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 a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 filed by Petitioner, Michael Wayne
Perry, 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
14, 2014, in the 297th Judicial District Court, Tarrant
County, Texas, No. 1302260D, having refused the state's
plea offer of 10 years' confinement, Petitioner entered
an open plea of guilty to a jury to one count of robbery and
true to the repeat-offender notice in the indictment.
(Clerk's R. 54, 68, doc. 15-7.) On July 16, 2014,
following his trial on punishment, the jury found him guilty
of the offense and true to the repeat- offender notice and
assessed his punishment at 40 years' confinement.
(Id.) His conviction was affirmed on appeal and his
petition for discretionary review was refused by the Texas
Court of Criminal Appeals. (Docket Sheet 1-2, doc. 15-2.)
Petitioner also filed two relevant state habeas-corpus
applications challenging his conviction, the first of which
was denied by the Texas Court of Criminal Appeals without
written order on the findings of the trial court and the
second of which was dismissed as a subsequent petition.
(Action Taken, docs. 15-20 & 15-28.) This federal habeas
the trial on punishment, testimony reflected that N.S. left a
Kroger store in Arlington, Texas, on the morning of October
14, 2012. As she approached her car, she observed a man,
later identified as Petitioner, pacing near a tannish-colored
car with the trunk open and the hazard lights on. N.S. loaded
her groceries and returned the shopping cart. As she was
returning to her car, Petitioner approached her, told her
that his car had broken down, and asked if she had a cell
phone. N.S., who became frightened, got into her car and as
she was putting her purse on the passenger seat, Petitioner
placed his arm across her neck, said “bitch, don't
say anything, ” and took her purse. N.S. was able to
give a description of the robber and the tannish-colored car
and possible license plate number of the car to the police.
Through a GPS locator on N.S.'s phone, Petitioner was
located and detained at a gas station, with N.S.'s
belongings in his possession. N.S. positively identified
Petitioner as her robber in a “field showup.” The
parties stipulated to evidence of Petitioner's lengthy
criminal history, which included three prior felony-theft
convictions. (Reporter's R., vol. 6, State's Ex. 16,
doc. 15-18.) Petitioner did not testify or call any witnesses
on his behalf.
three grounds for relief, Petitioner claims that (1) the
trial court erred by overruling his trial counsel's
objection to the state's closing argument inviting the
jury to speculate as to “imaginary witness
testimony”; (2) he was denied effective assistance of
counsel by trial counsel's failure to pursue and present
any mitigating evidence during trial; and (3) he was denied
due process of law and his right to a fair trial under the
Sixth Amendment by trial counsel's failure to
“communicate all legal matters” to him before
trial. (Pet. 6-7, doc. 1.)
RULE 5 STATEMENT
believes that Petitioner has exhausted his state-court
remedies as to grounds one and two but that the third ground
is unexhausted but procedurally barred from federal review.
She does not assert that the petition is barred by the
statute of limitations or subject to the successive-petition
bar. (Resp't's Answer 5, doc. 13.)
LEGAL STANDARD FOR GRANTING HABEAS-CORPUS RELIEF
§ 2254 habeas petition is governed by the heightened
standard of review provided for in the Anti-Terrorism and
Effective Death Penalty Act (AEDPA). See 28 U.S.C. §
2254. Under the AEDPA, 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.
Valdez v. Cockrell, 274 F.3d 941, 948 n. 11 (5th
Cir. 2001). The 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).
when the Texas Court of Criminal Appeals, the state's
highest criminal court, 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
“should ‘look through' the unexplained
decision to the last related state-court decision
providing” particular reasons, both legal and factual,
“presume that the unexplained decision adopted the same
reasoning, ” and give appropriate deference to that
decision. Wilson v. Sellers, ___ U.S. ___, 138 S.Ct.
1188, 1191-92 (2018).
Procedural Default and Exhaustion
his first ground, Petitioner claims that he was denied due
process as a result of the trial court's overruling of
his counsel's objection to the state's closing
argument inviting the jury to speculate as to
“imaginary witness testimony.” (Pet. 6, doc. 1.)
Respondent asserts that this claim was forfeited in state
court because no contemporaneous objection was raised at
trial, and, thus, the claim is procedurally barred from
federal habeas review. (Resp't's Answer 9-11, doc.
13.) Under the procedural-default doctrine, a federal habeas
court will not review a claim if the last state court to
consider the claim expressly and unambiguously based its
denial of relief on an independent and adequate state
procedural default. See Coleman v. Thompson, 501
U.S. 722, 729 (1991); Amos v. Scott, 61 F.3d 333,
338 (5th Cir. 1995).
overruling the claim on appeal, the state appellate court,
replying solely on state law, provided:
[Petitioner] argues that the trial court committed reversible
error by overruling his objection to the State's closing
argument, “which invited the jurors to speculate as to
imaginary witnesses that the defense might have, but failed,
to call to testify regarding his character when no evidence
was presented by either the [S]tate or defense that the
witnesses actually existed or could have been called.”
Generally, in order to preserve a complaint related to jury
argument error, the complaining party must make timely and
specific objection to the jury argument.
trial, the following exchange occurred:
[STATE]: This has been a very short trial. We've got some
pictures, we've got testimony. But you've seen the
photo album that we brought to you. And I told you in jury
selection guilt and innocence--or rather punishment phase of
a trial is an opportunity for both sides to bring you
anything they want. Have you heard anything good about this
[DEFENSE]: Your Honor, we will object to that argument.
It's a comment on the defendant's election not to
THE COURT: I'm going to overrule that particular
[STATE]: Have you heard from an employer saying he's ever
worked an honest day in his life? Fellow church member to say
he's a good person? Anybody? If anybody came to you and
said you've got a week, you need to come up with some
people to come up with something good to say about you, could
you come up with one?
