1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

KODELL VALENTINO FOSTER, §

TDCJ No. 02181404 §

§

Petitioner, §

§

v. § W-20-CV-556-ADA

§

BOBBY LUMPKIN,

1 Director, §

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

§

Respondent. §

ORDER

Before the Court are Petitioner Kodell Valentino Foster’s pro se Petition for Writ of 

Habeas Corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1), Respondent’s Response (ECF 

No. 17), and Petitioner’s Reply (ECF No. 19). Having reviewed the record and pleadings 

submitted by both parties, the Court concludes Petitioner’s federal habeas corpus petition 

should be denied under the standards prescribed by the Antiterrorism and Effective Death 

Penalty Act of 1996 (AEDPA). See 28 U.S.C. § 2254(d). 

I. Background

In March 2015, Petitioner was charged by indictment with three counts of sexual 

assault. (ECF No. 18-36 at 45-46.) In December 2017, a jury convicted Petitioner of all 

three counts and sentenced him to life imprisonment on each count, to run concurrently. 

1 The previous named respondent in this action was Lorie Davis. Bobby Lumpkin succeeded Ms. Davis as the 

Director of the Texas Department of Criminal Justice, Correctional Institutions Division and is automatically 

substituted as a party. FED. R. CIV. P. 25(d).

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State v. Foster, No. 2015-703-C2 (54th Dist. Ct., McLennan Cnty., Tex. Dec. 7, 2017.) 

(ECF No. 18-37 at 1-6.) The following is a brief summary of the factual allegations against 

Petitioner.

Appellant was arrested in December of 2014. In January of 2015, a grand 

jury indicted appellant on three counts of sexual assault. . . . On March 10, 

2016, appellant filed a motion for speedy trial and asked that the charges be 

dismissed with prejudice. However, no order setting a hearing on the motion 

was filed.

On September 29, 2016, appellant’s defense counsel filed a motion to 

withdraw as attorney of record. The trial court held a hearing on the motion 

on October 21, 2016, and the following exchanged occurred:

[Defense Counsel]: Mr. Foster, tell the Judge why you asked me to 

file the motion to withdraw.

[Appellant]: Well, sir, with all due respect to the Court. [Counsel] and 

I, we get along great. I just feel like the process isn’t moving along 

as—as it should be. We filed a motion for a speedy trial on March the 

1st, 2016. Also, there’s evidence that proves my innocence 

that—that’s came [sic] out, I believe, that we do have. And I just 

haven’t been able to get any answers up until now. I’ve been 

incarcerated for almost two years. I haven’t gotten absolutely any 

answers as far as why I’m still here, why I cannot get a—a date to go 

to trial. Since, obviously, the case will not get dismissed, I would like 

to go to trial. But I can’t get a date to go to trial. And neither I or 

[Counsel] have been able to get an answer, so . . . .

The trial court told appellant that, at that time, trial was set for November 7, 

2016—just over two weeks away. At the end of the hearing, the trial court 

asked, “anything else from the State or from the defense at this time?”, and 

defense counsel answered “No, sir.” The trial court responded: “Okay. Then 

at this time, I’m going to deny the Motion to Withdraw.”

Trial began on December 4, 2017. The complainant testified that she was 

seventeen years old when the offenses took place. She explained that, while 

under the influence of prescribed medication, she was walking down the 

street when appellant offered to give her a ride to her friend’s house. The 

complainant accepted his offer and got in the vehicle. Appellant, however, 

drove to his house and sexually assaulted her. After the assault was over, 

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appellant drove the complainant away from his house, and she got out of the 

car once she recognized a gas station they had passed. Appellant had two 

roommates at the time of the assault: Estella and Elmer Sadler. Both Mr. and 

Mrs. Sadler testified at trial.

The State called Mrs. Sadler as a witness during its case in chief. During 

cross-examination, appellant’s defense counsel asked Mrs. Sadler if she had 

any concerns about her children being around appellant when appellant was 

home, and she answered “No.” The State, on re-direct, asked Mrs. Sadler 

whether she knew appellant had recently been paroled and whether she was 

aware of his prior felony convictions. Defense counsel objected to this 

testimony under Texas Rules of Evidence 401, 402, 403, 404(b), and 802. 

