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Carter v. Davis

United States District Court, W.D. Texas, San Antonio Division

April 4, 2018

EDWARD LEE CARTER, TDCJ No. 01872967, Petitioner,
v.
LORIE DAVIS, Director, Texas Dep't of Criminal Justice-Correctional Institutions Division, Respondent

          MEMORANDUM OPINION AND ORDER

          DAVID A. EZRA SENIORDISTRICT JUDGE

         Edward 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.

         I. Procedural Background

         Petitioner 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.).

         Petitioner 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.

         II. Factual Background

         In its brief on direct appeal, the State summarized the facts as follows:

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 abusing her.
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 other people.
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 penis.

(ECF No. 12-7 at 1-7).

         III. Standard of Review

         A. Review of State Court Adjudications

         Petitioner's 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)).

         A 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).

         B. Review of Sixth Amendment Claims

         The 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).

         In 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).

         To 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.

         IV. Analysis

         A. Ground One

         Petitioner 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.

         Further, in addressing the issue of bias affecting a defendant's constitutional right to a fair ...


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