UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

RYLEE CARL EKLUND, §

TDCJ No. 02117263, §

 §

Petitioner, §

 § 

v. § Civil No. SA-20-CA-0373-XR

 § 

BOBBY LUMPKIN,

1 Director, §

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

 §

Respondent. §

MEMORANDUM OPINION AND ORDER

Before the Court are Petitioner Rylee Carl Eklund’s Amended Petition for Writ of 

Habeas Corpus pursuant to 28 U.S.C. § 2254 (ECF No. 2), Petitioner’s Amended Memorandum 

in Support (ECF No. 5), and Respondent Bobby Lumpkin’s Answer thereto (ECF No. 10).

Petitioner challenges the constitutionality of his January 2017 state court convictions for murder 

and aggravated assault with a deadly weapon. State v. Eklund, No. CR2014-558 (207th Dist. Ct., 

Comal Cnty., Tex. Jan. 27, 2017). 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

The facts of Petitioner’s case were accurately summarized by the Texas Thirteenth Court 

of Appeals on direct appeal: 

1 The previous named Respondent in this action was Lorie Davis. On August 10, 2020, Bobby Lumpkin 

succeeded Davis as Director of the Texas Department of Criminal Justice, Correctional Institutions Division. Under 

Rule 25(d) of the Federal Rules of Civil Procedure, Lumpkin is automatically substituted as a party.

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[Petitioner] was indicted on one count of murder and two counts of 

aggravated assault. See TEX. PENAL CODE ANN. §§ 19.02(b), 22.02(a)(2) 

(West, Westlaw through 2017 1st C.S.). The indictments related to the events of 

July 12, 2014, when [Petitioner] fired a shotgun at three former classmates, killing 

one and wounding the others. Viewed in the appropriate light, the evidence at 

trial establishes the following.

A. The State’s Case

[Petitioner], who was then nineteen, was friends with Drake Lund and 

Sawyer Darwin. In the days preceding the shooting, [Petitioner]’s parents were 

out of town, and Darwin and Lund visited [Petitioner] at his parents’ home. 

Darwin spent the night there, and the next morning, Lund went to [Petitioner]’s 

house to show off his new car.

On July 11, [Petitioner] texted Darwin about getting psychedelic 

mushrooms, marijuana, and ecstasy. [Petitioner] drove to San Antonio to meet a 

drug dealer that night.

On July 12, [Petitioner] invited Darwin to his house to smoke marijuana. 

Darwin told [Petitioner] that he did not feel like smoking but offered to drink with 

him, and [Petitioner] agreed. [Petitioner] also invited Lund to his house. Darwin 

invited along his friend Robert Bree. Bree understood that they would be 

drinking and possibly taking psychedelic mushrooms. Driving his new car, Lund 

picked up Darwin and Bree and drove to [Petitioner]’s house.

The boys arrived around 5:00 p.m., while it was daylight. They found the 

main gate locked, which Darwin thought was odd. They entered through a side 

gate, where they saw [Petitioner]’s truck in the driveway. The three knocked on 

the door of the side house where [Petitioner] usually stayed, but there was no 

answer. They peered in a window, but they could not see [Petitioner].

The boys then knocked on the doors of the main residence. Again there 

was no answer. They observed that all the lights were off, which they found 

unusual. Beginning to worry for [Petitioner]’s well-being, the boys continued to 

knock on doors and began knocking on windows. They also yelled for 

[Petitioner], as Darwin described it, “Rylee, can you hear us? This is Sawyer 

[Darwin] and Drake [Lund]. Are you there? Are you okay?” They tried calling 

[Petitioner] twice, to no avail. Several minutes passed.

Eventually, they moved around to the front porch and knocked on the door 

one more time. Darwin stood on the front porch, while Lund and Bree stood on 

the lawn.

While they discussed what to do, [Petitioner] fired a 12-gauge shotgun 

through the closed window blinds at them. The first shot struck Lund and 

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Darwin; Darwin collapsed to the ground. [Petitioner] fired two more shots, 

striking Darwin in the chest and Bree in the stomach. Bree began to scream and 

run. Lund soon died as a result of his wounds.

When the shooting stopped, Bree contacted police and applied pressure to 

Darwin’s wounds. After a few minutes, [Petitioner] emerged from the house 

crying and went to Darwin, saying, “Oh, my gosh, Sawyer, what did I do? I’m 

sorry.” Police arrived, and Darwin was airlifted to a hospital, where life-saving 

surgery was performed. 

Darwin suffered extensive injuries and partial disability to his left arm. 