The trial court overruled the objections. Mrs. Sadler testified that: she knew 

appellant had moved in with her and her husband shortly after being 

released on parole; she knew appellant had been imprisoned for multiple 

years prior to his release on parole; and she did not know he had convictions 

for possession of cocaine, possession of a controlled substance with intent 

to deliver, and possession of a firearm by a felon.

The jury found appellant guilty of all three counts. . . .

Foster v. State, No. 13-18-00051-CR, 2018 WL 6626728 (Tex. App.—Corpus 

Christi-Edinburg, Dec. 19, 2018, pet. ref’d.)

Petitioner’s conviction was affirmed on appeal. Id. On March 20, 2019, the Texas 

Court of Criminal Appeals (TCCA) refused Petitioner’s Petition for Discretionary Review 

(PDR). Foster v. State, No. PD-037-19 (Tex. Crim. App. Mar. 20, 2019). Petitioner did not 

petition for a writ of certiorari to the United States Supreme Court. (ECF No. 1 at 3.)

On April 28, 2020, Petitioner filed a pro se state habeas corpus application, listing 

the following four grounds of relief:

1. Counsel was ineffective for failing to protect and execute Petitioner’s right to a fair 

and speedy trial; 

2. Counsel was ineffective by opening the door for the admission and introduction of 

character evidence despite a Motion in Limine prohibiting it and for failing to 

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prevent Petitioner’s federal probation officer from testifying to bad acts without a 

ruling from the trial court outside the jury’s presence;

3. Counsel was ineffective by failing to investigate; and 

4. Counsel was ineffective for failing to establish the proper exceptions to make the 

state’s hearsay objections admissible. 

(ECF No. 18-35 at 8-26.) On May 11, 2020, the state habeas court ordered Petitioner’s trial 

counsel, Mr. Brian Pollard, to file an affidavit addressing these claims. (ECF No. 18-36 at 

13-15.)

Petitioner filed his instant federal habeas petition on June 22, 2020 and the Court 

granted his motion to stay the case pending the TCCA’s disposition of his state habeas 

application. (ECF Nos. 1, 3, 6.) On June 11, 2020, the state habeas court entered its

Findings of Fact and Conclusions of Law and recommended denying Petitioner’s 

application for a writ of habeas corpus. (ECF No. 18-36 at 30-36.) On August 26, 2020, the 

TCCA denied Petitioner’s application without written order the findings of the trial court

without hearing and on the court’s independent review of the record. Ex parte Foster, No. 

WR-91,457-01. (ECF No. 18-31.)

On September 4, 2020, Petitioner notified the Court of the TCCA’s denial of his state 

habeas application, and the Court lifted the stay on his federal petition. (ECF Nos. 10, 11.) 

Petitioner’s federal habeas petition lists the following grounds of relief:

1. Trial counsel provided ineffective assistance by not protecting Petitioner’s right to a 

fair and speedy trial;

2. Trial counsel provided ineffective assistance when opening the door for the 

introduction of character evidence; 

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3. Trial counsel provided ineffective assistance for allowing Petitioner’s federal 

probation offer to testify to Petitioner’s supervision and misconduct; and 

4. Trial counsel provided ineffective assistance when he failed to establish the 

necessary hearsay exceptions to make certain evidence admissible.

(ECF No. 1.) On December 4, 2020, Respondent filed their response (ECF No. 17) to which 

Petitioner replied (ECF No. 19).

II. Standard of Review

Petitioner’s federal habeas petition is governed by the heightened standard of 

review provided by AEDPA. See 28 U.S.C. § 2254. Under § 2254(d), a petitioner may not 

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

state court proceedings unless the adjudication of that claim either: (1) resulted in a 

decision that was contrary to, or involved an unreasonable application of, clearly 

established federal law, as determined by the Supreme Court of the United States, or (2) 

resulted in a decision that was based on an unreasonable determination of the facts in 

light of the evidence presented in the state court proceeding. Brown v. Payton, 544 U.S. 

