UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

JERRY WAYNE WILLIAMS, § 

TDCJ No. 02109722, § 

 § 

 Petitioner, § 

 § 

v. § CIVIL NO. SA-20-CA-0208-JKP 

 § 

BOBBY LUMPKIN, Director, § 

Texas Department of Criminal Justice, § 

Correctional Institutions Division, § 

 § 

 Respondent. § 

 

MEMORANDUM OPINION AND ORDER

Before the Court are Petitioner Jerry Wayne William’s Petition for Writ of Habeas 

Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1), Respondent Bobby Lumpkin’s Answer (ECF 

No. 12), and Petitioner’s Reply (ECF No. 28) thereto. In his § 2254 petition, Petitioner raises six 

grounds for relief challenging his 2016 state court convictions for sexual assault and 

assault/family violence. Having reviewed the record and pleadings submitted by both parties,

however, 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. Procedural History

In December 2016, a Guadalupe County jury convicted Petitioner of one count of sexual 

assault and one count of assault/family violence, offenses that were enhanced to first-degree 

felonies due to Petitioner’s previous felony convictions. State v. Williams, No. 16-0421-CR

(274th Dist. Ct., Guadalupe Cnty., Tex. Dec. 13, 2016); (ECF No. 10-7 at 54-56). Following a 

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separate punishment hearing, the trial court sentenced Petitioner to life imprisonment on each 

count, with the sentences to run concurrently. Id. 

The Texas Fourth Court of Appeals affirmed Petitioner’s convictions and sentences in an 

unpublished opinion on direct appeal. Williams v. State, No. 04-17-00014-CR, 2018 WL 

1610922 (Tex. App.─San Antonio, Apr. 4, 2018, pet. ref’d); (ECF No. 10-13). The Texas Court

of Criminal Appeals then refused his petition for discretionary review. Williams v. State, 

No. 0422-18 (Tex. Crim. App. August 22, 2018); (ECF No. 10-1). Petitioner later filed a state 

habeas corpus application challenging the constitutionality of his state court convictions, but the 

Texas Court of Criminal Appeals eventually denied the application without written order. Ex 

parte Williams, No. 72,251-02 (Tex. Crim. App.); (ECF Nos. 10-35; 10-38 at 13-28). 

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

February 10, 2020. (ECF No. 1 at 30). In the § 2254 petition, Petitioner raises several 

allegations that were rejected by the Texas Court of Criminal Appeals during his state habeas 

proceedings: (1) his convictions violated the Double Jeopardy Clause, (2) his reindictment and 

subsequent conviction were the result of prosecutorial vindictiveness, (3) his due process rights 

were violated by the trial court’s failure to orally pronounce a sentence for each individual count, 

(4) his trial counsel rendered ineffective assistance by failing to object to these errors, and (5) his 

appellate counsel rendered ineffective assistance by failing to raises these issues on direct appeal. 

Petitioner also raises a new, multi-faceted claim concerning his trial court’s performance that 

Petitioner admits has not been litigated previously in the state courts. 

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 

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federal habeas corpus relief on any claim that was adjudicated on the merits in state court 

proceedings unless the adjudication of that claim either: (1) resulted in a decision that was 

contrary to, or involved an unreasonable application of, clearly established federal law, as 

determined by the Supreme Court of the United States, or (2) resulted in a decision that was 

based on an unreasonable determination of the facts in light of the evidence presented in the state 

court proceeding. Brown v. Payton, 544 U.S. 133, 141 (2005). This intentionally difficult 

standard stops just short of imposing a complete bar on federal court relitigation of claims 

already rejected in state proceedings. Harrington v. Richter, 562 U.S. 86, 102 (2011) (citing 

Felker v. Turpin, 518 U.S. 651, 664 (1996)). 

