UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

JASON WAYNE MCBRIDE, §

TDCJ No. 02139484, §

 §

Petitioner, §

 § 

v. § CIVIL NO. SA-20-CV-0401-OLG 

 § 

BOBBY LUMPKIN, Director, §

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

 §

Respondent. §

MEMORANDUM OPINION AND ORDER

Before the Court are pro se Petitioner Jason Wayne McBride’s Petition for Writ of 

Habeas Corpus pursuant to 28 U.S.C. § 2254 and supplemental memorandums in support (Dkt. 

No. 1), Respondent Bobby Lumpkin’s Answer (Dkt. No. 17), and Petitioner’s Reply (Dkt. 

No. 19) thereto. Having reviewed the record and pleadings submitted by both parties, the Court

concludes that 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). 

The Court further finds that Petitioner should be denied a certificate of appealability.

I. BACKGROUND

In January 2016, a Comal County grand jury indicted Petitioner on six criminal counts:

(1) continuous violence against family, (2) assault—family violence by impeding breath or 

circulation, occurring on or about September 20, 2014, (3) assault—family violence by impeding 

breath or circulation, occurring on or about March 29, 2015, (4) aggravated assault with a deadly 

weapon, (5) repeated violations of a court order of emergency protection, and (6) evading arrest 

while having a previous conviction. (Dkt. No. 18-74 at 71–74). A jury acquitted Petitioner of 

FILED

DEPUTY 

CLERK, U.S. DISTRICT COURT

WESTERN DISTRICT OF TEXAS 

BY: ________________________________ February 25, 2022

 JU

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count 3 but found him guilty of the remaining counts. State v. McBride, No. CR2016-008 (207th 

Dist. Ct., Comal Cnty., Tex. Apr. 19, 2017); (Dkt. No. 18-74 at 75–94). Petitioner elected to 

have the trial judge assess punishment, who imposed the following sentences after a separate 

punishment hearing: (1) twenty years of imprisonment for counts 1, 2, and 5, (2) forty years of 

imprisonment for count 4, and (3) ten years of imprisonment for count 6. Id. These sentences 

are all to run concurrently. 

On direct appeal, The Texas First Court of Appeals reformed the trial court’s judgment 

by removing the deadly weapon findings for counts 1, 2, 5, and 6, and then affirmed the 

reformed judgment in an unpublished opinion. McBride v. State, No. 01-17-00528-CR, 2018 

WL 2341659 (Tex. App.—Houston [1st Dist.], May 24, 2018, pet. ref’d); (Dkt. No. 18-3). The 

Texas Court of Criminal Appeals then refused Petitioner’s petition for discretionary review

(PDR). McBride v. State, No. 0645-18 (Tex. Crim. App. Sept. 12, 2018); (Dkt. No. 18-14). 

Petitioner appealed his case to the United States Supreme Court, but his petition for writ of 

certiorari was denied on February 19, 2019. McBride v. Texas, 139 S. Ct. 1182 (2019). 

Thereafter, Petitioner filed a state habeas corpus application challenging the 

constitutionality of his state court conviction, but the Texas Court of Criminal Appeals denied 

the application without written order on January 29, 2020. Ex parte McBride, No. 86,371-08

(Tex. Crim. App.); (ECF Nos. 18-58, 18-73 at 3–35). Six weeks later, Petitioner initiated the 

instant proceedings by filing a petition for federal habeas relief. (Dkt. No. 1 at 13). In the 

petition and accompanying supplemental memorandums, Petitioner raises the following claims 

for relief: (1) his trial counsel rendered ineffective assistance in a variety of ways,

1 (2) his 

1 Petitioner actually raises numerous overlapping ineffective-assistance-of-trial-counsel 

(IATC) claims alleging that counsel failed to: (a) object to a double jeopardy violation or 

preserve the issue for appeal, (b) object to the amendment of the indictment, (c) consult with 

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conviction on counts 2–6 violated double jeopardy principles, (3) his rights under the 

Confrontation Clause and Due Process Clause were violated by his exclusion from a pre-trial 

competency hearing and a hearing concerning the indictment, (4) the prosecution committed 

misconduct by presenting false information in the indictment and again during trial, and (5) there 

was no evidence to support a conviction on count 5. 

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 re-litigation 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 

or allow him to testify at trial, (d) secure his presence at a pretrial competency hearing, 

(e) file a motion to suppress his interviews with police or object at trial, (f) investigate the 

arrest reports to see if there was evidence to support them, (g) obtain discovery, (h) raise a 

defense based on drug use by both him and the victims, (i) preserve errors for appellate 

review, (j) attempt to plea or inform him of any plea offers, (k) go over the jury instruction 

charge with him, (l) remedy a conflict of interest, (m) have the court include his arrest reports 

as exhibits to refresh the memories of witnesses, and (n) allow him to view the PSI report 

before sentencing.

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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. ANALYSIS

A. Exhaustion and Procedural Default

In his first allegation, Petitioner raises numerous IATC claims arguing that his trial 

counsel’s performance violated his Sixth Amendment right to counsel. In his third allegation, 

Petitioner contends he was denied his right to be present at (a) a pretrial competency hearing and 

(b) a pretrial hearing concerning his indictment. In response, Respondent contends that several 

of the IATC allegations raised in Claim 1, as well as Claim 3(a), are unexhausted and 

procedurally barred from federal habeas corpus relief because Petitioner did not raise them 

during his direct appeal or state habeas proceedings. Respondent is correct. 