133, 141 (2005). This demanding standard stops just short of imposing a complete bar on 

federal court re-litigation of claims already rejected in state proceedings. Harrington v. 

Richter, 562 U.S. 86, 102 (2011) (citing Felker v. Turpin, 518 U.S. 651, 664 (1996)). 

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

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

established 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 

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conclusion was unreasonable. Richter, 562 U.S. at 102. A petitioner must show that the

state court’s decision was objectively unreasonable, not just incorrect, 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). “A state court’s determination that a claim lacks 

merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the 

correctness of the state court’s decision.” Richter, 562 U.S. at 101 (quoting Yarborough v. 

Alvarado, 541 U.S. 652, 664 (2004)). As a result, to obtain federal habeas relief on a claim 

previously adjudicated on the merits in state court, Petitioner must show that the state 

court’s ruling “was so lacking in justification that there was an error well understood and 

comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 

103. “‘If this standard is difficult to meet—and it is—that is because it was meant to be.’” 

Mejia v. Davis, 906 F.3d 307, 314 (5th Cir. 2018) (quoting Burt v. Titlow, 571 U.S. 12, 20 

(2013)).

III. Analysis

A. Ineffective Assistance of Counsel

Petitioner’s federal habeas claims are based on allegations that his trial counsel

provided constitutionally deficient assistance of counsel. The Sixth Amendment to the 

United States Constitution guarantees citizens the assistance of counsel in defending 

against criminal prosecutions. U.S. CONST. amend VI. Sixth Amendment claims based on 

ineffective assistance of 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 

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

the petitioner’s 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, 571 

U.S. at 22 (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 (citing Strickland, 466 U.S. at 693). 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). When the state 

court has 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. 

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170, 190 (2011)). In such cases, the “pivotal question” is not “whether defense counsel’s 

performance fell below Strickland’s standard,” but whether “the state court’s application of 

the Strickland standard was unreasonable.” Richter, 562 U.S at 101. 

1. Failure to protect and execute Petitioner’s right to a speedy trial

In his first ground for relief, Petitioner claims his trial counsel provided ineffective 

assistance because he failed to protect Petitioner’s constitutional right to a fair and speedy 

trial. Specifically, Petitioner alleges his counsel at the time, Mr. Guy Cox, file a motion for 

speedy trial but requested a dismissal of the charges, rather than a trial date, which 

Petitioner alleges prejudiced him. 

The Texas Thirteenth Court of Appeals addressed Petitioner’s claim that he was 

denied the right to a speedy trial on direct review. After reviewing the claim’s factual 

background (restated above in Section I), the court of appeals analyzed Petitioner’s claim 

using the factors delineated in Barker v. Wingo, 407 U.S. 514 (1972) and concluded the 

trial court did not err by denying Petitioner’s speedy-trial motion:

In sum, the evidence in this case fully supports the trial court’s ruling. There 

was a delay of fifteen months that weighs in favor of finding a violation of 

appellant’s right to a speedy trial. However, from the record, we conclude 

that appellant did not really want a speedy trial; he wanted only a dismissal 

of the charges. The nature of the State’s delay and official negligence, the 

tardiness of appellant’s sole assertion of his speedy-trial right, and the lack 

of any substantial personal or defense prejudice resulting from the State’s 

delay convinces us that the trial court did not err in denying appellant’s 

motion for speedy trial. We conclude appellant was not denied his Sixth 

Amendment right to a speedy trial. . . .

Foster, 2018 WL 6626728 at *5.

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The state habeas court, which did not order Mr. Guy Cox to submit an affidavit 

addressing this claim, made the following findings of fact: 

2. The record and the Court’s own recollection reflect that Applicant’s 

original trial counsel, Guy Cox, presented a request for speedy trial. On 

direct appeal, the Thirteen[th] Court of Appeals assumed without deciding 

that the issue had been preserved. The Court of Appeals went on to overrule 

Applicant’s speedy trial issue on the merits. The Court finds that the face of 

the Application . . . fails to raise any facts suggesting any deficient

performance on the part of Mr. Pollard in regard to a speedy trial claim. The

record further reflects that, on presentation of the speedy trial claim, 

Appellant was afforded relief in the form of a priority jury trial setting.