Multiple shotgun pellets remain lodged in his body, including his heart. Pellets 

also remain in Bree’s stomach.

B. [Petitioner]’s Testimony and 911 Call

[Petitioner] testified that he was sleeping on the couch in the living room 

when he was awakened by the sound of a “gate jingling.” He explained that he 

looked out the blinds and saw a car he did not recognize driving up to the side 

gate of his house. According to [Petitioner], the vehicle was partially obscured by 

trees, and he could only see someone in the back seat whom he did not recognize. 

He testified that he began locking the doors and closing the blinds in fear. 

[Petitioner] stated that he saw an unknown stranger pass by a window, and he 

retreated to his parents’ master bedroom where the firearms were kept, fearing 

that the strangers were burglars. He locked the bedroom door, shut himself in the 

closet, and called 911.

In the 911 recording, [Petitioner] spoke in a whisper to the operator, 

describing his fear that “one or two” strangers were outside his house. The 

operator dispatched an officer but explained that the officer was not nearby. 

[Petitioner] described hearing the strangers knocking on the door and, later, 

talking. Roughly ten minutes into the call, [Petitioner]’s line went silent.

[Petitioner] testified that he grabbed a shotgun and left the closet. He 

stated that he heard what sounded like a window being opened, broken, or 

“something being jostled with.” He explained that he saw three figures out the 

window, but could not see their faces. He decided to fire:

A. I fired—the direction I tried to fire was away from them, 

but with immediate getaway, with the immediate sense of, 

“You’re not supposed to be here. Get away.”

Q. But you fired at the three figures, correct?

A. Yes.

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Q. Okay. Why did you do that?

A. I felt they were trying to break in.

Q. Describe the—the manner in which you shot them.

A. I shot—I shot three shots in succession: One shot, two shot, 

three shots.

Q. Okay. Through the window that the figures were in front 

of?

A. Yes.

Q. Through the window the noise was coming from?

A. Yes.

Q. What did you hear or see after you pulled the trigger?

A. After I pulled the trigger, I heard screaming and yelling, 

and I looked through the blinds.

Q. Okay. What did you hear and see at that point?

A. I saw my friends. I saw my friends were shot outside in 

front—in the yard.

[Petitioner] testified that if he knew that it was his friends in the front 

yard, he would not have fired, and that his intention was to fire three warning 

shots.

C. Jury Verdict

At the close of the evidence, the jury found [Petitioner] guilty as charged 

on the murder and aggravated assault counts. The jury assessed punishment at 

fifteen years’ confinement on the murder count, and at ten and five years on the 

aggravated assault counts, respectively. The sentences were ordered to run 

concurrently. 

Eklund v. State, No. 13-17-00225-CR, 2018 WL 5074700 (Tex. App.—Corpus ChristiEdinburg, Oct. 18, 2018, pet. ref’d); (ECF No. 11-2 at 2-6).

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The Texas Thirteenth Court of Appeals affirmed Petitioner’s convictions in an 

unpublished opinion on direct appeal. Id. The Texas Court of Criminal Appeals (TCCA) then 

refused his petition for discretionary review. Eklund v. State, No. 1312-18 (Tex. Crim. App. 

Mar. 6, 2019); (ECF No. 11-14). On October 28, 2019, Petitioner filed a state habeas corpus 

application challenging the constitutionality of his state court conviction, but the TCCA 

eventually denied the application without written order on February 19, 2020, based on the 

findings of the trial court and on the court’s own independent review of the record. Ex parte

Eklund, No. 90,761-01 (Tex. Crim. App.); (ECF Nos. 11-31, 11-32 at 6). 

Petitioner initiated the instant proceedings by filing a petition for federal habeas relief on 

March 24, 2020. (ECF No. 1). Petitioner later amended his petition (ECF No. 2) and filed a 

supplemental memorandum in support (ECF No. 5). In the amended petition and memorandum, 

Petitioner raises the same allegations that were rejected by the TCCA during his state habeas 

proceedings: (1) he was denied due process because there was no evidence he intended to injure 

or kill any of the victims, (2) he was denied due process because the jury instructions on selfdefense were too narrow, (3) his trial counsel was ineffective for failing to request other 

appropriate jury instructions, and (4) his trial counsel was ineffective for introducing evidence of 

drug possession and allowing an instruction on voluntary intoxication. Petitioner also appears to 

raise an allegation that was not litigated in state court: (5) his trial counsel was ineffective for 

failing to introduce evidence of a second 911 call. 

