IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

FERNANDO GARCIA-ESCOBAR §

§

V. § A-20-CV-507-LY

§

BOBBY LUMPKIN §

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

TO: THE HONORABLE LEE YEAKEL

 UNITED STATES DISTRICT JUDGE

The Magistrate Judge submits this Report and Recommendation to the District Court

pursuant to 28 U.S.C. §636(b) and Rule 1(e) of Appendix C of the Local Court Rules of the United

States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to

United States Magistrate Judges. 

Before the Court are Petitioner’s Application for Habeas Corpus Relief under 28 U.S.C.

§ 2254 (Document 9) and Respondent’s Answer (Document 16). Petitioner did not file a response

thereto. Petitioner, proceeding pro se, paid the full filing fee for this case. For the reasons set forth

below, the undersigned findsthat Petitioner’s application for writ of habeas corpus should be denied. 

 STATEMENT OF THE CASE

A. Petitioner’s Criminal History

According to Respondent, the Director has lawful and valid custody of Petitioner pursuant

to a judgment and sentence of the 403rd Judicial District Court of Travis County, in cause number

D-1-DC-17-202029. Petitioner was charged by indictment with one count of continuous sexual

abuse of a child, three counts of aggravated sexual assault of a child, and three counts of indecency

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with a child by contact. Petitioner pleaded not guilty, but the jury found him guilty of continuous

sexual abuse of a child under fourteen. Petitioner was sentenced to life imprisonment. 

The Third Court of Appeals affirmed Petitioner’s conviction and sentence on August 22,

2019. Garcia-Escobar v. State, No. 03-18-00361-CR, 2019 WL 3952827 (Tex. App.– Austin,

Aug. 22, 2019, no pet.). Petitioner also challenged his conviction in a state application for habeas

corpus relief. The Texas Court of Criminal Appeals denied it without written order on April 22,

2020. Ex parte Garcia-Escobar, No. 90,957-01. 

B. Factual Background

The factual background of this case is found in the Court of Appeals opinion and is repeated

below. 

The evidence at trial demonstrated that appellant began sexually abusing M.H.-M.

when she was eight or nine years old. The sexual abuse stopped when M.H.-M. was

thirteen years old because her younger brother walked in on appellant having sexual

intercourse with M.H.-M. At trial, M.H.-M. described the various sexual acts that

appellant perpetrated against her over the four-or five-year period, including putting

his “private part” inside her “private part,” putting his mouth on her “vagina,” putting

his fingers inside her “vagina,” taking pictures of her “vagina” with his phone, and

making her put her mouth on his penis. She could not recall how many times the

sexual abuse occurred but indicated that “it happened really frequently,” typically,

depending on the sexual act perpetrated, once or twice a week.

Appellant did not testify at trial, but a video recording of his interview with police,

which occurred after appellant turned himself in the day after his stepson discovered

the sexual abuse, was admitted at trial. In the interview, appellant admitted that he

was vaginally penetrating M.H.-M. with his penis when his stepson walked in and

confessed that he had been having sexual intercourse with M.H.-M. for about four

years, although appellant insisted that he never forced his stepdaughter, never

threatened her, and never did anything “against her will.”

Garcia-Escobar, 2019 WL 3952827, at *1. 

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C. Petitioner’s Grounds for Relief

Petitioner raises the following grounds for relief:

1. Appellate counsel was ineffective for failing to send the appellate brief to Petitioner

as ordered by the Texas State Bar, so that a proper petition for discretionary review

could be filed; and

2. Appellate counsel filed a frivolous brief on appeal.

D. Exhaustion of State Court Remedies

Respondent does not contest that Petitioner has exhausted his state court remedies regarding

the claims brought in this application. A review of the state court records submitted by Respondent

shows that Petitioner has properly raised these claims in previous state court proceedings. 

 DISCUSSION AND ANALYSIS

A. The Antiterrorism and Effective Death Penalty Act of 1996

The Supreme Court has summarized the basic principles that have grown out of the Court’s

many cases interpreting the 1996 Antiterrorism and Effective Death Penalty Act. See Harrington

v. Richter, 562 U.S. 86, 97–100 (2011). The Court noted that the starting point for any federal court

in reviewing a state conviction is 28 U.S.C. § 2254, which states in part:

An application for a writ of habeas corpus on behalf of a person in custody pursuant

to the judgment of a State court shall not be granted with respect to any claim that

was adjudicated on the merits in State court proceedings unless the adjudication of

the claim–

(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. 

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28 U.S.C. § 2254(d). The Court noted that “[b]y its terms § 2254(d) bars relitigation of any claim

‘adjudicated on the merits’ in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2).”

Harrington, 562 U.S. at 98. 

