United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
MCBRYDE UNITED STATES DISTRICT JUDGE
the court is a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 filed by applicant, Richard Demon
Donaldson, a state prisoner, against Lorie Davis, director of
the Texas Department of Criminal Justice, Correctional
Institutions Division (TDCJ), respondent. After having
considered the pleadings and relief sought by applicant, the
court has concluded that the petition should be denied.
FACTUAL AND PROCEDURAL HISTORY
in Tarrant County, Texas, No. 1293976D, found applicant
guilty of continuous sexual assault of Ann,  a child under the
age of 14, and assessed his punishment at 25 years'
confinement. (Clerk's R. 128.) His conviction was
affirmed on appeal and the Texas Court of Criminal Appeals
refused his petition for discretionary review. (Docket Sheet
2.) Applicant also sought postconviction state habeas-corpus
relief, to no avail. (SHR 2-18.) This federal habeas-corpus
petition challenging his conviction followed.
ground for relief, applicant asserts that his trial counsel
was ineffective by failing to object to the trial court's
response to a jury note during deliberation in the guilt/
innocence phase of trial. (Pet. 6.)
RULE 5 STATEMENT
believes that applicant has exhausted his state court
remedies as to the claim raised and that the application is
neither barred by limitations nor the successive-petition
bar. (Resp't's Answer 3.)
STANDARD OF REVIEW
§ 2254 habeas application is governed by the heightened
standard of review provided for by the Anti-Terrorism and
Effective Death Penalty Act (AEDPA). 28 U.S.C. § 2254.
Under the Act, 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 determined 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. 28 U.S.C. §
2254(d) (1)-(2); Harrington v. Richter, 562 U.S. 86,
statute also 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. An
applicant 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,
where, as here, 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, 138 S.Ct. 1188, 1191-92 (2018).
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, an
applicant 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. 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, ...