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 

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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 

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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

A. Sufficiency of the Evidence (Claim 1).

Petitioner first contends the State failed to present legally sufficient evidence to support 

his convictions because there was no evidence that Petitioner intended to injure or kill any of the 

victims. Specifically, Petitioner contends the State was required to prove beyond a reasonable 

doubt that he specifically intended to cause death or injury to Drake Lund, Robert Bree and 

Sawyer Darwin, but presented no evidence in this regard. Petitioner’s allegation was rejected by 

the state appellate court on direct appeal and again by the TCCA when it refused Petitioner’s 

petition for discretionary review. As discussed below, Petitioner fails to show that either 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 of Review

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

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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:

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. Application of the Jackson Standard

Petitioner raised his insufficient evidence claim during his direct appeal proceedings, but 

the TCCA refused Petitioner’s petition for discretionary review without written order. Thus, this 

Court “should ‘look through’ the unexplained decision to the last related state-court decision 

providing” particular reasons, both legal and factual, “presume that the unexplained decision 

adopted the same reasoning,” and give appropriate deference to that decision. Wilson v. Sellers, 

138 S. Ct. 1188, 1191-92 (2018); Uranga v. Davis, 82 F.3d 282, 287 n.33 (5th Cir. 2018). In

other words, the Court must look to the last reasoned state judgment that considered and rejected 

Petitioner’s insufficient evidence claim when reviewing the claim under the doubly deferential 

standard set forth in Jackson. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). 

In this case, the last reasoned state court decision was issued by the intermediate court of 

appeals, which concluded that there was sufficient evidence of intent to support Petitioner’s 

convictions for murder and aggravated assault with a deadly weapon:

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By his first through fifth issues, [Petitioner] challenges the sufficiency of 

the evidence on intent. He draws attention to the fact that the State did not submit 

jury instructions on the law of transferred intent. He contends that without a 

transferred intent instruction, the State was required to prove that [Petitioner]

directed his assaultive acts not at unknown strangers, but specifically at Lund, 

Darwin, and Bree. He argues that because the evidence unequivocally establishes 

that [Petitioner] did not know that the perceived burglars were his friends, the 

evidence was insufficient to prove intent, which is an element of both aggravated 

assault and murder.

A. Transferred Intent

Under the theory of transferred intent, a person can be held criminally 

responsible for causing a result if the only difference between what actually 

occurred and what he desired, contemplated, or risked is that a different person 

was injured, harmed, or otherwise affected. Tex. Penal Code Ann. § 6.04(b)(2) 

(West, Westlaw through 2017 1st C.S.). Transferred intent is raised when there is 

evidence that a defendant, with the required culpable mental state, intends to 

injure or harm a specific person but injures or harms a different person. Trevino 

v. State, 228 S.W.3d 729, 737 (Tex. App.—Corpus Christi 2006, pet. ref'd) (op. 

on reh’g). The “classic example” of transferred intent is the act of firing at an 

intended victim while that person is in a group of other persons; if the intended 

person is killed, the offense is murder, but if a different person in the group is 

killed, the offense is murder pursuant to the transferred intent rule. Roberts v. 

State, 273 S.W.3d 322, 330 (Tex. Crim. App. 2008). “Thus where A aims at B 

with a murderous intent to kill, but because of a bad aim he hits and kills C, A is 

uniformly held guilty of the murder of C.” Martinez v. State, 844 S.W.2d 279, 

282 (Tex. App.—San Antonio 1992, pet. ref’d).

However, the “bad-aim” scenario “is to be distinguished from an entirely 

different unintended-victim case—the mistaken-identity situation—which is 

governed by a quite separate set of legal rules.” Id. “Thus in the semi-darkness A 

shoots, with intent to kill, at a vague form he supposes to be his enemy B but who 

is actually another person C; his well-aimed bullet kills C.” Id. “Here too A is 

guilty of murdering C, to the same extent he would have been guilty of murdering 

B had he made no mistake.” Id. “A intended to kill the person at whom he 

aimed, so there is even less difficulty in holding him guilty than in the bad-aim 

situation.” Id.

The present case does not involve the law of transferred intent. See id. It 

was not the State’s theory that [Petitioner] was aiming at someone other than the 

victims and simply missed his intended target. See id. The State instead 

introduced evidence that [Petitioner] fired at three individuals on his porch; the 

fact that these persons were his well-meaning friends rather than shadowy 

strangers is immaterial. See id. Therefore, the law of transferred intent does not 

apply. See id.

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B. Sufficiency of the Evidence

[Petitioner] testified that he did not intend to fire at the perceived 

strangers, but instead intended to fire warning shots in an effort to scare them off. 

