IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CLARENCE WYATT HOLLAND §

TDCJ No. 2233325, §

§

Petitioner, §

§

V. § No. 3:22-cv-651-K-BN

§

DIRECTOR, TDCJ-CID, §

§

Respondent. 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Petitioner Clarence Wyatt Holland – a Texas prisoner – was charged in 

Kaufman County with continuous sexual abuse of a child under 14. Dkt. No. 8-29 at 

8-9. A jury found him guilty as charged and sentenced him to 50 years of 

imprisonment. State of Texas v. Clarence Wyatt Holland, 17-10195-422-F, (422nd 

Dist. Court, Kaufman Cty., Nov. 7, 2018); Dkt. No. 8-29 at 10-11.

The Fifth Court of Appeals of Texas affirmed the judgment. Holland v. State, 

No. 05-18-01419-CR, 2019 WL 6799755, at *5 (Tex. App. – Dallas Dec. 13, 2019, pet. 

ref’d). And the Texas Court of Criminal Appeals (CCA) denied Holland’s petition for 

discretionary review. Holland, PD-0028-20 (Tex. Crim. App. 2020).

Holland applied for state habeas relief. The CCA denied the application 

without written order based on the findings of the habeas trial court after a hearing 

and on the court’s own independent review of the record. See Ex parte Holland, WR92-643-01, (Tex. Crim. App. Jan. 26, 2022); Dkt. No. 8-19. 

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Holland then filed this application for federal habeas relief pursuant to 28 

U.S.C. § 2254. Dkt. Nos. 1-2. The Court referred this action to the undersigned United 

States magistrate judge for pretrial management under 28 U.S.C. § 636(b) pursuant 

to a standing order of reference from United States District Judge Ed Kinkeade. The 

State responded to Holland’s application. Dkt. No. 10. Holland filed a reply. Dkt. No. 

11.

The undersigned now enters these findings of fact, conclusions of law, and 

recommendation that the Court should deny Holland’s application for a writ of habeas 

corpus. 

Legal Standards 

“Federal habeas features an intricate procedural blend of statutory and 

caselaw authority.” Adekeye v. Davis, 938 F.3d 678, 682 (5th Cir. 2019). In the district 

court, this process begins – and often ends – with the Antiterrorism and Effective 

Death Penalty Act of 1996 (“AEDPA”), under which “state prisoners face strict 

procedural requirements and a high standard of review.” Adekeye, 938 F.3d at 682 

(citation omitted).

Under the AEDPA, where a state court has already rejected a claim on the 

merits, a federal court may grant habeas relief on that claim only if the state court 

adjudication:

(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 

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court proceeding.

28 U.S.C. § 2254(d); see Adekeye, 938 F.3d at 682 (“Once state remedies are exhausted, 

AEDPA limits federal relief to cases where the state court’s decision was ‘contrary to, 

or involved an unreasonable application of, clearly established Federal law, as 

determined by the Supreme Court of the United States’ or was ‘based on an 

unreasonable determination of the facts in light of the evidence presented.’” (citation 

omitted)); see also Allen v. Vannoy, 659 F. App’x 792, 798-99 (5th Cir. 2016) (per 

curiam) (describing Section 2254(d) as “impos[ing] two significant restrictions on 

federal review of a habeas claim ... ‘adjudicated on the merits in state court 

proceedings’”). 

And “[t]he question under AEDPA is not whether a federal court believes the 

state court’s determination was incorrect but whether that determination was 

unreasonable – a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 

473 (2007); see also Sanchez v. Davis, 936 F.3d 300, 305 (5th Cir. 2019) (“[T]his is 

habeas, not a direct appeal, so our focus is narrowed. We ask not whether the state 

court denial of relief was incorrect, but whether it was unreasonable – whether its 

decision was ‘so lacking in justification’ as to remove ‘any possibility for fairminded 

disagreement.’” (citation omitted)).

A state court decision is “contrary” to clearly established federal law if “it relies 

on legal rules that directly conflict with prior holdings of the Supreme Court or if it 

reaches a different conclusion than the Supreme Court on materially 

indistinguishable facts.” Busby v. Dretke, 359 F.3d 708, 713 (5th Cir. 2004); see also 

Lopez v. Smith, 574 U.S. 1, 2 (2014) (per curiam) (“We have emphasized, time and 

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time again, that the [AEDPA] prohibits the federal courts of appeals from relying on 

their own precedent to conclude that a particular constitutional principle is ‘clearly 

established.’” (citation omitted)).

