United States District Court, W.D. Texas, San Antonio Division
VICTOR E. BAILEY, TDCJ No. 01950776, Petitioner,
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
MEMORANDUM OPINION AND ORDER
BIERY UNITED STATES DISTRICT JUDGE.
Victor Bailey, an inmate in the custody of the Texas
Department of Criminal Justice-Correctional Institutions
Division, has filed an application for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, challenging his
conviction for aggravated robbery. 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. 14), the record (ECF Nos. 15 & 16), Mr. Bailey's
Reply (ECF No. 19), and applicable law, the Court finds the
petition should be DENIED.
jury indictment returned June 13, 2011, charged Victor
Bailey, as a habitual offender, with aggravated robbery with
a deadly weapon. (ECF No. 15-2 at 9; ECF No. 16-9 at 71). A
jury found the petitioner guilty as charged, and he pleaded
true to the indictment's enhancement allegations. (ECF
No. 16-9 at 55). The 175th District Court, Bexar County,
Texas, assessed punishment at 40 years' imprisonment.
(ECF No. 15-2 at 30; ECF No. 16-9 at 66). Mr. Bailey
appealed, asserting the trial court erred in overruling his
motion for a directed verdict. The Fourth Court of Appeals
affirmed the judgment of the trial court. Bailey v.
State, No. 04-14-00582-CR, 2015 WL 797641, *3 (Tex.
App.-San Antonio Feb. 25, 2015, no pet.).
Bailey sought a state writ of habeas corpus on February 22,
2016, alleging he was denied the effective assistance of
counsel. (ECF No. 16-9 at 5, 11). He also asserted
insufficiency of the evidence and Batson claims.
(ECF No. 16-9 at 20, 22). The habeas trial court designated
issues for resolution. (ECF No. 16-9 at 73). Mr. Bailey's
retained trial counsel, Mr. Reece, Mr. Gebbia, and Ms.
Anderson, filed affidavits in the state habeas action. (ECF
No. 16-9 at 81-86, 93-95, 105-06). The habeas trial court,
which was also the convicting court, issued findings of fact
and conclusions of law and recommended the writ be denied.
(ECF No. 16-9 at 114-25). Mr. Bailey supplemented his habeas
pleadings on February 24, 2017, and the habeas trial court
issued findings of fact and conclusions of law, recommending
the supplemental claims be denied. (ECF No. 16-7). On April
5, 2017, the Court of Criminal Appeals denied the habeas
application on the findings of the trial court. Ex parte
Bailey, No. WR-85, 068-01, 2017 WL 3205297 (Tex. Crim.
App. 2017); ECF No. 16-5.
section 2254 action, petitioner Bailey alleges: (1) he was
denied the effective assistance of counsel because counsel:
failed to conduct an “independent investigation;”
failed to move to exclude evidence of his prior conviction;
failed to seek a jury instruction on self-defense; and
“abandoned” him at trial; (2) he was denied his
right to due process and a fair trial because the prosecutor
excluded an African-American juror based on his race; and (3)
“The prosecutor failed to cede all favorable evidence
pursuant to the Michael Morton Act . . .” (ECF No. 1 at
Fourth Court of Appeals summarized the facts presented at
trial as follows:
It is undisputed that in the late morning hours of July 6,
2010, Bailey arrived at Classic Diamond Company seeking to
sell two rings. Classic Diamond Company is a jewelry store
owned and operated by Ralph Benavides. The store front is
equipped with a cage-like security door that can only be
unlocked by a person behind the interior display case. Once
Benavides buzzed Bailey into the store, Benavides proceeded
to inspect the rings while Bailey stood watch. A physical
altercation ensued between the two men, resulting in property
damage to the store and physical injury to Bailey. The blood
left at the scene was stipulated to contain the DNA of
Benavides testified that he immediately recognized that the
stones in the rings were not genuine. Once Benavides informed
Bailey of his findings, Benavides testified that Bailey
became agitated, said that he paid $2, 000 for the pair of
rings, and simultaneously pulled a pistol from his waistband
and pointed it at Benavides. Once the weapon was revealed,
Bailey said, “I don't want to hurt you, I don't
want to shoot you, I just want money.” Benavides
claimed that he gave Bailey $50-$75 that he had on his
person, and that Bailey placed the money in his pocket.
Benavides stated that because he was “. . . scared to
death” that he would be harmed, he instinctively
grabbed for the gun and a struggle followed.
Benavides tried to disarm Bailey, but was unsuccessful. Once
the men gained some distance between one another, Bailey
tried to roll over the top of a glass showcase but it
shattered and he fell into the showcase of jewelry and broken
glass. At that time, Benavides retrieved a gun from a desk.