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Before seeking review in federal court, a habeas corpus petitioner must first present his

claims in state court and exhaust all state court remedies through proper adjudication on the 

merits. See 28 U.S.C. § 2254(b)(1)(A) (stating that habeas corpus relief may not be granted 

“unless it appears that . . . the applicant has exhausted the remedies available in the courts of the 

State.”). The exhaustion requirement is satisfied if the substance of the federal habeas claim was 

presented to the highest state court in a procedurally proper manner. Baldwin v. Reese, 541 U.S. 

27, 29–32 (2004); Moore v. Cain, 298 F.3d 361, 364 (5th Cir. 2002). In Texas, the highest state 

court for criminal matters is the Texas Court of Criminal Appeals, and a prisoner must present 

the substance of his claims to the Texas Court of Criminal Appeals in either a petition for 

discretionary review or an application for writ of habeas corpus under Texas Code of Criminal 

Procedure Article 11.07. Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998); Bautista v. 

McCotter, 793 F.2d 109, 110 (5th Cir. 1986).

In this case, the record confirms that Petitioner did not properly present the following 

allegations to Texas Court of Criminal Appeals in either a state habeas corpus application or his 

petition for discretionary review: Claims 1(d), (e), (h), (k), (m), (n), and Claim 3(a). Because 

these allegations are being presented for the first time in this federal habeas proceeding, they are 

unexhausted under § 2254(b).

Further, should this Court now require Petitioner to return to state court to satisfy the 

exhaustion requirement, the Texas Court of Criminal Appeals would find the claims procedurally 

barred under the abuse of the writ doctrine found in Article 11.07 § 4 of the Texas Code of 

Criminal Procedure, as Petitioner already challenged his conviction in a previous state habeas 

application. Because Texas would likely bar another habeas corpus application by Petitioner

regarding this conviction, he has committed a procedural default that is sufficient to bar federal 

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habeas corpus review. See Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997) (finding a 

procedural default occurs “when a prisoner fails to exhaust available state remedies and the court 

to which the petitioner would be required to present his claims in order to meet the exhaustion 

requirement would now find the claims procedurally barred.”) (citation and internal quotation 

marks omitted); see also Bagwell v. Dretke, 372 F.3d 748, 755-56 (5th Cir. 2004) (holding a 

petitioner procedurally defaulted by failing to “fairly present” a claim to the state courts in his 

state habeas corpus application); Smith v. Cockrell, 311 F.3d 661, 684 (5th Cir. 2002) (holding 

unexhausted claims were procedurally barred); Jones v. Johnson, 171 F.3d 270, 276-77 (5th Cir. 

1999) (same).

Consequently, Petitioner is precluded from federal habeas relief on the unexhausted 

IATC claims contained in Claim 1 and the unexhausted portion of Claim 3 (concerning the 

competency hearing), unless he can show cause for the default and resulting prejudice, or 

demonstrate that the Court’s failure to consider the claims will result in a “fundamental 

miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750-51 (1991); Busby v. 

Dretke, 359 F.3d 708, 718 (5th Cir. 2004). But Petitioner does not argue that cause and 

prejudice should excuse the default, nor does he demonstrate that the Court’s denial of the claims

will result in a “fundamental miscarriage of justice.” Thus, Fifth Circuit precedent compels the 

denial of Petitioner’s unexhausted claims—Claims 1(d), (e), (h), (k), (m), (n), and Claim 3(a)—

as procedurally defaulted.

B. The Remaining IATC Claims (Claim 1)

Petitioner’s remaining IATC claims (Claims 1(a), (b), (c), (f), (g), (i), (j), and (l)) allege 

he was denied the right to effective assistance of counsel by his trial counsel’s failure to 

(1) object to a double jeopardy violation or preserve the issue for appeal, (2) object to the 

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amendment of the indictment, (3) consult with or allow him to testify at trial, (4) obtain arrest 

reports and other discovery, (5) raise objections to preserve issues for appeal, (6) inform him of 

plea offers or negotiate on his behalf, and (7) remedy a conflict of interest. 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 these allegations was either contrary to, or an unreasonable application of, Supreme 

Court precedent. 

1. Petitioner’s Claims are Conclusory.

The Court initially notes that Petitioner provides no argument or authority for any of his 

IATC claims, despite filing two supplemental memorandums along with his petition. Instead, in 

what appears to be a stream of consciousness, Petitioner simply lists a series of perceived errors 

committed by counsel and then moves on to the next alleged error without elaboration. In fact, 

many of these allegations are only a sentence or two long and lack any explanation whatsoever. 

Under Rule 2(c) of the Rules Governing Section 2254 Cases, a petitioner is required to plead 

facts in support of his claims. Conclusory allegations do not state a claim for federal habeas 

corpus relief and are subject to summary dismissal. Ross v. Estelle, 694 F.2d 1008, 1012 (5th 

Cir. 1983) (holding “mere conclusory allegations do not raise a constitutional issue in a habeas 

proceeding”); Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990) (same). 

Here, Petitioner’s allegations are conclusory, speculative, and unsupported by any 

evidence or facts. “[A]bsent evidence in the record,” this Court cannot “consider a habeas 

petitioner’s bald assertions on a critical issue in his pro se petition . . ., unsupported and 

unsupportable by anything else contained in the record, to be of probative evidentiary value.” 

Ford v. Davis, 910 F.3d 232, 235 (5th Cir. 2018) (citing Ross, 694 F.2d at 1011). For this reason 

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alone, petitioner’s claims could be denied. See 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.”) (quoting Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000)). 

