Opinion
Civil SA-21-CA-0165-OLG
09-08-2023
DEREK DALE PORTER, TDCJ No. 02140613, Petitioner, v. BOBBY LUMPKIN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
MEMORANDUM OPINION AND ORDER
ORLANDO L. GARCIA United States District Judge.
Before the Court are Petitioner Derek Dale Porter's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 and memorandum in support (ECF No. 1), as well as Respondent Bobby Lumpkin's Answer (ECF No. 7) thereto. Having reviewed the record and pleadings submitted by both parties, the Court concludes Petitioner is not entitled to relief under the standards prescribed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See 28 U.S.C. § 2254(d). Petitioner is also denied a certificate of appealability.
I. Background
In June 2017, a Comal County jury convicted Petitioner of assault family violence enhanced with a prior conviction. State v. Porter, No. CR2016-233 (207th Dist. Ct., Comal Cnty., Tex. June 7, 2017); (ECF No. 6-17 at 13-14). After a separate punishment hearing, the trial court sentenced Petitioner to fifteen years of imprisonment. Id. The Texas First Court of Appeals affirmed his conviction on direct appeal. Porter v. State, No. 01-17-00534-CR, 2018 WL 4169482 (Tex. App.-Houston, Aug. 30, 2018, pet. ref d); (ECF No. 6-4). The Texas Court of Criminal Appeals then refused his petition for discretionary review. Porter v. State, No. 0996-18 (Tex. Crim. App. Feb. 6, 2019); (ECF Nos. 6-2, 6-37).
Thereafter, Petitioner challenged the constitutionality of his conviction by filing an application for state habeas corpus relief. Ex parte Porter, No. 91,760-01 (Tex. Crim. App.); (ECF No. 6-32 at 6-24). The Texas Court of Criminal Appeals ultimately denied the application without written order on February 10, 2021, based, in part, on the findings of the trial court. (ECF No. 6-29).
Petitioner initiated the instant proceedings by filing a petition for federal habeas corpus relief on February 22, 2021. (ECF No. 1). In the petition and corresponding memorandum in support, Petitioner argues that his trial counsel rendered ineffective assistance by:
(1) failing to conduct an independent investigation regarding the complaining witness to support a self-defense argument,
(2) failing to investigate and cross-examine the complainant about the extraneous offense to which she testified,
(3) eliciting harmful testimony from witness Gerald Nance,
(4) failing to conduct an independent investigation regarding the complainant to support the theory that she was testifying under threat of prosecution,
(5) failing to proffer into evidence the complainant's affidavit of nonprosecution,
(6) failing to timely object to the admission of extraneous evidence,
(7) failing to request a limiting instruction for the use of extrinsic evidence,
(8) failing to request an instruction to disregard the State's improper closing argument,
(9) failing to investigate extraneous evidence used at the punishment phase, and
(10) failing to call witnesses other than Petitioner at the punishment phase.Id.
II. Standard of Review
Petitioner's federal habeas petition is governed by the heightened standard of review provided by the AEDPA. 28 U.S.C.A. § 2254. Under § 2254(d), a petitioner may not obtain federal habeas corpus relief on any claim that was adjudicated on the merits in state court proceedings unless the adjudication of that claim either: (1) 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, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Brown v. Payton, 544 U.S. 133, 141 (2005). This intentionally difficult standard stops just short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Harrington v. Richter, 562 U.S. 86, 102 (2011) (citing Felker v. Turpin, 518 U.S. 651, 664 (1996)).
A federal habeas court's inquiry into unreasonableness should always be objective rather than subjective, with a focus on whether the state court's application of clearly established federal law was “objectively unreasonable” and not whether it was incorrect or erroneous. McDaniel v. Brown, 558 U.S. 120 (2010); Wiggins v. Smith, 539 U.S. 510, 520-21 (2003). Even a strong case for relief does not mean the state court's contrary conclusion was unreasonable, regardless of whether the federal habeas court would have reached a different conclusion itself. Richter, 562 U.S. at 102. Instead, a petitioner must show that the decision was objectively unreasonable, which is a “substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465,473 (2007); Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003).