Benavides said that he saw Bailey take a tray of rings from
the showcase that he fell into. Once Bailey freed himself
from the glass box, Benavides pressed the button that
unlocked the door in hopes that Bailey would leave. Bailey
then opened the door and paused in the iron-barred cage that
is installed in front of the entrance to the store, dropped
the tray along with the rings, and walked away. After the
State rested, the defense moved for a directed verdict of
acquittal. The trial court denied the motion.
Bailey testified in his defense that after Benavides told him
the rings were fake, Bailey asked him to check again. At that
time, Bailey noticed that Benavides's “diamond
checker” was giving off a noise and green lights,
meaning that the diamonds were genuine. Bailey asked for his
rings back, but Benavides refused. The two men began to
argue. Bailey stated that Benavides was the first to pull out
a gun. Bailey stated that he never asked Benavides for any
money. Benavides trapped Bailey in the security
“cage” and when Bailey attempted to buzz himself
out, a physical struggle ensued. Bailey stated that the glass
showcase broke and that he cut his arm, but that he did not
fall through it as Benavides described because it was too
narrow. Even though Benavides still had Bailey's rings,
Bailey tried to leave the store because he did not want to
get in trouble for possessing a gun as a convicted felon.
Bailey managed to press the button to get out, and left the
store. Because Bailey testified, the jury was made aware of
his prior convictions.
Bailey, 2015 WL 797641, at *1.
Bailey testified he left the store after the altercation, got
into a grey truck he had borrowed from a friend and parked in
the parking lot, and drove away. (ECF No. 15-12 at 40-41).
Mr. Benavides testified Mr. Bailey fled out the door of the
jewelry store and across the street; he told the police he
saw a white sedan, possibly a Grand Marquis or what looked
like a decommissioned police squad car, stop in the street in
front of the store and he observed Mr. Bailey getting into
that car. (ECF No. 15-11 at 40-41, 44-45, 90). During
cross-examination, the prosecution noted Mr. Bailey told an
investigator he or his girlfriend owned a Crown Victoria at
the time of the robbery, and that a Crown Victoria is
“kind of like a police car.” (ECF No. 15-12 at
Standard of Review
Review of State Court Adjudications
Bailey's habeas petition is governed by the standard of
review provided by the Antiterrorism and Effective Death
Penalty Act (“AEDPA”). 28 U.S.C. § 2254. 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 proceeding.
Id. § 2254(d); Brown v. Payton, 544
U.S. 133, 141 (2005). This 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 evaluation of the state
court's application of clearly established federal law
focuses on whether the state court's decision 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). As long as “fairminded jurists could
disagree” on the correctness of the state court's
decision, its 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)). Additionally, a reviewing federal court presumes
the state court's factual findings are sound unless the
petitioner rebuts the “presumption of correctness by
clear and convincing evidence.” 28 U.S.C. §
2254(e)(1); Miller-El v. Dretke, 545 U.S. 231, 240
(2005); Maldonado v. Thaler, 625 F.3d 229, 236 (5th
Cir. 2010). The presumption afforded factual findings is even
stronger when, as in this matter, the state habeas judge
making the findings is also the convicting court. See
Armstead v. Collins, 37 F.3d 202, 207-08 (5th Cir.
Review of Sixth Amendment Claims
Court reviews claims of the alleged ineffective assistance of
trial counsel under the two-prong test established in
Strickland v. Washington, 466 U.S. 668 (1984). To
succeed on a Strickland claim, a petitioner must
demonstrate counsel's performance was deficient and this
deficiency prejudiced his defense. Id. at 687-88,
690. The Supreme Court has held that “[s]urmounting
Strickland's high bar is never an easy
task.” Padilla v. Kentucky, 559 U.S. 356, 371
determining whether counsel performed deficiently, courts
“must be highly deferential” to counsel's
conduct, and a petitioner must show that 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, 134 S.Ct. 10, 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). There is a strong
presumption that an alleged deficiency “falls within
the wide range of reasonable professional assistance.”
Feldman v. Thaler, 695 F.3d 372, 378 (5th Cir.
2012). To demonstrate prejudice, a petitioner “must
show that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466
U.S. at 694.
considering a state court's application of
Strickland, this Court's review must be
“doubly deferential, ” to afford “both the
state court and the defense attorney the benefit of the
doubt.” Woods v. Donald, 135 S.Ct. 1372, 1376
(2015), citing Yarborough v. Gentry, 540 U.S. 1, 6
(2003). When evaluating Mr. Bailey's complaints about the
performance of his counsel under the AEDPA, the issue before
this Court is whether the Texas Court of Criminal Appeals
could reasonably have concluded Mr. Bailey's complaints
about his counsel's performance failed to satisfy either
prong of the Strickland analysis. Schaetzle v.