(ECF No. 17-36 at 32.) In a related footnote, the state habeas court stated “During the 

pendency of this Application, Applicant has made a written request that Mr. Cox present 

his affidavit addressing the speedy trial issue, clarifying that his ineffective assistance 

claim was directed specifically toward Mr. Cox. As the discussion makes clear, the Court of 

Appeals addressed this issue on the merits thus obviating the need for any input from Mr. 

Cox.” (Id.)

This Court’s review of Petitioner’s claim is guided by the AEDPA, under which 

Petitioner must show that the state habeas court’s determination was an unreasonable 

application of Strickland. The Sixth Amendment guarantees every criminal defendant “the 

right to a speedy and public trial.” U.S. CONST. amend VI. Again, to establish an 

ineffective-assistance claim, Petitioner must show both deficient performance and 

prejudice. Strickland, 466 U.S. at 687. “With respect to prejudice, a challenger must 

demonstrate ‘a reasonable probability that, but for counsel’s unprofessional errors, the 

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result of the proceeding would have been different.’” Richter, 562 U.S. at 104 (quoting 

Strickland, 466 U.S. at 694.)

Here, Petitioner argues that Mr. Cox’s performance prejudiced him because Mr. Cox 

requested dismissal of the charges, rather than requesting a trial date. Yet in affirming the 

trial court’s denial of Petitioner’s speedy-trial motion, the Thirteenth Court of Appeals 

made clear the request for dismissal was one of many factors that weighed against 

Petitioner’s speedy trial motion. The court noted that Petitioner only made the speedy trial 

request once; Petitioner did not testify that he was anxious about the case, found his 

incarceration oppressive, or that his defense was impaired by the delay in any way. As a 

result, even if Mr. Cox had requested a trial date rather than dismissal, Petitioner has not 

shown that the trial court would have granted his speedy trial motion. See Richter, 562 

U.S. at 112 (to show prejudice, the “likelihood of a different result must be substantial, not 

just conceivable); see also Pondexter v. Quarterman, 537 F.3d 511, 520 (5th Cir. 2008) 

(finding an ineffective-assistance claim may be rejected for want of either deficient 

performance or prejudice, and thus the absence of either prong of the Strickland analysis 

is dispositive). Accordingly, the state habeas court’s application of Strickland to this claim 

was not unreasonable, and this claim is denied.

2. Opening the door to unfavorable character evidence

In his second ground for relief, Petitioner argues his trial counsel, Mr. Pollard, 

provided ineffective assistance when he opened the door for the admission of evidence of 

Petitioner’s prior convictions. Specifically, Petitioner points to Mr. Pollard’s 

cross-examination of Mrs. Estelle Sadler, one of the State’s witnesses: 

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Mr. Pollard: Okay. And your children -- you had your children around 

[Petitioner] when he was [living with you]; is that right?

Ms. Sadler: Yes.

Q: Didn’t have any concerns over that?

A: No.

(ECF No. 18-18 at 184.) Petitioner argues Mr. Pollard admitted that he performed 

deficiently when he asked these questions, which allowed the State to question Ms. Sadler 

about her knowledge of Petitioner’s prior convictions, thereby admitting these convictions 

into evidence. Petitioner argues he was prejudiced because his prior convictions became 

the focus of the trial rather than the allegations against him. 

In his affidavit before the state habeas court, Mr. Pollard responded as follows:

During trial preparation I identified what I perceived to be weaknesses in the 

State’s case. My strategy was to elicit and show the following themes and 

arguments:

19. Mr. & Mrs. Sadler, Defendant’s roommates, lived with him with their 

children, and they had no reservations about the Defendant staying with 

them.

. . . .

Reference is made to item 19 above. I acknowledge asking the question. 

Asking the question was a mistake. I asked the question after several days 

of a tiring, bitterly contested and hard fought trial.