He argues that in light of this testimony, the evidence is insufficient to show that 

he intended to assault or kill his friends. When reviewing the sufficiency of the 

evidence, we view the evidence in the light most favorable to the verdict and 

determine whether, based on the evidence and reasonable inferences therefrom, a 

rational juror could have found the essential elements of the crime beyond a 

reasonable doubt. Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 

2017). We must presume that the jury resolved any conflicting inferences in 

favor of the verdict. Id.

The specific intent to kill may be inferred from the use of a deadly 

weapon, unless in the manner of its use it is reasonably apparent that death or 

serious bodily injury could not result. Cavazos v. State, 382 S.W.3d 377, 384 

(Tex. Crim. App. 2012); Medina v. State, 7 S.W.3d 633, 637 (Tex. Crim. App. 

1999) (en banc). “If a deadly weapon is used in [a] deadly manner, the inference 

is almost conclusive that he intended to kill.” Godsey v. State, 719 S.W.2d 578, 

581 (Tex. Crim. App. 1986) (en banc). “Naturally, the most obvious cases, and 

the easiest ones in which to prove a specific intent to kill, are those cases in which 

a firearm was used and was fired or attempted to have been fired at a person.” Id.

Here, [Petitioner] fired three shots through the window directly at the 

individuals who stood on his front porch, striking all three. A rational jury could 

have inferred the necessary intent from this evidence beyond a reasonable doubt, 

see id., and it could have disbelieved [Petitioner]’s testimony to the contrary. See 

Queeman, 520 S.W.3d at 622. We find the evidence sufficient to show the 

element of intent. See id.

Eklund v. State, 2018 WL 5074700, at *3-4; (ECF No. 11-2 at 6-8). 

Petitioner contends the state court’s analysis is objectively unreasonable because it 

disregards the identity of the victims, which is an essential element in assaultive offenses under 

Texas law. (ECF No. 5 at 12). Because the identity of a victim is a necessary element the State 

must establish, Petitioner argues the State must also establish that he knew the identities of the 

victims to establish the necessary intent. As pointed out by Respondent, however, Petitioner 

conflates the issue of the victims’ identities—which the State established in this case—with 

whether Petitioner knew the identities of the victims when he shot them. While Petitioner is 

correct that the State is required to prove the identity of a victim, he provides no legal support for 

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the proposition that the State must prove that an assailant knew the victim’s identity at the time 

of the offense in order to establish the requisite intent. See Manrique v. State, 994 S.W.2d 640, 

650 (Tex. Crim. App. 1999) (Meyers, J., concurring) (“The identity of the victim is not an 

element of the crime to which the culpable mental state attaches.”). As such, Petitioner fails to 

show that the state court’s determination was an unreasonable application of the Jackson

standard. 

Furthermore, the state court’s determination that the evidence was sufficient to establish 

the element of intent was not unreasonable given the evidence in the record. Again, a state 

appellate court’s determination is entitled to great deference when, as was done in this case, the 

court conducted a thorough and thoughtful review of the evidence. Callins v. Collins, 998 F.2d 

269, 276 (5th Cir. 1993). As with the state appellate court, this Court has independently 

reviewed the record and finds the evidence sufficient to support the element of intent. Thus, 

viewing all of the evidence under the doubly 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 under Jackson. Federal habeas relief is therefore denied. 

B. Trial Court Error (Claim 2).

Petitioner’s second allegation contends that the trial court provided an inadequate 

instruction to the jury on the issue of self-defense. According to Petitioner, the self-defense 

instruction given to the jury was a “straw man” that guaranteed a guilty verdict. This allegation

was rejected by the TCCA during Petitioner’s state habeas proceedings. Petitioner fails to 

demonstrate the state court’s rejection of the claim was either contrary to, or an unreasonable 

application of, Supreme Court precedent. 

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Claims of improper jury instruction or rejection of a requested jury instruction in state 

criminal trials do not generally form the basis for federal habeas relief. Galvan v. Cockrell, 293 

F.3d 760, 764-65 (5th Cir. 2002); (citing Estelle v. McGuire, 502 U.S. 62, 71-72 (1991) (stating 

that federal habeas courts do not grant relief solely on the basis that a jury charge was 

erroneous)). Rather, such claims only support a claim for habeas relief if the erroneous 

instruction by itself rendered the trial fundamentally unfair. Henderson v. Kibbe, 431 U.S. 145, 

154-55 (1977); Galvan, 293 F.3d at 764 (relevant inquiry on claims of improper or rejected jury 

instructions is whether there was prejudice of constitutional magnitude). The relevant inquiry is 

whether the failure to give an instruction “by itself so infected the entire trial that the resulting

conviction violates due process.” Galvan, 293 F.3d at 764-65 (citing Cupp v. Naughten, 414 

U.S. 141, 147 (1973)). 