2. The Strickland Standard

Nevertheless, the Court will review Petitioner’s Sixth Amendment IATC claims 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. 

Strickland’s first prong “sets a high bar.” Buck v. Davis, 137 S. Ct. 759, 775 (2017). 

When determining whether counsel performed deficiently, courts “must be highly deferential” to 

counsel’s conduct, and a petitioner must show that, “counsel’s representation fell below an 

objective standard of reasonableness” as measured by “prevailing professional norms.” See 

Rhoades v. Davis, 852 F.3d 422, 431–32 (5th Cir. 2017) (quoting Strickland, 466 U.S. at 687–

88). 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 satisfy Strickland’s second prong, 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, 

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27 (2009). Surmounting this difficult standard “is never an easy task.” Padilla v. Kentucky, 559 

U.S. 356, 371 (2010). 

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. 111, 

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.

3. Petitioner’s Claims Lack Merit.

Petitioner first contends trial counsel was ineffective for failing to object to a double 

jeopardy violation and the improper amendment of his indictment during a pretrial hearing. 

Petitioner believes counsel should have objected to preserve these errors for appellate review. 

But as discussed further in the following sections, Petitioner was not subjected to a double 

jeopardy violation, nor was his indictment improperly amended without his presence. See

Sections III (C) and (D), infra. 

As a result, any objection made by counsel on such grounds would have been futile, and 

“counsel is not required to make futile motions or objections.” Koch v. Puckett, 907 F.2d 524, 

527 (5th Cir. 1990); see also Sones v. Hargett, 61 F.3d 410, 415 n.5 (5th Cir. 1995) (counsel 

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cannot be deficient for failing to press a frivolous point). In fact, counsel chose not to object 

because he believed such a challenge was not supported by law. (Dkt. No. 18-74 at 2–5). 

Counsel’s performance cannot be considered deficient or prejudicial if counsel fails to raise a 

non-meritorious argument. See Miller v. Thaler, 714 F.3d 897, 904 n.6 (5th Cir. 2013) (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)). The state habeas court’s denial of 

these claims was therefore not unreasonable. 

The remainder of Petitioner’s allegations were also raised during his state habeas 

proceedings. In recommending the denial of Petitioner’s application, the state habeas trial court 

adopted counsel’s explanations (given by affidavit) and issued these additional findings: 

1) [Petitioner] and his allegations are not credible.

2) This Court is familiar with trial counsel, who has practiced before the 

Court for many years. Regarding trial counsel’s assertions that:

• [Petitioner]’s “allegations are meritless. Many are defamatory

and perjurious.” State’s October 21, 2019, Supplemental 

Answer Appendix “A” at 2.

• “I visited [Petitioner] in Comal County Jail on numerous 

occasions. My law partner also visited with him multiple 

times. I prefer to communicate with clients in person 

whenever possible.” Id. at 3.

• Trial counsel “urged [Petitioner] to consider either accepting 

the State’s 15 year plea offer or [authorize] me to attempt to 

negotiate a better deal. Every time I would bring up the 

possibility of a plea bargain [Petitioner] would become 

extremely agitated, raise his voice, and shout down my 

suggestion that we negotiate on his behalf.” Id. at 3.

• Trial counsel and [Petitioner] “reviewed the discovery together 

on multiple occasions.” Id. at 3.

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• “I asked [Petitioner] if he wanted to testify and he stated he did 

not want to testify.” Id. at 4;

This Court finds that said assertions are truthful and credible.

3) [Petitioner] has submitted false claims and evidence in support of his 

application, and has waived and abandoned any contention he might have. 

See Ex parte Gaither, 387 S.W.3d 643, 645 (Tex. Crim. App. 2012).

4) [Petitioner] should be cited for abuse of the writ for filing a frivolous 

application “brought for the purpose of abusing judicial resources,” and 

the Court should forward its finding to T.D.C.J. to deduct ‘good conduct’

time as applicable under Tex. Gov’t Code § 498.0045.

5) In any event, [Petitioner] has not shown deficient performance of counsel 

or prejudice.

(Dkt. No. 18-74 at 32–33). The Texas Court of Criminal Appeals adopted the trial court’s 

findings when it denied relief without written order. (Dkt. No. 18-58).

Petitioner fails to show that the state court’s ruling was contrary to, or involved an 

unreasonable application of Strickland. Here, trial counsel’s affidavit—adopted by the state 

habeas court and ultimately by the Texas Court of Criminal Appeals—contradicted Petitioner’s 

allegations that he did not (1) consult with Petitioner, (2) review discovery with him or present a 

defense, (3) communicate plea offers, or (4) allow him to testify. Petitioner has not shown that 

counsel’s recollection was incorrect, much less demonstrated that state court’s ruling on trial 

counsel’s performance “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. 

4. 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 

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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 because, as the 

record demonstrates, the State’s case was strong and there was substantial corroborated evidence 

against Petitioner. 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) (same). As counsel noted in his 

affidavit before the state habeas court, “[t]he prosecution presented a devastating case against 

[Petitioner].” (Dkt. No. 18-74 at 6). In addition to testimony from the victim herself, this 

evidence included:

• Police witnesses who had visited Petitioner’s residence on over a dozen 

domestic violence calls;

• Two medical experts who testified that the victim’s injuries were caused by 

domestic violence strangulation;

• Photographs of the victim’s injuries including one where Petitioner had struck 

the victim so hard, he left a complete handprint on her thigh;

• Recorded phone calls and GPS coordinates which demonstrated Petitioner had 

violated the victim’s protective order; and

• A two-hour police interview in which Petitioner confessed to beating the 

victim on multiple occasions, to knowingly violating the protective order, and 

to smoking methamphetamine.

