Opinion
Civil Action No. SA-01-CA-909-FB
May 8, 2003
MEMORANDUM DECISION
Before the Court is Petitioner Douglas Riley Lyon's Amended 28 U.S.C. § 2254 Habeas Corpus Petition (Docket Entry # 10) and Respondent's Answer (Docket Entry # 14) seeking dismissal of the Petition which this Court construes as a motion to dismiss.
I.
In 1994, Lyon was convicted by a Bexar County jury of the murder of his former wife Gracie Lyon and was sentenced to life. State v. Lyon, No. 93-CR-5434 (Tex. 226th Dist. Ct., jmt. entered May 25, 1994). His conviction was affirmed. Lyon v. State, No. 04-94-320-CR (Tex.App. — San Antonio, May 22, 1996, p.d.r. ref'd). The Texas Fourth Court of Appeals described the evidence as follows:
Lyon and his ex-wife, Gracie, were divorced in December 1991, after thirty years of marriage. On the evening of April 19, 1993, Lyon went to his ex-wife's new home, ostensibly to exchange some property from their divorce. During this visit he and Gracie engaged in a struggle with a ten inch kitchen knife and a stun gun. The medical examiner estimated that Gracie was attacked with the stun gun thirty to forty times. Her death resulted from a fatal eight inch stab wound through her left breast. She appeared to have been stabbed seven times. The medical examiner also said her hands showed classic signs of defensive wounds, as if she had tried to grab the knife from her ex-husband.
Lyon admits killing Gracie, but claims it was self defense. Lyon contends he took the stun gun to Gracie's house for protection because Gracie was depressed after the divorce and had physically attacked him several times. Gracie weighed 119 pounds and was on Prozac at the time of her death. Lyon claimed that when Gracie went into the kitchen to make him a drink, she pulled a kitchen knife out of the drawer and tried to stab him. He says they struggled on the kitchen floor and both received wounds. The mixture of blood found at the scene was consistent with the victim's and Lyon's bloodtypes. Lyon claims he used the stun gun in an attempt to get away from Gracie. Upon seeing a large amount of blood on the floor believing it to be his own, Lyon felt he was in danger of dying. He then rotated the knife that was in Gracie's hand and while trying to block it with his right hand, he caused the knife to fatally stab Gracie in the chest.
Lyon eventually called the police to report a "cutting." When the police arrived, the doors were locked and Lyon did not initially respond to knocks at the door. Once Lyon opened the door, the officers forced their way into the home and hand-cuffed him. The officers called EMS upon seeing Gracie's body on the floor with a knife protruding from her chest. Gracie was dead when EMS arrived. Lyon had also been cut and was bleeding. He was treated by EMS technicians and then transported to a hospital.
There was blood on the floor and a stun gun was found by the sink. The investigating officers discovered a trail of bloody footprints throughout the hallways of the victim's home. The officers also found two bloody plastic gloves in the laundry room, a bloody pair of shoes in the bathroom cabinet, and a paper bag containing two shower curtains and a battery in the living room. When police searched Lyon's car, they found a plastic covering over the driver's seat and a paper bag which contained men's clothes and other items. . . .
. . . .
[A] stun gun expert, testified at length on the design and use of electrical restraint devices (stun guns). He explained that a stun gun generates 50,000 volts of energy, causes violent muscle contractions and extreme muscle fatigue after the victim is stunned, but does not cause paralysis or unconsciousness. The autopsy photographs of Gracie reflected multiple signature marks on her body matching the prongs on the stun gun found in her kitchen. The photographs indicate that the gun was dragged along the body while Gracie moved violently. Other photographs indicate that Gracie was held against something while the stun gun was applied, and that Gracie had been unable to move. The exhibits reflected blunt trauma to Gracie's forehead indicating she was stationary while the stun gun was applied. [The stun gun expert] testified that Gracie would have been conscious but immobilized after seventeen applications.
. . . .
