United States District Court, N.D. Texas, Fort Worth Division
OPINION AND ORDER
O'CONNOR UNITED STATES DISTRICT JUDGE.
the Court is a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 filed by Petitioner, Santonio Demon
Murff, a state prisoner confined in the Correctional
Institutions Division of the Texas Department of Criminal
Justice (TDCJ), against Lorie Davis, director of TDCJ,
Respondent. After considering the pleadings and relief sought
by Petitioner, the Court has concluded that the petition
should be denied.
December 20, 1996, in the 371st District Court, Tarrant
County, Texas, a jury found Petitioner guilty of capital
murder, and, the state having waived the death penalty, the
trial court assessed a mandatory life sentence. Tr. 195, ECF
No. 14-4. Petitioner appealed his conviction, but the Second
District Court of Appeals of Texas affirmed the trial
court's judgment. Docket Sheet 2, ECF No. 14-2.
Thereafter, Petitioner filed three state habeas-corpus
applications. The first, filed in July 2004, was dismissed
for noncompliance with the state's form requirements on
August 25, 2004. SH01 Writ Action Taken & 2, ECF No.
14-19. The second, filed in September 2004, was granted in
part, allowing Petitioner to file an out-of-time petition for
discretionary review, which the Texas Court of Criminal
Appeals refused on September 10, 2008. SH03 Writ 2 &
Action Taken, ECF No. 15-1; Docket Sheet 1-2, doc. 14-2. The
third, filed in January 2009, was denied by the Texas Court
of Appeals on October 7, 2015, without written order on the
findings of the trial court after a hearing. SH04 Writ 2
& Action Taken, ECF Nos. 15-2, 15-8.
state appellate court briefly summarized the evidence as
[Petitioner] killed Robert Phelan by shooting him three times
with a .380 caliber, semi-automatic pistol. Both before and
after he shot Phelan, [Petitioner] took several items that
belonged to Phelan's roommate. [Petitioner] later told a
friend that he and a co-conspirator [Marcus Johnson] put a
gun to Phelan's head, took what they wanted of his
roommate's property, and then killed Phelan.
2-3, ECF No. 14-3. There was also evidence that Petitioner
was a member of the West Side Rolling 60's Crip gang and
was engaged in drug dealing and other criminal activities at
the time of the murder. Reporter's R., vol. 6, 225, 239,
306, 313, ECF No. 14-9.
federal habeas-corpus petition, Petitioner grounds for relief
fall within two general categories: (1) laches and
ineffective assistance of trial counsel (grounds one, two,
and four through seven) and (2) denial of Petitioner's
motion for continuance (ground three). Pet. 6-7, 11-12, ECF
RULE 5 STATEMENT
asserts that Petitioner's
ineffective-assistance-of-counsel claims, which were barred
by laches in his third state habeas proceeding, are
procedurally barred from the Court's review under the
procedural default doctrine. Resp't's Answer 25-26,
ECF No. 18. Otherwise, she does not believe that
Petitioner's claims are unexhausted or that the petition
is successive for purposes of § 2244(b) or barred by
limitations under § 2244(d).
raised his ineffective-assistance-of-counsel claims in all
three of his state habeas applications. The state habeas
court set out the procedural history of the postconviction
proceedings in his case as follows:
4. [Petitioner] appealed his conviction.
5. The Second Court of Appeals affirmed [Petitioner]'s
conviction on January 15, 1998.
6. Mandate was issued on March 26, 1998.
7. [Petitioner] filed his first application for writ of
habeas corpus on July 19, 2004.
8. [Petitioner]'s first application was dismissed for
non-compliance on August 25, 2004.
9. [Petitioner]'s first application was filed over six
years after mandate issued.
10. [Petitioner]'s second application was filed on
September 22, 2004.
11. Hon. Sylvia Andrews filed her first affidavit on July 18,
12. [Petitioner]'s second application for writ of habeas
corpus was partially granted and he was granted an
out-of-time petition for discretionary review.
13. [Petitioner]'s petition for discretionary review was
refused on October 6, 2008.
14. [Petitioner] filed this third application for writ of
habeas corpus on January 15, 2009.
15. The trial court ordered another affidavit from Hon.
Andrews on February 3, 2009.
16. On March 13, 2009, the State requested a sixty day
extension on the behalf of Hon. Andrews for her to file her
affidavit due to a difficulty in contacting her.
17. On August 2, 2010, this Court appointed Hon. Bob Ford to
represent [Petitioner] and procure an affidavit from Hon.
18. On October 1, 2010, Hon. Andrews filed her second
19. This Court has personal knowledge that the State
proceeded to try and get a supplemental affidavit from Hon.
Andrews from October, 2010 until August, 2012.