Id.

Given the overwhelming nature of the evidence against Petitioner, there is simply no 

reasonable probability that the jury would have voted to acquit Petitioner had counsel not 

committed the errors Petitioner now accuses him of making. Consequently, viewing these

allegations under the deferential standard that applies on federal habeas review, Petitioner has

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not shown that the state court’s decision was objectively unreasonable or that he is entitled to 

relief on his IATC claims. 

C. Double Jeopardy (Claim 2)

In his second claim for relief, Petitioner alleges that his conviction on counts 2–6 violated 

the principles of double jeopardy because they involve the same elements, evidence, conduct, 

and victim as his conviction for continuous family violence in count 1. The Double Jeopardy 

Clause provides that no person shall “be subject for the same offense to be twice put in jeopardy 

of life or limb.” U.S. Const. Amend. V. This clause protects against: (1) a second prosecution 

for the same offense after acquittal, (2) a second prosecution for the same offense after 

conviction, and (3) multiple punishments for the same offense. United States v. Dixon, 509 U.S. 

688, 695–96 (1993). In the multiple-punishment context, the Double Jeopardy Clause protects 

only against the imposition of multiple criminal punishments for the same offense. Hudson v. 

United States, 522 U.S. 93, 99 (1997).

Petitioner contends that, as a result of his conviction on count 1 for continuous violence 

against family, his conviction on the remaining counts constitutes multiple criminal punishments 

for the same offense because they all relate to the same victim around the same time period.2

 

Citing Texas Penal Code § 25.11—the continuous violence against family statute—Petitioner 

argues that he cannot be convicted of any other offenses against the same victim because the 

statute was only intended to be used by itself. Petitioner apparently misread the statute. In 

relevant part, Section 25.11 states: 

(a) A person commits an offense if, during a period that is 12 months or less 

in duration, the person two or more times engages in conduct that 

2 Petitioner includes count 3 in his double jeopardy claim. However, no such double jeopardy 

violation could have occurred because Petitioner was acquitted of this charge by the jury. 

(Dkt. No. 18-74 at 87). 

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constitutes an offense under Section 22.01(a)(1) [assault] against another 

person or persons whose relationship to or association with the defendant 

is described by Section 71.0021(b), 71.003, or 71.005, Family Code.

. . .

(c) A defendant may not be convicted in the same criminal action of another 

offense the victim of which is an alleged victim of the offense under 

Subsection (a) and an element of which is any conduct that is alleged as 

an element of the offense under Subsection (a) unless the other offense:

(1) is charged in the alternative;

(2) occurred outside the period in which the offense alleged under 

Subsection (a) was committed; or

(3) is considered by the trier of fact to be a lesser included offense of 

the offense alleged under Subsection (a).

(d) A defendant may not be charged with more than one count under 

Subsection (a) if all of the specific conduct that is alleged to have been 

engaged in is alleged to have been committed against a single victim or 

members of the same household, as defined by Section 71.005, Family 

Code.

Tex. Penal Code § 25.11 (emphasis added). 

While subsection (d) of the statute clearly precludes more than one § 25.11(a) count

under certain circumstances, Petitioner was only charged with one count under § 25.11. And the 

statute says nothing about the preclusion of charges on other offenses outside of § 25.11. Thus, 

contrary to Petitioner’s argument, his conviction on the remaining counts does not conflict in any 

way with the language of § 25.11(d). 

Petitioner’s argument fairs no better under subsection (c). Under subsection (c), a 

defendant may be convicted of another offense against the same victim, as long as that offense 

was not alleged as an element of the continuous violence against family offense. Here, the jury 

instructions for count 1 asked the jury to determine whether Petitioner “intentionally, knowingly, 

or recklessly caused bodily injury” to the victim on at least two of the five dates alleged. (Dkt. 

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No. 18-18 at 10–15). Neither count 5 (repeated violation of bond conditions) nor count 6 

(evading arrest) can even remotely be considered elements of the continuous family violence 

offense alleged in count 1, as neither require the jury to find that Petitioner intentionally, 

knowingly, or recklessly caused bodily injury to the victim. Id. 

Counts 2 (assault family violence) and 4 (aggravated assault) are trickier, as both contain 

the same element—a showing that Petitioner intentionally, knowingly, or recklessly caused 

bodily injury to the victim—as count 1. But as explained by the State during Petitioner’s state 

habeas proceeding, the specific offenses alleged in counts 2 and 4 were not elements of the 

continuous violence against family offense alleged in count 1:

In the instant case, the charge to the jury ensured there was no overlap 

between the allegations supporting the § 25.11(a) charge in Count I and the 

allegations in other counts. [footnote omitted].

. . .

The distinct conduct underlying each assaultive count was alleged in the

charge to the jury, in pertinent part, as follows:

Count I: From July 15, 2014 through June 21, 2015, [Petitioner] did two or 

more of the following:

• caused bodily injury to [the victim] by grabbing, shoving, striking or throwing 

her on or about August 29, 2014;

• caused bodily injury to [the victim] by striking or shoving her with his hands 

on or about September 20, 2014;

• caused bodily injury to [the victim] by striking her leg or face with 

[Petitioner]’s hands or fists on or about March 29, 2015;

• caused bodily injury to [the victim] by striking her on her hands or arms with 

a wooden axe handle on or about May 25, 2015; or

• caused bodily injury to [the victim] by hitting her on or about June 18, 2015. 