Cockrell, 343 F.3d 440, 444 (5th Cir. 2003).
Ineffective Assistance of Counsel
Bailey contends his counsel was ineffective because counsel:
failed to investigate; failed to file a motion in limine to
exclude evidence of his past convictions; failed to request a
self-defense instruction; and failed to appear at trial.
Failure to investigate
petitioner argues his counsel was ineffective because he
failed to interview a jewelry expert and failed to
investigate the existence or availability of surveillance
video. Mr. Bailey raised these claims in his state habeas
action and the claims were denied.
defendant may show counsel's assistance was deficient if
the attorney failed to make a reasonable investigation into
the case before trial. Bryant v. Scott, 28 F.3d
1411, 1415 (5th Cir. 1994). Counsel must, at minimum,
interview potential witnesses and make an independent
investigation of the facts and circumstances of the case.
Kately v. Cain, 704 F.3d 356, 361 (5th Cir. 2013).
Bailey's counsel addressed this claim via an affidavit in
the state habeas action:
. . . Trial counsel had a licensed investigator who
determined that there was no video from the store, and did go
to the scene to investigate the scene. Our investigator also
talked at length with the victim, and the results were
communicated to [Bailey on] many occasions. [Bailey] never
requested that his attorneys obtain a “jewelry
expert”, but in any event counsel does not believe one
would have helped at all. The investigator was instructed to
attempt to talk to the victim, but again the physical
evidence, to wit a trail of the defendant's blood, and
identification testimony contradicted [Bailey]'s version.
Our investigator interviewed the victim of the case and
confirmed that the cameras in the store were “dummy
cameras”. The victim convinced the investigator that
Mr. Bailey committed aggravated robbery. The investigators
were appointed by orders of the court on April 5, 2013[, ]
and thus we were prepared on this case shortly thereafter. We
had several meetings with the investigators over the course
of our representation.
(ECF No. 16-9 at 82).
habeas trial court found Mr. Reece's affidavit to be
“truthful and credible, ” (ECF No. 16-9 at 117),
a finding adopted by the Court of Criminal Appeals when
denying Mr. Bailey the writ. Mr. Bailey has not rebutted the
state court's finding of fact with clear and convincing
evidence, but instead offers only conclusory statements which
are insufficient to support a claim of ineffective assistance
of counsel. Miller v. Johnson, 200 F.3d 274, 282
(5th Cir. 2000). The petitioner's conclusory allegations
are not “clear and convincing evidence”
sufficient to overcome the presumption of correctness
attributed to the trial court's finding of counsel's
credibility and competence. See Miller v. Thaler,
714 F.3d 897, 903 (5th Cir. 2013).
record indicates counsel did investigate the law and facts of
Mr. Bailey's case, and made strategic decisions which
were not unreasonable. Counsel's strategic choices, made
after a thorough investigation of the law and facts relevant
to plausible options, are virtually unchallengeable.
Strickland, 466 U.S. at 673; Pape v.
Thaler, 645 F.3d 281, 289-90 (5th Cir. 2011). With
regard to the video surveillance footage from the gas station
across the street from the jewelry store, the
“tape” was apparently never in the possession of
the police, although a non-testifying officer did view the
footage. (ECF No. 15-11 at 106). The police detective in
charge of the investigation noted that the gas station across
the street from the jewelry store had a functioning video
surveillance camera at the time the crime occurred, but that
the police were unable to secure a physical copy of the
footage. (ECF No. 15-11 at 126-27). No. testimony was offered
as to the content of the footage, i.e., as to the inculpatory
or exculpatory nature of the video surveillance.
Bailey's counsel, however, used the absence of the video
to bolster the defense argument there was insufficient
evidence to support Mr. Benavides' version of the events.
In response to the prosecution's opening remarks, defense
counsel stated: “the only evidence of [the
prosecution's theory of the case], that they have is one
person's testimony, the store owner. That's it. There
is no video. No. witnesses. Just this one store owner.”
(ECF No. 15-11 at 13). Counsel also used the absence of video
from the victim's security cameras to highlight the
contradiction between the victim's testimony, i.e., that
“[his] video system was down, ” with his
statement to the defense's investigator that the
store's video system utilized “dummy”
cameras. (ECF No. 15-11 at 59-60, 155). The defense's
investigator testified: “When I had asked  Mr.
Benavides if he had security video surveillance, he said that
he only had what was make believe cameras. He did not have
real cameras.” (ECF No. 15-11 at 91, 99, 106). In
closing argument, counsel noted:
He says he has cameras. He has got big signs that say,
“I have cameras in use.” Right? Boy, if there was
a camera in use this would be pretty dog-gone easy,
wouldn't it? But we don't have any cameras. We
don't have any video. In fact, my investigation uncovered
the cameras ...