So long as “fairminded jurists could disagree” on the correctness of the state court's decision, a state court's determination that a claim lacks merit precludes federal habeas relief. Richter, 562 U.S. at 101 (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In other words, to obtain federal habeas relief on a claim previously adjudicated on the merits in state court, Petitioner must show that the state court's ruling “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103; see also Bobby v. Dixon, 565 U.S. 23, 24 (2011).
III. Merits Analysis
Petitioner raises ten allegations that he was denied the right to effective assistance of counsel by his attorney at trial, James Millan. Each of these allegations were raised during Petitioner's state habeas proceedings and rejected by the Texas Court of Criminal Appeals. As discussed below, Petitioner fails to demonstrate the state court's rejection of the allegations was either contrary to, or an unreasonable application of, Supreme Court precedent.
A. The Strickland Standard
Sixth Amendment claims concerning the alleged ineffective assistance of trial counsel (IATC claims) are reviewed under the familiar two-prong test established in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a petitioner cannot establish a violation of his Sixth Amendment right to counsel unless he demonstrates (1) counsel's performance was deficient and (2) this deficiency prejudiced his defense. 466 U.S. at 687-88, 690. According to the Supreme Court, “[s]urmounting Strickland's high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
When determining whether counsel performed deficiently, courts “must be highly deferential” to counsel's conduct, and a petitioner must show that counsel's performance fell beyond the bounds of prevailing objective professional standards. Strickland, 466 U.S. at 68789. Counsel is “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Burt v. Titlow, 571 U.S. 12, 22 (2013) (quoting Strickland, 466 U.S. at 690). To demonstrate prejudice, a petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. Under this prong, the “likelihood of a different result must be substantial, not just conceivable.” Richter, 562 U.S. at 112. A habeas petitioner has the burden of proving both prongs of the Strickland test. Wong v. Belmontes, 558 U.S. 15, 27 (2009).
Finally, IATC claims are considered mixed questions of law and fact and are analyzed under the “unreasonable application” standard of 28 U.S.C. § 2254(d)(1). See Gregory v. Thaler, 601 F.3d 347, 351 (5th Cir. 2010). Where, as here, the state court adjudicated the IATC claims on the merits, a court must review a petitioner's claims under the “doubly deferential” standards of both Strickland and Section 2254(d). See Woods v. Etherton, 136 S.Ct. 1149, 1151 (2016) (citing Cullen v. Pinholster, 563 U.S. 170, 190 (2011)); Knowles v. Mirzayance, 556 U.S. Ill. 112 (2009). In such cases, the “pivotal question” is not “whether defense counsel's performance fell below Strickland's standards,” but whether “the state court's application of the Strickland standard was unreasonable.” Richter, 562 U.S at 101. That is to say, the question to be asked in this case is not whether counsel's actions were reasonable, but whether “there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Id. at 105.
B. Failure to Investigate (Claims 1,4)
In his first allegation, Petitioner contends that counsel failed to conduct an independent investigation into the complaining witness, Georganne Shirley, to develop the theory that Petitioner was acting in self-defense during the incident in dispute. According to Petitioner, counsel failed to (1) discover and present witnesses concerning Shirley's propensity for violence,
(2) offer any evidence of extrinsic acts committed by Shirley, or (3) investigate conduct that allegedly led Child Protective Services (CPS) to remove Shirley's children. In his fourth allegation, Petitioner also faults counsel for failing to adequately investigate pending charges against Shirley in another county to determine if she was testifying under the threat of prosecution.
Petitioner raised similar allegations during his state habeas proceedings. In response, trial counsel submitted an affidavit wherein he addressed Petitioner's assertions of ineffective assistance:
[regarding Claim 1]: I spoke to every person [Petitioner] and [Petitioner]'s mother told me could be helpful and give insight as to [Petitioner]'s relationship with Ms. Shirley, including [Petitioner's previous attorney in Hays County, Ms. Lynn Peach.
I used this information to cross-examine Ms. Shirley regarding her violent past. As appellate counsel is certainly aware my ability to bring up specific instances of conduct that are not final convictions is very limited. I inquired as to Ms. Shirley's past and present circumstances to the extent [the] court allowed me to cross-examine. I did not attempt to secure testimony from witnesses that would be ruled inadmissible.