The State's evidence showed that the stun gun was applied to Gracie's body approximately 30 times, but in an offensive versus a defensive manner. However, the application of the stun gun did not cause Gracie's death. Instead, Gracie died as a result of one of the seven stab wounds inflicted to her body. The fatal stab wound was the wound to the left breast. The medical examiner testified that the person who stabbed Gracie appeared to have known how to place the knife to cause death. The knife handle was found protruding upwards from Gracie's chest, with the knife blade having been pushed eight inches through Gracie's lungs, through her heart, and into her spinal column so as to bend the tip of the blade. The medical examiner testified that Gracie's other wounds included stabs to the right lower chest, lower left thigh, right calf, along and above the right knee, and cuts to the hands indicating she had grabbed at the knife to fend off her attacker.
The State's evidence included two clear shower curtains found at Gracie's home. Lyon contends that he took the shower curtains to Gracie's house as a final property exchange from their divorce two years earlier, but the State maintained that Lyon planned to use the shower curtains to dispose of Gracie's body. There was also evidence that the driver's side of Lyon's car was draped with a clear plastic drop cloth. . . .Lyon v. State, No. 04-94-320-CR at 2-3, 16, 21-22.
Lyon's first State habeas corpus application was denied after a two day evidentiary hearing. Ex Parte Lyon, No. 48,736-1 (denied May 16, 2001). His second State application was dismissed pursuant to Texas Code of Criminal Procedure article 11.07, § 4, as an abuse of the writ. Ex Parte Lyon, No. 48,737-2 ( dismissed Aug. 29, 2001).
In his Amended Habeas Corpus Petition (Docket Entry # 10), Lyon challenges his murder conviction contending: 1) he is innocent and the State failed to rebut his self-defense evidence; 2) the prosecution engaged in misconduct denying him due process by: placing a new battery in the stun gun without leave of the trial court and demonstrating it to the jury during closing argument; arguing Lyon had a financial motive for killing Gracie because pursuant to the divorce decree she received half his retirement pension; arguing Lyon's wounds were made with a knife other than that used to kill Gracie; arguing Lyon tortured Gracie with the stun gun; and presenting the misleading evidence of Dr. Bux who testified Lyon's injuries were "consistent" with being self-inflicted; and 3) his counsel was ineffective because: counsel's preoccupation with disbarment proceedings resulted in a conflict of interest; and counsel failed to present an expert to bolster Lyon's self-defense theory.
II.
Federal habeas corpus relief is available only where the petitioner demonstrates he is in custody in violation of his constitutional or other federal rights. 28 U.S.C. § 2241, 2254. State law errors that do not implicate constitutional rights are not a basis for habeas corpus relief. Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Rule 2(d) of the Rules Governing § 2254 Proceedings states the petition "shall set forth in summary form the facts supporting each of the grounds." Conclusory and speculative allegations are not sufficient to entitle a petitioner to a hearing or relief in a § 2254 case. West v. Johnson, 92 F.3d 1385, 1398-99 (5th Cir. 1996), cert. denied, 520 U.S. 1242 (1997); Perillo v. Johnson, 79 F.3d 441, 444 (5th Cir. 1996).
Section 2254(b)(1)(A) requires the petitioner to exhaust available State court remedies before seeking federal habeas corpus relief. The exhaustion doctrine is based on comity for state court processes and the principle that state courts should be given the first opportunity to correct alleged federal constitutional violations. Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). "[T]he federal claim must be fairly presented to the state courts . . . [so that] the state courts have had the first opportunity to hear the claim sought to be vindicated." Picard v. Connor, 404 U.S. 270, 275-276, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). To exhaust state remedies in Texas, a petitioner must present his claim to the Texas Court of Criminal Appeals by direct appeal or through a post-conviction writ application. Richardson v. Procunier, 762 F.2d 429, 431 (5th Cir. 1985).
Section 2254(d) requires this Court to defer to the State court's reasonable interpretations of federal law and reasonable determinations of fact in light of the evidence presented in the State proceedings. Factual determinations of a state court are "presumed to be correct" and the petitioner has the burden of rebutting this presumption by "clear and convincing evidence." 28 U.S.C. § 2254 (e)(1).
A
Respondent moves for dismissal of Lyon's claims as procedurally barred because Lyon failed to present his federal claims to the State courts and is now barred by state procedure from doing so. Lyon claims he exhausted his state remedies by presenting his claims to the Texas Court of Criminal Appeals in his two State habeas corpus applications and his Petition for Discretionary Review (PDR).