(V R.R. at 33-35).

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Count II: Assault Family Violence by Impeding Breath:

• [Petitioner] caused injury to [the victim] by impeding her breath by applying 

pressure to her throat with [Petitioner]’s arms or hands on or about 

September 20, 2014.

(id. at 36-37).

Count IV: Aggravated Assault with a Deadly Weapon:

• [Petitioner] threatened [the victim] with imminent bodily injury by swinging a 

wooden axe handle—a deadly weapon—at her [leg] on or about May 25, 

2015.

(id. at 38-39).

. . .

While Count II and Count IV alleged conduct which occurred on the same 

date as other conduct alleged under Count I,3 each of those counts relied on 

conduct which was different from the specific conduct alleged under Count I. 

Count II alleged ‘impeding breath’ while the conduct from the same date under 

Count I alleged ‘striking or shoving’ to cause bodily injury. Similarly, Count IV 

was predicated on swinging the axe handle at [the victim]’s leg (see also V R.R. 

at 46 & 50) (State argues Count I relates to hitting [the victim]’s hand, while 

Count IV is based on the immediately prior swinging the axe handle at [the 

victim]’s leg), 49 (State distinguishes strangulation conduct in Count II). See also 

Denton, 399 S.W.3d 555–56; Ruiz, 2002 Tex. App. LEXIS 735 at *4–5; Dimas v. 

State, Nos. 09-14-00018-CR, 09-14-00019-CR, 2015 Tex. App. LEXIS 11025, at 

*13 (Tex. App.—Beaumont Oct. 28, 2015, no pet.) (not designated for 

publication) (rejecting a double jeopardy claim based on two assaults against the 

same victim on the same day, because the first assault ended before the 

second began).

(Dkt. No. 18-73 at 114–19).

The state habeas trial court adopted the State’s Answer as its findings of fact and 

conclusions of law, which the Texas Court of Criminal Appeals adopted when it denied relief 

3 Notably, it is [Petitioner]’s burden to show a double jeopardy violation, and it is possible the 

jurors relied on the August 29, 2014, March 29, 2015, and June 18, 2015 assaults for Count I, 

which would further eliminate any double jeopardy issue. Cf. Ex parte Infante, 151 S.W.3d 

255, 262 (Tex. App.—Texarkana 2004, no pet.) (“. . . in a double jeopardy challenge, the 

defendant has the burden to provide a record that both establishes the commonality of the 

offenses and shows the State will be relying on the same instances of misconduct for which 

the accused was previously convicted or acquitted”); see also infra.

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without written order. (Dkt. Nos. 18-58, 18-73 at 160–61). Petitioner fails to show that the state 

court’s ruling was contrary to, or involved an unreasonable application of, federal law, or that it 

was an unreasonable determination of the facts based on the evidence in the record. Both counts 

2 and 4 allege different conduct than that alleged in count 1 and do not amount to a violation of 

the Double Jeopardy Clause. Relief is therefore denied. 

D. Confrontation Clause/Indictment (Claim 3(b))

On April 11, 2017, a pretrial hearing was held before the state trial court where the 

parties agreed to amend count 4 of the indictment to list the offense date as May 25, 2015, 

instead of March 29, 2015, as originally listed. (Dkt. No. 18-74 at 12–22). Because he was not 

present at this hearing, Petitioner alleges that his rights to confrontation and due process were 

violated by the amendment of the indictment. According to Petitioner, both state and federal law 

require his presence at such a pretrial hearing.4

 As discussed below, however, Petitioner fails to 

demonstrate that the state court’s rejection of this claim during his state habeas corpus 

proceeding was either contrary to, or an unreasonable application of, Supreme Court precedent.

A defendant’s constitutional right to be present during trial is rooted in the Confrontation 

Clause of the Sixth Amendment. See Illinois v. Allen, 397 U.S. 337, 338 (1970). The core 

concern of the right to courtroom presence is that a defendant’s “absence might frustrate the 

fairness of the proceedings . . .” Faretta v. California, 422 U.S. 806, 820 n.15 (1975). To that 

end, the Supreme Court has held that “a defendant is guaranteed the right to be present at any 

stage of the criminal proceeding that is critical to its outcome if his presence would contribute to 

4 To the extent Petitioner claims his absence violates article 28.01 of the Texas Code of 

Criminal Procedure, no federal constitutional claim is implicated. See Swarthout v. Cooke, 

562 U.S. 216, 219 (2011) (stating that the Court has repeatedly held that “federal habeas 

corpus relief does not lie for errors of state law.”) (citations omitted); Fuller v. Johnson, 158 

F.3d 903, 908 (5th Cir. 1998) (failure to follow Texas law is not reviewable). 

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the fairness of the proceeding.” Kentucky v. Stincer, 482 U.S. 730, 745 (1987). However, due 

process does not require the defendant’s presence when it would be useless or only slightly 

beneficial. See Snyder v. Massachusetts, 291 U.S. 97, 106–08 (1934) (concluding the presence 

of a defendant is required “to the extent that a fair and just hearing would be thwarted by his 

absence, and to that extent only”). If the defendant’s presence does not bear “‘reasonably 

substantial” relationship to the opportunity to defend, no harm will result from a defendant’s 

absence. Id. 

