United States District Court, E.D. Texas, Tyler Division
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE AND ENTERING FINAL
Clark, Senior District Judge.
Petitioner Robert Pridgen, proceeding through retained
counsel Randy Schaffer, filed this application for the writ
of habeas corpus under 28 U.S.C. §2254 complaining of
the legality of his conviction. This Court referred the
matter to the United States Magistrate Judge pursuant to 28
U.S.C. §636(b)(1) and (3) and the Amended Order for the
Adoption of Local Rules for the Assignment of Duties to
United States Magistrate Judges.
was charged with the murder of Paul Rohne. According to the
opinion of the Twelfth Judicial District Court of Appeals,
Pridgen called 911 at 1:25 a.m. on the morning of January 27,
2009, to tell them he had shot Rohne, explaining that Rohne
had been attacking him. Law enforcement personnel found no
sign of a struggle; instead, Rohne was sitting on a love
seat, slumped over, with his ankles crossed. He had a tight
grip on his glasses with his left hand and no grip at all on
a knife that was in his right hand. Rohne also had a blood
alcohol level of .33 and bruises on his face, arms, and legs
as well as a fatal shotgun wound to his chest. One of the
investigating officers, Sgt. Foster, testified that he
believed the scene had been staged because of Rohne's
loose grip on the knife, but the forensic pathologist, Dr.
Van Dusen, testified that there was nothing significant about
the fact that Rohne had a tighter grip on his glasses and his
right hand was loose and open around the knife.
first trial resulted in a hung jury, but on retrial, he was
convicted and sentenced to 20 years in prison. He took a
direct appeal, arguing that the evidence established his
claim of self-defense as a matter of law and that the trial
court abused its discretion in excluding evidence of
Rohne's sexual proclivities, but the Twelfth Court of
Appeals affirmed Pridgen's conviction. See Pridgen v.
State, slip op. no. 12-13- 00136-CR, 2014 WL 6792583
(Tex.App.-Tyler, December 3, 2014, pet. ref'd).
Pridgen's petition for discretionary review was refused
by the Texas Court of Criminal Appeals on June 17, 2015.
then sought state habeas corpus relief, contending that he
received ineffective assistance of counsel when his trial
attorney, Jeff Haas, failed to object to certain testimony,
failed to file a motion in limine, failed to object to the
exclusion of photographs, and failed to enter phone records
into evidence. The trial court secured an affidavit from Haas
and entered findings of fact and conclusions of law on
January 4, 2017. Pridgen filed objections to these findings
and conclusions, but on February 1, 2017, the Court of
Criminal Appeals denied the state habeas application without
written order. Pridgen then filed his federal habeas corpus
The Federal Habeas Petition
argued that: (1) counsel failed to object to Sgt.
Foster's opinion that Pridgen had planted a knife in
Rohne's hand after the shooting; (2) counsel failed to
impeach Sgt. Foster's opinion about Pridgen allegedly
planting the knife and Dr. Van Dusen's opinion that Rohne
had died some two to three hours before the paramedics
arrived with their prior inconsistent testimony; (3) counsel
failed to file a motion in limine and object to repeated
references by the prosecutors and witnesses to the deceased
as “the victim;” and (4) counsel failed to offer
telephone records to show that Pridgen and his brother did
not speak to each other before or after Pridgen called 911.
The Director filed a response arguing that Pridgen failed to
establish that the state court's rejection of his claims
was objectively unreasonable. Pridgen filed a reply to this
The Report of the Magistrate Judge and the Petitioner's
Magistrate Judge issued a Report setting out the standards
for habeas corpus review, explaining that the petitioner must
show that the state court's adjudication of his claim
resulted in a decision which was contrary to or involved an
unreasonable application of clearly established federal law,
as determined by the Supreme Court, or resulted in a decision
based upon an unreasonable determination of the facts in
light of the evidence presented in the state court
proceeding. 28 U.S.C. §2254(d); Moore v.
Cockrell, 313 F.3d 880, 881 (5th Cir. 2002). This is a
highly deferential standard for evaluating state court
rulings, demanding that state court decisions be given the
benefit of the doubt. Renico v. Lett, 559 U.S. 766,
773, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010).
Magistrate Judge also set out the standards applicable to
claims of ineffective assistance of counsel. In order to
prevail on such a claim, a state prisoner seeking federal
habeas corpus relief must show that his attorney's
performance was deficient and that the deficiency prejudiced
him to the point that he was denied a fair trial.
Strickland v. Washington, 466 U.S. 668, 687, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). This means that the habeas
petitioner must establish both that (1) counsel's
performance was deficient in that it fell below an objective
standard of reasonable competence and (2) the deficient
performance so prejudiced the defense that the outcome of the
trial was unreliable and there is a reasonable probability
that, but for counsel's performance, the result of the
trial would have been different. Unless a petitioner makes
both showings, he is not entitled to relief. Del Toro v.
Quarterman, 498 F.3d 486, 490 (5th Cir. 2007).
“reasonable probability” is a probability
sufficient to undermine confidence in the outcome of the
trial. This requires a substantial, not merely a conceivable,
likelihood of a different result. Cullen v.
Pinholster, 563 U.S. 170, 189, 131 S.Ct. 1388, 179
L.Ed.2d 557 (2011).
Magistrate Judge observed that under these standards, counsel
has wide latitude in making tactical decisions, including
formulating a strategy which was reasonable at the time.
Harrington v. Richter, 562 U.S. 86, 107, 131 S.Ct.
770, 178 L.Ed.2d 624 (2011). This means, for example, that it
is reasonable trial strategy for counsel to try to cast
“pervasive suspicion of doubt [rather] than to try to
prove a certainty that exonerates.” Id. at
conscious and informed decision on trial tactics and strategy
cannot be the basis of constitutionally ineffective
assistance of counsel unless it is so ill chosen that it
permeates the entire trial with obvious unfairness. Pape
v. Thaler, 645 F.3d 281, 291 (5th Cir. 2011). A fair
assessment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's
perspective at the time. There is a strong presumption that
counsel's conduct falls within the wide range of