Federal habeas courts have no jurisdiction to review a state court's denial of a state prisoner's federal constitutional claim if the state court's decision rests on a state procedural default independent of the federal question and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Federal habeas review is barred unless the prisoner can demonstrate cause for the default and prejudice as a result of the alleged federal violation, or demonstrate failure to consider the claim will result in a fundamental miscarriage of justice. Id. at 750. The fundamental miscarriage of justice standard applies only "in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).
A federal habeas corpus petitioner must first "exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254 (b)(1)(A). However dismissal for failure to exhaust state remedies is not appropriate where the failure to exhaust state remedies also involves a procedural default barring the issue under state procedure. Coleman v. Thompson, 501 U.S. at 735 n. 1. Texas Code of Criminal Procedure article 11.07, § 4, provides that a Texas prisoner is limited to one State habeas corpus application and a second application is barred. Where a petitioner has failed to exhaust his state remedies and is procedurally barred from presenting his issues to the State courts by Code of Criminal Procedure article 11.07, § 4, those issues are procedurally barred in this Court. See Sones v. Hargett, 61 F.3d 410, 416 (5th Cir. 1995) (when "it is obvious that the unexhausted claim would be procedurally barred in state court, we will . . . hold the claim procedurally barred from habeas review"); Fearance v. Scott, 56 F.3d 633, 642-43 (5th Cir.) (ruling Texas abuse-of-the-writ rule constituted a procedural default in later federal habeas corpus proceedings), cert. denied, 515 U.S. 1153 (1995).
Most of the issues Lyon's raises in his current federal § 2254 Petition were raised in Lyon's second State habeas corpus application, Ex Parte Lyon, No. 48,736-2, that was dismissed by the Texas Court of Criminal Appeals pursuant to Texas Code of Criminal Procedure article 11.07, § 4, as an abuse of the writ. Because these claims were dismissed by the Texas Court of Criminal Appeals as an abuse of the writ, Lyon has not exhausted his state remedies as to these issues, and the issues raised in his second State application are procedurally barred in this Court. See Ogan v. Cockrell, 297 F.3d 349, 356 (5th Cir. 2002).
Lyon's PDR, No. 1423-96 ( filed Sept. 12, 1996), challenged on State grounds the prosecution's demonstration of the stun-gun with a new battery, the prosecution's introduction of a 1980 letter of Gracie's stating she feared Lyon might kill her, and challenged the factual sufficiency of the evidence. In Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982), the Supreme Court held in order to exhaust state remedies a petitioner must present the federal basis for his claims to the state court by relying on federal authorities and it is not sufficient to merely present the facts underlying a claim to the state courts or to present "a somewhat similar state-law claim." Lyon's PDR failed to "fairly present" any basis for a federal claim, therefore the issues raised in the PDR are not exhausted and are procedurally barred in this Court. See Ogan v. Cockrell, 297 F.3d at 356.
In his first State habeas corpus application, Lyon raised two issues raised in his current federal Petition, i.e. his claims that "the State's suppression of a pathologist's opinion that [Lyon's] injuries were consistent with being inflicted by the deceased . . . denied Lyon due process;" and counsel was ineffective for "fail[ing] to consult and call an expert to testify on the issue of self-defense." Ex Parte Lyon, No. 48,736-1 at i-ii. These issues were presented to the State courts as federal constitutional issues and the State courts denied these issues on the merits. Therefore Lyon has exhausted his State remedies as to these issues and these issues are properly before this Court. The other issues raised in Lyon's federal Petition are however not exhausted and are now barred under state procedure; Lyon failed to show cause or prejudice excusing his procedural default; and thus these issues are dismissed as procedurally barred. See Ogan v. Cockrell, 297 F.3d at 356.
B
At trial, Bexar County Deputy Chief Medical Examiner Dr. Robert Bux testified as a State rebuttal witness that after examining Lyon's medical records he concluded Lyon's wounds were consistent with self-inflicted knife wounds because they were all superficial except for an abdominal wound, the wounds were all in positions Lyon could have reached with his right hand, and Lyon had no defensive wounds to his hands comparable to those of Gracie's. At Lyon's State habeas corpus hearing, Dr. Bux testified Lyon's injuries were consistent with being self-inflicted but it was possible they might have been inflicted by someone else. Lyon contends the prosecution violated Brady v. Maryland, infra, by failing to bring it to the defense's attention before trial that in Dr. Bux's view Lyon's wounds could have been inflicted by someone else.