The Defendant had said that he wanted to take the stand, and he ultimately 

did so. Most, if not all, of the evidence elicited by the State after I asked the 

question would have been admitted once the Defendant took the stand and 

testified.

(ECF No. 18-36 at 23-25.) The state habeas court—one and the same with the trial 

court—made the following findings: 

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3. In his second ground for relief, Applicant asserts deficient performance by 

trial counsel in asking Applicant’s roommate their opinion of Applicant’s 

character, thus opening the door for the witness to be cross-examined as to 

the witness’[s] knowledge of Applicant’s prior criminal convictions. In his 

responsive affidavit, trial counsel concedes that the asking of this specific 

question was a mistake. However, he also notes that part of the trial 

strategy was to show that Applicant’s roommates had no qualms about 

having Applicant live with them.

4. Counsel’s affidavit further reflects that Applicant consistently expressed 

his desire to testify, knowing that this would allow the State to present his 

criminal history to the jury. The record reflects that Applicant did indeed 

testify at trial.

5. The record and the Court’s recollection reflect that Applicant’s prior 

convictions were for offenses wholly unrelated to sexual offenses, and thus 

did not reflect a propensity to commit the charged offenses.

6. The record and the Court’s own recollect further reflect that the evidence 

adduced at trial was overwhelmingly supportive of the jury’s guilty verdicts. 

This evidence included DNA findings consistent with the victim’s recounting 

of events and the victim’s knowledge of the inside of Applicant’s home, 

where the offenses occurred, which she would not have otherwise had a 

reason to know.

7. Accordingly, the Court finds that Applicant has failed to demonstrate that 

he was prejudiced due to trial counsel’s mistake of opening the door to 

presentation of Applicant’s prior criminal history.

(Id. at 32-33.) Petitioner argues that, contrary to Mr. Pollard’s affidavit and the state 

habeas court’s findings, he did not consistently express a desire to testify. Rather, he 

argues that, as the last person to testify, his entire criminal history had already been 

revealed, and that “[t]here is no evidence that the Applicant had any desire to testify 

before that happened.” (ECF No. 19 at 10.) 

The Fifth Circuit has held that “[a] conscious and informed decision on trial tactics 

and strategy cannot be the basis for constitutionally ineffective assistance of counsel 

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unless it is so ill chosen that it permeates the entire trial with obvious unfairness.” Cotton 

v. Cockrell, 343 F.3d 746, 752-53 (5th Cir. 2003). “[C]ounsel has wide latitude in deciding 

how best to represent a client,” Yarborough v. Gentry, 540 U.S. 1, 5-6, 8 (2003), and 

counsel’s choice of a defense and his strategy in arguing that defense to a jury are 

“virtually unchallengeable,” Strickland, 466 U.S. at 690. Further, because decisions 

regarding cross-examination are strategic, they usually “will not support an ineffective 

assistance claim.” United States v. Bernard, 762 F.3d 467, 472 (5th Cir. 2014) (citation 

omitted). As a result, as long as counsel’s trial strategy was reasonable, “[s]peculating 

about the effect of tinkering with the cross-examination questions is exactly the sort of 

hindsight that Strickland warns against.” See Castillo v. Stephens, 640 F. App’x 283, 292 

(5th Cir. 2016) (citing Strickland, 466 U.S. at 689).

The state habeas court concluded that even though Mr. Pollard admitted his

mistake in asking the question, it was nonetheless in keeping with Mr. Pollard’s overall trial 

strategy to show Petitioner’s roommates were comfortable with Petitioner living with them 

and their children. The state habeas court also credited Mr. Pollard’s statement that 

Petitioner consistently requested to testify in his own defense, despite knowing the State 

would present his criminal history to the jury if he did so. Petitioner disputes this but 

provides no clear and convincing evidence in support of his allegation. See 28 U.S.C. § 

2254(e)(1) (a state court’s factual findings are “presumed to be correct” unless the habeas 

petitioner rebuts the presumption through “clear and convincing evidence”); see also

United States v. Demik, 489 F.3d 644, 646 (5th Cir. 2007) (“conclusory allegations are 

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insufficient to raise cognizable claims of ineffective assistance of counsel”) (quoting Miller 

v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000)).