Petitioner fails to make this showing. The jury received the following instruction 

regarding self-defense in this case:

(C) Upon the law of self-defense, you are instructed that a person is justified in

using force against another when and to the degree he reasonably believes the 

force is immediately necessary to protect himself against the other’s use or 

attempted use of unlawful force.

A person is justified in using deadly force against another if he would be justified 

in using force against the other in the first place, as set out above, and when he 

reasonably believes that such deadly force is immediately necessary to protect 

himself against the other person’s use or attempted use of unlawful deadly force, 

or to prevent the other person’s imminent commission of aggravated kidnapping, 

murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

The term “reasonable belief” as used herein means a belief that would be held by 

an ordinary and prudent person in the same circumstances as the defendant.

The term “deadly force” as used herein means force that is intended or known by 

the actor using it to cause, or in the manner of its use or intended use is capable of 

causing, death or serious bodily injury.

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(ECF No. 11-19 at 33). Contrary to Petitioner’s assertion, the jury was able to consider what he 

believes to be the “central issues” in this case—i.e., Petitioner’s “mistaken belief he was under 

attack by unknown assailants and was exercising his right to self-defense.” (ECF No. 5 at 41). 

In fact, this self-defense instruction is, in relevant part, identical to the Texas statutes governing 

self-defense and the use of deadly force. See Tex. Penal Code §§ 9.31(a) and 9.32(a). While the 

instructions did not entirely reiterate all of the language contained in the statutes, Petitioner has 

provided no authority establishing that the trial court was required to do so. 

Because the jury was properly instructed on the issue of self-defense in this case, 

Petitioner fails to demonstrate that the trial court’s instructions were erroneous, much less show 

that instructions so “infected” the entire trial as to result in a denial of due process. Thus,

Petitioner is not entitled to federal habeas relief on this claim.

C. Trial Counsel (Claims 3-5).

Petitioner’s next three allegations assert that he was denied the effective assistance of 

counsel under the Sixth and Fourteenth Amendments. Specifically, Petitioner contends trial 

counsel rendered ineffective assistance by: (1) failing to request several appropriate jury 

instructions, (2) introducing evidence of drug possession and allowing an instruction on 

voluntary intoxication, and (3) failing to introduce evidence of a second 911 call. 

As discussed below, Petitioner’s first two allegations were raised and rejected during 

Petitioner’s state habeas proceedings, and Petitioner fails to demonstrate the state habeas court’s 

rejection of the allegations was either contrary to, or an unreasonable application of, Supreme 

Court precedent. Petitioner’s third allegation is unexhausted and procedurally barred from 

federal habeas review. 

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1. The Strickland Standard

The Court reviews Sixth Amendment claims concerning the alleged ineffective assistance 

of trial counsel (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. 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 687-

89. 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 

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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.

2. Jury Instructions

Petitioner’s first IATC claim alleges that his trial counsel, Kenneth Baker, was ineffective 

for failing to request several jury instructions to be included in the jury charge. Petitioner 

contends counsel should have requested instructions on the law regarding: (1) apparent danger, 

(2) Petitioner’s point of view, (3) the permissible use of deadly force in self-defense, (4) the 

defense of others, (5) the defense of property, (6) Texas’s “castle doctrine,” and (7) mistake of 

fact. 

Petitioner raised these allegations during his state habeas proceedings. In response, trial 

counsel submitted an affidavit wherein he explained his reasons for not requesting these 

instructions: 

1. Ground Three no 1. Mistake of Fact: I did not request a mistake of fact 

instruction for two reasons. The first is that should the court give that instruction 

the jury’s focus would be on the very unfavorable facts pointing to guilt such as 

that the victims pulled up in a car familiar to [Petitioner], that the victims came to 

the property at [Petitioner]’s request, that it was broad daylight, that [Petitioner]

had opportunity to view them as they walked around the property, that they were 

calling his name out and that they were calling him on the phone right before the

shooting. If a mistake of fact instruction was given I believed the jury’s focus 

would be on the reasonableness of the mistake instead of on his fear for his life. 

Also, and appellate counsel probably was unaware due to his not being at the trial 

and due to his not communicating with trial counsel prior to the First Appeal but 

the State took a video of an officer walking outside calling [Petitioner]’s name 

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and there was little doubt after that demonstration that someone in [Petitioner]’s 

position could hear the victims calling his name.

A mistake of fact instruction in these circumstances would have focused the jury 

on facts not favorable to the defense. The second reason is that it did not appear 

to me to have meet the legal standard for a mistake of fact instruction.

