United States District Court, W.D. Texas, San Antonio Division
EDWARD LEE CARTER, TDCJ No. 01872967, Petitioner,
LORIE DAVIS, Director, Texas Dep't of Criminal Justice-Correctional Institutions Division, Respondent
MEMORANDUM OPINION AND ORDER
A. EZRA SENIORDISTRICT JUDGE
Lee Carter, an inmate in the custody of the Texas Department
of Criminal Justice-Correctional Institutions Division
('TDCJ-CID"), has filed an application for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, challenging
his convictions for aggravated sexual assault of a child and
indecency with a child. As required by Rule 4 of the Rules
Governing Section 2254 Cases, the Court conducted a
preliminary review of the petition. Having considered the
habeas application (ECF No. 1), Respondent's Answer (ECF
No. 11), the record (ECF No. 12), Petitioner's Response
and Objections (ECF No. 13), and applicable law, the Court
finds the petition should be DENIED.
was charged by indictment with three counts of indecency with
a child by contact and two counts of aggravated sexual
assault of a child. A jury found Petitioner guilty as alleged
in the indictment, and on July 22, 2013, he was sentenced to
consecutive terms of 11 years' confinement on one count
of aggravated sexual assault and five years' confinement
on a second count of aggravated sexual assault. (ECF No.
12-8). Petitioner was sentenced to concurrent terms of two
years' confinement on each conviction for indecency with
a child. (Id.).
appealed and the Fourth Court of Appeals affirmed the
judgment of the trial court. Carter v. State, No.
04-13-00532-CR, 2014 WL 5837839, *2 (Tex. App.-San Antonio
2014, pet. ref d). Petitioner filed a petition for
discretionary review with the Texas Court of Criminal Appeals
("TCCA"), which was refused. Carter v.
State, No. PD-0494-16 (Tex. Crim. App. 2016). On October
3, 2016, Petitioner filed an application for a state writ of
habeas corpus, which was denied without written order based
on the trial court's findings. (ECF No. 12-19).
Petitioner filed the instant federal petition, alleging he
was denied his right to the effective assistance of counsel
and subjected to a biased trial court and trial court error.
brief on direct appeal, the State summarized the facts as
Eighteen-year-old J.C. testified to several instances of
sexual abuse by her father starting when she was nine-years
old. At the time of her testimony, J.C. was living with her
mother in Florida. J.C. was young when her parents separated.
She lived with her dad in San Antonio when he began sexually
During her testimony, J.C. recalled going to her dad when she
was young to tell him about hair growing between her legs. He
told her that he could "fix it" and proceed[ed] to
take her pants off, put his head between her legs and start
licking her vagina. She explained that he sexually abused her
repeatedly over the years. The abuse included him touching
her vagina under her clothes, licking and fondling her
breasts and making her [...] perform oral sex on him. She
described [Carter] teaching her how to perform oral sex by
showing her pornographic videos.
She recalled one occasion when [Carter] threatened her by
telling her that if she did not perform oral sex on him,
"he would go to jail" and she "would be placed
in foster care."
J.C. testified that she initially told her paternal
grandmother, Ora Jackson, about [Carter] sexually abusing
her. However, [Carter]'s mother did not do anything about
J.C.'s disclosure. Three years later, when J.C. was
fifteen-years old, she stayed with her paternal grandmother
and paternal aunt, Vertus Williams, who both lived in Kansas.
J.C. testified that she was afraid [Carter] would start
having sex with her so she told them about [Carter]'s
continued sexual abuse. Her aunt reported the abuse and an
investigation ensued. For a period of time, J.C. lived with
her aunt and her grandmother. However, she eventually decided
to move back to San Antonio to live with her dad. J.C.
admitted moving back in with [Carter] appeared strange due to
the prior abuse but explained she felt sorry for him and
loved him. In fact, she stated that she still loves him
because he is her dad.
Because of the sexual abuse investigation, CPS placed J.C. in
foster care. She admitted to running away from the foster
family that wanted to adopt her.
