction. See Jackson v.
Virginia, 443 U.S. 307, 319 (1979).
Assistance of Trial Counsel
Sixth Amendment to the United States Constitution guarantees
a criminal defendant the right to the effective assistance of
counsel. U.S. Const. amend. VI. A federal habeas corpus
petitioner's claim that he was denied effective
assistance of counsel is measured by the standards set out in
Strickland v. Washington, 466 U.S. 668 (1984). To
assert a successful ineffectiveness claim, a petitioner must
establish both constitutionally deficient performance by
counsel and actual prejudice as a result of counsel's
deficient performance. Id. at 687. The failure to