United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
LAKE SENIOR UNITED STATES DISTRICT JUDGE.
Maclasa Pearson has filed a Petition for a Writ of Habeas
Corpus By a Person in State Custody ("Petition")
(Docket Entry No. 1), seeking relief under 28 U.S.C. §
2254 from a murder conviction entered against him in Harris
County, Texas. Respondent Lorie Davis has filed Respondent
Davis's Answer with Brief in Support
("Respondent's Answer") (Docket Entry No. 10),
and Pearson has filed Petitioner's Traverse to Respondent
Davis's Answer in reply (Docket Entry No. 13). After
considering the pleadings, the state court record, and the
applicable law, the court will dismiss this action for the
reasons explained below.
jury in Harris County, Texas, returned an indictment against
Pearson in No. 9403483, charging him with causing the death
of Salvador Ortiz Vargas by shooting him with a deadly
weapon, a firearm. A jury in the 263rd District Court for
Harris County found Pearson guilty as charged in the
indictment. On March 27, 2013, the same jury
sentenced him to thirty years'
direct appeal Pearson argued that the trial court erred by
failing to automatically instruct the jury that one of the
State's witnesses (Fortino Delangel) was an accomplice as
a matter of law and, therefore, the State was required to
present non-accomplice testimony to corroborate his
testimony. An intermediate court of appeals
rejected that argument after summarizing the evidence
presented at trial, as follows:
In 1993, Fortino Delangel was working at a used car
dealership from which appellant had purchased two vehicles.
After the second purchase, appellant asked Delangel if he
knew anyone who sold marijuana. Delangel contacted his
brother-in-law, Jose Guerrero, and asked if he knew anyone
who sold marijuana. In turn, Guerrero contacted Salvador
Vargas. With Delangel and Guerrero acting as middlemen,
appellant and Vargas agreed that appellant would purchase
approximately thirty pounds of mar1Juana from Vargas.
Delangel understood that appellant would compensate him for
his participation, although the precise amount of that
compensation was not clear.
Delangel, Guerrero, appellant, and an unidentified companion
of appellant, drove in two cars to Room 28 at the Lafronda
Motel in South Houston to meet with Vargas. Delangel and
appellant rode in separate cars. Delangel testified that he
had never met Vargas before that evening.
Vargas initially stated that only one individual could come
into the room; he relented when appellant insisted that all
four men be allowed to enter. Appellant's unidentified
companion stood near the door inside the room and Delangel
stood off to the side of the room with Guerrero while Vargas
and appellant conducted the drug transaction.
Appellant asked Vargas about the marijuana, and Vargas
replied, "[W] here is the money[?]" Appellant
"opened his jacket" and said "[h]ere's the
money." Delangel did not see what was in appellant's
jacket, but assumed it was payment for the marijuana. Vargas
removed a "suitcase" from under the bed and handed
appellant a package of marijuana from the bag.
Appellant tore each package open with his teeth, smelled the
marijuana, and told Vargas, "[T]his is the money."
However, rather than give Vargas the money, appellant pulled
out a gun and shot him in the chest. Vargas fell forward onto
the floor of the room and died shortly thereafter.
Appellant's companion also drew a gun, which he pointed
at [Delangel] and Guerrero. Appellant then grabbed the bag
with the packages of marijuana and backed out of the motel
room with his companion; both aimed their guns at Delangel
and Guerrero. Before Delangel and Guerrero left the motel
room, Roel Salinas, a coworker of Vargas, ran out of the
bathroom holding a knife and frantically asked Delangel and
Guerrero what had happened. Delangel called 911 from a
payphone at the motel, and left with Guerrero because they
were afraid appellant would find them and kill them.
Delangel and Guerrero soon fled to Mexico, but both
voluntarily returned to Houston at the request of the police
to give information about the murder. Shortly after the
murder, Delangel positively identified appellant as the
shooter. Officers executed an arrest warrant at
appellant's house. After arresting appellant, police
searched his house and recovered five full metal jacket nine
millimeter bullets; four of the bullets found there were same
brand as the casing discovered at the crime scene, which also
came from a full metal jacket nine millimeter bullet. They
also found two large empty black duffel bags, which they
suspected were "part of the original drug room." A
ballistics expert testified that the unfired cartridges found
in appellant's house did not have sufficient individual
characteristics to make an affirmative association with the
fired casing found in the motel.
Appellant forfeited his bond and did not appear for trial in
1995. For the next 15 years, appellant traveled back and
forth from New York to Jamaica using the alias Peter
Richards. Appellant escaped detection due to an oversight in
recording his fingerprints with the Texas Department of
Public Safety and the Federal Bureau of Investigation. After
resolution of the oversight, officers linked Peter
Richards's photograph, fingerprints, and Jamaican
passport to appellant's information and true identity,
and apprehended appellant in New York in September 2010.
Guerrero testified, but denied any knowledge of appellant or
the drug transaction.
