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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MICHAEL RAY FERGUSON, §

#02219372, §

Petitioner, §

§

v. § No. 3:22-cv-00580-L (BT)

§

DIRECTOR, TDCJ-CID, §

§

Respondent. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Michael Ray Ferguson, a Texas prisoner, filed a pro se petition for a writ of 

habeas corpus under 28 U.S.C. § 2254. The District Court referred the petition to 

the United States magistrate judge for findings and a recommendation, pursuant 

to 28 U.S.C. § 636(b) and a standing order of reference. For the following reasons, 

the District Court should DISMISS Ferguson’s petition. 

I. Background

Ferguson pleaded guilty to possession of over 400 grams of 

methamphetamine with the intent to deliver in the Navarro County Court at Law 

in Navarro County, Texas. See Texas v. Ferguson, Case No. C37620. On August 27, 

2018, the Court sentenced him to 75 years’ imprisonment. 

The Tenth Court of Appeals of Texas affirmed the trial court’s judgment, see 

Ferguson v. Texas, No. 37620-CR (Tex. App.—Navarro 2020, pet. ref’d), and the 

Texas Court of Criminal Appeals (CCA) refused Ferguson’s petition for 

discretionary review (PDR), see Ferguson v. State, PDR No. 0784-20 (Tex. Crim. 

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App. 2020). Thereafter, Ferguson filed a state application for a writ of habeas 

corpus, and the trial court issued findings of fact and conclusions of law 

recommending that relief be denied. On February 9, 2022, the CCA denied 

Ferguson’s state habeas application without a written order. 

Ferguson then filed this § 2254 petition (ECF No. 3), in which he argues: 

(1) His trial attorney provided ineffective assistance of counsel 

when he failed to advise him of plea offers; and 

(2) The prosecutors used “false information,” Pet. 6 (ECF No. 3), to 

increase his punishment. 

The Director filed a response, arguing Ferguson’s petition is meritless and should 

be denied and dismissed with prejudice. Ferguson filed a reply. His claims are 

fully-briefed and ripe for determination. 

II. Legal Standards and Analysis

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 

U.S.C. § 2254, provides:

(d) An application for 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 a State court proceeding.

28 U. S. C. § 2254(d). Under the “contrary to” clause, a federal habeas court may 

grant the writ of habeas corpus if the state court arrives at a conclusion opposite to 

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that reached by the United States Supreme Court on a question of law or if the state 

court decides a case differently from the United States Supreme Court on a set of 

materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 380-84 

(2000). Under the “unreasonable application” clause, a federal court may grant a 

writ of habeas corpus if the state court identifies the correct governing legal 

principle from the United States Supreme Court’s decisions, but unreasonably 

applies that principle to the facts of the prisoner’s case. Id.

The federal habeas court must presume a state court's factual 

determinations are correct and can find those factual determinations unreasonable 

only where the petitioner “rebut[s] the presumption of correctness by clear and 

convincing evidence.” 28 U.S.C. § 2254(e)(1); see also Ford v. Davis, 910 F.3d 232, 

234 (5th Cir. 2018). A federal habeas court “may not characterize these state-court 

factual determinations as unreasonable ‘merely because [it] would have reached a 

different conclusion in the first instance.’” Brumfield v. Cain, 576 U.S. 305, 313-14 

(2015) (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)). “Instead, § 2254(d)(2) 

requires that [a federal court] accord the state trial court substantial deference.” 

Id. at 314. The demanding standard under the AEDPA falls short of imposing a 

complete bar on federal court re-litigation of claims rejected in a state court 

proceeding. Harrington v. Richter, 562 U.S. 86, 102 (2011) (citing Felker v. 

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

1. Ferguson has failed to demonstrate his trial attorney provided ineffective 

assistance of counsel. 

Ferguson argues his trial attorney provided ineffective assistance of counsel 

when he failed to advise him about the prosecution’s plea offers. Pet. 6 (ECF No. 