A federal habeas court’s inquiry into unreasonableness should always be objective rather 

than subjective, with a focus on whether the state court’s application of clearly established 

federal law was “objectively unreasonable” and not whether it was incorrect or 

erroneous. McDaniel v. Brown, 558 U.S. 120 (2010); Wiggins v. Smith, 539 U.S. 510, 520-21

(2003). Even a strong case for relief does not mean the state court’s contrary conclusion was 

unreasonable, regardless of whether the federal habeas court would have reached a different 

conclusion itself. Richter, 562 U.S. at 102. Instead, a petitioner must show that the decision was 

objectively unreasonable, which is a “substantially higher threshold.” Schriro v. Landrigan, 550 

U.S. 465, 473 (2007); Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). 

So long as “fairminded jurists could disagree” on the correctness of the state court’s 

decision, a state court’s determination that a claim lacks merit precludes federal habeas 

relief. Richter, 562 U.S. at 101 (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In 

other words, to obtain federal habeas relief on a claim previously adjudicated on the merits in 

state court, Petitioner must show that the state court’s ruling “was so lacking in justification that 

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there was an error well understood and comprehended in existing law beyond any possibility for 

fairminded disagreement.” Id. at 103; see also Bobby v. Dixon, 565 U.S. 23, 24 (2011). 

III. Merits Analysis 

A. Double Jeopardy (Claim 1) 

In his first allegation, Petitioner contends that his sexual assault conviction violated his 

rights against double jeopardy. Prior to his December 2016 trial for sexual assault and 

assault/family violence, Petitioner had been indicted on one count of sexual assault in cause 

number 13-1177-CR and received a trial on that charge alone. (ECF No. 12-1). After the jury 

indicated they would not be able to render a verdict, the trial court granted Petitioner’s motion 

for mistrial. Id. Petitioner was then reindicted in the instant cause number, 16-0421-CR, for 

both sexual assault and assault/family violence and the previous indictment was dismissed. 

(ECF Nos. 10-3 at 34-36, 10-6 at 1). Petitioner contends that his reindictment and subsequent 

conviction on the sexual assault charge violates the Double Jeopardy Clause. 

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. Historically, “[t]he 

constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from 

being subjected to the hazards of trial and possible conviction more than once for an alleged 

offense.” Green v. United States, 355 U.S. 184, 187 (1957). Thus, once a defendant has been 

placed in jeopardy in the first instance, the Double Jeopardy 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). 

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Here, Petitioner contends he was subjected to a second prosecution for the same offense. 

In this context, a defendant’s double jeopardy concerns arise “only after original jeopardy 

attaches and terminates.” United States v. Garcia, 567 F.3d 721, 730 (5th Cir. 2009) (citing 

Richardson v. United States, 468 U.S. 317, 325 (1984)). The Fifth Circuit has observed that there 

are only three possible “jeopardy terminating events” that would bar a retrial: “(1) an acquittal, 

(2) a trial court determination of insufficiency leading to a directed verdict of acquittal, and 

(3) an unreversed determination on direct appeal that there was insufficient evidence to support 

the conviction.” Garcia, 567 F.3d at 730 (quoting Vanderbilt v. Collins, 994 F.2d 189, 195 (5th 

Cir. 1993)).

Petitioner argues that original jeopardy attached to the sexual assault charge when his 

first trial began in cause number 13-1177-CR and terminated when the State sought to dismiss 

the original indictment following the mistrial. In essence, Petitioner claims the State’s dismissal 

of the first indictment after jeopardy attached was equivalent to an acquittal. But Petitioner was 

not acquitted in his first trial; rather, the trial ended in the declaration of a mistrial resulting from 

a hung jury. The Supreme Court has unequivocally held that “a trial court’s declaration of a 

mistrial following a hung jury is not an event that terminates the original jeopardy to which 

petitioner was subjected.” Richardson v. United States, 468 U.S. 317, 326 (1984); see also 

Yeager v. United States, 557 U.S. 110, 118 (2009) (observing that, “a jury’s inability to reach a 

decision is the kind of ‘manifest necessity’ that permits the declaration of a mistrial and the 

continuation of the initial jeopardy that commenced when the jury was impaneled”) (citations 

omitted); United States v. Jasso, 442 F.2d 1054, 1056 (5th Cir. 1971) (“Reindictment for the 

same offense by a subsequent grand jury does not involve the bar of double jeopardy—it 

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descends only after the trial of one of the indictments has terminated in such a way that jeopardy 

has attached.”).