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[regarding Claim 4]: The State transported Ms. Shirley in civilian clothes from the jail and attempted to argue that I could not inquire about the fact that Ms. Shirley was in custody and the circumstances of her arrest. I rightly argued under Alford v. U.S. and Davis v. Alaska that the fact she was confined in County Jail and the circumstances of her incarceration were admissible. I argued that I should be able to inquire far and wide regarding the charges she was in jail for and the specific circumstances of the case. Judge Waldrip limited the scope of my crossexamination.
This causal connection appellate counsel mentions is patently absurd. There would be no reason for Hays County to have any skin in the game regarding a Comal County case. They are separate offices and I had zero evidence that there was any coordination between the offices.(ECF No. 6-30 at 34-35). The state habeas trial court found trial counsel's affidavit competent and credible and concluded that Petitioner “has not shown deficient performance, prejudice, nor any right to relief.” (ECF No. 6-35 at 15-16). These findings and conclusions were adopted by the Texas Court of Criminal Appeals when it denied Petitioner's state habeas application. (ECF No. 6-29). These determinations, including the trial court's credibility findings, are entitled to a presumption of correctness unless they lack fair support in the record. Demosthenes v. Baal, 495 U.S. 731, 735 (1990); Miller v. Thaler, 714 F.3d 897, 903 (5th Cir. 2013).
Petitioner fails to show that the state court's ruling on trial counsel's investigation and strategy was contrary to, or involved an unreasonable application of Strickland or that it was an unreasonable determination of the facts based on the evidence in the record. Strickland requires counsel to undertake a reasonable investigation. 466 U.S. at 690-91; Charles v. Stephens, 736 F.3d 380, 389 (5th Cir. 2013). Counsel must, at minimum, interview potential witnesses and make an independent investigation of the facts and circumstances of the case. Kately v. Cain, 704 F.3d 356, 361 (5th Cir. 2013). But in assessing the reasonableness of counsel's investigation, a heavy measure of deference is applied to counsel's judgments and is weighed in light of the defendant's own statements and actions. Strickland, 466 U.S. at 691.
In this case, trial counsel's affidavit-adopted by the state habeas court and ultimately by the Texas Court of Criminal Appeals-explained that he spoke with every person Petitioner told him could be helpful in understanding Shirley and used this information to present evidence of Shirley's propensity for violence. This included the general fact that Shirley was in custody at the time of Petitioner's trial, but counsel chose not to secure testimony from witnesses concerning any specific instance of conduct because such testimony would be ruled inadmissible. Petitioner has not pointed to any credible evidence rebutting counsel's assertions concerning his investigation, much less demonstrated that state court's ruling on trial counsel's investigation and strategy “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103.
Further, Petitioner has not alleged with any specificity what further investigation would have revealed or how it would have altered the outcome of the trial. Druery v. Thaler, 647 F.3d 535, 541 (5th Cir. 2011). To prevail on an IATC claim based on counsel's failure to call a witness, the petitioner must name the witness, demonstrate the witness was available to testify, delineate the content of the witness's proposed testimony, and show the testimony would have been favorable to the defense. Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009); Del Toro v. Quarterman, 498 F.3d 486, 490-91 (5th Cir. 2007) (finding counsel's choice to not hire an expert reasonable under the circumstances). While Petitioner did provide an unsworn affidavit from a private investigator purporting to identify six witnesses that counsel could have called to discuss Shirley's propensity for violence, none of the witnesses named in the hearsay affidavit indicated that they were willing or available to testify against Shirley. (ECF Nos. 1-2, 1-3). Petitioner provided even less evidence to support his assertion that Shirley's children were removed by CPS. As a result, Petitioner has not shown counsel's performance was deficient or that the state court's denial of this claim was an unreasonable application of Strickland.
Petitioner bases this assertion solely “[o]n information and belief' without providing any further argument or support. (ECF No. 1 at 5). Such conclusory assertions are insufficient to support an IATC claim. Woodfox v. Cain, 609 F.3d 774, 809 n.17 (5th Cir. 2010); Day, 566 F.3d at 540.