“A state court unreasonably applies clearly established Supreme Court 

precedent when it improperly identifies the governing legal principle, unreasonably 

extends (or refuses to extend) a legal principle to a new context, or when it gets the 

principle right but ‘applies it unreasonably to the facts of a particular prisoner’s 

case.’” Will v. Lumpkin, 978 F.3d 933, 940 (5th Cir. 2020) (quoting Williams v. Taylor, 

529 U.S. 362, 407-08 (2000); citation omitted)). “But the Supreme Court has only 

clearly established precedent if it has ‘broken sufficient legal ground to establish an 

asked-for constitutional principle.’” Id. (quoting Taylor, 569 U.S. at 380-82; citations 

omitted).

“For purposes of § 2254(d)(1), an unreasonable application of federal law is 

different from an incorrect application of federal law.... 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.” Harrington v. Richter, 

562 U.S. 86, 101 (2011) (citations and internal quotation marks omitted). “Under § 

2254(d), a habeas court must determine what arguments or theories supported or ... 

could have supported, the state court’s decision; and then it must ask whether it is 

possible fairminded jurists could disagree that those arguments or theories are 

inconsistent with the holding in a prior decision of [the Supreme] Court.” Id. at 102 

(internal quotation marks omitted); see also Evans v. Davis, 875 F.3d 210, 216 (5th 

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Cir. 2017) (recognizing that Section 2254(d) tasks courts “with considering not only 

the arguments and theories the state habeas court actually relied upon to reach its 

ultimate decision but also all the arguments and theories it could have relied upon” 

(citation omitted)).

The Supreme Court has further explained that “[e]valuating whether a rule 

application was unreasonable requires considering the rule’s specificity. The more 

general the rule, the more leeway courts have in reaching outcomes in case-by-case 

determinations.” Richter, 562 U.S. at 101 (internal quotation marks omitted). And 

“even a strong case for relief does not mean the state court’s contrary conclusion was 

unreasonable.” Id. at 102. The Supreme Court has explained that, “[i]f this standard 

is difficult to meet, that is because it was meant to be,” where, “[a]s amended by 

AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation 

of claims already rejected in state proceedings,” but “[i]t preserves authority to issue 

the writ in cases where there is no possibility fairminded jurists could disagree that 

the state court’s decision conflicts with this Court’s precedents,” and “[i]t goes no 

further.” Id. Thus, “[a]s a condition for obtaining habeas corpus from a federal court, 

a state prisoner must show that the state court’s ruling on the claim being presented 

in federal court 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; accord Burt v. Titlow, 571 U.S. 12, 20 (2013) (“If this 

standard is difficult to meet – and it is – that is because it was meant to be. We will 

not lightly conclude that a State’s criminal justice system has experienced the 

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extreme malfunction for which federal habeas relief is the remedy.” (internal 

quotation marks, brackets, and citations omitted)).

As to Section 2254(d)(2)’s requirement that a petitioner show that the state 

court adjudication “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,” the Supreme Court has explained that “a state-court factual 

determination is not unreasonable merely because the federal habeas court would 

have reached a different conclusion in the first instance” and that federal habeas 

relief is precluded even where the state court’s factual determination is debatable. 

Wood v. Allen, 558 U.S. 290, 301, 303 (2010). Under this standard, “it is not enough 

to show that a state court’s decision was incorrect or erroneous. Rather, a petitioner 

must show that the decision was objectively unreasonable, a substantially higher 

threshold requiring the petitioner to show that a reasonable factfinder must conclude 

that the state court’s determination of the facts was unreasonable.” Batchelor v. Cain, 

682 F.3d 400, 405 (5th Cir. 2012) (brackets and internal quotation marks omitted).

The Court must presume that a state court’s factual determinations are correct 

and can find those factual findings unreasonable only where the petitioner “rebut[s] 

the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 

2254(e)(1); Gardner v. Johnson, 247 F.3d 551, 560 (5th Cir. 2001).

This presumption applies not only to explicit findings of fact but also “to those 

unarticulated findings which are necessary to the state court’s conclusions of mixed 

law and fact.” Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir. 2001); see also Ford 

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v. Davis, 910 F.3d 232, 235 (5th Cir. 2018) (Section 2254(e)(1) “‘deference extends not 

only to express findings of fact, but to the implicit findings of the state court.’ As long 

as there is ‘some indication of the legal basis for the state court’s denial of relief,’ the 

district court may infer the state court’s factual findings even if they were not 

expressly made.” (footnotes omitted)).