2. Ground Three No 2. Failing to ask for instructions on defense of parent’s 

property, apparent danger and viewing the evidence from [Petitioner]’s standpoint 

alone. I believed that the [s]elf defense instruction was the most compelling for 

the jury. I knew the jury would be struggling with the reasonableness of 

[Petitioner]’s actions, e.g . . . broad daylight, friends yelling his name and calling 

him, [Petitioner] inviting them over before the shooting, no evidence of an actual 

break in and tremendous loss to the victims. Instead I wanted the jury to focus on 

[Petitioner]’s fear for his [life] that he testified to and facts such as his age, his 

being alone, his call to 911 etc . . . as I believed the jurors were more likely to find 

justification based on self-defense instead of defense of other’s property[.] I

believed that keeping their focus there made for a stronger case. The giving of 

every possible instruction and alternative paths to a not guilty “the shotgun 

approach” is in my experience less effective then tailoring the instructions to your 

best defense. I did not consider asking for apparent danger and or viewing the 

evidence from the defendant’s standpoint alone because the self-defense 

instruction did in my opinion encompass those principles and, again since the 

self-defense instruction most closely tracked and fit with the evidence and our 

theory of the case. I did not see that adding as many instructions as I could think 

of was the best approach and might dilute the power of the instruction given.

3. Ground Three No. 3. The castle doctrine did not apply in this case due to 

[Petitioner] being in violation of a law other than a traffic offence. Therefore I 

did [not] consider it error for the court not to instruct the jury on it.

(ECF Nos. 11-32 at 173-74, 11-33 at 1). The state habeas trial court found trial counsel’s 

affidavit competent and credible and that Petitioner “has not shown that Trial Counsel’s 

strategies were unreasonable” or shown “deficient performance or prejudice.” (ECF No. 11-33

at 10). These findings and conclusions were then adopted by the TCCA when it denied 

Petitioner’s state habeas application. (ECF No. 11-31). 

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 

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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 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)).

Here, trial counsel’s affidavit—adopted by the state habeas court and ultimately by the 

TCCA—explained that he did not seek the aforementioned jury instructions because they were 

either inapplicable to this case or would have forced the jury to focus on facts that were not 

favorable to the defense. Counsel did not believe that giving every possible instruction to the 

jury was effective, and chose instead to tailor the jury instructions to the best defense available, 

which in this case was self-defense. Petitioner has not shown that counsel’s assessment was 

incorrect, 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. Consequently, 

viewing the allegations under the “doubly” deferential review encompassed by Strickland and 

the AEDPA, Petitioner’s claims cannot survive. Id. at 105.

3. Evidence of Drug Possession

Petitioner next asserts his trial counsel rendered ineffective assistance by introducing 

extraneous evidence of drug possession. According to Petitioner, trial counsel inexplicably 

introduced evidence concerning psychedelic mushrooms which then allowed the prosecution to 

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imply that he was intoxicated when he committed the offenses. Counsel’s actions also allowed 

the prosecution to request and receive a jury instruction on voluntary intoxication which 

Petitioner argues was an impermissible comment on the evidence.2 

Petitioner unsuccessfully raised this IATC allegation during his state habeas proceedings. 

Petitioner also raised a related allegation on direct appeal asserting that the voluntary 

intoxication instruction constituted an impermissible comment on the weight of the evidence. In 

finding that the instruction was proper, the state appellate court noted the abundance of evidence 

presented by the State which raised the issue of Petitioner’s potential intoxication: 

There was evidence from multiple sources that raised the issue of 

[Petitioner]’s intoxication. [Petitioner]’s parents were out of town the weekend of 

the shooting, and Darwin testified that he slept over and drank margaritas with 

[Petitioner] days before. Text messages revealed that on the day before the 

shooting, [Petitioner] talked with Darwin about obtaining psychedelic 

mushrooms, marijuana, and ecstasy from a dealer, and [Petitioner] admitted that 

he met with the dealer in San Antonio later that day.

On the day of the shooting, [Petitioner] invited Darwin over to smoke 

marijuana, and Darwin agreed to come drink alcohol with him. Bree testified that 

he tagged along with Lund and Darwin with the understanding that they would 

possibly be ingesting psychedelic mushrooms at [Petitioner]’s place. Bree 

brought along an anti-anxiety medication in case anyone experienced issues while 

using mushrooms.