In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Supreme Court held "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." A defendant must show the suppressed evidence was favorable to the defendant and material. Id. The suppressed evidence is material "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different" U.S. v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). "'Evidence is not 'suppressed' if the defendant either knew, or should have known, of the essential facts permitting him to take advantage of any exculpatory evidence.'" West v. Johnson, 92 F.3d 1385, 1399 (5th Cir. 1996), cert. denied, 520 U.S. 1242 (1997).
The State habeas court concluded Dr. Bux's testimony was not exculpatory and because Dr. Bux was available to Defendant, there was no suppression of evidence. Ex Parte Lyon, No. 48,736-1 at II, 22-23. The record shows Dr. Bux was equally available to the defense for consultation before trial and at trial on cross-examination, and therefore there is no showing his opinion evidence was suppressed within the meaning of Brady. See Kutzner v. Cockrell, 303 F.3d 333, 336 (5th Cir.) (holding there is no basis for Brady claim where witness was available for cross-examination at trial and thus equally available to defense), cert. denied, 563 U.S. 978 (2002). Furthermore, in light of the evidence as a whole there is no reasonable probability the result of the proceeding would have been different had Dr. Bux clarified, as he did at the State habeas corpus hearing, that it was possible, but not likely, Lyon's wounds were inflicted by someone else, and thus the evidence was not exculpatory. Lyon's Brady issue is without merit.
C
Lyon contends his counsel was ineffective for failing to call a defense expert in support of his self-defense theory.
To establish ineffective assistance of counsel, a petitioner must show counsel's performance was deficient, i.e. counsel's performance was not professionally reasonable, and counsel's deficient performance prejudiced the petitioner, i.e. "[t]he defendant 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 v. Washington, 466 U.S. 668, 687-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There is a strong presumption counsel's conduct falls within the wide range of reasonable professional assistance or sound trial strategy. Id. at 689. In order to demonstrate prejudice, a petitioner must show not only that had counsel acted in a different manner a new trial would have been granted, but also that, as a result of counsel's incompetence, the trial was rendered fundamentally unfair or unreliable. Lockhart v. Fretwell, 506 U.S. 364, 369-70, 113 S.Ct. 838, 112 L.Ed.2d 180 (1993).
At the State habeas corpus hearing, Lyon's former counsel, Thomas Rochas, Jr., testified he did not retain a self-defense expert in Lyon's case because: such an expert might be used against Lyon by bolstering the prosecution's forensic evidence; he was concerned the jury might find such an expert unconvincing because he never examined Gracie and was paid for his testimony by the defense; and presentation of such an expert at trial would give the prosecution an opportunity to once again focus on the pitiful and gory photographs of Gracie with the knife protruding from her chest and the other forensic evidence showing the stun gun abrasions and that Gracie would have been incapacitated. Rocha presented reasonable grounds for not presenting such an expert.
At the State habeas corpus hearing Lyon presented the testimony of a independent pathologist Dr. Paul Radelat, and Lyon contends Dr. Radelat's testimony shows Lyon would have benefitted from the testimony of a defense pathologist. Dr. Radelat testified on the basis of the autopsy reports, photos, and other records, in his view Gracie's wounds were "very consistent with defensive wounds," but there were other explanations for her wounds, and the "wounds on her hands could have been caused by her grasping the blade of the weapon in an attempt to get it from Dr. Lyon." Radelat failed to explain how this explanation differs from "defensive wounds" or how this alternative explanation supported Lyon's self-defense theory. He also testified Lyon had wounds to his back that would have been difficult to self-inflict and were consistent with having been inflicted by someone else such as Gracie. However, he did not testify such wounds could not have been self-inflicted, and he failed to explain how Gracie could have presented a threat to Lyon after being incapacitated with the stun gun or how she could have gripped a knife after her hands were lacerated.
