United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND OPINION
Rosenthal Chief United States District Judge
state inmate Hugh Audrie Carter filed a petition for a writ
of habeas corpus under 28 U.S.C. § 2254, challenging his
2014 state-court convictions for aggravated robbery. The
respondent, Lorie Davis, has answered and moved for summary
judgment. (Docket Entry No. 14). Carter has not responded.
Based on careful consideration of the pleadings, the motion,
the record, and the applicable law, this court concludes that
Carter has not stated meritorious grounds for federal habeas
relief, denies his § 2254 petition, and, by separate
order, enters final judgment. The reasons are explained
Background and Claims
pleaded guilty to two counts of aggravated robbery with a
deadly weapon, without a sentence recommendation, and was
convicted in a Harris County, Texas court, in Cause Numbers
1366763 and 1367859. In January 2014, after a presentence
investigation and punishment hearing, the trial court
sentenced Carter to concurrent sentences of life imprisonment
in the Texas Department of Criminal Justice for each offense.
Fourteenth Court of Appeals of Texas affirmed Carter's
convictions and sentences in October 2014. Carter v.
State, Nos. 14-14-00060-CR and 14-14-00061-CR, 2014 WL
5780691 (Tex. App.-Houston [14th Dist.] 2014) (mem. op.). The
Texas Court of Criminal Appeals refused discretionary review
in January 2015. Carter v. State, Nos. PD-1548-14
and PD-1549-14 (Tex. Crim. App. Jan. 14, 2015). Carter filed
two applications for a state writ of habeas corpus under
Article 11.07 of the Texas Code of Criminal Procedure,
challenging each of his convictions. The Court of Criminal
Appeals denied those applications without a hearing or
written order, on the findings of the trial court, in January
2016. Ex parte Carter, Application Nos. 83, 923-01
and 83, 923-02.
filed this federal petition in December 2016. He raises the
following grounds for federal habeas relief:
1. Ineffective assistance of trial counsel, who:
a. had a conflict of interest;
b. failed to investigate the case and file pretrial motions;
c. failed to file a motion to sever the two causes.
2. Involuntary guilty plea as a result of trial counsel's
3. Trial-court error in failing to inquire into the conflict
4. Ineffective assistance of appellate counsel, who:
a. failed to raise the issue of trial counsel's conflict
of interest; and
b. denied him the right to counsel by filing a motion to
5. Breach of the plea agreement in that the State failed to
fulfill its promise of a 50-year sentence cap.
(Docket Entry No. 1, at 6-7, 11). The respondent argues that
Carter's claims are unexhausted, procedurally barred,
waived, or without merit. (Docket Entry No. 14). Each claim
and argument is analyzed against the record and the
applicable legal standards.
The Legal Standards
the Antiterrorism and Effective Death Penalty Act of 1996
(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 involves materially indistinguishable facts and
arrives at a different result. 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 different and inappropriate
context, or unreasonably refuses to extend that principle to
a context to which it should apply. Williams, 529
U.S. at 409. The issue is whether the state court's
application was objectively unreasonable. Id.
“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
the Supreme Court stated in Richter,
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
requires federal habeas courts to defer to a state
court's resolution of factual issues. Under 28 U.S.C.
§ 2254(d)(2), a state-court decision on the merits based
on a factual determination will not be overturned 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 presumes the state court's factual determination 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. This presumption extends not only to express fact
findings, but also to implicit findings. Garcia v.
Quarterman, 454 F.3d 441, 444 (5th Cir. 2006) (citations
omitted). “The presumption is especially strong when
the state habeas court and the trial court are one in the
same[, ]” as they were in this case. Clark v.
Johnson, 202 F.3d 760, 764 (5th Cir. 2000) (collecting
cases); see also Pippin v. Dretke, 434 F.3d 782, 792
(5th Cir. 2005) (“A trial court's credibility
determinations made on the basis of conflicting evidence are
entitled to a strong presumption of correctness and are
‘virtually unreviewable' by the federal
judgment is proper when the record shows “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(a). In ordinary civil cases, a district court considering
a motion for summary judgment must construe disputed facts in
a light most favorable to the nonmoving party. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986) (“The evidence of the nonmovant is to be
believed, and all justifiable inferences are to be drawn in
his favor.”). “As a general principle, Rule 56 of
the Federal Rules of Civil Procedure, relating to summary
judgment, applies with equal force in the context of habeas
corpus cases.” Clark v. Johnson, 202 F.3d 760,
764 (5th Cir. 2000). However, a court on summary judgment
must view the evidence through “the prism of the
substantive evidentiary burden.” Anderson, 477
U.S. at 254. Congress, through AEDPA, has constricted both
the nature and availability of habeas review. This court
applies general summary judgment standards to the extent they
do not conflict with the AEDPA. See Smith v.