Finally, Petitioner has provided no support for his allegation that the threat of prosecution may have motivated Shirley to testify against him. Petitioner apparently faults counsel for not investigating Shirley's pending criminal charges in Hays County to see if there was a plea offer that was contingent on her testimony in the instant Comal County case. But as pointed out by counsel, there is “zero evidence” that such an offer existed or that any coordination occurred between Hays County and Comal County. Indeed, the prosecuting attorney for Comal County explained on the record that she had no ability to make such a deal in Hays County, and confirmed with Shirley on cross-examination that “nothing has been promised here to [her] in exchange for [her] testimony against the defendant.” (ECF No. 6-20 at 34, 59). Thus, Petitioner's conclusory allegations are not “clear and convincing evidence” sufficient to overcome the presumption of correctness attributed to the trial court's finding of counsel's credibility and competence. Miller v. Thaler, 714 F.3d 897, 903 (5th Cir. 2013); United States v. Demik, 489 F.3d 644, 646 (5th Cir. 2007) (“[C]onclusory allegations are insufficient to raise cognizable claims of ineffective assistance of counsel.”) (citation omitted).
In sum, viewing these allegations under the deferential standard that applies on federal habeas review, Petitioner has not shown that the state court's decision was objectively unreasonable or that he is entitled to relief on his IATC claims. Federal habeas corpus relief is therefore denied.
C. Extraneous Evidence (Claims 2, 6, and 7)
Petitioner next raises several allegations concerning the admission of certain extraneous-offense evidence-namely, evidence of a prior instance in which Petitioner assaulted Shirley. During the guilt phase of trial, Shirley testified that she was hesitant to press charges against Petitioner in the instant case because this was not the first incident between them. She went on to describe an incident in September 2015 in Hays County where Petitioner “would not leave” her house, “started punching” her and “kicking” her in the kidneys, and caused her to “pee[ ] blood.” (ECF No. 6-19 at 198-99). Petitioner contends that counsel was ineffective for three reasons: (1) failing to investigate the event and cross-examine Shirley with the fact that the offense had been no-billed by a grand jury (Claim 2), (2) failing to timely object to the admission of the extraneous offense (Claim 6), and (3) failing to request a limiting instruction regarding the use of the extraneous offense (Claim 7).
Similar to the previous allegations, Petitioner raised these claims for relief during his state habeas proceedings. In response, trial counsel stated the following in his affidavit:
[regarding Claim 2]: I believe this factually incorrect. [Petitioner] was booked into Hays County Jail on September 22, 2015 and charged with a misdemeanor assault and a felony theft out of another county (Fayette County?). The offense date on the misdemeanor assault was September 17, 2015. There is a two-year statute of limitations for assault. The jury trial that is the subject of this affidavit had a sentencing date of June 7, 2017. That is within the statute of limitations for the September, 2015 alleged assault.
A misdemeanor assault would not have been presented to the grand jury. If it was enhanced to a felony, presented to the grand jury, and subsequently no-billed, I was not privy to that information. And I had spoken to his Hays County criminal defense attorney several times. I have no indication that information was relayed to me.
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[regarding Claim 6]: If there was a delay in my objection that was certainly a mistake on my part. I think it likely would have come in under 38.371 (b). But, it does not excuse the untimeliness of my objection.
Motions to strike are as ineffective as unringing a bell in most circumstances. They simply highlight the testimony to an even greater extent. I do not believe a motion to strike would have had a beneficial effect.
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[regarding Claim 7]: See my answer [above]. One cannot unring a bell. Highlighting the testimony through a limiting instruction would simply focus the jury's attention to the testimony and would likely be more harmful than beneficial.(ECF No. 6-30 at 35). Again, the state habeas court found counsel's statement credible and the Texas Court of Criminal Appeals denied relief on the findings of the trial court. (ECF Nos. 6-29, 6-35 at 15-16).