Lyon failed to demonstrate Rocha's decision not to present a self-defense expert at trial was unreasonable. The testimony of Dr. Radelat establishes such an expert would have lent little support to Lyon's self-defense theory, and might have substantially bolstered the State's case; thus Lyon's counsel was not deficient for failing to present such testimony and Lyon was not prejudiced by the lack of such trial testimony.
The State habeas court determined Lyon's defense counsel acted reasonably by not presenting a defense forensic expert. Ex Parte Lyon, No. 48,736-1 at II, 7-10. The State court's determination is a factual finding that is presumptively correct in the absence of clear and convincing evidence to the contrary. See Foster v. Johnson, 293 F.3d 776, 779-80 (5th Cir.), cert. denied, 514 U.S. 1019 (1995).
D
Lyon's remaining issues, as previously discussed, are procedurally barred, and therefore are not properly before this Court. In any event, these issues are without merit.
i
Lyon contends he is innocent and the State failed to rebut his self-defense claim. Lyon's claim of innocence is not a basis for federal habeas corpus relief and is defied by the record.
In Herrera v. Collins, 506 U.S. 390, 400, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), the Supreme Court held:
Claims of actual innocence . . . have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding. . . . This rule is grounded in the principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution — not to correct errors of fact.
Therefore Lyon's actual innocence claim is not properly before this Court.
Habeas corpus relief under § 2254 on a claim of insufficient evidence is appropriate only if "after viewing the evidence in the light most favorable to the prosecution, [no] rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under Texas law a person commits murder if he intentionally or knowingly causes the death of an individual, or if, while intending to cause serious bodily injury, he commits an act clearly dangerous to human life causing an individual's death. Tex. Pen. Code Ann. § 19.01(b) (Westlaw 1993). A person is permitted to use force in self-defense to the degree reasonably necessary to protect himself against another's use of unlawful force. Tex. Pen. Code Ann. § 9.31(a) (Westlaw 1993).
The record shows: Lyon and Gracie had an acrimonious divorce and pursuant to the divorce decree Gracie was entitled to one-half of Lyon's pension; on the evening of April 19, 1993, he went to his ex-wife's home with a stun gun, a change of shoes and clothes, and a shower curtain which the jury could conclude he intended to use to dispose of her body; Gracie was five feet two inches tall and weighed 119 pounds while Lyon was five feet nine inches tall and weighed 148 pounds, thus Lyon outweighed Gracie by one-quarter of her weight; Lyon repeatedly stunned Gracie with the stun gun which would have immobilized her; he stabbed her seven times; her hands were lacerated showing she repeatedly grabbed the knife; and it is undisputed Lyon forced a knife through Gracie's chest which pierced her lungs and heart and lodged in her spinal column, causing her death. Lyon fails to explain how Gracie could have gripped a knife and thereby threatened him when she was incapacitated due to repeated applications of the stun gun and the palms of both her hands were lacerated. The jury could conclude on the basis of these facts he knowingly and intentionally killed Gracie and his self-defense theory was spurious.
ii
Lyon contends he was denied a fair trial when the prosecutor placed a new battery in the stun gun, without seeking the trial court's permission, and demonstrated the operation of the stun gun to the jury during closing argument. The State court of appeal "condemn[ed] the prosecutor's actions" but held relief was not warranted because: Lyon's counsel suspected the battery had been replaced but failed to object or request a curing instruction; and "in light of the record as a whole . . . [the court] did not find the unobjected-to prosecutorial error . . . reflects the denial of a fair trial." Lyon v. State, No. 04-94-320-CR at 13-14.
This issue is procedurally barred in this Court for lack of a contemporaneous objection. Lyon's defense counsel admitted he suspected a new battery was placed in the stun gun but made no objection. The Texas contemporaneous objection rule is an adequate and independent state ground for denial of this claim and thus procedurally bars consideration of this claim in this federal habeas corpus proceeding. See Amos v. Scott, 61 F.3d 333, 340-43 (5th Cir.), cert. denied, 516 U.S. 1005 (1995).