Petitioner fails to show that a jeopardy terminating event occurred prior to the second 

trial in his case. Accordingly, Petitioner has not demonstrated his sexual assault conviction 

following reindictment and a second trial violated the prohibition against successive prosecutions 

found in the Double Jeopardy Clause. Likewise, Petitioner fails to show that, by rejecting this 

claim, the state habeas corpus court’s decision was contrary to or involved an unreasonable 

application of clearly established federal law as decided by the United States Supreme Court. 

Accordingly, Petitioner is not entitled to relief on this issue. 

B. Prosecutorial Vindictiveness (Claim 2) 

Petitioner next contends that the State retaliated against him for seeking, and ultimately 

receiving, a mistrial at his first trial. According to Petitioner, the State’s lead prosecutor, Heather 

McMinn, opposed Petitioner’s request for a mistrial and vindictively sought to reindict Petitioner 

shortly thereafter, even going so far as to add an additional charge (assault/family violence) to 

the new indictment. Petitioner raised his allegations of vindictiveness in his state habeas corpus 

proceeding, which were ultimately denied by the Texas Court of Criminal Appeals. As 

discussed below, Petitioner fails to demonstrate that the state court’s adjudication was contrary 

to, or an unreasonable application of, clearly established Supreme Court precedent. 

To prove prosecutorial vindictiveness, a defendant may (1) show actual vindictiveness by 

presenting objective evidence that the prosecutor’s actions were designed to punish a defendant 

for asserting his legal rights, or (2) show sufficient facts to create a presumption of 

vindictiveness. United States v. Saltzman, 537 F.3d 353, 359 (5th Cir. 2008). A finding of 

actual vindictiveness requires “direct” evidence, such as evidence of a statement by the 

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prosecutor. Id. at 364. Concerning the presumption of vindictiveness, courts should apply the 

presumption “only where there exists a ‘realistic likelihood of vindictiveness.’” Id. Such a 

presumption is rare and “ordinarily does not arise pretrial.” United States v. Goodwin, 457 U.S. 

368, 382 (1982) (declining to apply presumption in a pretrial setting and stating that “[a] 

prosecutor should remain free before trial to exercise the broad discretion entrusted to him to 

determine the extent of the societal interest in prosecution. An initial decision should not freeze 

future conduct.”). It is Petitioner’s burden to prove prosecutorial vindictiveness by a 

preponderance of the evidence. Saltzman, 537 F.3d at 359. 

Petitioner fails to demonstrate either actual or presumed vindictiveness. His claim is 

premised on the fact that, after his first trial ended in a mistrial, he was reindicted for the offense

of sexual assault in addition to a new charge of assault/family violence. However, the mere 

reindictment of a defendant following a mistrial due to a hung jury is insufficient to show a 

realistic likelihood of prosecutorial vindictiveness absent evidence of actual 

retaliation. See United States v. Ruppel, 666 F.2d 261, 267 (5th Cir. 1982). While Petitioner has 

presented this Court with several anecdotes1 that he believes demonstrate Ms. McMinn’s 

animosity toward him, none even come close to establishing that his reindictment was the result 

of retaliation. As such, he fails to demonstrate that the state court’s rejection of his allegation 

was unreasonable, making federal habeas relief unwarranted. 

C. Trial Court Error (Claim 3) 

Following the closing arguments of counsel at the punishment phase of trial, the trial 

court made the following statement when assessing Petitioner’s punishment: 

1 This includes Petitioner’s belief that Ms. McMinn intentionally: (1) sought a priority setting so she could 

prosecute the case herself before leaving office, (2) concealed information concerning the victim’s previous prison 

sentence, (3) misled prospective jurors regarding the law during voir dire, and (4) made improper comments during 

closing arguments. 