20. After the untimely death of Hon. Bob Ford in late 2011,
Hon. Scott Brown was appointed to represent [Petitioner].
21. On August 6, 2012, the State requested a hearing to give
Hon. Andrews an opportunity to testify and explain her
representation because it felt her affidavits did not
adequately address the issues.
22. A hearing was held in this proceeding on January 24,
23. The reporter's record of the hearing was filed on May
State Writ (part 2) 328-29, ECF No. 15-9 (record citations
Petitioner's ineffective-assistance claims were not
considered by the state courts in his first state habeas
application, which was dismissed for noncompliance with the
form requirements; the claims were dismissed as premature in
his second application; and the claims were barred by laches
in his third application. SH03 362, ECF No. 15-9.
the procedural default doctrine, “[a] federal habeas
court will not review a claim rejected by a state court
‘if the decision of [the state] court rests on a state
law ground that is independent of the federal question and
adequate to support the judgment.'” Beard v.
Kindler, 558 U.S. 53, 55 (2009) (quoting Coleman v.
Thompson, 501 U.S. 722, 729 (1991)). The state-law
ground may be a substantive rule dispositive of the case or a
procedural barrier to adjudication of the claim on the
merits. See Walker v. Martin, 562 U.S. 307, 315
(2011) (citing Wainwright v. Sykes, 433 U.S. 72,
81-82 (1977)). To qualify as an “adequate”
procedural ground, a state rule must be “firmly
established and regularly followed.” Id. at
316 (quoting Kindler, 558 U.S. at 60). A
discretionary state procedural rule “can serve as an
adequate ground to bar federal habeas review.”
his second ground, Petitioner claims that the state habeas
court's factual findings and legal conclusions adopting
the doctrine of laches are “both contrary to and
unreasonable as set out under” § 2254(d)(1) and
(2). Petitioner was represented at trial by Sylvia Andrews.
The state habeas judge, who conducted the hearing on
Petitioner's ineffective-assistance claims in January
2013, entered the following relevant factual findings on the
24. Hon. Andrews' 2005 affidavit contained a lot of
errors regarding the underlying facts of this offense.
25. Before preparing her two affidavits, Hon. Andrews had not
read the record, clerk's file, her file, or the
investigator's file and were based completely on her near
decade old memory.
26. Hon. Andrews' 2005 affidavit is evidence that she had
already begun forgetting specific details of her
representation of [Petitioner] ¶ 1996.
27. Hon. Andrews' 2005 affidavit is evidence that the
State was prejudiced by [Petitioner] waiting over eight years
to file a proper application due to Hon. Andrews'
SH10 Writ 327-28, ECF No. 15-8 (record citations omitted).
on her findings, and relying solely on state law, the judge
entered the following legal conclusions in barring the
3. The doctrine of laches may be employed in a Court's
determination of whether to grant relief in any given 11.07
4. The State is no longer required to make a particularized
showing of prejudice for a writ claim to be barred by laches.
5. A court may consider anything that places the State in a
less-favorable position, including their ability to re-try a
case, in determining whether an applicant's delay has
prejudiced the State's ability to respond to his claims.
6. Trial courts may consider the diminished memory of trial
participants and the diminished availability of the
State's evidence as well as afford adequate weight to the
State's broad interest in the finality of a long-standing
7. While the [Texas] Court of Criminal Appeals has declined
to set a specific time period for applying the laches
doctrine, claims made more than five years after a conviction
becomes final demonstrates material prejudice.
8. The State has been prejudiced by [Petitioner]'s six
year delay in bringing this writ application due to
diminished memory regarding this case.
Id. at 362 (citations omitted).
Texas Court of Criminal Appeals, adopting the trial
court's findings, denied relief. Thus, the state
courts' decision rests on an independent and adequate
state rule. See Walker, 562 U.S. at 317 (holding
California's discretionary time rule is an independent
and adequate state bar preventing federal habeas review);
Kelley v. Zoeller, 800 F.3d 318, 327 (7th Cir. 2015)
(claim barred by laches is an independent and adequate state
law ground preventing federal habeas review); Smith v.
Addison, 373 Fed. App'x 886, 2010 WL 1544366 at *2
(10th Cir. Apr. 20, 2010) (same). The Court finds no
precedent established by the United States Supreme Court
prohibiting states from applying the common law doctrine of
laches in state habeas proceedings. Furthermore,
counsel's affidavits and testimony at the evidentiary
hearing establish that counsel had diminished memories of the
events surrounding her representation of Petitioner such that
the state incurred a disadvantage in responding to
Petitioner's ineffective-assistance claims. Thus, this
Court cannot conclude that the state courts' findings and
legal conclusions on the issue were unreasonable. Petitioner
is not entitled to relief under his second ground.
habeas petitioner may overcome a state procedural bar by
demonstrating either cause and actual prejudice for the
default or a showing that he is actually innocent of the
crime for which he stands convicted. See Sawyer v.
