United States District Court, E.D. Texas, Sherman Division
ORDER OF DISMISSAL
L. MAZZANT, UNITED STATES DISTRICT JUDGE
above-entitled and numbered civil action was referred to
United States Magistrate Judge Kimberly C. Priest Johnson,
who issued a Report and Recommendation concluding the
petition for writ of habeas corpus should be denied and the
case dismissed with prejudice. Petitioner filed
objections. The Report of the Magistrate Judge, which
contains proposed findings of fact and recommendations for
the disposition of such action, has been presented for
consideration. After conducting a de novo review of the
objections raised by Petitioner to the Report, the Court
concludes they are without merit.
Petitioner's objections are simply reassertions of claims
raised in his Section 2254 petition. Petitioner claims his
trial counsel provided ineffective assistance by failing to
withdraw his representation of Petitioner, and failing to
impeach witnesses (Dkt. 31). The Magistrate Judge addressed
each of these issues in the Report and concluded they
provided no grounds for relief. (See Dkt. 30, pp. 20
also alleges “the police or who ever the male's
voice [is] on the video” committed misconduct by
encouraging the victim, in a video-taped interview, to
implicate Petitioner (Dkt. 33). Petitioner raised this
factual scenario in his petition, but referenced the
victim's video-taped interview in the context of a
conflict of interest/judicial bias argument (Dkt. 1, p. 6).
Petitioner argued the trial judge was acquainted with the
persons who allegedly coerced the victim and, thus,
demonstrated bias in denying Petitioner's request for a
change of venue. (Id.) The Magistrate Judge's
Report correctly concludes Petitioner's argument does not
Petitioner alleges a police Detective (Detective Nichols)
continued questioning Petitioner after he had requested an
attorney. (Dkt. 31, p.1; 33, p.1). Petitioner did not raise
this argument in his Section 2254 Petition, but mentioned it
briefly in the memorandum in support of his petition (Dkt.
12, p. 3-4). Accordingly, the Court will address the issue.
In Petitioner's objections, he states, “[I]n court
the Det. Nichols testified to [Defendant's] right was
broken after she admitted he asked a number of time[s] for a
lawyer and she proceeded with her questions.” (Dkt. 33,
p.1). A close review of the record contradicts
Petitioner's claim. Nowhere in Detective Nichols'
trial testimony does she discuss questioning Petitioner after
he requested an attorney. See Dkt. 15-8, pp. 67-71.
the state habeas court considered this issue and rejected
Petitioner's claim when it denied Petitioner's state
habeas application. It stated:
Applicant had appointed counsel throughout his trial and
appeal (see State's Answer, Exhibits D, E).
Applicant claims he asked a detective for a lawyer, but it is
unclear what detective he is referencing and at what point in
the investigation or trial he is referring (Application at
. . .
Applicant has not pleaded any facts besides a vague reference
to “the Detective” . . . and thus Applicant has
not proven his claim . . . by a preponderance of evidence and
is not entitled to relief (Application at 7). See Ex
parte Thomas, 906 S.W.2d 22, 24 (Tex. Crim. App. 1995).
Dkt. 15-12, pp. 66, 67.
fails to show the state court proceedings resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly-established federal law, as
determined by the Supreme Court of the United States, or that
the decision was based on an unreasonable determination of
the facts in light of the evidence presented in the state
court proceeding. Williams v. Taylor, 529 U.S. 362,
402-03 (2000); Childress v. Johnson, 103 F.3d 1221,
1224-25 (5th Cir. 1997). Petitioner fails to show there was
no reasonable basis for the state court to deny relief.
Harrington v. Richter, 562 U.S. 86, 98 (2011).
also asserts that, in recommending dismissal of this
petition, the Magistrate Judge “shows bias as to this
court in her proceeding” (Dkt. 33). Section 144 of 28
Whenever a party to any proceeding in a district court makes
and files a timely and sufficient affidavit
that the judge before whom the matter is pending has a
personal bias or prejudice either against him or in favor of
any adverse party, such judge shall proceed no further