Petitioner fails to show that the state court's ruling was contrary to, or involved an unreasonable application of Strickland. Trial counsel generally have broad discretion when it comes to deciding how best to proceed strategically, and such choices, made after a thorough investigation of the law and facts relevant to plausible options, are virtually unchallengeable. Strickland, 466 U.S. at 673; Ward v. Stephens, 777 F.3d 250, 264 (5th Cir. 2015) (noting the Supreme Court has emphasized counsel has “wide latitude in deciding how best to represent a client.”). Moreover, counsel's performance cannot be considered deficient or prejudicial if counsel fails to raise a non-meritorious argument. See Miller, 714 F.3d at 904 n.6 (counsel is not required to make futile motions or objections); Roberts v. Thaler, 681 F.3d 597, 612 (5th Cir. 2012) (“the failure to lodge futile objections does not qualify as ineffective assistance”) (quoting Koch v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990)).
Here, trial counsel explained in his affidavit that he did not cross-examine Shirley on the fact that the previous extraneous offense had been no-billed because there was no evidence such was indeed the case. According to counsel, Petitioner was charged with a misdemeanor for the September 2015 incident in question, which would not have been presented to a grand jury and would still have been within the statute of limitations at the time of Petitioner's June 2017 trial in the instant case. Petitioner has not shown that counsel's understanding of the situation to be incorrect. Thus, counsel's performance cannot be considered deficient or prejudicial for failing to raise a meritless argument. Turner v. Quarterman, 481 F.3d 292, 298 (5th Cir. 2007); Parr v. Quarterman, 472 F.3d 245,256 (5th Cir. 2006).
Petitioner attempts to discredit counsel's explanation by providing a letter from the Hays County District Attorney's Office showing that they declined to prosecute the September 2015 incident. (ECF No. 1-6). Not only does this letter fail to establish that the charge was presented to a grand jury and no-billed, it is barred from even being considered by this Court because it is not a part of the state habeas record considered by the state court when it adjudicated Petitioner's claim on the merits. Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011) (explaining that federal review “is limited to the record that was before the state court.”); Brewer v. Lumpkin, 66 F.4th 558, 566 (5th Cir. 2023) (same).
Petitioner's argument that counsel rendered ineffective assistance by failing to object to Shirley's testimony is similarly unpersuasive. Petitioner contends counsel should have objected and moved to strike the testimony as inadmissible under Rule 404(b) of the Texas Rules of Evidence because it was offered to show his propensity for committing assaults. As discussed by the state appellate court on direct appeal, however, the testimony was admissible under Rule 404(b) because it was offered to rebut Petitioner's self-defense argument. Porter, 2018 WL 4169482 at *6-7; (ECF No. 6-4). Thus, counsel cannot reasonably be faulted for failing to object to testimony that was ultimately admissible. See Ward v. Dretke, 420 F.3d 479, 498 (5th Cir. 2005) (counsel not ineffective for failing to lodge what would likely have been a futile objection).
Finally, aside from the fact that Shirley's extraneous-offense testimony was admissible under Texas law, Petitioner has not shown that counsel's strategic decision not to move to strike the testimony or request a limiting instruction was unreasonable. “A conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness.” Cotton v. Cockrell, 343 F.3d 746, 752-53 (5th Cir. 2003). Here, counsel explained that such requests “are as ineffective as unringing a bell in most circumstances” and are more harmful than beneficial because they focus the jury's attention on the testimony to an even greater extent. (ECF No. 6-30 at 35). Because counsel's decision not to draw further attention to the extraneous offense was strategic and imminently reasonable, it “will not support an ineffective assistance claim.” United States v. Bernard, 762 F.3d 467,472 (5th Cir. 2014) (citation omitted). The state court's denial of these claims, therefore, was not an unreasonable application of Strickland.
D. Elicit Harmful Testimony (Claim 3)
In his third claim for relief, Petitioner argues that his trial counsel rendered ineffective assistance by eliciting harmful testimony from witness Gerald Nance. At the guilt-innocence phase, Nance testified for the defense as to Shirley's violent nature and reputation for violence within the community. (ECF No. 6-21 at 64-65). Nance also denied witnessing the assault in question, but testified that he saw Shirley's pulled-out hair in her hand. Id. at 48. Petitioner contends that Nance's testimony was detrimental because it supported Shirley's testimony that Petitioner pulled out clumps of her hair. (ECF No. 6-19 at 191).