And, even if the state court errs in its factual findings, mere error is not enough 

– the state court’s decision must be “based on [an] unreasonable factual 

determination.” Will v. Lumpkin, 978 F.3d 933, 942 (5th Cir. 2020) (emphasis in 

original). In other words, habeas relief is unwarranted if the state court’s conclusion 

would not have changed even if it got the disputed factual determination right. See 

id.

Further, “determining whether a state court’s decision resulted from an 

unreasonable legal or factual conclusion does not require that there be an opinion 

from the state court explaining the state court’s reasoning.” Richter, 562 U.S. at 98; 

see also Pondexter v. Dretke, 346 F.3d 142, 148 (5th Cir. 2003) (“a federal habeas court 

is authorized by Section 2254(d) to review only a state court’s ‘decision,’ and not the 

written opinion explaining that decision” (quoting Neal v. Puckett, 286 F.3d 230, 246 

(5th Cir. 2002) (en banc) (per curiam))); Evans, 875 F.3d at 216 n.4 (even where “[t]he 

state habeas court’s analysis [is] far from thorough,” a federal court “may not review 

[that] decision de novo simply because [it finds the state court’s] written opinion 

‘unsatisfactory’” (quoting Neal, 286 F.3d at 246)). This is “[b]ecause a federal habeas 

court only reviews the reasonableness of the state court’s ultimate decision,” “not the 

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written opinion explaining that decision.” Schaetzle v. Cockrell, 343 F.3d 440, 443 

(5th Cir. 2003) (quoting Neal, 286 F.3d at 246). 

Section 2254 thus creates a “highly deferential standard for evaluating state 

court rulings, which demands that state-court decisions be given the benefit of the 

doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002). To overcome this standard, a 

petitioner must show that “there was no reasonable basis for the state court to deny 

relief.” Richter, 562 U.S. at 98. 

That is, a petitioner must, in sum, “show, based on the state-court record alone, 

that any argument or theory the state habeas court could have relied on to deny [him] 

relief would have either been contrary to or an unreasonable application of clearly 

established federal law as determined by the Supreme Court.” Evans, 875 F.3d at 

217. 

Analysis

Noting that his trial counsel did not make “one objection during a three-day 

continuous sexual abuse of a child jury trial,” Holland claims that his trial counsel 

was ineffective in various ways. Dkt. No. 1 at 6; Dkt. No. 2 at 19. 

The Court reviews the merits of properly exhausted IAC claims, whether 

directed at trial or appellate counsel, under the two-prong test established in 

Strickland v. Washington, 466 U.S. 668 (1984), under which a petitioner “‘must show 

that counsel’s performance’” – “‘strongly presume[d to be] good enough’” – “‘was [1] 

objectively unreasonable and [2] prejudiced him.’” Coleman v. Vannoy, 963 F.3d 429, 

432 (5th Cir. 2020) (quoting Howard v. Davis, 959 F.3d 168, 171 (5th Cir. 2020)).

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To count as objectively unreasonable, counsel’s error must be “so serious that 

counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth 

Amendment.” Strickland, 466 U.S. at 687; see also Buck v. Davis, 137 S. Ct. 759, 775 

(2017) (reaffirming that “[i]t is only when the lawyer’s errors were ‘so serious that 

counsel was not functioning as the “counsel” guaranteed ... by the Sixth Amendment’ 

that Strickland’s first prong is satisfied” (citation omitted)). “And to establish 

prejudice, a defendant must show ‘that there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been 

different.’” Andrus v. Texas, 140 S. Ct. 1875, 1881 (2020) (per curiam) (quoting 

Strickland, 466 U.S. at 694).

“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.” Cotton v. Cockrell, 343 F.3d 

746, 752-53 (5th Cir. 2003); see also Feldman v. Thaler, 695 F.3d 372, 378 (5th Cir. 

2012) (“[B]ecause of the risk that hindsight bias will cloud a court’s review of counsel’s 

trial strategy, ‘a court must indulge a strong presumption that counsel’s conduct falls 

within the wide range of reasonable professional assistance; that is, the defendant 

must overcome the presumption that, under the circumstances, the challenged action 

might be considered sound trial strategy.’” (quoting Strickland, 466 U.S. at 689)).

And, “[j]ust as there is no expectation that competent counsel will be a flawless 

strategist or tactician, an attorney may not be faulted for a reasonable miscalculation 

or lack of foresight or for failing to prepare for what appear to be remote possibilities.” 