Whitley, 505 U.S. 333, 338 (1992); Ylst v.
Nunnemaker, 501 U.S. 797, 801-07 (1991); Smith v.
Johnson, 216 F.3d 521, 523-24 (5th Cir. 2000).
“Cause” can be established by showing that
“some objective factor external” to the
petitioner, something that cannot fairly be attributed to
him, prevented him from properly raising the claim(s) in
state court. McClesky v. Zant, 499 U.S.
467, 493 (1991) (quoting Murray v. Carrier, 477 U.S.
478, 488 (1980)).
that end, Petitioner asserts that his ineffective-assistance
claims should not be procedurally barred from federal habeas
[i]t was conclusively determined at the habeas hearing on
January 24, 2013, that Petitioner was never notified by
appellate counsel that mandate was issued and he could file a
P.D.R. On January 8, 2008, [the state habeas judge] dismissed
Petitioner's [second] writ as premature and granted him
the right to file an out of time appeal. He quickly did and
it was denied. He quickly filed his [third] writ and years
were spent trying to get adequate affidavits from trial
counsel before the state requested the 2013 hearing.
Petitioner did not sleep on his rights. All delays were due
to the state and ineffective counsels. If the state felt
prejudiced, then the Petitioner should have been ordered a
new trial instead of an out of time appeal.
Pet. 6, ECF No. 3.
without deciding, that the extreme delays in the state courts
and difficulty obtaining affidavits from counsel constitute
cause to excuse Petitioner's procedural default, he
cannot demonstrate prejudice therefrom. Petitioner had no
counsel in his initial state habeas proceeding, thus the rule
in Martinez/Trevino may excuse his procedural
default of the claims if he can demonstrate that the claim is
“substantial.” For an ineffective-assistance
claim to be substantial, a petitioner “must demonstrate
that the claim has some merit.” Martinez v.
Ryan, 566 U.S. 1, 14 (2012); Trevino v. Thaler,
569 U.S. 413, 429 (2013). Conversely, an
“insubstantial” claim is one that “does not
have any merit” or that is “wholly without
factual support.” Id. at 16.
the familiar Strickland standard, 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.
claims that his trial counsel was ineffective by-
- failing to challenge three jurors for
cause (ground one);
- failing to request an accomplice witness instruction
- failing to request an extraneous offense instruction
(ground five); and
- failing to object to admission of heresay statements of
codefendant Marcus Johnson admitted through Detective Thomas
Lenoir's testimony (ground six).
claims the cumulative effect of counsel's omissions
rendered his trial fundamentally unfair (ground seven). Pet.
6-7, 11-12, ECF No. 3; Pet'r's Mem. 17, ECF No. 4.
Notwithstanding the laches bar, the state habeas court
entered findings of fact and conclusions of law applying the
Strickland standard to Petitioner's claims and
the Texas Court of Criminal Appeals adopted those findings in
denying relief. Petitioner fails to rebut the presumptive
correctness of the states' factual findings with clear
and convincing evidence; thus, we apply the presumption of
correctness to those findings in considering Petitioner's
responded to Petitioner's claims in two affidavits filed
in state court. In the first, filed in 2005, she averred (all
spelling, punctuation, and/or grammatical errors are in the
I, Sylvia Andrews, was appointed . . . to represent
[Petitioner] after grievances were filed by [Petitioner]
against his then current attorneys. I was appointed in
October. Due to the time factor, the bailiffs brought
[Petitioner] immediately to the jury room for the 371st
District Court. (We would meet there several other times
during the course of my preparation for trial in an effort to
provide [Petitioner] a private, comfortable and quiet area to
assist me in his defense. I met with [Petitioner] and
explained that I had been appointed and that the Court had
indicated to me that the trial would continue as planned. We
had a lengthy and pleasant visit. He seemed pleased that I
would be representing him and understood that with a December
trial date we had much to do. I informed him that I had
reviewed the clerks' file containing motions that had
been filed earlier, that they were in order, and that I would
be adopting those motions. He understood and agreed.
[Petitioner] was a very bright individual (he had been in
management with Taco Bell) and had a well thought-out plan
for his defense . . . but that was the problem, because he
didn't really have a defense nor did he have an alibi. I
explained to [Petitioner] my most important concern about his
defense: he would have to take the stand. We talked at length
about the pros and cons of testifying. Finally, [Petitioner]
agreed that as a strategy for trial and for appellate
purposes he would assert his 5th amendment right to remain
silent. [Petitioner] had a very convoluted and ever-changing
explanation for perhaps the biggest hurdle we faced, besides
the dead injured party: his keys were found in the living
room, a few feet from the deceased.
