United States District Court, N.D. Texas, Dallas Division
BRANDON DONYA HUGHES (TDCJ No. 1970234), Petitioner,
LORIE DAVIS, Director Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
MEMORANDUM OPINION AND ORDER GRANTING IN PART MOTION
TO SUPPLEMENT THE STATE COURT RECORD
L. HORAN UNITED STATES MAGISTRATE JUDGE.
28 U.S.C. § 2254 habeas action now referred to the
undersigned United States magistrate judge for pretrial
management under 28 U.S.C. § 636(b) and a standing order
of reference from Senior United States District Judge Sam R.
Cummings, Petitioner Brandon Donya Hughes moves, through
counsel, to supplement the state court record with a DVD
containing Hughes's state trial counsel's file.
See Dkt. No. 15. Respondent objects to the motion in
part. See Dkt. No. 16.
Hughes explains in his motion,
[d]uring the evidentiary hearing [in the state habeas
proceeding] conducted on February 16, 2018, Petitioner
tendered a DVD with trial counsel's file, including [ ]
medical records, for admission. Although the State indicated
it had no objection to the admission of the exhibit, and the
records contained on the exhibit were discussed at length in
the hearing, it is only recently that the undersigned learned
that the court master presiding over the hearing never
admitted them into evidence.
Dkt. No. 15 at 2.
further explains that it is no longer possible to determine
whether the DVD was sent to the Texas Court of Criminal
Appals (“CCA”). See Id. (Counsel
“has checked with the [CCA] and has ascertained that
(a) the physical records from the habeas corpus proceedings
in case number WR-87, 656-01 have already been destroyed. All
that remains is a photograph of the DVD with Hank Judin's
file and the medical records contained therein.”). And
the DVD itself is not included in the state court record
filed on January 16, 2019. See id.; see
also Dkt. Nos. 10 & 11.
explains that “the state trial court referenced some of
the records [from the DVD] in its findings of fact and
conclusions of law” and that, “[a]s a result, the
Director does not oppose the motion to expand the record with
respect to those documents on the DVD that were explicitly
referenced, or relied upon, by either Nurse Lovvorn in her
testimony at the state habeas hearing, or the state habeas
trial court in its findings of fact” but that she
“does object to the motion to expand the record to
include any documents on the DVD that do not meet [these]
exceptions.” Dkt. No. 16 (citing 28 U.S.C. §
2254(d)(2), (e)(2); emphasis omitted).
Standards and Analysis
federal court considers a habeas claim “adjudicated on
the merits in state court proceedings, ” 28 U.S.C.
§ 2254, “two significant restrictions”
apply, Allen v. Vannoy, 659 Fed.Appx. 792,
798-99 (5th Cir. 2016) (per curiam).
First, the federal court's review is limited to
“the evidence presented in the state court
proceeding.” Second, the federal court may not grant
habeas relief unless the state court's adjudication was,
under § 2254(d)(1), “contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court, ” or, under §
2254(d)(2), “based on an unreasonable determination of
the facts in light of the evidence presented in the state
Allen, 659 Fed.Appx. at 799 (footnotes omitted).
Section 2254 habeas actions, therefore, a federal court
cannot expand the record on a claim adjudicated on the merits
in state court. See Cullen v. Pinholster, 563 U.S.
170, 181-82 (2011). That is, because Section 2254
“requires an examination of the state-court decision at
the time it was made, ” the Supreme Court of the United
States has held that “the record under review is
limited to the record in existence at that same time i.e.,
the record before the state court.” Id. at
182; see also Blue v. Thaler, 665 F.3d 647, 655-56
(5th Cir. 2011) (“[T]he Supreme Court [held in
Pinholster] “that review under §
2254(d)(1) is limited to the record that was before the state
court that adjudicated the claim on the merits.” The
same rule necessarily applies to a federal court's review
of purely factual determinations under § 2254(d)(2), as
all nine Justices acknowledged” in Pinholster.
“§ 2254(d)(1) bars a district court from
conducting [ ] an evidentiary hearing” when the Court
is adjudicating claims in a habeas petition under that
provision. Pape v. Thaler, 645 F.3d 281, 288 (5th
Cir. 2011) (finding that a district court erred by relying on
evidence obtained from a hearing conducted under 28 U.S.C.
§ 2254(e)(2) “to conclude that the state habeas
court had unreasonably applied Strickland” and
that the petitioner must instead “overcome the
limitation of § 2254(d)(1) on the record that was before
the state court'” (quoting Pinholster, 563
U.S. at 185)); see also Gallow v. Cooper, 505
Fed.Appx. 285, 295-96 (5th Cir. 2012) (per curiam)
(“Pinholster dictates that evidence presented
for the first time on federal habeas review may not be
considered under § 2254(e)(2) for claims denied pursuant
to § 2254(d)(1). Similarly, the language of §
2254(d)(2) limits review to the ‘evidence presented in
the State court proceeding.'” (footnote omitted));
cf. Smith v. Cain,708 F.3d 628, 634-35 (5th Cir.
2013) (“We hold that Pinholster's
restriction does not bar the federal evidentiary hearing
conducted in this case because the district court first
concluded, solely on the basis of ...