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Jerry Wayne Williams, you’ve been found guilty by the jury of two 

counts—both counts of the indictment, one of sexual assault and one of assault

family violence. The court finds that the enhancement paragraphs are true as 

alleged and assess your punishment of confinement, Institutional Division, Texas

Department of Criminal Justice for a term of life. 

All right, sir, you can go with the bailiff. You’ll serve your term.

(ECF No. 10-27 at 178). Petitioner contends the trial court erred by failing to pronounce a 

separate punishment for each count of conviction. According to Petitioner, Texas law requires a 

separate sentence for each offense for which a person is convicted, yet the trial court only made a 

general assessment of life imprisonment without specifying which count the life sentence applied 

to. As discussed below, this claim does not warrant federal habeas corpus relief.

To start, Petitioner’s allegation essentially faults the trial court for failing to comply with 

Section 3.03 of the Texas Penal Code, which states that “[w]hen the accused is found guilty of 

more than one offense arising out of the same criminal episode prosecuted in a single criminal 

action, a sentence for each offense for which he has been found guilty shall be pronounced.” But

even if the state trial court in fact misapplied state law, federal habeas corpus relief may only be 

granted to remedy violations of the Constitution and laws of the United States—not violations of 

state law. 28 U.S.C. § 2254; Engle v. Isaac, 456 U.S. 107, 119 (1983). Because such claims are

not cognizable in a federal habeas corpus proceeding, this Court must defer to the state-court 

determination of Texas law. 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). 

Regardless, Petitioner has not demonstrated that the trial court erred in pronouncing the 

sentences. Under Texas law, when the oral pronouncement of sentence and the written judgment 

vary, the oral pronouncement controls. Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 

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1998). However, when the oral pronouncement is merely ambiguous, “the punishment verdict, 

the court’s pronouncement, and the written judgment should be read together in an effort to 

resolve the ambiguity.” Johnson v. State, No. 05-18-01230-CR, 2019 WL 6317866, at *2 (Tex. 

App.—Dallas Nov. 26, 2019) (citations omitted). Even assuming the trial court’s oral 

pronouncement was ambiguous in this case, a quick review of the record resolves any such 

ambiguity. Although the trial court only mentioned a singular term of life imprisonment when 

assessing punishment, the court had just referenced both of Petitioner’s convictions prior to 

pronouncing the sentence. The written judgment also reflects that the trial court imposed 

concurrent life sentences for each offense. (ECF No. 10-7 at 54-56). Thus, when read together, 

the oral pronouncement and the written judgment unambiguously show the trial court imposed 

two concurrent life sentences on Petitioner. 

Finally, Petitioner has not shown that the state habeas court’s resolution of this issue was 

contrary to, or was an unreasonable application of, clearly established federal law as determined 

by the Supreme Court. Indeed, Petitioner has made no attempt to demonstrate that a violation of 

his constitutional rights has occurred. As such, federal habeas corpus relief is unwarranted. 

D. Trial Counsel (Claim 4) 

Petitioner next claims he was denied the right to effective assistance of trial counsel when 

his court-appointed attorneys failed to object to constitutional violations asserted in the first three 

grounds for relief. Specifically, Petitioner claims that his trial counsel failed to object to: (1) a 

double jeopardy violation, (2) prosecutorial vindictiveness, and (3) the trial court’s failure to 

pronounce a separate punishment for each conviction. Like the underlying allegations, this 

ineffective-assistance allegation was raised during Petitioner’s state habeas proceedings and 

rejected by the Texas Court of Criminal Appeals. Petitioner fails to demonstrate the state court’s 

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

Court precedent. 

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, 

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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. 