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3); see also Reply 1 (ECF No. 15). Specifically, he contends his trial attorney “failed 

to appear” at his first court appearance on September 1, 2017, and the “substitute 

counsel” did not provide him with any legal advice or an opportunity to accept the 

plea offer from the State for 35 years. Pet. 6 (ECF No. 3). Ferguson further contends 

the “substitute counsel” advised him that “her only duty was to re-set.” Id. 

To succeed on a claim of ineffective assistance of counsel, a petitioner must 

show “counsel's representation fell below an objective standard of 

reasonableness,” with reasonableness judged under professional norms prevailing 

at the time counsel rendered assistance. Strickland v. Washington, 466 U.S. 668, 

688 (1984). The standard requires the reviewing court to give great deference to 

counsel's performance, strongly presuming counsel exercised reasonable 

professional judgment. Id. at 689. The right to counsel does not require errorless 

counsel; instead, a criminal defendant is entitled to reasonably effective assistance. 

Murray v. Maggio, 736 F.2d 279, 281-82 (5th Cir. 1984); Boyd v. Estelle, 661 F.2d 

388, 389 (5th Cir. 1981). Additionally, 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. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. 

The petitioner must “affirmatively prove,” not just allege, prejudice. Id. at 693. If 

he fails to prove prejudice, the court need not address the question of counsel's 

performance. Id. at 697. Merely presenting “conclusory allegations” of deficient 

performance or prejudice is insufficient to meet the Strickland test. Miller v. 

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

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“[T]he test for federal habeas purposes is not whether [an inmate] made that 

showing [required by Strickland]. Instead, the test is whether the state court's 

decision—that [the inmate] did not make the Strickland-showing—was contrary 

to, or an unreasonable application of, the standards, provided by the clearly 

established federal law (Strickland), for succeeding on his [ineffective assistance 

of counsel] claim.” Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir. 2003); 

Charles v. Thaler, 629 F.3d 494, 501 (5th Cir. 2011) (citing Schaetzle, 343 F.3d at 

444); see also 28 U.S.C. § 2254(d)(1). 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 § 2254(d). See Woods v. 

Etherton, 136 S. Ct. 1149, 1151 (2016) (citing Cullen v. Pinholster, 563 U.S. 170, 190 

(2011)). “The pivotal question is whether the state court's application of the 

Strickland standard was unreasonable. This is different from asking whether 

defense counsel's performance fell below Strickland's standard.” Harrington v. 

Richter, 562 U.S. 86, 101 (2011).

The Sixth Amendment right to effective assistance of counsel extends to the 

negotiation and consideration of plea offers, and effective counsel is “a right that 

extends to the plea bargain process.” Lafler v. Cooper, 566 U.S. 156, 162 (2012); 

Missouri v. Frye, 566 U.S. 134, 144-45 (2012). “[A]s a general rule, defense counsel 

has the duty to communicate formal offers from the prosecution to accept a plea 

on terms and conditions that may be favorable to the accused.” Frye, 566 U.S. at 

145. A petitioner must prove “that but for the ineffective advice of counsel there is 

a reasonable probability that the plea offer would have been presented to the court 

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(i.e., that the defendant would have accepted the plea and the prosecution would 

not have withdrawn it in light of intervening circumstances), that the court would 

have accepted its terms, and that the conviction or sentence, or both, under the 

offer's terms would have been less severe than under the judgment and sentence 

that in fact were imposed.” Lafler, 566 U.S. at 164.

In his state habeas application, Ferguson also argued that his trial attorney 

“failed to advise [him] of [the] plea offers.” State Habeas Ct. R. -01 (ECF No. 14-

23) at 34; see also State Habeas Ct. R. -01 (ECF No. 14-23) at 86 (designated as an 

“amended petition”). In opposition to this argument, Ferguson’s trial attorney 

provided an Affidavit to the state habeas court. State Habeas Ct. R. -01 Supp. (ECF 

No. 14-28) at 5-7. 

