United States District Court, N.D. Texas, Fort Worth Division
OPINION AND ORDER
R. MEANS UNITED STATES DISTRICT JUDGE.
the Court is a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254 filed by Petitioner, Jerry Lee
Canfield, a state prisoner, against Lorie Davis, director of
the Texas Department of Criminal Justice, Correctional
Institutions Division, Respondent. After having considered
the pleadings and relief sought by Petitioner, the Court has
concluded that the petition should be denied.
Factual and Procedural History
April 3, 2013, in the 213th Judicial District Court, Tarrant
County, Texas, No. 1317398R, a jury found Petitioner guilty
of continuous sexual abuse of a child under 14 years of age
and assessed his punishment at 50 years' confinement.
(State Writ 92, doc. 18-13.) His conviction was affirmed by
the Seventh District Court of Appeals of Texas. (Docket Sheet
2, doc. 18-1.) Petitioner did not file a petition for
discretionary review in the Texas Court of Criminal Appeals,
but he did file a state habeas-corpus application raising the
claims presented in this federal petition, which was denied
by the Texas Court of Criminal Appeals without written order
on the findings of the trial court. (Action Taken, doc.
Seventh District Court of Appeals set forth the following
background of the case (any spelling, punctuation, and/or
grammatical errors are in the original):
[Petitioner] was charged by indictment of intentionally or
knowingly committing two or more acts of sexual abuse of
M.C., a child younger than 14 years of age, during the period
from May 1, 2010 through August 31, 2010. Specifically, the
indictment alleged [Petitioner] committed aggravated sexual
assault of M.C. “by causing the sexual organ of [M.C.]
to contact the mouth of the defendant, and/or by causing the
sexual organ of [M.C.] to contact the sexual organ of the
defendant, and/or by causing the anus of [M.C.] to contact
the sexual organ of the defendant.” The indictment went
on to allege [Petitioner] also committed the offense of
indecency with a child with intent to arouse or gratify the
sexual desire of any person “by touching the genital of
[M.C.] and/or by causing [M.C.] to touch the genitals of the
defendant, and/or by touching the anus of [M.C.].” The
indictment further alleged the statutory requirement that
“at the time of the commission of each of these acts of
sexual abuse the defendant was 17 years of age or older and
[M.C.] was younger than 14 years of age.”
On December 3, 2012, the State filed five separate notices,
entitled Notice of Outcry Pursuant to Article 38.072
CCP, each naming one of the following witnesses: Ronda
Canfield, Jessica Canfield, Michael Canfield, Lindsey Dula,
and Beth Hobbs. Each notice gave a summary of their proposed
testimony concerning statements made by M.C. In April 2013, a
jury trial was held during which, among others, each of the
following witnesses testified: (1) Ronda Canfield (M.C.'s
great aunt), (2) Jessica Canfield (Ronda's daughter), (3)
Michael Canfield (M.C.'s great uncle), and (4) Lindsey
Dula (a forensic examiner who interviewed M.C.).
At trial, Jessica was the first to testify. She testified
that, in January 2012, while she, M.C. and Jessica were in
the kitchen at the Canfield's home in Bedford, Texas,
M.C. told her that [Petitioner] had touched her private
parts. Jessica further testified that in a conversation that
took place the next day, M.C. told her [Petitioner] had
touched her private parts with his hands, mouth, and private
part and that M.C. stated she “had to touch
[Petitioner]'s] private parts with [her] hands and [her]
body.” During her testimony, [Petitioner]'s counsel
never objected to the testimony concerning M.C.'s
statements to her.
Ronda was the next witness to testify. During her direct
examination, she too testified concerning the conversation
that took place in the kitchen of her home. Ronda testified
that during that conversation M.C. told her [Petitioner]
touched her private parts. She also stated that M.C. told her
it happened when she was in the downstairs bedroom in Bedford
and that it also happened in a room in Tennessee. Ronda
testified that, at that point, she asked her husband to come
into the kitchen and she asked M.C. to tell him what she had
just told her. When Michael and M.C. began to talk, she and
Jessica left the room to take care of M.C's brother.
During Ronda's testimony, [Petitioner]'s counsel
never objected to the testimony concerning M.C.'s
statements to her.
Michael was the third witness. During both direct and
cross-examination, Michael testified that, in January 2012,
M.C. told him her father kissed her private parts and touched
his private parts to her private parts. As with Jessica and
Ronda, during Michael's testimony before the jury,
[Petitioner]'s counsel never objected to any testimony
concerning M.C.'s statements to him.
After a Bedford Police Department detective testified, the
State called Lindsey Dula, the director of program services
at Alliance for Children. Lindsey, a child abuse forensic
examiner, interviewed M.C. concerning the allegations of
abuse she had disclosed to Jessica, Ronda, and Michael.