2. Analysis under Strickland 

Petitioner contends his trial counsel was ineffective for failing to object to a doublejeopardy violation, the vindictiveness of the prosecution, and the trial court’s failure to assess a 

separate punishment for each offense. Petitioner believes counsel should have objected to 

preserve these errors for appellate review. But as discussed in previous sections, Petitioner was 

not subjected to a double jeopardy violation or prosecutorial vindictiveness. See Sections III (A) 

and (B), supra. Nor did the trial court err in pronouncing his sentences. See Sections III (C), 

supra. 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 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”). 

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Consequently, viewing this allegation under the deferential standard that applies on 

federal habeas review, Petitioner has not shown that the state court’s rejection of this allegation

was objectively unreasonable or that he is entitled to relief on his IATC claim. Relief is denied. 

E. Appellate Counsel (Claim 5) 

In his fifth allegation, Petitioner contends he received ineffective assistance of counsel 

during his direct appeal proceedings. 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). The 

familiar standard set out in Strickland to prove that counsel rendered unconstitutionally 

ineffective assistance 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, 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 Robbins, 528 U.S. at 285; Higgins v. Cain, 720 F.3d 255, 260-61 (5th Cir. 

2015). He does neither.

Petitioner contends appellate counsel was ineffective for failing to raise the double 

jeopardy argument, as well as the prosecutorial vindictiveness and trial court error claims, on 

direct appeal. As discussed previously, however, none of these allegations have merit. And 

appellate counsel is not required to raise every possible non-frivolous claim on appeal. See 

Jones v. Barnes, 463 U.S. 745, 751-52 (1983) (“Experienced advocates since time beyond 

memory have emphasized the importance of winnowing out weaker arguments on appeal and 

focusing on one central issue if possible, or at most on a few key issues.”). 

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Because none of the claims Petitioner contends should have been raised are meritorious, 

appellate counsel was not deficient for failing to raise them. For the same reason, there is no 

likelihood Petitioner would have obtained relief had they been raised on direct appeal, and 

therefore no prejudice was caused by appellate counsel’s failure to raise them. Petitioner’s 

allegation concerning appellate counsel was rejected by the state court during his state habeas 

proceedings, and Petitioner has not shown this rejection on the merits to be contrary to, or an 

unreasonable application of, the Strickland standard. Richter, 562 U.S. at 101. Federal habeas 

relief is therefore denied. 

F. Petitioner’s Unexhausted IATC Claims (Claim 6)

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

counsel’s performance violated his Sixth Amendment right to counsel.

2

 In response, Respondent 

contends that the IATC allegations 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. 

 1. Exhaustion and Procedural Default

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. 

2 Specifically, Petitioner faults his trial counsel for failing to: (a) object to an incorrect statement of law 

during voir dire or to the State’s subsequent challenges for cause, (b) object to the trial court’s discussion of 

punishment issues during voir dire, (c) adequately cross-examine the complainant, (d) consult experts or call certain 

witnesses, and (d) object to comments made during the State’s closing argument. 

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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, Petitioner admits, and the record confirms, that the IATC allegations raised 

in his final claim were not properly presented to Texas Court of Criminal Appeals in either a 

petition for discretionary review or state habeas corpus application. 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 since 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 

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 

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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 

claims 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). Petitioner does not attempt to show a “fundamental miscarriage of justice” will result 

from the Court’s dismissal of the claims. Instead, citing Martinez v. Ryan, 566 U.S. 1 (2012), 

Petitioner argues that the alleged ineffectiveness of his trial and state habeas counsel constitute 

cause and prejudice sufficient to overcome the procedural bar. The Court disagrees. 

2. The Martinez Exception 

Prior to Martinez, an attorney’s negligence in a postconviction proceeding could not 

serve as “cause” to excuse the procedural default of claims in federal court. Coleman, 501 U.S. 

at 755. In Martinez, the Supreme Court carved out a “narrow” exception to the procedural 

default of IATC claims. Trevino v. Thaler, 569 U.S. 422 (2013). Now, a petitioner may show 

cause and prejudice by showing: “(1) that his [IATC claim] is substantial—i.e., has some 

merit—and (2) that habeas counsel was ineffective in failing to present those claims in his first 

state habeas proceeding.” Garza v. Stephens, 738 F.3d 669, 676 (5th Cir. 2013). A petitioner 

must establish both prongs of the Martinez analysis before a procedural default may be excused. 