In this case, Petitioner has cited no relevant precedent holding that a defendant has a 

constitutional right to be present during a pretrial hearing where the parties agree to amend the 

indictment. See Schlang v. Heard, 691 F.2d 796, 799 (5th Cir. 1982) (“mere conclusory 

statements do not raise a constitutional issue in a habeas case”) (citations omitted). Indeed, the 

Court is unaware of any precedent finding that such a hearing was a critical stage of trial during 

which Petitioner’s presence “would contribute to the fairness of the proceedings.” Stincer, 482 

U.S. at 745. 

Moreover, Petitioner has not shown that his presence during the pretrial hearing would 

have been helpful. While Petitioner complains that the indictment was amended without his 

permission to list the offense date as May 25, 2015, the State could still have argued that the 

offense occurred on that date without amending the indictment because of the “on or about”

language it contained. See Vidaurri v. State, 230 S.W.2d 536, 537 (1950) (“The state is not 

bound to prove the offense to have been committed upon the day alleged, the allegation ‘on or 

about’ being sufficient to cover any date prior to the date of the complaint and within the period 

of limitation.”). 

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In short, Petitioner does not establish that he “could have done [anything] had [he] been 

at the [hearing] nor would [he] have gained anything by attending.” Stincer, 482 U.S. at 747 

(alterations in original). Petitioner’s absence therefore did not violate his due process rights 

because his “presence would be useless, or the benefit but a shadow . . .” Id. at 745 (quoting 

Snyder, 291 U.S. at 106–07). Consequently, Petitioner fails to demonstrate that the state court’s 

rejection of this claim was unreasonable. 

Finally, although couched in terms of Petitioner’s rights to confrontation and due process, 

Petitioner’s allegation essentially challenges the validity of the indictment that resulted from the 

pretrial amendment. But the sufficiency of a state indictment is not a matter for federal habeas 

relief unless it can be shown that the indictment is so defective that it deprives the state court of 

jurisdiction. Evans v. Cain, 577 F.3d 620, 624 (5th Cir. 2009). State law dictates whether a state 

indictment is sufficient to confer a court with jurisdiction. McKay v. Collins, 12 F.3d 66, 68 (5th 

Cir. 1994). As such, this Court is “required to accord due deference to the state’s interpretation 

of its own law that a defect of substance in an indictment does not deprive a state trial court of 

jurisdiction.” Id. at 69 (citations omitted). The issue is foreclosed from consideration on federal 

habeas review if “the sufficiency of the [indictment] was squarely presented to the highest court 

of the state on appeal, and that court held that the trial court had jurisdiction over the case.” 

Wood v. Quarterman, 503 F.3d 408, 412 (5th Cir. 2007) (citation omitted). Because the state 

habeas court considered and rejected Petitioner’s allegation concerning the amended indictment, 

federal habeas relief is unavailable. 

E. False Evidence (Claim 4)

In Claim 4, Petitioner alleges that there was no evidence that he assaulted the victim on 

June 18, 2015, as alleged in count 1 of the indictment. Petitioner also contends that, during 

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direct examination of the victim, the prosecution questioned the victim about an assault that took 

place in October 2014 despite no evidence it happened. (Dkt. No. 18-18 at 28–29). According to 

Petitioner, the State knowingly presented these false allegations in violation of his due process 

rights under Napue v. Illinois, 360 U.S. 264 (1959). As discussed below, however, Petitioner 

fails to show that the state court’s rejection of these allegations during his state habeas 

proceeding was unreasonable. 

Under Napue, a criminal defendant is denied due process when the State knowingly uses 

perjured testimony or allows false testimony to go uncorrected at trial. 360 U.S. at 269; see also 

Giglio v. United States, 405 U.S. 150 (1972). A petitioner seeking to obtain relief on such a 

claim must show that (1) the testimony is false, (2) the prosecution knew that the testimony was 

false, and (3) the testimony was material. United States v. Dvorin, 817 F.3d 438, 451-52 (5th 

Cir. 2016); Reed v. Quarterman, 504 F.3d 465, 473 (5th Cir. 2007). False testimony is only 

material if there was a reasonable likelihood that it affected the jury’s verdict. Giglio, 405 U.S. 

at 153-54; Barrientes v. Johnson, 221 F.3d 741, 753 (5th Cir. 2000). 

Here, Petitioner argues the State knowingly introduced false evidence concerning assaults 

that allegedly took place in October 2014 and again on June 18, 2015. Yet, Petitioner’s 

contentions that there is “no evidence” to support these allegations is based on nothing more than 

his bare assertions as to what occurred. “Absent evidence in the record,” however, a court 

cannot “consider a habeas petitioner’s bald assertions on a critical issue in his pro se petition . . ., 

unsupported and unsupportable by anything else contained in the record, to be of probative 

evidentiary value.” Ford, 910 F.3d at 235 (citing Ross, 694 F.2d at 1011). Moreover, 

Petitioner’s conclusory opinion as to the veracity of the victim’s testimony does not establish that 

her testimony was false or that the prosecution knew the testimony was false. Little v. Butler, 

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21

848 F.2d 73, 76 (5th Cir. 1988) (inconsistencies in witnesses’ testimony at trial are to be resolved 

by trier of fact and do not suffice to establish that certain testimony was perjured). As such, 

Petitioner’s fourth claim could be denied solely because it is conclusory. Ross, 694 F.2d at 1011 

(finding that “mere conclusory allegations do not raise a constitutional issue in a habeas 

proceeding”). 