Petitioner fails to show that the state court's rejection of this claim during his state habeas proceedings was an unreasonable application of Strickland. Under Strickland, “counsel has wide latitude in deciding how best to represent a client. . . .” Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003). When deciding whether counsel's performance was deficient, a reviewing court “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 688-89. Counsel's strategic choices, made after a thorough investigation of the law and facts relevant to plausible options, are virtually unchallengeable. Id. at 673; Pape v. Thaler, 645 F.3d 281,289-90 (5th Cir. 2011).
During Petitioner's state habeas proceeding, trial counsel explained his decision to call Nance as a witness:
I interviewed Mr. Nance before he testified and was aware that [Ms. Shirley] had made an allegation of assault against Mr. Nance himself that he was arrested for but was ultimately non-prosecuted by [the] Comal County District Attorney's Office.
I was able to establish through Mr. Nance that [Ms. Shirley] had made a false allegation against him in the assault case he, himself, was arrested for and I
established [Ms. Shirley]'s violent disposition. These facts bolstered [Petitioner]'s claim of self defense. His testimony was certainly a mixed bag. But, on balance I think it was more beneficial than harmful.(ECF No. 6-30 at 34). In other words, counsel was aware of the potential pitfalls of calling Nance as a witness but believed it was worth it in order to establish Shirley's violent disposition to bolster a self-defense claim. Petitioner has not shown that counsel's strategic decision was unreasonable, much less demonstrated that state court's ruling on trial counsel's strategy “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103. Relief is therefore denied.
E. Affidavit of Non-Prosecution (Claim 5)
Petitioner next faults counsel for failing to cross-examine Shirley regarding an affidavit of non-prosecution she signed shortly after the assault requesting that the State not prosecute Petitioner. According to Petitioner, counsel had no valid strategic reason for this failure, but rather it was “an oversight.” (ECF No. 1 at 9). During Petitioner's state habeas proceedings, however, counsel elaborated on his strategic reasons for not bringing up the affidavit on cross-examination:
The affidavit in question was a bare bones “Do you wish to prosecute or not?” responsive form. In my experience, unless an affidavit of non-prosecution actually states that the Defendant did not commit the offense and that the Complainant actually lied to the police it is of zero, or potentially, negative value.
It can show that the [Complainant] has feelings for the Defendant and/or that they are scared of the Defendant and are not prosecuting to avoid future harm. A negative inference can be drawn that actually enhances the credibility of the Complainant in a counter-intuitive sense.(ECF No. 6-30 at 35).
Petitioner has not even attempted to rebut the reasons counsel gave for not pursuing the non-prosecution affidavit on cross-examination, much less demonstrated that the state habeas court's denial of this claim was an unreasonable application of Strickland. Indeed, “[speculating about the effect of tinkering with the cross-examination questions is exactly the sort of hindsight that Strickland warns against.” See Castillo v. Stephens, 640 Fed.Appx. 283, 292 (5th Cir. 2016) (unpublished) (citing Strickland, 466 U.S. at 689). Because counsel's strategic decision regarding his cross-examination of Shirley was imminently reasonable, it does not support an IATC claim. Bernard, 762 F.3d at 472. Relief is denied.
F. Closing Argument (Claim 8)
During the State's closing argument, the prosecutor noted that, while Petitioner had testified that Shirley threatened him with a garden hoe, defense counsel did not question Gerald Nance about the incident. The prosecutor then speculated that counsel's reasons for not questioning Nance was because, if he had, Nance would have said, “no, that didn't happen.” (ECF No. 6-21 at 97). Counsel objected to the argument, and the trial court agreed that it constituted “argument beyond the evidence.” Id. at 97-98. However, counsel did not obtain an actual ruling from the trial court and did not request an instruction to disregard. Petitioner argues that counsel's failure to request such an instruction constitutes ineffective assistance.