In this case, Petitioner cannot overcome the procedural default of the IATC allegations 

raised in Claim 6 because the underlying allegations are all insubstantial. An IATC claim is 

insubstantial if the claim “does not have any merit” or is “wholly without factual support.” Reed 

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v. Stephens, 739 F.3d 753, 774 (5th Cir. 2014) (quoting Martinez, 566 U.S. at 14-16). 

Conversely, for a claim to be “substantial,” a petitioner “must demonstrate that the claim has 

some merit.” Id. As shown below, Petitioner fails to make this showing under the familiar twoprong test established in Strickland. 

(a) Voir Dire

Petitioner first argues that his counsel was deficient during voir dire because he failed to 

object to the State’s hypothetical questions concerning the “one-witness” issue. Under this rule, 

a conviction can be supported with the uncorroborated testimony of just one witness who is not 

an accomplice so long as the jury believes that witness beyond a reasonable doubt. Petitioner 

contends that counsel should have objected to this questioning and to the State’s subsequent 

challenges for cause to prospective jurors who indicated that they would require some 

corroboration before voting to convict.3

 

Under Texas law, a prospective juror may be challenged for cause if he indicates that he 

could not convict on the testimony of only one witness whom he believed beyond a reasonable 

doubt. See Lee v. State, 206 S.W.3d 620, 623 (Tex. Crim. App. 2006). Petitioner has not 

demonstrated that the State’s failure to explain Article 38.07 to prospective jurors or the 

subsequent exclusion of prospective jurors who indicated they could not comply with the “one 

witness rule” was improper. 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, 907 

F.2d at 527; see also Miller v. Thaler, 714 F.3d 897, 904 n.6 (5th Cir. 2013) (counsel is not 

required to make futile motions or objections).

3 Specifically, Petitioner argues that the State’s discussion failed to mention Article 38.07 of the Texas Code 

of Criminal Procedure, which does require some corroborative evidence “if the competent adult complainant in a 

sexual assault prosecution has not informed any adult, other than the defendant, of the alleged offense within a year 

of its commission.” Martinez v. State, 178 S.W.3d 806, 813 (Tex. Crim. App. 2005).

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(b) Trial Court’s Comments

Petitioner next faults counsel for failing to object during voir dire when the trial court 

discussed punishment enhancements with prospective jurors even though Petitioner had already 

elected to have the judge assess punishment. According to Petitioner, this denied him a fair and 

impartial jury because it alerted the prospective jurors to his prior convictions. The record does 

not support this position. To the contrary, it appears the trial court briefly discussed potential 

punishment ranges with the prospective jury in hypothetical form only and did not mention 

Petitioner himself or his criminal history. (ECF No. 10-26 at 40-43). In fact, the jury was only 

informed of Petitioner’s previous crimes after they rendered a guilty verdict when Petitioner 

plead true to the enhancements. (ECF No. 10-27 at 146). Counsel therefore had no reason to 

object and was not ineffective for failing to do so. 

(c) Cross-Examination

In his next allegation, Petitioner argues that trial counsel failed to adequately crossexamine the complainant in this case. Specifically, Petitioner believes counsel should have: 

(1) questioned complainant about her opportunity to speak with Petitioner’s female friend on the 

phone the night of the incident, (2) confronted her with a prior inconsistent statement concerning 

the location of her cell phone, (3) questioned complainant about her motive to falsely accuse 

Petitioner of rape given his previous threats to report her son’s potential parole violations, and 

(4) impeached complainant with her prior felony conviction for possession of a controlled 

substance. 