Lindsey described M.C.'s statements to those witnesses as
a “rolling outcry.” She testified M.C. told her
that [Petitioner] touched her private parts and put his
private part into her private part more than once. She also
testified that M.C. told her these incidents occurred in an
apartment in Tennessee and at Aunt Ronda's house.
According to Lindsey's testimony, M.C. also demonstrated
the position she would be in when [Petitioner] would enter
her anus and that M.C. indicated she and [Petitioner] had
vaginal and anal sex multiple times. M.C. also indicated to
Lindsey that when [Petitioner] put his mouth on her vagina,
he would penetrate her vagina with his tongue. M.C. also told
Lindsey [Petitioner] would show her adult sexual organs on
Prior to this testimony being given, in an article 38.072
hearing conducted outside the presence of the jury,
[Petitioner] made the following objection concerning
M.C.'s statements to Lindsey:
My understanding of the outcry statements given by Ms. Dula
are duplicative of the outcry statements that have already
been elicited from Jessica and from Ronda and also the
statements given by Mike, so we would object.
The trial court overruled the objection.
Araceli Desmarais, a Sexual Assault Nurse Examiner, was the
next witness. She testified M.C. told her that [Petitioner]
touched her private part with his private part. M.C.
indicated that, when this took place, she was not wearing her
pants or underwear and [Petitioner] had removed his pants and
boxers. According to M.C.'s statement, this type of
encounter occurred multiple times in Tennessee and in
Bedford. M.C. also indicated that her father showed her adult
sexual organs on his computer. She told Araceli that
[Petitioner] performed oral sex on her and made her touch his
private parts more than once at the Canfield home in Bedford.
M.C. also indicated there was pain when [Petitioner]
penetrated her private part. [Petitioner]'s counsel did
not object to Araceli's testimony.
M.C. was the State's final witness. M.C. testified her
father touched her private parts when they lived in Tennessee
and that he also touched his private part to her private part
when she was living in Bedford. She testified that when he
touched her with his private part, sometimes she was on her
stomach and other times on her back. She did not have any
panties on and her father was not wearing any pants or
underwear. She indicated that when her father was on top of
her and she was on her tummy, it hurt. She also indicated her
father made noises and something came out of his private
Following M.C.'s testimony, the State rested. The defense
then rested without calling any additional witnesses.
(Mem. Op. 2-6, doc. 18-10 (footnotes omitted).)
raises six grounds for relief:
(1) The trial court lacked jurisdiction because “the
jury [was allowed] to use extraneous offenses in another
state, namely Tennessee, to prove the allegations as alleged
in Bedford, Texas” (ground one);
(2) He received ineffective assistance of trial and appellate
counsel (grounds two through five); and
(3) He is actually innocent of the offense for which he was
convicted (ground six).
(Pet. 6-7(f), doc. 1.)
RULE 5 STATEMENT
believes that Petitioner's state-court remedies have been
exhausted as to the claims raised and that the petition is
neither time-barred nor successive. (Resp't's Answer
6, doc. 16.)
LEGAL STANDARD FOR GRANTING HABEAS-CORPUS RELIEF
§ 2254 habeas petition is governed by the heightened
standard of review provided for in the AEDPA. See 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 United States
Supreme Court or that is based on an unreasonable
determination of the facts in light of the record before the
state court. See 28 U.S.C. § 2254(d)(1)-(2);
Harrington v. Richter, 562 U.S. 86, 100 (2011). This
standard is difficult to meet but “stops short of
imposing a complete bar on federal court relitigation of
claims already rejected in state proceedings.”
Richter, 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). Additionally, when the Texas Court of Criminal
Appeals denies relief on a state habeas-corpus application
without written order, typically it is an adjudication on the
merits, which is likewise entitled to this presumption.
Richter, 562 U.S. at 100; Ex parte Torres,
943 S.W.2d 469, 472 (Tex. Crim. App. 1997). In such a
situation, a federal court may assume that the state court
applied correct standards of federal law to the facts, unless
there is evidence that an incorrect standard was applied.
Townsend v. Sain, 372 U.S. 293, 314 (1963);
Schartzle v. Cockrell, 343 F.3d 440, 443 (5th Cir.
2003); Catalan v. Cockrell, 315 F.3d 491, 493 n.3
(5th Cir. 2002); Goodwin v. Johnson, 132 F.3d 162,
183 (5th Cir. 1997).
his first ground, Petitioner challenges the trial court's
jurisdiction on the basis that “[r]egardless of a
limited instruction to the jury, the evidence at trial shows
that the State used the Tennessee extraneous offenses to
prove the 30-day duration element of the indictment.”