Counsel explained during Petitioner's state habeas proceedings that an instruction to disregard was unnecessary because he “made the jury well aware that what was stated by the Assistant District Attorney was patently false.” (ECF No. 6-30 at 36). He also believed that requesting an instruction to disregard would bring unwanted attention to the comment and “would, once [again], be attempting to unring a bell and of no, or negative, value.” Id. Petitioner has not shown that counsel's strategic decision was unreasonable. See Trottie v. Stephens, 720 F.3d 231, 243 (5th Cir. 2011) (holding the failure to present a particular line of argument is presumed to be the result of strategic choice); Wiley v. Puckett, 969 F.2d 86, 102 (5th Cir. 1992) (finding decisions to object or not object during closing argument are matters of trial strategy that are presumed reasonable under Strickland). The state court's denial of the claims was therefore not an unreasonable application of Strickland.
G. Punishment Phase (Claims 9,10)
In his last two claims for relief, Petitioner contends that he was denied effective counsel at the punishment phase of trial. Specifically, Petitioner faults counsel for failing to object to the admission of evidence that Petitioner had written to a Satanic church requesting literature. He also faults counsel for failing to call any other witnesses besides himself. Neither allegation warrants federal habeas relief.
Similar to his previous allegations, Petitioner raised these claims for relief during his state habeas proceedings. In response, trial counsel stated the following in his affidavit:
[regarding Claim 9]: I am not sure how I could have kept out writings clearly written by [Petitioner] while in custody for the present offense [at] the punishment phase. I know of no case that prevents the State from introducing such writings in punishment. I technically, could have made a 403 balancing test argument. But, it would have come in anyway in my opinion.
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[regarding Claim 10]: This is largely due to [Petitioner]'s poor choices in life. He did not have people willing to testify for him that would have been value positive. His mother clearly loves him. But, if she had testified [she would] have had to be subject to questioning about things that [Petitioner] had done to her.
[Petitioner] had been arrested approximately 25 times for offenses, many of which were violent in nature against his own family. There simply were not people that could say good things about [Petitioner] that would be able to avoid talking about violent acts that they, themselves, had either witnessed or been victims of at [Petitioner]'s own hands.(ECF No. 6-30 at 36).
Petitioner has not even attempted to rebut the strategic reasons given by counsel for not objecting or calling more witnesses, much less demonstrated that the state habeas court's denial of these claims was an unreasonable application of Strickland. Again, trial counsel generally have broad discretion when it comes to deciding how best to proceed strategically, with such choices being virtually unchallengeable. Strickland, 466 U.S. at 673. And counsel's performance cannot be considered deficient or prejudicial if counsel fails to lodge a futile motion or objection. Roberts, 681 F.3d at 612.
Here, trial counsel explained that the letters Petitioner wrote to the Satanic church would clearly have been admitted whether or not he lodged an objection. Instead of objecting, he made the strategic decision to address the letter with Petitioner during his punishment phase testimony. (ECF No. 6-21 at 151-53) (testifying that he wrote the Satanic church to learn more about rituals that Shirley had been performing). Other than speculating that the letter was inadmissible, Petitioner has not shown that counsel's assessment was incorrect, much less demonstrated that trial counsel's strategy “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103.
Petitioner's argument that counsel failed to call witnesses on his behalf is similarly unpersuasive. As previously mentioned, complaints of uncalled witnesses are not favored on habeas review because the presentation of testimonial evidence is a matter of trial strategy and because allegations of what a witness would have testified are largely speculative. Day, 566 F.3d at 538. To prevail on an IATC claim based on counsel's failure to call a witness, the petitioner must name the witness, demonstrate the witness was available to testify, delineate the content of the witness's proposed testimony, and show the testimony would have been favorable to the defense. Id.
Petitioner does not make this showing-indeed, the only potential witness even mentioned by Petitioner is his mother. However, counsel explained that he did not call Petitioner's mother because she would be subject to cross-examination about violent acts that Petitioner had committed against her and other family members. Thus, counsel made a strategic decision in this regard, a decision now entitled to deference by this Court. Evans v. Cockrell, 285 F.3d 370, 377 (5th Cir. 2002) (providing petitioner must “bring forth” evidence, such as affidavits, from uncalled witnesses, including expert witnesses, in support of an ineffectiveassistance claim). As a result, Petitioner has not shown counsel's performance was deficient or that the state court's denial of this claim was an unreasonable application of Strickland.