To start, Petitioner fails to provide any support for his assertions concerning the 

complainant’s alleged phone conversation, inconsistent statement, and potential motive to lie, 

much less establish their relevance. Such conclusory assertions of deficient performance are 

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insufficient to support a claim for ineffective assistance of counsel. Woodfox v. Cain, 609 F.3d 

774, 809 n.17 (5th Cir. 2010); Day v. Quarterman, 566 F.3d 527, 540 (5th Cir. 2009). Because 

Petitioner fails to substantiate his allegations or demonstrate their relevance, counsel cannot be 

considered deficient for failing to raise them during cross-examination. 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)).

Furthermore, decisions regarding cross-examination are strategic and usually “will not 

support an ineffective assistance claim.” United States v. Bernard, 762 F.3d 467, 472 (5th Cir. 

2014) (citation omitted). Indeed, “[s]peculating about the effect of tinkering with the crossexamination questions is exactly the sort of hindsight that Strickland warns against.” See 

Castillo v. Stephens, 640 Fed. Appx. 283, 292 (5th Cir. 2016) (unpublished) (citing Strickland, 

466 U.S. at 689). Here, a thorough review of the trial transcript indicates counsel provided 

effective cross-examination on several issues, including the complainant’s credibility and her 

failure to fight back or leave the apartment despite the opportunity to do so throughout the 

evening. Petitioner has not shown that counsel’s strategic decision not to discuss the 

complainant’s prior conviction for drug possession or Petitioner’s alleged threats to report her 

son was unreasonable. See Cotton v. Cockrell, 343 F.3d 746, 752-53 (5th Cir. 2003) (“A 

conscious and informed decision on trial tactics and strategy cannot be the basis for 

constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the 

entire trial with obvious unfairness.”). As a result, Petitioner has not shown counsel’s 

performance was deficient. 

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(d) Uncalled Witnesses

Petitioner asserts that trial counsel should have called the following witnesses to testify 

on his behalf: (1) a medical expert to show that the bruises around the complainant’s knees 

occurred prior to the instant offense, (2) a DNA expert to demonstrate that Petitioner’s DNA was 

not found on the complainant’s sexual organ, and (3) Detective Pauline Castro concerning her 

investigation, and (4) a member of the parole board to confirm Petitioner’s defense that he had 

reported the complainant’s son to the parole board the day before the incident. 

A petitioner’s unsupported claims regarding uncalled witnesses “are speculative and 

disfavored by this Court as grounds for demonstrating ineffective assistance of counsel.” Evans

v. Cockrell, 285 F.3d 370, 377 (5th Cir. 2002). To prevail on an IATC claim based on counsel’s 

failure to call a witness, the petitioner must name the witness, demonstrate the witness was 

available to testify, delineate the content of the witness’s proposed testimony, and show the 

testimony would have been favorable to the defense. Day, 566 F.3d at 538. Petitioner has not 

established that any of his proposed witnesses were available and willing to testify, much less 

that their proposed testimony would have been favorable to his defense. Accordingly, this claim 

is conclusory and meritless. 

(e) Closing Arguments 

Lastly, Petitioner contends that trial counsel failed to object during the State’s closing 

argument when the prosecution referred to him as a “coward,” an “animal,” and a “monster.” 

The relevant portion of the State’s closing argument is as follows:

And I tell you what, as a prosecutor, it feels like we’re walking like them back 

through the darkness. Like we are perpetrating on victims each time we have to 

discuss it with them because we have to walk them through the worst night of 

their life. And we get to do it in front of a jury and we get to do it in front of the 

animal that viciously attacked her. 

* * *

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And each of you will have the opportunity to help her. To help her get justice. 

To help her put this behind her and to protect other women from monsters like 

this, cowards that beat up on women and have their way with their bodies . . .

(ECF No. 10-27 at 141, 143) (emphasis added).

Under Texas law, the Texas Court of Criminal Appeals has repeatedly held that the 

following areas are proper for argument: (1) summary of the evidence, (2) reasonable deductions 

from the evidence, (3) responses to opposing counsel’s argument, and (4) pleas for law 

enforcement. Borjan v. State, 787 S.W.2d 53, 55 (Tex. Crim. App. 1990); see also Buxton v. 