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Richter, 562 U.S. at 110. “The Supreme Court has admonished courts reviewing a 

state court’s denial of habeas relief under AEDPA that they are required not simply 

to give [the] attorney’s the benefit of the doubt, ... but to affirmatively entertain the 

range of possible reasons [petitioner’s] counsel may have had for proceeding as they 

did.” Clark v. Thaler, 673 F.3d 410, 421 (5th Cir. 2012) (internal quotation marks 

omitted).

And, so, on habeas review under AEDPA, “if there is any ‘reasonable argument 

that counsel satisfied Strickland’s deferential standard,’ the state court’s denial must 

be upheld.” Rhoades v. Davis, 852 F.3d 422, 432 (5th Cir. 2017) (quoting Richter, 562 

U.S. at 105); see also Sanchez, 936 F.3d at 305 (“As the State rightly puts it, we defer 

‘both to trial counsel’s reasoned performance and then again to the state habeas 

court’s assessment of that performance.’” (quoting Rhoades, 852 F.3d at 434)); Dunn 

v. Reeves, 141 S. Ct. 2405, 2410-11 (2021) (per curiam) (noting that a federal court 

can may grant habeas relief only if every “‘fairminded juris[t]’” would agree that every 

reasonable lawyer would have made a different decision (citing Richter, 562 U.S. at 

101) (emphasis in original)). 

To demonstrate prejudice, a habeas 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. Thus, 

“the question is not whether a court can be certain counsel’s performance had no effect 

on the outcome or whether it is possible a reasonable doubt might have been 

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established if counsel acted differently.” Richter, 562 U.S. at 111. “Instead, Strickland

asks whether it is ‘reasonably likely’ the result would have been different,” which 

“does not require a showing that counsel’s actions ‘more likely than not altered the 

outcome,’ but the difference between Strickland’s prejudice standard and a moreprobable-than-not standard is slight and matters ‘only in the rarest case.” Id. at 111-

12 (quoting Strickland, 466 U.S. at 693, 696, 697). “The likelihood of a different result 

must be substantial, not just conceivable.” Id. at 112.

IAC claims are considered mixed questions of law and fact and are therefore 

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); Adekeye, 938 F.3d at 682.

Where the state court has adjudicated claims of ineffective assistance on the 

merits, this Court must review a habeas petitioner’s claims under the “doubly 

deferential” standards of both Strickland and Section 2254(d). Cullen v. Pinholster, 

563 U.S. 170, 190, 202 (2011); compare Rhoades, 852 F.3d at 434 (“Our federal habeas 

review of a state court’s denial of an ineffective-assistance-of-counsel claim is ‘doubly 

deferential’ because we take a highly deferential look at counsel’s performance 

through the deferential lens of § 2254(d).” (citation omitted)), with Johnson v. Sec’y, 

DOC, 643 F.3d 907, 910-11 (11th Cir. 2011) (“Double deference is doubly difficult for 

a petitioner to overcome, and it will be a rare case in which an ineffective assistance 

of counsel claim that was denied on the merits in state court is found to merit relief 

in a federal habeas proceeding.”).

In such cases, the “pivotal question” for this Court is not “whether defense 

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counsel’s performance fell below Strickland’s standard”; it is “whether the state 

court’s application of the Strickland standard was unreasonable.” Richter, 562 U.S. 

at 101; see also id. at 105 (“Establishing that a state court’s application of Strickland

was unreasonable under § 2254(d) is all the more difficult. The standards created by 

Strickland and § 2254(d) are both ‘highly deferential,’ and when the two apply in 

tandem, review is ‘doubly’ so.” (internal quotation marks and citations omitted)). In 

other words, AEDPA does not permit a de novo review of state counsel’s conduct in 

these claims under Strickland. See id. at 101-02. Instead, on federal habeas review of 

a Strickland claim fully adjudicated in state court, the state court’s determination is 

granted “a deference and latitude that are not in operation when the case involves 

review under the Strickland standard itself.” Id. at 101.1

1 See also Woods v. Etherton, 136 S. Ct. 1149, 1151 (2016) (per curiam) 

(explaining that federal habeas review of ineffective-assistance-of-counsel claims is 

“doubly deferential” “because counsel is ‘strongly presumed to have rendered 

adequate assistance and made all significant decisions in the exercise of reasonable 

professional judgment’”; therefore, “federal courts are to afford ‘both the state court 

and the defense attorney the benefit of the doubt’” (quoting Burt, 571 U.S. at 22, 

15)); Adekeye, 938 F.3d at 683-84 (“The Supreme Court standard on prejudice is 

sharply defined: ‘It is not enough for the defendant to show that the errors had some 

conceivable effect on the outcome of the proceeding.’ [A petitioner] must show it was 