Finally, the state habeas court also concluded that, even if Mr. Pollard’s 

performance was deficient, it was not prejudicial as the overwhelming weight of evidence 

at trial supported Petitioner’s conviction. See Mays v. Stephens, 757 F.3d 211, 214 (5th 

Cir. 2014) (citations omitted) (where the state habeas court and trial court are one in the 

same, the presumption of correctness afforded the state habeas court’s factual 

determinations is especially strong). Petitioner has failed to rebut the state habeas court’s 

findings with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). Accordingly, the

Court concludes the state habeas court’s application of Strickland was not unreasonable, 

and this claim is denied. 

3. Allowing Petitioner’s federal probation offer to testify

In Petitioner’s third claim for relief, he argues Mr. Pollard provided ineffective 

assistance when he allowed Petitioner’s former probation officer to testify about 

Petitioner’s supervision as this testimony violated the motion in limine. Petitioner states 

that Mr. Pollard objected to the testimony, but did not specifically object on these grounds. 

(ECF No. 13 at 15-17.) Petitioner included this claim in his second ground of relief in his 

state habeas application, but neither Mr. Pollard nor the state habeas court addressed 

these factual allegations directly. However, the TCCA denied Petitioner’s state habeas 

application on the findings of the trial court and “the court’s independent review of the 

record.” (ECF No. 18-31.)

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After the State called Mr. Steve Oppermann, Petitioner’s federal probation officer, 

as a witness, Mr. Pollard objected: 

MR. POLLARD: Your Honor, if I may interject? I’d like to object to any -- this 

testimony of this witness regarding extraneous conduct under Texas Rules 

of Evidence Rules 401, 402, 403, 404(b). It would be a volition of due 

process, a violation of due course of law in the Texas constitution. It should 

be excluded because the probative value outweighs the danger of unfair 

prejudice under Rule 403. It’s irrelevant and immaterial under Rule 402. 

Probative value outweighs the -- the -- the probative value outweighs the 

danger of unfair prejudice, Rule 403. Evidence is character, a character trait, 

404. Evidence of another crime or wrong or act under 404(b)(1). It's also 

hearsay under Rule 802. We would just object to the -- anything this witness 

has to say along those lines. I would like a running objection on those 

grounds as to this witness.

THE COURT: You’ll need to object to the questions as they’re asked. I don’t 

know what questions are going to be asked, so I’m not gonna grant you a

running objection before they’ve gotten past his name.

(ECF No. 18-18 at 192-93.) After Mr. Oppenheimer testified about Petitioner’s move from 

a half-way house in Austin to Waco, Mr. Pollard again objected: 

MR. POLLARD: Your Honor, at this time, I would pose that same objection. 

Do you want me to repeat it or can I have that objection and have a running 

objection to those -- to this testimony?

THE COURT: You just want to lodge the same objection you did last time?

MR. POLLARD: Yes

THE COURT: You can do – that’s certainly fine. 

MR. POLLARD: And have a running objection as to this witness on this -- on 

this ground of testimony? 

THE COURT: On this -- on this question -- well, I don't know what the next 

question is gonna be. I’ll – I’ll – I’m gonna overrule the objection as to this 

question.

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(Id. at 194-95.) Mr. Oppermann went on to testify that, after Petitioner moved to Waco, 

Mr. Oppermann did an unscheduled visit to Petitioner’s home, where he found two other 

people smoking marijuana. Petitioner was not at home. Mr. Oppermann also testified that 

there were no roommates on Petitioner’s lease, and that the next day he advised 

Petitioner that having people at his house smoking marijuana could get him into trouble. 

Mr. Oppermann then identified Petitioner in the courtroom and his testimony ended. (Id.

at 195-99.) 