Ultimately, the state habeas court rejected Ferguson’s claim that he was not 

informed of the State’s plea offers. The state habeas court found: 

1. Applicant’s Counsel was not ineffective by failing to inform 

Applicant of the plea bargain. Applicant’s counsel did inform him of 

the plea offers he received[,] and they were declined by Applicant. 

Applicant had several occasions to inform the court he wished to 

accept the offer and on at least two occasions stated in writing to the 

court he did not wish to accept them at that time. 

State Habeas Ct. R. -01 Supp. 2 (ECF No. 14-29) at 6-7; see also State Habeas Ct. 

R. -01 “Action Taken” sheet (ECF No. 14-24) (the state habeas application was 

denied without a written order on February 9, 2022). 

The state habeas court’s finding that Ferguson’s attorney was not ineffective 

by failing to inform him of the plea bargain involved a credibility determination. 

The state habeas court concluded, “Applicant’s allegations lack credibility based on 

the documents and testimony[.]” State Habeas Ct. R. -01 Supp. 2 (ECF No. 14-29) 

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at 6. In support of its credibility determination, the state habeas court noted that 

Ferguson “was given at least four occasions to voice his desire to plead guilty and 

accept the State’s offer,” but he failed to do so. Id. at 5-7 (citing conferences held 

on October 10, 2017, December 21, 2017, March 29, 2018, and May 7, 2018). In 

addition, the state habeas court found Ferguson signed a statement on two 

occasions that indicated he did not wish to accept the State’s plea offer. Id. at 7. 

Based on this evidence, the state habeas court found Ferguson’s trial attorney 

informed him of a 45-year plea deal from the State, and Ferguson rejected it. State 

Habeas Ct. R. -01 Supp. 2 (ECF No. 14-29) at 5. Based on these findings, the state 

habeas court ultimately determined Ferguson failed to show his attorney provided 

ineffective assistance of counsel by failing to advise him of the plea offers. Id. at 6. 

This Court must presume that the state habeas court’s findings are correct. 

Considering the findings and conclusions of the state habeas court, and given its 

ultimate decision to deny relief, Ferguson cannot show that this decision was 

objectively unreasonable. See 28 U.S.C. § 2254(d) (finding relief under § 2254 is 

not warranted on a claim addressed on the merits by the state court unless the 

decision was unreasonable); see also Sumner v. Mata, 449 U.S. 539, 546 (1981)

(noting the deference afforded under § 2254(d) applies to cases where a state court 

has made “a determination after a hearing on the merits of a factual issue”). Due 

to this deference, a federal habeas court must more than just disagree with the state 

court before rejecting its factual determinations. Rather, a federal habeas court 

must determine that the state court’s findings were not supported by the record. 

Marshall v. Lonberger, 459 U.S. 422, 432 (1983). 

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In support of this ineffective assistance argument before the state habeas 

court, Ferguson explained, “[t]he only reason [he] [was] even aware of the 35[-

]year plea offer is because he overheard the D.A. instructing the court reporter to 

document that an offer of 35 years was made at [the September of 2017] court 

appearance.” State Habeas Ct. R. -01 (ECF No. 14-23) at 34. However, this 

allegation is not legally sufficient for him to meet his burden. See 28 U.S.C. § 

2254(e)(1) (“The applicant shall have the burden of rebutting the presumption of 

correctness by clear and convincing evidence.”); see also Ford, 910 F.3d at 234. 

Rather, Ferguson must come forward with clear and convincing evidence. See 

Miller-El v. Cockrell, 537 U.S. 322, 341 (“The clear and convincing evidence 

standard is found in § 2254(e)(1), but that section pertains only to state-court 

determinations of factual issues, rather than decisions.”); see also Richards v. 

Quarterman, 566 F.3d 553, 563 (5th Cir. 2009) (Section 2254(e)(1)’s presumption 

of correctness applies to a state court’s credibility findings as well as factual 

determinations) (citing Valdez v. Cockrell, 274 F.3d 941, 951 (5th Cir. 2001) (“[A] 

full and fair hearing is not a precondition to according § 2254(e)(1)'s presumption 

of correctness to state habeas court findings of fact nor to applying § 2254(d)’s 

standards of review.”)). For these reasons, Ferguson has failed to overcome the 

state court’s finding that his trial attorney informed him of the State’s plea offers. 