Regardless, assuming Petitioner is correct that there was “no evidence” establishing that 

the victim was assaulted in October 2014 and again on June 18, 2015, any testimony to that 

effect still would not have been material under Napue because the prosecution was not required 

to establish a specific date for the assaults. Again, because of the “on or about” language

contained in the indictment, the State could still argue that an offense occurred on a specific date 

without establishing the actual date it occurred. See Vidaurri, 230 S.W.2d at 537 (“The state is 

not bound to prove the offense to have been committed upon the day alleged, the allegation ‘on 

or about’ being sufficient to cover any date prior to the date of the complaint and within the 

period of limitation.”). Moreover, the jury still only needed to find that two of the other four 

incidents alleged in count 1 occurred to convict Petitioner of continuing violence against the 

family. See Section III (C), supra. Assuming there was “no evidence” supporting the fifth 

incident, the jury presumably found him guilty based on the other four incidents alleged. See 

Alvarado v. State, 912 S.W.2d 199, 216 (Tex. Crim. App. 1995) (finding that courts may 

presume the jury acted rationally, absent a showing to the contrary). 

Consequently, viewing all of the arguments and evidence under the deferential standard 

that applies on federal habeas review, Petitioner has not shown that his Napue allegation has 

merit, much less that the state court’s rejection of the claim was objectively unreasonable. Relief 

is therefore denied. 

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F. Sufficiency of the Evidence (Claim 5)

In his final allegation, Petitioner argues that the State failed to present sufficient evidence 

to support his conviction on count 5 for repeatedly violating a court order of emergency 

protection. According to Petitioner, the only evidence of a violation came from one incident, and 

not repeated incidents as alleged in the indictment. The Texas Court of Criminal Appeals 

rejected this allegation during Petitioner’s state habeas corpus proceedings. Similar to his other 

allegations, Petitioner fails to show that the state court’s determination was contrary to, or 

involved an unreasonable application of, federal law, or that it was an unreasonable 

determination of the facts based on the evidence in the record.

1. The Jackson Standard

In Jackson v. Virginia, 443 U.S. 307, 319 (1979), the Supreme Court enunciated the 

standard of review when a state prisoner challenges the sufficiency of the evidence in a federal 

habeas corpus proceeding. The Court stated the issue to be “whether, after viewing the evidence 

in the light most favorable to the prosecution, any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt.” Id. In applying this standard, the 

Court went on to say that “[t]his familiar standard gives full play to the responsibility of the trier 

of fact fairly to resolve conflicts in testimony, to weigh the evidence, and to draw reasonable 

inferences from basic facts to ultimate facts.” Id. Thus, all credibility choices and conflicts in

inferences are to be resolved in favor of the verdict. United States v. Resio-Trejo, 45 F.3d 907, 

911 (5th Cir. 1995); United States v. Nguyen, 28 F.3d 477, 480 (5th Cir. 1994). 

In addition, AEDPA imposes a “twice-deferential standard” when a federal court reviews 

a state prisoner’s claim challenging the sufficiency of the evidence. Parker v. Matthews, 567 

U.S. 37, 43 (2012). As the Supreme Court has explained:

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The opinion of the Court in Jackson v. Virginia . . . makes clear that it is the 

responsibility of the jury—not the court—to decide what conclusions should be 

drawn from evidence admitted at trial. A reviewing court may set aside the jury’s 

verdict on the ground of insufficient evidence only if no rational trier of fact could 

have agreed with the jury. What is more, a federal court may not overturn a state 

court decision rejecting a sufficiency of the evidence challenge simply because 

the federal court disagrees with the state court. The federal court instead may do 

so only if the state court decision was “objectively unreasonable.”

Cavazos v. Smith, 565 U.S. 1, 2 (2011) (citations omitted).

2. Analysis

Petitioner argues there was insufficient evidence presented at trial to support a conviction 

for repeatedly violating a protective order. Petitioner raised this allegation during his state 

habeas proceedings. In recommending the denial of Petitioner’s application, the state habeas 

trial court adopted the State’s Answer as its findings of fact and conclusions of law, which 

concluded there was sufficient evidence to support the conviction: 

In his fifth ground, [Petitioner] claims there is no evidence he repeatedly

violated a protective order. Application at 14. The charge to the jury explained 

that a person “commits an offense” if he knowingly or intentionally “goes to or 

near the following places as specifically described in the order: the residence of a

protected individual” two or more times (V R.R. at 39). The period described in 

the charge was from July 15, 2014 through June 21, 2015 (id. at 40). The charge 

further asked the jury to determine whether [Petitioner] went “within 200 feet of”

[the victim]’s residence on or about the following dates:

• June 18, 2015

• June 20, 2015

• June 21, 2015

(id. at 40-41).

Although [Petitioner] admits he violated the protective order on June 21, 

2015, [Petitioner] apparently asserts that he was not formally arrested on some of 

the aforementioned dates for “violation of a protective order,” and therefore there 

was “no evidence” he violated the order. See Application at 14. However, the 

State was not required to prove formal arrests on each date, but merely that he 

was at the residence on the aforementioned dates, which would violate the order 

(see VII R.R. at 82–86 (State’s Ex. 39—protective order effective May 25, 

Case 5:20-cv-00401-OLG Document 38 Filed 02/25/22 Page 23 of 27
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2015 for 61 days prohibited [Petitioner] from going to or within 200 feet of [the 

victim]’s residence)).