[Petitioner] testified that when the victims arrived on the afternoon of July 

12, he was sleeping on the couch. He looked out the window and grew afraid 

because he did not recognize Lund’s car, despite the fact that Lund had shown the 

car to [Petitioner] just days before. [Petitioner] did not recognize two of his 

closest friends, and he instead grew so fearful of them that he closed all the 

blinds, locked the doors, hid in a closet, and called 911. He then shot three times 

out of the window blinds at the unknown individuals who were knocking on his 

2 The voluntary intoxication instruction contained in the jury charge read as follows:

Voluntary intoxication does not constitute a defense to the commission of a

crime. For the purpose of this charge “intoxication” means disturbance of 

mental or physical capacity resulting from the introduction of any substance into 

the body. 

(ECF No. 11-19 at 31). 

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front door. Following the shooting, a marijuana pipe, lighter, and baggie of 

marijuana were recovered from [Petitioner]’s person, and bottles of liquor were 

found in the main house. A marijuana grinder was recovered from [Petitioner]’s 

side house.

Eklund v. State, 2018 WL 5074700, at *6; (ECF No. 11-2 at 12-13).

Given the amount of evidence available to the State raising the question of whether 

Petitioner was intoxicated, Petitioner’s implication that his trial counsel was somehow 

responsible for its introduction is somewhat puzzling. It was the State—not counsel—who 

introduced this evidence to the jury, and nothing in the record supports Petitioner’s argument that

it was counsel who first “alerted” the prosecution to the theory that Petitioner may have 

intoxicated himself on mushrooms. (ECF No. 5 at 38). Petitioner even acknowledges that 

counsel only mentioned psychedelic mushrooms during a hearing outside the presence of the 

jury, and that it was the State, not counsel, that first introduced evidence concerning mushrooms

in front of the jury. Id. at 35. While Petitioner contends that counsel “did nothing to exclude this 

patently irrelevant evidence,” he fails to demonstrate that the evidence was either irrelevant or 

inadmissible for some other reason. Id. at 38. 

Furthermore, counsel’s affidavit—adopted by the state habeas court and ultimately by the 

TCCA—explained that, to the extent he did discuss mushrooms in front of the jury, he did so “to 

control the narrative and mitigate the impact as the references to mushrooms was laced 

[throughout] the text messages between [Petitioner] and the victims.” (ECF No. 11-33 at 1). 

Again, such strategic decisions by trial counsel are virtually unchallengeable. Strickland, 466 

U.S. at 673; Ward, 777 F.3d at 264. Other than speculating that counsel contributed to the 

introduction of this evidence, however, Petitioner has not shown that counsel’s strategy was 

unreasonable, much less demonstrated that state court’s ruling on trial counsel’s strategy “was so 

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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.

Finally, to the extent Petitioner faults counsel for allowing the State to obtain a jury 

instruction on voluntary intoxication, the record indicates that counsel did object during the 

charging conference prior to closing argument. (ECF No. 11-25 at 66-68). Counsel argued that 

there had been no evidence introduced concerning Petitioner’s intoxication, but rather only 

evidence concerning possession, and that such an instruction is unnecessary because the defense 

has not raised intoxication as a defense. The trial court overruled counsel’s motion. Id. at 68. 

As such, Petitioner’s trial counsel cannot reasonably be faulted for failing to object to the 

instruction. To the extent Petitioner contends counsel should have objected further, counsel 

cannot be considered deficient or prejudicial for failing to raise a futile or 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)). Petitioner therefore fails to show that the state 

court’s ruling was contrary to, or involved an unreasonable application of Strickland. 

4. Evidence of the Second Call to 911

In his final allegation, Petitioner claims he received ineffective assistance by trial 

counsel’s failure to introduce evidence of a second 911 call that would have bolstered his 

mistake of fact defense. While admitting that counsel unsuccessfully attempted to introduce the 

recording under the rule of optional completeness, Petitioner appears to contend, without further 

explanation, that trial counsel should have done more to introduce the recording. Petitioner did 

not raise this allegation on direct appeal or during his state habeas proceedings. Because it is 

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being presented for the first time in this federal habeas proceeding, Petitioner’s allegation is 

unexhausted and procedurally barred from federal habeas review.

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 TCCA, and a prisoner must present the substance of his claims 

to the TCCA 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).

As the record demonstrates, Petitioner failed to exhaust his state court remedies with 

regard to the instant allegation. In addition to being unexhausted, however, Petitioner’s claim is 

also procedurally defaulted. “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.” Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997) (citation and internal quotation 

marks omitted). 