H. Lack of Prejudice
Finally, even if Petitioner could establish that counsel's performance in this case constituted deficient performance, he still fails to demonstrate that the alleged errors were prejudicial to his defense. Again, to demonstrate prejudice, a petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “[A] court assessing prejudice must consider the totality of the evidence before the judge or jury.” Mejia v. Davis, 906 F.3d 307, 315 (5th Cir. 2018) (quoting Strickland, 466 U.S. at 696) (internal quotation marks omitted).
Petitioner has not established that the alleged errors were prejudicial with regard to his guilt because, as the record demonstrates, the State's case against Petitioner was strong. See Berghuis v. Thompkins, 560 U.S. 370, 390 (2010) (noting the weight of the evidence of guilt in finding alleged deficient performance of counsel not prejudicial); Pondexter v. Quarterman, 537 F.3d 511, 525 (5th Cir. 2008). It is undisputed that Petitioner hit Shirley, threatened Nance when Nance told him that he was going to call the police, and tried to flee from the police when they arrived at the scene. And Shirley's account of what happened was corroborated by testimony from other witnesses and photographs taken of her injuries-Petitioner's account was not corroborated in any meaningful way at all. Given the overwhelming nature of the evidence against Petitioner, there is simply no reasonable probability that the jury would have voted to acquit had counsel not committed the errors Petitioner now accuses him of making.
The State's case against Petitioner at the punishment phase was equally strong, if not stronger. As discussed by the state appellate court on direct appeal, the State emphasized that Petitioner was a danger to the community:
The State presented evidence of [Petitioner]'s extensive criminal record, including his 14 prior convictions. These prior convictions included, among other offenses, assault, armed robbery, theft of a firearm, burglary, terroristic threat, possession of a controlled substance, unauthorized use of a motor vehicle, criminal mischief, and criminal trespass of a habitation. The State also presented evidence of other misconduct, including evidence that [Petitioner] had stolen from and threatened to kill his mother, broken into his sister's house, evaded arrest on multiple occasions, and assaulted numerous other men and women. The State emphasized [Petitioner's failures to rehabilitate and commission of other offenses while on probation.Porter, 2018 WL 4169482 at *8; (ECF No. 6-4 at 20). As further explained by counsel, Petitioner had been arrested “approximately 25 times for offenses, many of which were violent in nature against his own family.” (ECF No. 6-30 at 36). In light of the evidence of Petitioner's extensive and violent criminal history, Petitioner fails to prove there is a reasonable probability that, but for trial counsel's alleged failures at the punishment phase, he would have received a lesser sentence.
Because Petitioner is unable to establish that counsel's performance was deficient or that he was prejudiced by counsel's alleged errors, the state court's denial of Petitioner's IATC allegations was not an unreasonable application of Strickland. Relief on these claims is unwarranted.
IV. Certificate of Appealability
The Court must now determine whether to issue a certificate of appealability (COA). See Rule 11(a) of the Rules Governing § 2254 Proceedings; Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (citing 28 U.S.C. § 2253(c)(1)). A COA may issue only if a petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If a district court rejects a petitioner's constitutional claims on the merits, the petitioner must demonstrate “that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). This requires a petitioner to show “that reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.'” Miller-El, 537 U.S. at 336 (citation omitted).
A district court may deny a COA sua sponte without requiring further briefing or argument. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000). For the reasons set forth above, the Court concludes that jurists of reason would not debate the conclusion that Petitioner was not entitled to federal habeas relief. As such, a COA will not issue.
V. Conclusion and Order
Petitioner failed to establish that the state court's rejection of his IATC claims on the merits during his state habeas corpus proceeding was either (1) contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, or (2) based on an unreasonable determination of the facts in light of the evidence presented during his state trial, appellate, and habeas corpus proceedings. As a result, Petitioner's federal habeas corpus petition does not warrant federal habeas corpus relief.
Accordingly, based on the foregoing reasons, IT IS HEREBY ORDERED that:
1. Federal habeas corpus relief is DENIED and Petitioner Derek Dale Porter's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1) is DISMISSED WITH PREJUDICE;
2. No Certificate of Appealability shall issue in this case; and
3. All remaining motions, if any, are DENIED, and this case is now CLOSED.