And he has failed to demonstrate his trial attorney provided deficient performance 

under Strickland. 

Likewise, Ferguson cannot show prejudice under Strickland. The record 

shows Ferguson repeatedly rejected the State’s plea offers. And as discussed, 

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Ferguson was allegedly only aware of the 35-year plea deal when “he overhead the 

D.A. instructing the court reporter” to document it in September 2017. State 

Habeas Ct. R. -01 (ECF No. 14-23) at 34. However, in September 2017, Ferguson 

pleaded not guilty, and again in October 2017, he pleaded not guilty. State Habeas 

Ct. R. -01 (ECF No. 14-23) at 4 (Criminal Docket Sheet), 64 (October 10, 2017). 

Ferguson then rejected a plea deal in December 2017. State Habeas Ct. R. -01 (ECF 

No. 14-23) at 4 (Criminal Docket Sheet), 64 (October 10, 2017), 66 (December 21, 

2017). The state habeas court determined that he declined the State’s 45-year plea 

offer without consideration because he insisted his traffic stop was illegal. State 

Habeas Ct. R. -01 Supp. 2 (ECF No. 14-29) at 5 (stating “[a]pplicant’s attorney 

informed him of a plea offer of 45 years which he gave no consideration to and 

persisted in the allegations the stop was illegal”); State Habeas Ct. R. -01 Supp. 

(ECF No. 14-28) at 6 (stating Ferguson “gave no consideration” to the idea of 

45-year plea deal). Ferguson now blames his trial attorney for the situation he is 

presently in and suggests he “was inclined to accept a plea offer.” Pet. 11 (ECF No. 

3). But he cannot overcome the state habeas court’s credibility and factual findings 

with his bare statement that he was “inclined to accept” the State’s “plea offer.” Id. 

And Ferguson cannot demonstrate prejudice under Strickland because he has not 

shown that but for his trial attorney’s failure to present him with the State’s plea 

offers, there is a reasonable probability that if presented with the plea offer, he 

would have accepted it, the State would not have withdrawn it, the trial court would 

have accepted its terms, and his conviction or sentence, or both, would have been 

less severe than under the judgment and sentence that were imposed. See Lafler, 

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566 U.S. at 164; see also Missouri, 566 U.S. at 147 (To show prejudice, a defendant 

“must demonstrate a reasonable probability that they would have accepted the 

earlier plea offer had they been afforded effective assistance of counsel”). Ferguson 

has failed to show prejudice from his trial attorney’s alleged failure to advise him 

of a plea offer he allegedly only knew about when he overheard the District 

Attorney talking about it. State Habeas Ct. R. -01 (ECF No. 14-23) at 34. 

In sum, the state habeas properly found Ferguson’s claim failed under 

Strickland because he failed to show either deficient performance or prejudice. See 

Busby v. Dretke, 359 F.3d 708, 717 (5th Cir. 2004) (the clearly established federal 

law governing an ineffective assistance of counsel claim is found in Strickland, 466 

U.S. at 668). Because the state habeas court’s rejection of this claim did not result 

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

clearly established federal law, as determined by the United States Supreme Court, 

Ferguson is not entitled to relief on this claim. See Brown v. Payton, 544 U.S. 133, 

141 (2005); see also Williams, 529 U.S. at 380-84. The Court should dismiss this 

claim. 

2. Ferguson’s prosecutorial misconduct claim is not cognizable. 

Next, Ferguson argues that “Navarro County prosecutors are using false 

information to increase the petitioners [sic] punishment.” Pet. 6 (ECF No. 3); see 

also Reply 1-2 (ECF No. 15). Specifically, he contends that the prosecutors are 

“claiming” he has a “prior drug conviction,” but “[t]his is not true.” Pet. 6 (ECF 

No. 3). 