Cockrell, 311 F.3d 661, 668 (5th Cir. 2002)
(“[Rule 56] applies only to the extent that it does not
conflict with the habeas rules.”), abrogated on
other grounds by Tennard v. Dretke, 542 U.S. 274 (2004).
is representing himself. Self-represented habeas petitions
are construed liberally and are not held to the same
stringent and rigorous standards as pleadings lawyers file.
See Martin v. Maxey, 98 F.3d 844, 847 n.4 (5th Cir.
1996); Guidroz v. Lynaugh, 852 F.2d 832, 834 (5th
Cir. 1988); Woodall v. Foti, 648 F.2d 268, 271 (5th
Cir. Unit A June 1981). This court broadly interprets
Carter's state and federal habeas petitions. Bledsue
v. Johnson, 188 F.3d 250, 255 (5th Cir. 1999).
The Unexhausted and Procedurally Barred Claims
raises several of his claims in federal court for the first
time. The claims not previously raised include that: (1)
trial counsel was ineffective for failing to file a motion to
sever the two causes; (2) appellate counsel was ineffective
for failing to raise the issue of trial counsel's
conflict of interest; (3) appellate counsel was ineffective
for moving to withdraw as counsel; and (4) the State breached
the plea agreement by failing to fulfill its promise of a
50-year cap on the sentence.
federal court may not grant habeas corpus relief on behalf of
a person in state custody unless “the applicant has
exhausted the remedies available in the courts of the
State.” 28 U.S.C. § 2254(b)(1)(A);
O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999)
(“Before a federal court may grant habeas relief to a
state prisoner, the prisoner must exhaust his remedies in
state court. In other words, the state prisoner must give the
state courts an opportunity to act on his claims before he
presents those claims to a federal court in a habeas
petition.”). To satisfy this requirement, a claim must
be “fairly presented” to the state's highest
court for review. See Fisher v. Texas, 169 F.3d 295,
302 (5th Cir. 1999) (citing Whitehead v. Johnson,
157 F.3d 384, 387 (5th Cir. 1984)). The doctrine of
exhaustion “require[s] a state prisoner to present the
state courts with the same claim he urges upon the
federal courts.” Wilder v. Cockrell, 274 F.3d
255, 261 (5th Cir. 2001) (quoting Picard v. Conner,
404 U.S. 270, 276 (1971)) (emphasis in the original).
record confirms that Carter did not raise the three claims of
ineffective assistance or the claim that the State breached
the plea agreement in his direct appeal or in a properly
filed state habeas application. He did not exhaust his
available state court remedies as to these claims. The
respondent argues that these unexhausted claims are
procedurally defaulted because the state court would now find
them procedurally barred.
a petitioner fails to exhaust state remedies, but the court
to which he would be required to return to meet the
exhaustion requirement would now find the claim procedurally
barred, then there has been a procedural default for purposes
of federal habeas corpus relief.” Finley v.
Johnson, 243 F.3d 215, 220 (5th Cir. 2000) (citations
omitted). Carter's unexhausted claims could have been
raised in his state habeas corpus applications. A successive
petition raising these claims in state court would be barred
by the Texas abuse-of-the-writ statute. See T ex.
Code Crim. Proc. Ann. art. 11.07, § 4(a). This default
is an adequate state procedural ground to bar state, and
therefore federal, review of the unexhausted claims, unless
an exception applies. Finley, 243 F.3d at 220
(citing Fearance v. Scott, 56 F.3d 633, 642 (5th
an exception for federal habeas review, a petitioner who has
procedurally defaulted a claim in state court must
demonstrate: (1) “cause for the default and actual
prejudice as a result of the alleged violation of federal
law”; or (2) “that failure to consider the claims
will result in ...