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

exhaustion requirement, the TCCA would find the claim procedurally barred under the abuse of 

the writ doctrine found in Article 11.07 § 4 of the Texas Code of Criminal Procedure. Because 

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Texas would likely bar another habeas corpus application by Petitioner, he has committed a 

procedural default that is sufficient to bar federal habeas corpus review. See, e.g., 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 review of the instant claim 

unless he can show cause for the default and resulting prejudice, or demonstrate that the Court’s 

failure to consider the claim 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). 

Petitioner has not replied to Respondent’s assertion of the procedural bar and did not attempt to 

establish either cause or a fundamental miscarriage of justice in his amended petition or 

supplemental memorandum. Thus, circuit precedent compels the denial of the claim as 

procedurally defaulted.

IV. Motion for Evidentiary Hearing

Lastly, Petitioner requests an evidentiary hearing to challenge the state court’s resolution 

of his claims for relief. (ECF No. 5 at 32). His request is denied, as habeas petitioners are not 

entitled to a federal evidentiary hearing to develop new evidence to attack the state court’s 

resolution of their claims. See Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011) (“If a claim has 

been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the 

limitation of § 2254(d)(1) on the record that was before that state court.”). Under the AEDPA, 

the proper place for development of the facts supporting a claim is the state court. See 

Hernandez v. Johnson, 108 F.3d 554, 558 n.4 (5th Cir. 1997) (holding the AEDPA clearly places 

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the burden on a petitioner to raise and litigate as fully as possible his federal claims in state 

court). Thus, as in this case, when a petitioner’s claims have been rejected on the merits by the 

state courts either on direct appeal or during petitioner’s state habeas corpus proceeding, further 

factual development in federal court is effectively precluded. Pinholster, 563 U.S. at 181-88

(2011) (holding an evidentiary hearing is unnecessary when a state court has rejected a claim on 

the merits and federal habeas review of that rejection is governed by §2254(d)(1)); Woodfox v. 

Cain, 772 F.3d 358, 368 (5th Cir. 2014) (“The Supreme Court has clarified that when a claim is 

adjudicated on the merits, for the purposes of review under § 2254(d)(1), the record is limited to 

the one before the state court, even if the state court issued a summary affirmance.”).

Likewise, where a federal habeas corpus petitioner’s claims lack merit on their face, 

further factual development is not necessitated. See Register v. Thaler, 681 F.3d 623, 627-30 

(5th Cir. 2012) (recognizing the discretion inherent in district courts to allow factual 

development, especially when confronted with claims foreclosed by applicable legal authority). 

“In cases where an applicant for federal habeas relief is not barred from obtaining an evidentiary 

hearing by 28 U.S.C. § 2254(e)(2), the decision to grant such a hearing rests in the discretion of 

the district court.” Richards v. Quarterman, 566 F.3d 553, 562 (5th Cir. 2009) (quoting Schriro 

v. Landrigan, 550 U.S.465, 468 (2007)). “In determining whether to grant a hearing, under Rule 

8(a) of the Habeas Court Rules ‘the judge must review the answer [and] any transcripts and 

records of state-court proceedings . . . to determine whether an evidentiary hearing is 

warranted.’” Richards, 566 F.3d at 562-63 (quoting Hall v. Quarterman, 534 F.3d 365, 368 (5th 

Cir. 2008)). In making this determination, courts must consider whether an evidentiary hearing 

could “enable an applicant to prove the petition’s factual allegations, which, if true, would entitle 

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the applicant to federal habeas relief.” Richards, 566 F.3d at 563 (quoting Schriro, 550 U.S. at 

474).

As discussed throughout this opinion, Petitioner’s remaining allegations lack merit on 

their face. Further factual development is therefore unnecessary. Register, 681 F.3d at 627-30. 

V. 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.

VI. Conclusion and Order

After careful consideration, the Court concludes Petitioner has failed to establish that the 

state court’s rejection of Petitioner’s first four allegations on the merits during either his direct 

appeal or state habeas proceedings was (1) contrary to, or involved an unreasonable application 

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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 

Petitioner’s state trial and habeas corpus proceedings. The Court also concludes that Petitioner’s 

fifth allegation is unexhausted and procedurally barred from federal habeas corpus review. 

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

1. Federal habeas corpus relief is DENIED and Petitioner Rylee Carl Eklund’s 

Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (ECF No. 2) is 

DISMISSED WITH PREJUDICE;

2. Petitioner’s request for an evidentiary hearing (ECF No. 5 at 32) is DENIED;

3. No Certificate of Appealability shall issue in this case; and

4. All remaining motions, if any, are DENIED, and this case is now CLOSED.

It is so ORDERED.

SIGNED this the 1st day of June, 2021.

____________________________________

 XAVIER RODRIGUEZ

 United States District Judge

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