Appellant did not ask the trial court to instruct the jury on
the law concerning accomplice-witness testimony, and did not
object to the trial court's failure to give such
instructions sua sponte. The jury found appellant
guilty of murder and sentenced him to 30 years'
Pearson v. State, No. 14-13-00305-CR, 2014 WL
1030774, at *1-2 (Tex. App. - Houston [14th Dist.] March 18,
2014). The Texas Court of Criminal Appeals refused
Pearson's petition for discretionary review.
challenged his conviction by filing an Application for a Writ
of Habeas Corpus Seeking Relief From Final Felony Conviction
Under [Texas] Code of Criminal Procedure, Article 11.07
("Application") with the trial court. Pearson
claimed that he was actually innocent and that he was denied
effective assistance of counsel and the opportunity to
investigate evidence due to prosecutorial
misconduct. The state habeas corpus court, which
also presided over Pearson's trial, entered findings of
fact and concluded that Pearson was not entitled to relief on
any of his claims.  The Texas Court of Criminal Appeals
agreed and denied relief without a written order on findings
made by the trial court without a hearing.
now contends that he is entitled to federal habeas relief
from his conviction under 28 U.S.C. § 2254 (d) for the
1. He was denied effective assistance of counsel at trial
because his attorney failed to (a) request an
accomplice-witness jury instruction; (b) file a motion to
suppress evidence alleging that his illegal status as a
Jamaican citizen nullified his consent to search; (c) allow
him to exercise his right to testify; and (d) investigate DNA
2. His trial and appellate counsel were ineffective and he
was denied the right to counsel during a critical stage
because his trial counsel failed to file a motion for new
3. He was denied due process and the right to a fair trial
when the State denied him the opportunity to investigate
fingerprint and DNA evidence.
4. He is actually innocent.
respondent argues that federal review is unavailable for
Claim 1(b), which was not properly raised in state court and
is barred by the doctrine of procedural default
. The respondent also argues that
Pearson is not entitled to relief on any of his other claims,
which were rejected previously in state court.
Standard of Review
habeas corpus petition filed by a state prisoner may not be
granted in federal court unless the petitioner has first
"exhausted the remedies available in the courts of the
State." 28 U.S.C. § 2254 (b) (1) (A). Thus, a
federal habeas corpus petitioner "must exhaust all
available state remedies before he may obtain federal habeas
relief." Sones v. Hargett, 61 F.3d 410, 414
(5th Cir. 1995).
extent that the petitioner's claims were adjudicated on
the merits in state court, his claims are subject to review
under the Antiterrorism and Effective Death Penalty Act of
1996 ("AEDPA"), codified at 28 U.S.C. § 2254
(d) . Under the AEDPA a federal habeas corpus court may not
grant relief unless the state court's adjudication
"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[.]" 28 U.S.C. § 2254(d) (1). Likewise, if a
claim presents a question of fact, a petitioner cannot obtain
federal habeas relief unless he shows that the state
court's decision "was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding." 28 U.S.C. § 2254(d)
state court's decision is deemed contrary to clearly
established federal law if it reaches a legal conclusion in
direct conflict with a prior decision of the Supreme Court or
if it reaches a different conclusion than the Supreme Court
on materially indistinguishable facts." Matamoros v.
Stephens, 783 F.3d 212, 215 (5th Cir. 2015) (citations
omitted and internal quotation marks omitted). To constitute
an "unreasonable application of" clearly
established federal law, a state court's holding
"must be objectively unreasonable, not merely wrong;
even clear error will not suffice." Woods v.
Donald, 135 S.Ct. 1372, 1376 (2015) (quoting White
v. Woodall, 134 S.Ct. 1697, 1702 (2014)). "To
satisfy this high bar, a habeas petitioner is required to
'show that the state court's ruling on the claim
being presented in federal court was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.'" Id. (quoting
Harrington v. Richter, 131 S.Ct. 770, 786-87
AEDPA "imposes a 'highly deferential standard for
evaluating state-court rulings,' . . . [which]
'demands that state-court decisions be given the benefit
of the doubt.'" Renico v. Lett, 130 S.Ct.
1855, 1862 (2010) (citations omitted) . This standard is
intentionally "difficult to meet" because it was
meant to bar relitigation of claims already rejected in state
proceedings and to preserve federal habeas review as "a
'guard against extreme malfunctions in the state criminal
justice systems,' not a substitute for ordinary error
correction through appeal." Richter, 131 S.Ct.
at 786 (quoting Jackson v. Virginia, 99 S.Ct. 2781,
2796, n. 5 (1979) (Stevens, J., concurring)).
court's factual determinations are also entitled to
"substantial deference" on federal habeas corpus
review. Brumfield v. Cain, 135 S.Ct. 2269, 2277
(2015); Wood v. Allen, 130 S.Ct. 841, 849 (2010)
(noting that "a state-court factual determination is not
unreasonable merely because the federal habeas court would
have reached a different conclusion in the first
instance"). A state court's findings of fact are
"presumed to be correct" unless the petitioner
rebuts those findings with "clear and convincing
evidence." 28 U.S.C. § 2254 (e) (1). The
presumption of correctness extends not only to express
factual findings, but also to implicit or
"'unarticulated findings which are necessary to the
state court's conclusions of mixed law and
fact.'" Murphy v. Davis, 901 F.3d 578, 597
(5th Cir. 2018) (quoting Valdez v. Cockrell, 274
F.3d 941, 948 n.11 (5th Cir. 2001)).