First, evidence established that [Petitioner] was ‘in the residence’ in 

violation of the protective order on June 21, 2015 (IV R.R. at 149–50). [The 

victim] confirmed he was inside (id. at 151). When [Petitioner] came out of the 

residence, he looked towards Constable Rapp, turned around—and after Rapp 

told him to stop—[Petitioner] “continued back into the residence” (id. at 152). 

[Petitioner] apparently locked the front door (id.). [Petitioner] was later found 

hiding under a pile of clothing (id.).

Second, [Petitioner] admitted to being at the residence on June 18th. As 

noted supra, in State’s Exhibit 47—[Petitioner]’s recorded interview on June 22, 

2015—the following dialogue occurred between Detective Moreno and

[Petitioner]:

Moreno: Now since [the aggravated assault with the axe 

handle], there’s an incident on the—looks like June 

18th . . . few days ago. Were you at the house that 

day?

[Petitioner]: On the 18th?

Moreno: [Yes]. 

[Petitioner]: I believe I was.

Moreno: Okay.

[Petitioner]: I had nowhere else to go.

Moreno: Okay. So, you were in the house when our deputies 

came?

[Petitioner]: Yes. 

. . .

Moreno: That was on the 18th, and uh, our deputies didn’t 

make contact with you that day, but we did get a 

report that there’d been a disturbance up there. But 

you were there that day?

[Petitioner]: Mm-hmm.

Moreno: Were you there the whole day or the whole night?

[Petitioner]: Mm-hmm.

Case 5:20-cv-00401-OLG Document 38 Filed 02/25/22 Page 24 of 27
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State’s Ex. 47 at 21:50–24:30 (emphasis added).

Third, [Petitioner] had evaded or barricaded himself in the same residence 

[sic] on June 20, 2015, when officers came to the residence in response to a call 

(IV R.R. at 149–150). Constable Rapp testified that when he responded to the 

residence on June 21, 2015:

I advised Mr. Cueva that I was there because I was 

concerned about [the victim]. And due to the call that we had 

received the night before and in speaking with Mr. Cueva, I asked 

him if there was a male in the residence.

Mr. Cueva advised that there was, and I further confirmed 

who the male subject was that was in the residence. And he 

advised that [Petitioner] was in the residence . . .

I asked Officer Rollings to move to the rear of the 

residence. [Petitioner] has a history of evading law enforcement. 

And, again, the night prior [June 20, 2015], [Petitioner] either 

evaded or barricaded himself in the residence. We were unable to 

make contact with him”.

(id. at 149–150 (emphasis added); see also id. at 147 (“The night prior to June 

21st he had responded to a call of a disturbance . . .”).

(Dkt. No. 18-73 at 128–33). The Texas Court of Criminal Appeals adopted the trial court’s 

findings when it denied relief without written order. (Dkt. No. 18-58).

Petitioner fails to show that the state court’s ruling was contrary to, or involved an 

unreasonable application of, federal law, or that it was an unreasonable determination of the facts 

based on the evidence in the record. As demonstrated by the trial court’s findings, the record 

clearly demonstrates that Petitioner was present in the victim’s residence on at least two 

occasions—June 18, 2015 and June 21, 2015. The evidence also showed that Petitioner was 

present on June 20, 2015, and apparently stayed overnight until June 21, 2015. Petitioner has not 

shown that the state court’s determination “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. Federal habeas relief is therefore denied. 

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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). The 

Supreme Court has explained that the showing required under § 2253(c)(2) is straightforward 

when a district court has rejected 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). 

The issue becomes somewhat more complicated when the district court denies relief on 

procedural grounds. Id. In that case, the petitioner seeking COA must show both “that jurists of 

reason would find it debatable whether the petition states a valid claim of the denial of a 

constitutional right and that jurists of reason would find it debatable whether the district court 

was correct in its procedural ruling.” Gonzalez v. Thaler, 565 U.S. 134, 140–41 (2012) (citing 

Slack, 529 U.S. at 484). In other words, a COA should issue if the petitioner not only shows that 

the lower court’s procedural ruling is debatable among jurists of reason, but also makes a 

substantial showing of the denial of a constitutional right. 

 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 

Case 5:20-cv-00401-OLG Document 38 Filed 02/25/22 Page 26 of 27
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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

After careful consideration, the Court concludes that Petitioner’s Claims 1(d), (e), (h), 

(k), (m), and (n), as well as Claim 3(a), are all unexhausted and procedurally barred from federal 

habeas review. Concerning the remainder of Petitioner’s allegations, Petitioner has failed to 

establish that the state court’s rejection of the allegations on the merits during either his direct 

appeal or state habeas corpus proceedings 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 in the petitioner’s state trial, appellate, and habeas corpus proceedings. 

Accordingly, based on the foregoing reasons, IT IS HEREBY ORDERED that federal 

habeas corpus relief is DENIED and Petitioner Jason Wayne McBride’s Petition for Writ of 

Habeas Corpus pursuant to 28 U.S.C. § 2254 (Dkt. No. 1) is DISMISSED WITH 

PREJUDICE. 

It is FURTHER ORDERED that no Certificate of Appealability shall issue in this case. 

It is FURTHER ORDERED that all remaining motions, if any, are DENIED, and this 

case is now CLOSED. 

It is so ORDERED. 

SIGNED this ____ day of February, 2022. 

 ____________________________ 

ORLANDO L. GARCIA

Chief United States District Judge

 

25th

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