Collins, 925 F.2d 816, 825 (5th Cir. 1991) (recognizing these four areas as acceptable under 

Texas law). A prosecutor’s comments on what he or she believes the evidence shows is not 

prosecutorial misconduct. See Ortega v. McCotter, 808 F.2d 406, 410 (5th Cir. 1987). Indeed, a

petitioner’s trial is rendered fundamentally unfair only if, in the context of the entire trial, the 

remarks by the prosecutor were “crucial, critical, highly significant” factors. Id. at 411. 

Petitioner does not make this showing. The record indicates that the prosecution 

mentioned the words “animal,” “monster,” and “coward” only once during closing arguments. It 

does not appear that these words, which seem to arise in the context of a plea for law 

enforcement, were “highly significant” factors that deprived Petitioner of a fair and impartial 

trial, particularly given the general accusations of sexual assault levied against him throughout 

the trial. In other words, Petitioner has not met his burden and shown that the evidence against 

him was so insubstantial that, but for the prosecutor’s remarks, he would not have been 

convicted. Harris v. Cockrell, 313 F.3d 238, 245 (5th Cir. 2002). Thus, any objection by 

counsel would likely have been futile. See Roberts, 681 F.3d at 612 (“the failure to lodge futile 

objections does not qualify as ineffective assistance”).

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(f) Lack of Prejudice

As discussed above, Petitioner’s allegations of deficient performance are conclusory and 

unsupported by the record. But even if Petitioner could establish that counsel’s performance in 

this case constituted deficient performance, he still fails to demonstrate that the alleged errors 

were prejudicial to his defense. Again, to demonstrate prejudice, a petitioner “must show that 

there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.” Strickland, 466 U.S. at 694. “[A] court assessing 

prejudice must consider the totality of the evidence before the judge or jury.” Mejia v. Davis, 

906 F.3d 307, 315 (5th Cir. 2018) (quoting Strickland, 466 U.S. at 696) (internal quotation marks 

omitted).

Petitioner has not established that the alleged errors were prejudicial 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). In addition to testimony of 

the complainant herself, this evidence included the corroborating testimony of (1) Jimmy 

Limmer, a deputy with the Guadalupe County Sheriff’s Department who responded to the 

complainant’s 911 call, (2) Noella Hill, the sexual assault nurse examiner who conducted a 

forensic exam of the complainant, and (3) three members of the Bass family, the complainant’s 

neighbors whose apartment the complainant fled to immediately after the assault. 

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, Petitioner’s IATC 

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claims are insubstantial and do not help him establish cause and prejudice under Martinez that 

would excuse the claims from being procedurally defaulted. Relief is therefore denied. 

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. 

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 A district court may deny a COA sua sponte without requiring further briefing or 

argument. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000). For the reasons set 

forth above, the Court concludes that jurists of reason would not debate the conclusion that 

Petitioner was not entitled to federal habeas relief. As such, a COA will not issue.

V. Conclusion and Order

Petitioner has failed to establish that the state court’s rejection of his first five claims on 

the merits during his state habeas 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 during Petitioner’s state trial, appellate, and habeas corpus proceedings. 

Further, Petitioner’s sixth allegation is procedurally barred from federal habeas review and 

Petitioner fails to establish cause to excuse the procedural bar pursuant to Martinez v. Ryan, 566 

U.S. 1 (2012). 

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

 1. Federal habeas corpus relief is DENIED and Petitioner Jerry Wayne William’s 

Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) is DISMISSED 

WITH PREJUDICE; 

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

 3. All other motions, if any, are DENIED, and this case is now CLOSED. 

It is so ORDERED. 

SIGNED this the 11th day of July, 2022.

 ____________________________________ 

 JASON PULLIAM

UNITED STATES DISTRICT JUDGE

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