Mr. Oppermann’s testimony directly followed that of Ms. Sadler, where Mr. Pollard’s 

cross-examination opened the door to evidence of Petitioner’s prior convictions detailed 

above. Although this issue was not directly addressed by the state habeas court in its 

findings of fact, the TCCA denied Petitioner’s state habeas application upon its own 

independent review of the record. “When a federal claim has been presented to a state 

court and the state court has denied relief, it may be presumed that the state court 

adjudicated the claim on the merits” even without a written explanation of the court’s 

reasoning. Richter, 562 U.S. at 99. In such situations, this Court “(1) assumes that the 

state court applied the proper ‘clearly established Federal law’; and (2) then determines 

whether its decision was ‘contrary to’ or ‘an objectively unreasonable application of’ that 

law.” Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th Cir. 2003) (citations omitted).

Once Mr. Pollard opened the door to Petitioner’s prior convictions, the State was 

free to present Mr. Oppermann’s testimony. Further, as the state habeas found, there was 

overwhelming evidence of Petitioner’s guilt, and thus any deficient performance by Mr. 

Pollard was not prejudicial. See Richter, 562 U.S. at 112 (to show prejudice, the “likelihood 

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of a different result must be substantial, not just conceivable); see also Pondexter v. 

Quarterman, 537 F.3d 511, 520 (5th Cir. 2008) (finding an ineffective-assistance claim 

may be rejected for want of either deficient performance or prejudice, and thus the 

absence of either prong of the Strickland analysis is dispositive). Accordingly, this claim is 

also denied. 

4. Failure to establish exceptions to hearsay to make certain evidence admissible

In Petitioner’s last claim for relief, he argues Mr. Pollard provided ineffective 

assistance when he failed to argue that certain evidence was admissible based on hearsay 

exceptions. Specifically, Petitioner argues that, after his prior convictions were presented 

to the jury, he attempted to defend himself with the following evidence: (1) the condition 

of the complainant when she approached him, which Petitioner alleges was “shaken up, 

bruised, and stressed out” and that she told him she had just been in a physical fight with 

her older sister; and (2) the business records from the Heart of Texas MHMR center, which 

Petitioner alleges showed the complainant had mental health issues. (ECF No. 13 at 

18-19.)

Mr. Pollard responded to this claim in his state habeas affidavit:

Defendant complains that I did not fight harder to get the victim’s 

statements concerning her conflict with her sister by arguing exceptions to 

the hearsay rule. Without a transcript or statement of facts, I am at a 

disadvantage to fully understand Defendant’s complaint or to respond to it.

However, the record was replete with evidence of foreign [DNA] and the 

victim’s possible sexual activities with 2 other men prior to her SANE exam. 

I seem to recall that evidence of the victim’s conflict with her sister came 

was admitted at some other point during the trial.

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Finally, since the victim’s emotional recounting of her conflict with her sister 

to the Defendant occurred some time after the conflict, I did not believe that 

this qualified as an “excited utterance” or a “present sense impression”

exception to the hearsay rule under Rule 803. It would not have occurred to 

me to argue for its admissibility under either of those two theories.

With regard to the business affidavit, again, I do not specifically recall the 

details of what happened at trial. My usual procedure is to try to dispense 

with the need to subpoena a medical records custodian if I can get the 

business record stipulated to in advance. Even though the prosecutor may 

stipulate that the records qualify as business records, the prosecutor may 

have objections on other grounds to the introduction of the record. The 

prosecutor and I probably agreed to stipulate that the records were business 

records, but we agreed that she could make objections to their admissibility 

on other grounds.

(ECF No. 18-36 at 26.) The state habeas court made the following findings of fact: 

10. Applicant’s final ground for relief asserts deficient performance by trial 

counsel in failing to assert exceptions to hearsay that would have allowed 

Applicant to testify to statements made to him by the victim. The record of 

Applicant’s testimony reflects that he attempted to repeat the victims’s

hearsay statements without any prompting by his counsel, or in response to 

counsel’s questions. Further, the record contains trial counsel’s admonitions 

to Applicant to only answer the questions asked. Further, counsel’s affidavit 

reflects his legal reasoning that there was no hearsay exception that would 

have allowed the admission of the statements; and the record accordingly 

reflects that trial counsel never urged such a hearsay exception.