In any event, this issue is also without merit. In analyzing claims of prosecutorial misconduct, this Court must address whether the misconduct denied the defendant due process by denying a fundamentally fair trial, notwithstanding that the prosecutorial misconduct is worthy of condemnation. See Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). This issue is without merit because Lyon fails to explain, and this Court finds no basis for a claim, that the prosecutor's error denied Lyon a fair trial. The evidence already showed, and Lyon admitted, the stun gun was in operating order and was used against Gracie on the night of her death. The evidence also showed the numerous abrasions to Gracie's body were the result of repeated applications of the stun gun. Demonstration of the stun gun with a new battery did not introduce a new issue or remove a contested issue. Furthermore, there is no basis for thinking the trial court would have denied the prosecutor's request to demonstrate the stun gun to the jury with a new battery had the prosecution made such a request. This Court can think of no reasonable objection to such a request given the facts of Lyon's case. It is common knowledge batteries weaken with use or age. Lyon failed to show the prosecution's admitted error denied Lyon a fundamentally fair trial.
Lyon also claims the prosecution engaged in misconduct by arguing: Lyon had a financial motive for killing Gracie because she received half his retirement pension pursuant to the divorce decree; arguing Lyon's wounds were made with a second sharper knife than that used to kill Gracie; and arguing Lyon used the stun gun to torture Gracie. Closing argument is intended to assist the jury in analyzing, evaluating, and applying the evidence, U.S. v. Morris, 568 F.2d 396, 300-01 (5th Cir. 1978), and "an attorney may state to the jury the inferences and conclusions he wishes them to draw from the evidence," U.S. v. Davis, 831 F.2d 63, 65 (5th Cir. 1997). The record shows the prosecution's arguments were based on the record or reasonable inferences that can be drawn from the record and therefore were not improper.
iii
Lyon also claims his counsel's preoccupation with unrelated disbarment proceedings was a conflict of interest that rendered his counsel ineffective relying on U.S. v. Greig, infra. Lyon's reliance on U.S. v. Greig, 967 F.2d 1018, 1022 (5th Cir. 1992), is misplaced. In Greig the Court held counsel was conflicted rendering him ineffective where counsel and defendant took part in unethical meetings with a codefendant creating a conflict of interest because counsel then had to simultaneously defend defendant while defending himself against potential criminal obstruction charges and disciplinary action. Id. Lyon points to no comparable actual conflict in his case. Lyon's argument that pending disbarment proceedings against a defense counsel constitute a per se conflict of interest thereby rendering counsel ineffective is simply not supported by Greig or any other authority. Lyon fails to demonstrate his counsel was professionally unreasonable or how he was prejudiced by his counsel's performance, and in the absence of such a showing has no basis for an ineffective counsel claim.
A federal habeas court may not grant relief on trial errors unless petitioner demonstrates the error "had a substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). In light of the evidence as a whole against Lyon and his own admissions, any trial or counsel errors were harmless beyond a reasonable doubt.
Section 2254(d) requires this Court to defer to the state court's reasonable interpretations of federal law and reasonable determinations of fact. Factual determinations of a state court are "presumed to be correct" and the Petitioner has the burden of rebutting this presumption by "clear and convincing evidence." 28 U.S.C. § 2254 (e)(1). The State court's denial of Lyon's claims is reasonably supported by the record and is consistent with federal law as required by § 2254(d), see Ex Parte Lyon, No. 48,736-1 at II, 92-113, and therefore this Court is compelled to reach the same conclusion. Lyon's Petition is without legal or factual merit and must be denied.
Furthermore, a habeas corpus petitioner is not entitled to relief or a hearing on his claims where: he failed to allege a basis for relief, he offers "conclusory allegations unsupported by specifics, contentions that in the face of the record are wholly incredible," Perillo v. Johnson, 79 F.3d 441, 444 (5th Cir. 1996), or allegations that can be resolved on the record, Lawrence v. Lensing, 42 F.3d 255, 258-59 (5th Cir. 1995). Lyon is not entitled to habeas relief or a hearing on his Petition because his claims are either procedurally barred, are conclusory, are not a basis for habeas corpus relief, or are refuted by the record.
III.
Accordingly, Respondent's motion to dismiss (Docket Entry # 14) is GRANTED; Petitioner Lyon's Amended Habeas Corpus Petition (Docket Entry # 10) is DENIED; and this case is DISMISSED. All other pending motions are DENIED as moot.