One of the issues Harrington resolved was “whether § 2254(d) applies when a state court’s

orderis unaccompanied by an opinion explaining the reasons relief has been denied.” Id. Following

all of the Courts of Appeals’ decisions on this question, Harrington concluded that the deference due

a state court decision under § 2554(d) “does not require that there be an opinion from the state court

explaining the state court’s reasoning.” Id. (citations omitted). The Court noted that it had

previously concluded that “a state court need not cite nor even be aware of our cases under

§ 2254(d).” Id. (citing Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam)). When there is no

explanation with a state court decision, the habeas petitioner’s burden is to show there was “no

reasonable basis for the state court to deny relief.” Id. And even when a state court fails to state

which of the elements in a multi-part claim it found insufficient, deference is still due to that

decision, because “§ 2254(d) applies when a ‘claim,’ not a component of one, has been adjudicated.” 

Id. 

As Harrington noted, § 2254(d) permits the granting of federal habeas relief in only three

circumstances: (1) when the earlier state court’s decision “was contrary to” federal law then clearly

established in the holdings of the Supreme Court; (2) when the earlier decision “involved an

unreasonable application of” such law; or (3) when the decision “was based on an unreasonable

determination of the facts” in light of the record before the state court. Id. at 100 (citing 28 U.S.C.

§ 2254(d); Williams v. Taylor, 529 U.S. 362, 412 (2000)). The “contrary to” requirement “refers to

the holdings, as opposed to the dicta, of . . . [the Supreme Court’s] decisions as of the time of the

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relevant state-court decision.” Dowthitt v. Johnson, 230 F.3d 733, 740 (5th Cir. 2000) (quotation

and citation omitted).

Under the “contrary to” clause, a federal habeas court may grant the writ if the state

court arrives at a conclusion opposite to that reached by . . . [the Supreme Court] on

a question of law or if the state court decides a case differently than . . . [the Supreme

Court] has on a set of materially indistinguishable facts. 

Id. at 740-41 (quotation and citation omitted). Under the “unreasonable application” clause of

§ 2254(d)(1), a federal court may grant the writ “if the state court identifies the correct governing

legal principle from . . . [the Supreme Court’s] decisions but unreasonably applies that principle to

the facts of the prisoner’s case.” Id. at 741 (quotation and citation omitted). The provisions of

§ 2254(d)(2), which allow the granting of federal habeas relief when the state court made an

“unreasonable determination of the facts,” are limited by the terms of the next section of the statute,

§ 2254(e). That section states that a federal court must presume state court fact determinations to

be correct, though a petitioner can rebut that presumption by clear and convincing evidence. See 28

U.S.C. § 2254(e)(1). But absent such a showing, the federal court must give deference to the state

court’s fact findings. Id.

B. Ineffective Assistance of Appellate Counsel

The Sixth Amendment to the United States Constitution guarantees citizens the assistance

of counsel in defending against criminal prosecutions. U.S. CONST. AMEND. 6. SixthAmendment

claims concerning allegedly ineffective assistance of appellate and trial counsel are reviewed under

the familiar two-prong test established in Strickland v. Washington, 466 U.S. 668 (1984). Under

Strickland, a petitioner cannot establish a violation of his Sixth Amendment right to counsel unless

he demonstrates (1) counsel’s performance was deficient and (2) this deficiency prejudiced his

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defense. Id. at 687-88, 690. The Supreme Court has emphasized that “[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.” Harrington, 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).

Ineffective assistance of counsel 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 claims

on the merits, a federal 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.” Harrington, 562 U.S at 101. As a result, the question is not whether

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counsel’s actions were reasonable, but whether “there is any reasonable argument that counsel

satisfied Strickland’s deferential standard.” Id. at 105.

A criminal defendant is constitutionally entitled to effective assistance of appellate counsel

when he has a right to appeal under state law. Evitts v. Lucey, 469 U.S. 387 (1985); United States

v. Phillips, 210 F.3d 345, 348 (5th Cir. 2000). As noted above, the Strickland standard for proving

ineffective assistance of counsel applies equally to both trial and appellate attorneys. Smith v.

Robbins, 528 U.S. 259, 285 (2000); Dorsey v. Stephens, 720 F.3d 309, 319 (5th Cir. 2013). Thus,

to obtain relief on his claim, Petitioner must demonstrate that (1) appellate counsel’s conduct was

objectively unreasonable under then-current legal standards, and (2) there is a reasonable probability

that, but for appellate counsel’s deficient performance, the outcome of Petitioner’s appeal would

have been different. See Smith, 528 U.S. at 285; Higgins v. Cain, 720 F.3d 255, 260-61 (5th Cir.

2015).