It was no secret that [Petitioner] was involved in selling
illegal drugs, though he was not a drug user. It was a
business that was incredibly more profitable than training
future taco sellers. The State's case was this was simply
“a drug deal gone bad”. [Petitioner] at times
insisted he was not there and on other occasions that he was
and his keys somehow got left behind. Each time we would meet
he would have recalled some new and critical piece of
information. That was problematic on several fronts. First,
it was becoming clear that it would be difficult to trust
[Petitioner] and even more troublesome if he ever were to
take the stand. Second, it was almost impossible to verify
anything he said. Finally, it was a real impediment to
preparation of a trial strategy with the ephemeral defense(s)
he offered. In the end, I suggested that he could remember
whatever he wanted just get one memory and stick with it.
During the trial, if I did anything wrong it would be that I
listened to [Petitioner]. He was difficult during the entire
trial. He was constantly writing notes with specific
questions to things, by the way, that I was hearing for the
first time from him. He would whisper in my ear, if I ignored
his notes. It was very difficult to ask questions and/or make
timely and legal objections when he was in my ear, not only
telling me what he wanted done, but why and how it was
central to something new he had just remembered. He was out
of control. At one point, I asked for a recess to find out
what-the-heck he was talking about. Well, not only had it
come to him how his keys got to the crime scene, but he
wanted to take the stand. I was stunned. (But I probably
shouldn't have been). Not only did he want to take the
stand with a story I had not heard, but it was the most
cockamamie thing one could imagine. At that point, I was sure
that I couldn't believe a word coming from this guy's
mouth. I didn't want to solicit untrue statements and I
really didn't want to lose what credibility we had with
the jury. Without the jury present, I put him on the sand and
went over our previous plan for him to not testify. He
explained to the court that he had changed his mind. He
admitted that it was against the advice of counsel. And off
we went to prepare for his direct examination later that
afternoon, when he would have the opportunity to tell the
jury that he had been there earlier from somewhere and
dropped his keys on his way out going to wherever. It was the
kind of story that's hard to remember because not one
word of it rang true. It was embarrassing for everyone. I
don't think the State kept him on the stand 5 minutes.
The jury was back in half an hour.
I made one other mistake. In my effort to be effective in
representing [Petitioner], I empowered him. And it probably
ended up being the thing that, ultimately, did him in. And
those keys didn't help things much either.
SH03 Writ 66-67, ECF No. 15-1.
second, supplemental affidavit, filed in 2010, counsel
After reviewing the attached writ, there is little to be
added on my part. [Petitioner] continues to have his own
unique recollection of the facts related to his trial. I will
reiterate that at no time did I encourage or coerce
[Petitioner] to testify. It was only after the State had
presented its case that he determined he wanted to testify.
His taking the stand, in fact, was something I discouraged.
The final decision regarding his testimony was his, despite
Finally, with regard to [Petitioner]'s handwritten
notations on my original affidavit I find them argumentative
and without substance. With regard to his complaints
regarding the dates of appointment, pretrials, etc., the
docket can be reviewed. As to his assertions of contradiction
and misrepresentation of events within my affidavit, I submit
these are his opinion, to which it is impossible for me to
SH10 Writ 73, ECF No. 15-8.
his first ground, Petitioner claims counsel was ineffective
by failing to challenge three veniremen, Adamski, Smith, and
Tello, for cause, resulting in the seating of a tainted jury.
Pet. 6, ECF No. 3. Specifically, he asserts that Adamski was
challengeable because she stated that she had emotional
problems that would affect her substantially; Smith was
challengeable because he stated that he had experience with
gang members and would use his outside knowledge and
experience in his judgment; and Tello was challengeable
because he stated that he was from Columbia, the most violent
country in the world, full of gangs, and that he would give a
police officer's testimony more credibility than a gang
state habeas court found that, sixteen years after the fact,
counsel could no longer recall why she did not strike the
jurors but that there was no evidence in the record that the
jurors were challengeable for cause under article 35.16 of
the Texas Code or Criminal Procedure. SH10 Writ 332-38.
Specifically, the court entered the following relevant
findings of fact regarding this issue:
81. Hon. Andrews' initial defense was to attack the
credibility of the State's witnesses' investigation.
82. At the time of voir dire, Hon. Andrews did not anticipate
that [Petitioner] would testify.
83. The witnesses Hon. Andrews planned to call were not gang
members, drug dealers, or drug users.
84. The only gang members, drug dealers, and drug users Hon.
Andrews anticipated during voir dire would testify were ...