United States District Court, N.D. Texas, Amarillo Division
FINDINGS, CONCLUSIONS AND RECOMMENDATION TO DENY
PETITION FOR A WRIT OF HABEAS CORPUS BY A PERSON IN STATE
Ann Reno Judge.
CHANSLER DEPAUL MALLARD has filed with this Court a Petition
for a Writ of Habeas Corpus by a Person in State Custody
challenging his conviction out of the 108th Judicial District
Court of Potter County, Texas, for the felony offense of
aggravated assault with a deadly weapon and the resultant
40-year sentence. For the reasons set forth below, the United
States Magistrate Judge is of the opinion petitioner's
application for federal habeas corpus relief should be
9, 2012, petitioner was charged by indictment in Cause No.
65, 213 with the offense of aggravated assault with a deadly
weapon, enhanced with a previous felony conviction. [ECF
16-12 at 69]. Petitioner entered a plea of not guilty to the
offense; however, on April 26, 2013, after a bench trial, the
trial court found petitioner guilty and sentenced him to a
40-year term of imprisonment. See State v. Mallard,
No. 65, 213-E. [ECF 16-12 at 71].
September 25, 2013, the state intermediate appellate court
affirmed petitioner's conviction on direct appeal.
Mallard v. State, 07-13-00145-CR, 2013 WL 5425337,
at *1 (Tex. App.-Amarillo Sept. 25, 2013, no pet.).
Petitioner did not file a petition for discretionary review.
sought collateral review of his Potter County conviction by
filing a state habeas corpus petition and, on November 26,
2014, the Texas Court of Criminal Appeals denied
petitioner's state habeas application without written
order. In re Mallard, No. 82, 418-01. [ECF 16-11].
January 10, 2015, petitioner deposited the instant federal
habeas petition in the prison mail system and, on March 17,
2015, respondent filed an answer.
contends he is being held in violation of the Constitution
and laws of the United States because:
1. He received ineffective assistance of trial counsel when
counsel failed to:
A. Secure a competency hearing;
B. Present an expert witness to assist with an insanity
C. Investigate petitioner's mental health background and
present mitigating evidence at sentencing.
2. He was denied his right to compulsory process because
trial counsel failed to call an expert witness to testify as
to his mental health at a competency hearing and at trial.
3. The prosecutor did not disclose favorable evidence to the
STANDARD OF REVIEW
March 17, 2015 answer, respondent thoroughly and accurately
briefed statutory and case law regarding both the applicable
standards of review under 28 U.S.C. §2254 proceedings
and claims of ineffective assistance of counsel. [ECF 18 at
4-8]. The Court will not repeat respondent's recitation
regarding these standards of review, except to acknowledge an
ineffective assistance of counsel claim requires petitioner
to show defense counsel's performance was both deficient
and prejudicial under the two-pronged standard of
Strickland v. Washington, 466 U.S. 668, 689, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). If a petitioner fails to
show either the deficiency or prejudice prong of the
Strickland test, the court need not consider the
other prong. Id. at 697. Moreover, when a state
prisoner asks a federal court to set aside a conviction or
sentence due to ineffective assistance of counsel, the
federal court is required to use the “doubly