1. Failed to provide appellate brief

Petitioner admits counsel notified him that his direct appeal was “denied” on August 22,

2019. However, Petitioner complains that counsel failed to provide him with a copy of the appellate

brief for Petitioner to use in filing a petition for discretionary review. According to Petitioner, he

sent a letter to his attorney asking for a copy of his appellate brief so that a petition for discretionary

review could be filed. When he received no response, he sent a second letter. When he received no

response to the second letter, Petitioner filed a grievance against his attorney. Petitioner provided

the Court with a letter he received from the Client Attorney Assistance Program dated December 2,

2019, that advised Petitioner it sent a letter to his attorney and requested Petitioner to allow the

attorney at least ten business days to respond. Petitioner also provided the Court with a copy of the

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letter the Client Attorney Assistance Program sent to his attorney. The letter indicated Petitioner’s

grievance appeared to consist of a client file request and requested the attorney to contact Petitioner

to address Petitioner’s concerns within 30 days. Petitioner provided the Court with the last page of

the letter he purportedly received from his attorney in response to the grievance. Because the entire

letter was not provided, the Court is uncertain as to the date of the letter. Petitioner contends counsel

failed to respond within ten days of the Client Attorney Assistance Program’s letter and his failure

to respond in ten days violated his constitutional rights.

Petitioner raised this claim in his state habeas application. The Texas Court of Criminal

Appeals denied Petitioner’s application without written order. Having independently reviewed the

entire state court record, this Court finds nothing unreasonable in the state court’s application of

clearly established federal law or in the state court’s determination of facts in light of the evidence. 

Petitioner had no constitutional right to assistance counsel in filing a petition for discretionary

review. See Ross v. Moffitt, 417 U.S. 600, 610 (1974) (Constitution does not guarantee right to

counsel over discretionary appeals, as opposed to direct appeals). Therefore, counsel cannot be

found ineffective for failing to provide Petitioner with a copy of the appellate brief to use in filing

a petition for discretionary review. 

2. Filed a frivolous brief on appeal

In his sole point of error on appeal, Petitioner asserted that a sentence of life without parole

for a non-homicide offense violates the prohibition against cruel and unusual punishment under the

Eighth Amendment to the United States Constitution. See U.S.CONST. AMEND.VIII(providing that

“cruel and unusual punishments” shall not be inflicted). Garcia-Escobar, 2019 WL 3952827, at *1. 

After reviewing the record before the court, the Third Court of Appeals concluded that Petitioner

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procedurally defaulted his claim challenging the constitutionality of his sentence because he did not

raise it at trial. Id. at *3.

When presented with his claim alleging ineffective assistance of appellate counsel on habeas

corpus review, the Texas Court of Criminal Appeals denied Petitioner’s application without written

order. Petitioner has the AEDPA burden of showing that the state court could not have reasonably

ruled against him. Petitioner has not met this burden. Petitioner failed to identify what claims

appellate counsel should have raised on appeal or that there was a reasonable probability that, but

for counsel’s unprofessional errors, the result of the appeal would have been different. 

CONCLUSION

Having independently reviewed the entire state court record, this Court finds nothing

unreasonable in the state court’s application of clearly established federal law or in the state court’s

determination of facts in light of the evidence. Accordingly, the Court is of the opinion that 28

U.S.C. § 2254, as amended by the AEDPA, bars habeas corpus relief on Petitioner’s claim that he

received ineffective assistance of appellate counsel. 

RECOMMENDATION

It is recommended that Petitioner’s application for writ of habeas corpus be denied.

CERTIFICATE OF APPEALABILITY

An appeal may not be taken to the court of appeals from a final order in a habeas corpus

proceeding “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C.

§ 2253(c) (1)(A). A certificate of appealability may issue only if a petitioner has made a substantial

showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully

explained the requirement associated with a “substantial showing of the denial of a constitutional

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right” in Slack v. McDaniel, 529 U.S. 473, 484 (2000). In cases where a district court 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.” 

Id. “When a district court denies a habeas petition on procedural grounds without reaching the

petitioner’s underlying constitutional claim, a COA should issue when the petitioner shows, at least,

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.” Id.

In this case, reasonable jurists could not debate the dismissal or denial of the Petitioner’s

section 2254 petition on substantive or procedural grounds, nor find that the issues presented are

adequate to deserve encouragement to proceed. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)

(citing Slack, 529 U.S. at 484). Accordingly, it is respectfully recommended that the Court shall not

issue a certificate of appealability.

OBJECTIONS

The parties may file objections to this Report and Recommendation. A party filing

objections must specifically identify those findings or recommendations to which objections are

being made. The District Court need not consider frivolous, conclusive, or general objections. 

Battles v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).

A party’s failure to file written objections to the proposed findings and recommendations

contained in this Report within fourteen (14) days after the party is served with a copy of the Report

shall bar that party from de novo review by the district court of the proposed findings and

recommendations in the Report and, except upon grounds of plain error, shall bar the party from

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appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the

district court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-153 (1985); 

Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996)(en banc).

SIGNED on December 16, 2020.

_____________________________________

MARK LANE

UNITED STATES MAGISTRATE JUDGE

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