11. Counsel’s affidavit reflects that part of the trial strategy included an 

attempt to show the victim’s previous falling out with her sister, and her 

resulting emotion state for which Applicant was trying to comfort her. These 

matters were revealed and presented to the jury through other evidence, 

and it was not necessary for Applicant to bolster this through his attempted 

hearsay testimony.

12.Accordingly, the Court finds that Applicant was not prejudiced by any 

claimed deficient performance based on a failure to urge the admission of 

the victim[’s] statements to Applicant through a hearsay exception.

13. Applicant complains that trial counsel was ineffective in failing to 

introduce medical records into evidence under a business records exception. 

Applicant fails to relate facts showing how such claimed deficient 

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performance prejudiced him. The record reflects that this issue arose during 

the cross-examination of Dr. Dhaval Parikh, a psychologist who treated the 

victim. The specific item concerned was a treatment note from the victim’s 

MHMR records, with which Dr. Parikh was unfamiliar. The record reflects 

that the State’s objection was sustained on this basis.

14. The record and the Court’s own recollection of trial counsel’s 

cross-examination of Dr. Parikh reflect an effective cross-examination that 

revealed the victim’s psychological troubles and possibly resulting credibility 

issues. Further, trial counsel successfully admitted Dr. Parikh’s own 

treatment notes relating to the victim. Accordingly, the Court finds that 

Applicant was not prejudiced by any claimed deficient performance by trial 

counsel in failing to admit the MHMR treatment note.

(Id. at 33-34.) 

As noted above, the state habeas court’s factual findings are presumed correct 

unless Petitioner rebuts them with clear and convincing evidence. See 28 U.S.C. § 

2254(e)(1). This presumption is especially strong when the trial court and state habeas 

court are one in the same. See Mays, 757 F.3d at 214. Here, the state habeas court 

credited Mr. Pollard’s affidavit and found that part of his trial strategy—to show there was 

a physical altercation between the complainant and her sister—was presented to the jury 

through other testimony and did not require Petitioner’s testimony to bolster it. The state 

habeas court also concluded that Mr. Pollard’s cross-examination of one of the

complainant’s treating physicians revealed to the jury evidence of the complainant’s 

psychological troubles and credibility issues, and that Petitioner was not prejudiced by not 

having the MHMR records admitted. 

Thus, the evidence Petitioner wanted presented to the jury—regarding the 

complainant’s fight with her sister and her psychological history—was indeed presented, if 

not in the exact way Petitioner desired. He was nonetheless convicted. “Simply because 

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counsel’s strategy did not successfully convince the jury does not mean counsel’s 

performance was deficient.” Avila v. Quarterman, 560 F.3d 299, 314 (5th Cir. 2009).

Petitioner has failed to rebut the state habeas court’s findings with clear and convincing 

evidence and failed to show that Mr. Pollard’s performance fell beyond the bounds of 

prevailing objective professional standards. Strickland, 466 U.S. at 687-89. Accordingly, 

the state habeas court’s application of Strickland was not unreasonable, and this claim is 

denied. 

IV. Certificate of Appealability

A petitioner may not appeal 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). 

Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, the district court must 

issue or deny a certificate of appealability (COA) when it enters a final order adverse to the 

applicant. See Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (citing 28 U.S.C. 

§ 2253(c)(1)). 

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). In cases where 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). 

When a district court rejects a habeas petition on procedural grounds without reaching the 

constitutional claims, “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 

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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 § 2254 petition on substantive or procedural grounds, nor find that the issues 

presented are adequate to deserve encouragement to proceed. Miller-El, 537 U.S. at 327 

(citing Slack, 529 U.S. at 484). Accordingly, the Court will not issue a certificate of 

appealability.

It is therefore ORDERED that Petitioner’s Petition for Writ of Habeas Corpus

pursuant to 28 U.S.C. § 2254 (ECF No. 1) is DENIED; and

It is FURTHER ORDERED that no certificate of appealability shall issue in this 

case.

SIGNED on May 20, 2021

ALAN D ALBRIGHT

UNITED STATES DISTRICT JUDGE

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