Procedural Default (Claim 1(b))
Claim 1(b) Pearson contends that his trial attorney was
constitutionally ineffective because he did not file a motion
to suppress evidence seized by police during the search of
his residence. Pearson argues that he was not legally in the
United States or on the lease, therefore, he was unable to
consent to the search. The respondent argues that
federal review is unavailable because Pearson did not raise
this claim in state court for the purpose of exhausting state
court remedies as required by 28 U.S.C. § 2254(b) before
seeking federal review. The respondent argues, therefore,
that this claim is unexhausted and barred from federal review
by the doctrine of procedural default.
exhaustion requirement found in § 2254(b) "is
satisfied when the substance of the federal claim is
'fairly presented' to the highest state court on
direct appeal or in state post-conviction proceedings
[.]" Johnson v. Cain, 712 F.3d 227, 231 (5th
Cir. 2013). To satisfy the exhaustion requirement a prisoner
must "present the state courts with the same claim he
urges upon the federal courts." Picard v.
Connor, 92 S.Ct. 509, 512 (1971) (citations omitted).
"The exhaustion requirement is not satisfied . . . where
the petitioner presents new legal theories or factual claims
in his federal habeas petition." Neville v.
Dretke, 423 F.3d 474, 478 (5th Cir. 2005) (citations
record reflects that defense counsel filed a motion to
suppress evidence seized from Pearson's residence on the
grounds that the signature on the consent-to-search form
supposedly executed by Pearson was forged. Pearson
testified to that effect during a hearing outside the
jury's presence. Pearson raised an
ineffective-assistance claim in his state habeas application,
which argued that his defense counsel was deficient for not
also arguing that Pearson was handcuffed and therefore unable
to sign the consent form before the search of his
home. Pearson did not make any mention of
his attorney's failure to argue that Pearson could not
consent to a search because of his nationality, immigration
status, or any other reason that Pearson now asserts on
federal habeas review. Because the facts in
Pearson's state habeas application are different from the
ones he presents in his federal Petition, he did not fairly
present the substance of Claim l(b) in state court and failed
to exhaust available state remedies as a result. See
Wilder v. Cockrell, 274 F.3d 255, 259-60 (5th Cir. 2001)
cannot now return to state court and raise his unexhausted
claim because of the Texas procedural rule that prohibits
successive writs unless the petitioner establishes
exceptional circumstances, which are not present here.
See Tex. Code Crim. Proc. art. 11.07, § 4(a).
Pearson's failure to exhaust state court remedies when he
had the chance to do so constitutes a procedural default that
is adequate to bar federal review. See Neville, 423
F.3d at 480 (concluding that unexhausted claims, which could
no longer be raised in state court due to Texas's
prohibition on successive writs, were procedurally
defaulted); see also Finley v. Johnson, 243 F.3d
215, 220 (5th Cir. 2001) (same) (citing Fearance v.
Scott, 56 F.3d 633, 642 (5th Cir. 1995)).
habeas corpus review of a defaulted claim is available only
if the petitioner can demonstrate: (1) "cause for the
default and actual prejudice as a result of the alleged
violation of federal law," or (2) that "failure to
consider the claims will result in a fundamental miscarriage
of justice." Coleman v. Thompson, 111
S.Ct. 2546, 2565 (1991). To satisfy the exception, which is
reserved for fundamental miscarriages of justice, a
petitioner must provide the court with evidence that would
support a "colorable showing of factual innocence."
Kuhlmann v. Wilson, 106 S.Ct. 2616, 2627 (1986). For
reasons discussed below, Pearson makes no showing of factual
innocence in this case, and he does not otherwise attempt to
explain or demonstrate cause for his default. Accordingly,
Claim 1(b) is procedurally barred from federal review.
Ineffective Assistance of Counsel (Claims 1(a), 1(c), 1(d),
contends that he was denied effective assistance of counsel
in connection with his trial and post-trial
proceedings.Claims for ineffective assistance of
counsel are governed by the standard announced in
Strickland v. Washington, 104 S.Ct. 2052 (1984). To
prevail under the Strickland standard a defendant
must demonstrate (1) that his counsel's performance was
deficient and (2) that the deficient performance resulted in
prejudice. Id. at 2064. "Unless a defendant
makes both showings, it cannot be said that the conviction .
. . resulted from a breakdown in the adversary process that
renders the result unreliable." Id.
satisfy the deficient performance prong, 'the defendant
must show that counsel's representation fell below an
objective standard of reasonableness.'" Garcia
v. Stephens,793 F.3d 513, 523 (5th Cir. 2015) (quoting
Strickland, 104 S.Ct. at 2064). "This is a
'highly deferential' inquiry, attended by 'a
strong presumption that counsel's conduct falls within
the wide range of reasonable professional
assistance.'" Id. (quoting
Strickland, 104 S.Ct. at 2065). "It is only
when the lawyer's errors were so serious that counsel was
not functioning as the 'counsel' guaranteed . . . by
the Sixth ...