(Pet. 6-6(a), doc. 1.) According to Petitioner, of the
approximately seventeen occurrences of sexual abuse used by
the state to prove up the indictment, only three occurred in
Bedford, Texas. (Id.) Thus, he argues that the trial
court lacked jurisdiction as “there is no fedral [sic]
or state law that allows for out-of-state extrensous [sic]
offenses to prove beyond a reasonable doubt the allegations
alleged in Bedford, Texas (Tarrant County), as presented in
their indictment.” (Id. at 6(b).)
jury was charged as follows regarding their use of extraneous
You are instructed that if there is any testimony before you
in the case regarding the Defendant having committed offenses
other than the offense alleged against him in the Indictment
in this case, you cannot consider said testimony for any
purpose unless you find and believe beyond a reasonable doubt
that the Defendant committed such other offenses, if any,
were committed. And even then you may only consider the same
in determining motive, intent, opportunity, preparation,
knowledge or absence of mistake or accident of the Defendant
in connection with the offense, if any alleged against him in
the Indictment in this case and for no other
(Clerk's R. 96, doc. 18-2 (emphasis added).)
state habeas court found that the jury charge
“instructed the jury that they must find, beyond a
reasonable doubt, that the offense occurred in Tarrant
County” and “limited the jury's consideration
of the extraneous offense evidence to motive, intent,
opportunity, preparation, knowledge, and absence of mistake
or accident” and was thus admissible under Texas Rule
of Evidence 404(b)(2). (State Writ 71, doc. 71.) Based on its
findings, the court concluded that the jury charge properly
limited the jury's consideration of extraneous offenses.
(Id. at 80.)
couched as a “jurisdictional” issue, this claim,
can more accurately be said to raise an evidentiary matter. A
federal habeas court will disturb state-court evidentiary
rulings on habeas review only if they render the trial
fundamentally unfair in violation of due process. Payne
v. Tennessee, 501 U.S. 808, 825 (1991); Pemberton v.
Collins, 991 F.2d 1218, 1226 (5th Cir. 1993); Scott
v. Maggio, 695 F.2d 916, 922 (5th Cir. 1983). Absent
evidence to the contrary, a jury is presumed to follow the
instructions set forth in the trial court's charge.
United States v. Morrow, 177 F.3d 272, 290 (5th Cir.
1999). Petitioner has not rebutted this presumption.
Therefore, the limiting instruction effectively cured any
risk of spillover prejudice.
notwithstanding Texas's normal rules of evidence,
evidence of extraneous offenses or acts committed by a
defendant against the child victim is admissible in a trial
where the defendant is accused of the sexual assault of a
child under seventeen where it is relevant (1) to the state
of mind of the defendant and the child and (2) the previous
and subsequent relationship between the two. See
Tex. Code. Crim. Proc. Ann. art. 38.37 (West Supp. 2017).
Therefore, extraneous-offense evidence is more often more
readily admitted in cases involving sexual assaults of
children. Kessler v. Dretke, 137 Fed. App'x 710,
2005 WL 1515483, at *1 (5th Cir. June 28, 2005), cert.
denied, 546 U.S. 1105 (2006). The admission of such
evidence does not render a petitioner's trial
fundamentally unfair if the state “makes a strong
showing that the defendant committed the offense and if the
extraneous offense is rationally connected with the offense
charged.” Wood v. Quarterman, 503 F.3d 408,
414 (5th Cir. 2007). The evidence of Petitioner's sexual
abuse of M.C. in Tennessee was properly admitted because it
bears a rational relationship to the charged offense.
Moreover, there is no evidence that admission of the
extraneous offense evidence rendered the entire trial
fundamentally unfair or that but for the admission of the
evidence the result of Petitioner's trial would have been
different. Brecht v. Abrahamsom, 507 U.S. 619, 637
(1993). Petitioner is not entitled to relief under his first
Ineffective Assistance of Counsel
grounds two, four, and five, Petitioner claims that he
received ineffective assistance of trial counsel, and, under
ground three, he claims that he received ineffective
assistance of counsel on appeal. A criminal defendant has a
constitutional right to the effective assistance of counsel
at trial and on the first appeal as of right. U.S. Const.
amend. VI, XIV; Evitts v. Lucey, 469 U.S. 387, 396
(1985); Strickland v. Washington, 466 U.S. 668, 688
(1984). To establish ineffective assistance of counsel 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 test, a court must
indulge a strong presumption that counsel's conduct fell
within the wide range of reasonable professional assistance.
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.
Supreme Court set out in Harrington v. Richter the
manner in which a federal court is to consider an
ineffective-assistance- of-counsel claim raised in a ...