J.C. explained that after disclosing the abuse she later told
several people that [Carter] never sexually abused her. She
testified that her retraction was a lie and explained she did
it because she loved her father and did not want him to get
in trouble. She also explained she lied about [Carter] not
sexually abusing her because she did not want to go into
foster care. J.C. told the jury that the truth was her father
did sexually abuse her as she described.
Trial counsel cross-examined J.C. extensively regarding
inconsistencies in her account of events and what she told
Amanda Eason, [Carter]'s ex-wife, testified. They were
together for approximately 4 years. J.C. was approximately 6
or 7 years old when they first started dating. She described
J.C. as an extremely quiet child who at the time she assumed
was simply shy. She and [Carter] lived on and off together
because of their tumultuous relationship. She explained
during their marriage [Carter] had an affair with a
16-year-old girl who became pregnant. Eason explained even
after they divorced they continued to see one another because
they share a child.
When Eason heard about J.C.'s allegation of sexual abuse,
she asked [Carter] about it. [Carter] insisted his mother
made up the allegation. Eason testified she believed [Carter]
because she thought his mother was capable of such behavior.
Some time later Eason had a second conversation with [Carter]
about the sexual abuse allegation. She explained that the
conversation began with her asking [Carter] what he was going
to do about J.C. During the course of the conversation,
[Carter] admitted to sexually abusing J.C. once.
[Carter] told Eason it happened after they split up causing
him to go "temporarily insane." He told Eason he
couldn't think, and that he was "unable to control
himself." She described [Carter] as upset and crying
during this conversation. He kept saying to Eason that he
hoped J.C. could forgive him and that he didn't know how
to make it right [Carter] also told Eason during the
conversation that he had sent J.C. to stay with his mother
because he "couldn't control himself."
Later, J.C. moved in with Eason. Eason explained that she and
J.C. believed [Carter] did not know where J.C. was living or
that she was attending Roosevelt High School. However, one
day at school a girl that J.C. didn't know gave her a
note. The note was from [Carter] and it contained a bible
scripture. Eason explained the note caused J.C. to have a
panic attack and J.C. believed [Carter] intended to hurt her.
They made a police report the day J.C. received the note.
The State called Dr. Nancy Kellogg to offer her opinion on
delay in disclosure and recantation of abuse, behaviors
frequently exhibited by children who have been sexually
abused. The trial court first conducted a 701 hearing outside
of the jury's presence. At the conclusion of the hearing,
trial counsel did not object to the admission of Dr.
Kellogg's testimony on delayed disclosure or recantation,
but rather any medical opinion regarding J.C.'s sexual
assault examination. Based on the evidence, the trial court
determined Dr. Kellogg could offer her testify to the jury.
[Carter] called several witnesses during the guilt/innocence
phase to testify regarding [Carter] having several small
round bumps on his penis. This testimony was intended to
undermine J.C.'s claim of sexual abuse since she never
recounted or described [Carter] having small bumps on his
(ECF No. 12-7 at 1-7).
Standard of Review
Review of State Court Adjudications
federal petition is governed by the heightened standard of
review provided by the Antiterrorism and Effective Death
Penalty Act ("AEDPA"). 28 U.S.C.A. § 2254.
Under § 22S4(d), a petitioner may not obtain federal
habeas corpus relief on any claim that was adjudicated on the
merits in state court proceedings, unless the adjudication of
that claim either: (1) "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 (2) resulted in a
decision based on an unreasonable determination of the facts
in light of the evidence presented in the state court
proceedings. Brown v. Payton, 544 U.S. 133, 141
(2005). This intentionally difficult standard stops just
short of imposing a complete bar on federal court
relitigation of claims already rejected in state proceedings.
Harrington v. Richter, 562 U.S. 86, 102 (2011)
(citing Felker v. Turpin, 518 U.S. 651, 664 (1996)).
federal habeas court's inquiry into unreasonableness
should always be objective rather than subjective, with a
focus on whether the state court's application of clearly
established federal law was "objectively
unreasonable" and not whether it was incorrect or
erroneous. McDaniel v. Brown, 558 U.S. 120, 132-33
(2010); Wiggins v. Smith, 539 U.S. 510, 520-21
(2003). Even a strong case for relief does not mean the state
court's contrary conclusion was unreasonable, regardless
of whether the federal habeas court would have reached a
different conclusion itself. Richter, 562 U.S. at
102. Instead, a petitioner must show the state court's
decision was objectively unreasonable, a "substantially
higher threshold." Schriro v. Landrigan, 550
U.S. 465, 473 (2007); Lockyer v. Andrade, 538 U.S.