Although [Petitioner]'s trial objection was that the
argument was a comment on his election not to testify, on
appeal he contends that the prosecutor's argument was
outside the record and encouraged the jury to speculate. It
is well established that, in order to preserve a complaint
for appellate review, the objection at trial must comport
with the complaint raised on appeal. In the case now before
this court, we cannot conclude that the trial objection that
the argument is a comment on [Petitioner]'s decision not
to testify comports with the complaint on appeal that the
argument is outside the record and encourages the jury to
Op. 2-3, doc. 15-3 (citations omitted).)
the state court's decision rested on a state-law
procedural default independent of Petitioner's claim.
And, Texas's contemporaneous-objection rule is an
adequate state procedural bar to federal habeas review.
See Amos v. Scott, 61 F.3d 333, 341 (5th Cir. 1995).
Thus, the procedural default in state court precludes federal
habeas review of the claim. Wainwright v. Sykes, 433
U.S. 72, 87 (1977); Ogan v. Cockrell, 297 F.3d 349,
356 (5th Cir. 2002).
petitioner may overcome a state procedural bar by
demonstrating either cause for the procedural default and
actual prejudice as a result of the alleged violation of
federal law, or that failure to consider the claim will
result in a fundamental miscarriage of
justice--i.e., that he is actually innocent of the
offense for which he was convicted. Coleman, 501
U.S. at 750.
effort to overcome the procedural default, Petitioner argues
that the state court's determination is contrary to
clearly established federal law as determined by the United
States Supreme Court or resulted in a decision that is based
on an unreasonable determination fo the facts in light of the
evidence presented at trial; that counsel made a timely and
specific objection in compliance with Texas Rule of Appellate
Procedure 33.1(a)(1); and that this Court's failure to
consider the claim on the merits will result in a fundamental
miscarriage of justice. (Pet'r's Reply 5-6, doc. 20.)
The Court, however, finds no legal authority or factual
support in the record for Petitioner's first argument.
And, a state court's use of procedural bars is entitled
to federal deference if strictly or regularly followed, as is
the bar in this case. See Hathorn v. Lovorn, 457
U.S. 255, 263 (1982). Finally, a petitioner seeking to invoke
the actual-innocence exception to the procedural-default rule
must produce new reliable evidence that was not presented at
trial and must show that it is more likely than not that no
reasonable juror would have found him guilty beyond a
reasonable doubt in light of the new evidence. See House
v. Bell, 547 U.S. 518, 537 (2006); Schlup v.
Delo, 513 U.S. 298, 324, 327 (1995). Petitioner presents
no such evidence. Accordingly, Petitioner's first claim
is procedurally barred from this Court's review.
his third ground, Petitioner claims that he was denied his
Sixth Amendment right to a fair trial because counsel failed
to “communicate all legal matters [a 10-year plea offer
and its date of expiration] prior to the most critical stage
of the trial, ‘pre-trial'” and forced him
into a trial. (Id. at 7; Pet'r's Reply 9-12,
doc. 20.) Respondent asserts that Petitioner raises this
claim for the first time in this federal petition and that
the claim is unexhausted and procedurally barred from federal
habeas review under the Texas abuse-of-the-writ doctrine.
seeking habeas-corpus relief under § 2254 are required
to exhaust all claims in state court before requesting
federal collateral relief. 28 U.S.C. § 2254(b)(1);
Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999).
The exhaustion requirement is satisfied when the substance of
the federal habeas claim has been fairly presented to the
highest court of the state. O'Sullivan v.
Boerckel, 526 U.S. 838, 842-48 (1999); Fisher,
169 F.3d at 302; Carter v. Estelle, 677 F.2d 427,
443 (5th Cir. 1982). In Texas, the highest state court for
criminal matters is the Texas Court of Criminal Appeals.
Richardson v. Procunier, 762 F.2d 429, 431-32 (5th
Cir. 1985). Therefore, a Texas prisoner may satisfy the
exhaustion requirement by presenting both the factual and
legal substance of a claim to the Texas Court of Criminal
Appeals in either a petition for discretionary review or a
state habeas-corpus proceeding pursuant to article 11.07 of
the Texas Code of Criminal Procedure in a procedurally proper
manner. See Tex. Code Crim. Proc. Ann. art. 11.07
(West 2015); Depuy v. Butler, 837 F.2d 699, 702 (5th
it is true that Petitioner did not specifically raise a Sixth
Amendment right-to-a-fair-trial claim based on counsel's
failure to “communicate all legal matters” before
trial in state court, the Amendment requires effective
assistance of counsel at critical stages of a criminal
proceeding, including pretrial stages “in which
defendants cannot be presumed to make critical decisions
without counsel's advice.” See Lefler v.
Cooper, 566 U.S. 156, 165 (2012) (holding that
defendant's Sixth Amendment right to effective counsel
was violated where counsel failed to alert client that a plea
offer had been extended and client was subsequently convicted
at trial and sentenced and “received a sentence harsher
than that offered in the rejected plea bargain”). Thus,
Petitioner's Sixth Amendment claim is consistent with the
right to effective assistance of counsel during pretrial
proceedings. Because Petitioner raised a substantively
equivalent claim in the context of an
ineffective-assistance-of-counsel claim in his state habeas
application, the Court believes that the instant claim was
sufficiently exhausted in state court and addresses it below.
Effective Assistance of Counsel
criminal defendant has a constitutional right to the
effective assistance of counsel at trial. U.S. Const. amend.
VI, XIV; 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 Richter the manner in which
a federal court is to consider an
ineffective-assistance-of-counsel claim raised in a ...