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Federal habeas courts do not sit to re-examine state court determinations on 

questions of state law. Swarthout v. Cooke, 562 U.S. 216, 219 (2011); see also 

Narvaiz v. Johnson, 134 F.3d 688, 695 (5th Cir. 1998) (citing Estelle v. McGuire, 

502 U.S. 62, 67-68 (1991)). “Under § 2254, federal habeas courts sit to review state 

court applications of federal law. A federal court lacks authority to rule that a state 

court incorrectly interpreted its own law.” Charles v. Thaler, 629 F.3d 494, 500-

01 (5th Cir. 2011). Federal habeas corpus relief is proper only for violations of the 

Constitution or laws of the United States. 28 U.S.C. § 2254(a); see also Engle v. 

Isaac, 456 U.S. 107, 119 (1982) (to the extent only a state issue is raised, there is no 

deprivation of federal rights and no grounds for habeas relief). Infirmities in state 

habeas corpus proceedings do not give rise to a legal basis for federal habeas relief. 

See Brown v. Dretke, 419 F.3d 365, 378 (5th Cir. 2005) (“infirmities in state habeas 

proceedings are not grounds for federal habeas relief”); see also Moore v. Dretke, 

369 F.3d 844, 846 (5th Cir. 2004) (“It is axiomatic that infirmities in state habeas 

proceedings do not constitute grounds for federal habeas relief.”) (internal 

quotation marks omitted). 

Ferguson is attacking Navarro County’s statement in a brief filed in his state 

habeas proceedings. The brief stated that Ferguson “had a prior drug conviction.” 

Pet. 6, 17 (ECF No. 3); State Habeas Ct. R. -01 (ECF No. 14-23) at 58. And his 

criminal history includes aggravated robbery with a deadly weapon, violence, 

weapons, stealing, lying, burglary, drug distribution, and guns. Reporter’s R. Vol. 

2 (ECF No. 14-15) at 154. This claim is not cognizable under § 2254, and the Court 

should dismiss it. 

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3. Ferguson has failed to meet his burden under the AEDPA. 

Last, Ferguson fails to meet his burden of proof under the AEDPA. 

Specifically, the CCA’s denial of his claims served as an adjudication on the merits. 

State Habeas Ct. R. -01 at “Action Taken” sheet (ECF No. 14-24); see 28 U.S.C. § 

2254(d); see also Valdez, 274 F.3d at 950 (noting that under the AEDPA, there is 

a deferential standard of review, and a federal court must defer to a state court 

adjudication on the merits). An adjudication on the merits “is a term of art that 

refers to whether a court's disposition of the case was substantive, as opposed to 

procedural.” Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000); see also Ex 

parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997) (“In our writ 

jurisprudence, a ‘denial’ signifies that we addressed and rejected the merits of a 

particular claim while a ‘dismissal’ means that we declined to consider the claim 

for reasons unrelated to the claim's merits.”). 

This Court must defer to the state court’s determinations. Because the state 

habeas court’s rejection of Ferguson’s claims did not result in a decision that was 

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

law, as determined by the United States Supreme Court, he is not entitled to relief. 

III. Recommendation

For the foregoing reasons, the Court should DISMISS Ferguson’s § 2254 

petition. 

Signed April 28, 2023.

__________________________

REBECCA RUTHERFORD

UNITED STATES MAGISTRATE JUDGE

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation shall be served on all parties in 

the manner provided by law. Any party who objects to any part of this report and 

recommendation must file specific written objections within 14 days after being 

served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). In order to be 

specific, an objection must identify the specific finding or recommendation to 

which objection is made, state the basis for the objection, and specify the place in 

the magistrate judge’s report and recommendation where the disputed 

determination is found. An objection that merely incorporates by reference or 

refers to the briefing before the magistrate judge is not specific. Failure to file 

specific written objections will bar the aggrieved party from appealing the factual 

findings and legal conclusions of the magistrate judge that are accepted or adopted 

by the district court, except upon grounds of plain error. See Douglass v. United 

Services Automobile Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996)

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