63, 75-76 (2003). As long as "fairminded jurists could
disagree" on the correctness of the state court's
decision, a state court's determination that a claim
lacks merit precludes federal habeas relief.
Richter, 562 U.S. at 101 (citing Yarborough
v. Alvarado, 541 U.S. 652, 664 (2004)). In
other words, to obtain federal habeas relief on a claim
previously adjudicated on the merits in state court, Carter
must show the state court's ruling "was so lacking
in justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement." Id. at 103; see
also Bobby v. Dixon, 565 U.S. 23, 24 (2011).
Review of Sixth Amendment Claims
Court reviews Sixth Amendment claims concerning the alleged
ineffective assistance of trial counsel under the familiar
two-prong test established in Strickland v.
Washington, 466 U.S. 668 (1984). Under
Strickland, a petitioner cannot establish a
violation of his Sixth Amendment right to counsel unless he
demonstrates (1) counsel's performance was deficient and
(2) this deficiency prejudiced his defense. Id. at
687-88, 690. According to the Supreme Court,
"[s]urmounting Strickland's high bar is
never an easy task." Padilla v. Kentucky, 559
U.S. 356, 371 (2010).
determining whether counsel performed deficiently, courts
"must be highly deferential" to counsel's
conduct, and a petitioner must show counsel's performance
fell beyond the bounds of prevailing objective professional
standards. Strickland, 466 U.S. at 687-89. Counsel
is "strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise
of reasonable professional judgment." Burt v.
Titlow, 571 U.S. 12, 17 (2013) (quoting
Strickland, 466 U.S. at 690). "A conscious and
informed decision on trial tactics and strategy cannot be the
basis for constitutionally ineffective assistance of counsel
unless it is so ill chosen that it permeates the entire trial
with obvious unfairness." Cotton v. Cockrell,
343 F.3d 746, 752-53 (5th Cir. 2003). As the Supreme Court
explained, "[j]ust as there is no expectation that
competent counsel will be a flawless strategist or tactician,
an attorney may not be faulted for a reasonable
miscalculation or lack of foresight or for failing to prepare
for what appear to be remote possibilities."
Richter, 562 U.S. at 110. For this reason, every
effort must be made to eliminate the "distorting effects
of hindsight." Strickland, 466 U.S. at 689;
see also Yarborough v. Gentry, 540 U.S. 1, 6 (2003)
("The Sixth Amendment guarantees reasonable competence,
not perfect advocacy judged with the benefit of
hindsight.") (citations omitted). Accordingly, there is
a strong presumption an alleged deficiency "falls within
the wide range of reasonable professional assistance."
Feldman v. Thaler, 695 F.3d 372, 378 (5th Cir. 2012)
(quoting Strickland, 466 U.S. at 689).
demonstrate prejudice, a petitioner "must show that
there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceedings would
have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome." Strickland, 466 U.S. at 694.
alleges he was denied a fair trial because the trial judge
was corrupt, took bribes from lawyers, and was later
convicted of manipulating criminal cases. Petitioner raised
these issues in his application for state writ of habeas
corpus, which the TCCA denied. The TCCA's implicit and
explicit factual findings and credibility determinations are
entitled to a presumption of correctness, which may only be
overcome by clear and convincing evidence. 28 U.S.C. §
2254(e)(1); Marshall v. Lonberger, 459 U.S. 422');">459 U.S. 422, 433
(1983); Neal v. Puckett, 239 F.3d 683, 696 (5th Cir.
2001). Petitioner fails to demonstrate the TCCA's
decision was an unreasonable application of clearly
established federal law or an unreasonable application of the
facts in light of the evidence presented.
in addressing the issue of bias affecting a defendant's
constitutional right to a fair ...