‘reasonably likely’ the jury would have reached a different result, not merely that it 

could have reached a different result. The Court reaffirmed this point in Richter: 

‘The likelihood of a different result must be substantial, not just conceivable.’ Now 

layer on top of that the habeas lens of reasonableness. [Where] the state court has 

already adjudicated [a petitioner’s] ineffective-assistance claim on the merits, he 

must show that the court’s no-prejudice decision is ‘not only incorrect but 

“objectively unreasonable.”‘ Put differently, [he] must show that every reasonable 

jurist would conclude that it is reasonable likely that [a petitioner] would have 

fared better at trial had his counsel conducted [himself differently]. ‘It bears 

repeating,’ the Supreme Court emphasized in Richter, ‘that even a strong case for 

relief does not mean the state court’s contrary conclusion was unreasonable.’” 

(footnotes omitted)).

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A. Failure to Object to Prosecutorial Misconduct During Voir Dire

Holland claims that his trial counsel was ineffective for not objecting to the 

prosecutor improperly vouching for the State’s case during the voir dire. Dkt. No. 1 

at 6; Dkt. No. 2 at 20-26. The prosecutor made these comments to the jury pool:

My role, our role is not to just get convictions. I was telling you that all 

of us took an oath to seek justice. What does that mean? That means 

that when a case comes in, we don’t have to accept it. That means that 

if it does not meet a certain burden of proof, if there’s no probable cause 

in the case or if we don’t think we can get there beyond a reasonable 

doubt at some point, then guess what? We can send it back to the agency, 

right? Okay. Now we also have a box full of motions to dismiss. At any 

stage after the case is filed, even after a grand jury has issued an 

indictment, we can, with the stroke of our signature, sign a motion to 

dismiss and dismiss a case, okay. Now, judge talked about it being the 

State’s burden. It is our burden to prove each and every element of this 

charge beyond a reasonable doubt. Now, if we don’t do it, and you find 

the defendant not guilty, whose fault is that?

....

It’s our fault. It’s not your fault. And so I’m smiling right now, and if 

after you find the defendant not guilty, guess what, we’re still going to 

be polite. We’re still going to smile. Why? Because its not your fault, its 

our fault. So we want you to understand that, that we are not just here 

to get a conviction. We’re here to seek justice, okay. So do we believe in 

the case? Obviously we believe in the case. We wouldn’t be here, okay. 

Do we intend to prove each and every element beyond a reasonable 

doubt? Obviously or we wouldn’t waste your time, and we would not 

waste our time, okay. 

Dkt. No. 8-5 at 40-41.

Holland argues – and the direct appellate court agreed – that such statements 

are improper under Texas law because they amount to an opinion from the prosecutor 

as to the guilt of the defendant. See Holland, 2019 WL 6799755, at *4 (finding, in 

context of a prosecutorial misconduct claim, that prosecutor’s commentary was 

improper but not sufficient to set aside the conviction) (citing Clayton v. State, 502 

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S.W.2d 755, 756 (Tex. Crim. App. 1973); Escobar v. State, No. 01-13-00496-CR, 2015 

WL 1735244, at *1 (Tex. App. – Houston [1st Dist.] Apr. 14, 2015, pet ref’d) (mem. 

op., not designated for publication); Williams v. State, 417 S.W.3d 162, 171-72 (Tex. 

App. – Houston [1st Dist.] 2013, pet ref’d); Beltran v. State, 99 S.W.3d 807, 811 (Tex. 

App. – Houston [14th Dist.] 2003, pet. ref’d)). 

According to that jurisprudence, statements like those offered in Holland’s case 

are improper because they convey the idea that the prosecutor has a basis for such 

an opinion outside the evidence at trial, and because such statements encourage 

jurors to conclude that the defendant is necessarily guilty because he is being tried. 

See Williams, 417 S.W.3d at 172; Mendoza v. State, 552 S.W.2d 444, 447 (Tex. Crim. 

App. 1977). 

Still, the CCA denied this claim, finding both that Holland’s counsel was not 

ineffective, and that Holland failed to show prejudice even if he were. The state 

habeas court, in findings and conclusions adopted by the CCA, reasoned:

3. Applicant failed to cite to any case law showing that [trial 

counsel] did not adhere to an objective standard of reasonableness 

by failing to object to the prosecutor’s statements during voir dire; 

4. Applicant’s brief cites only to case law demonstrating that the 

prosecutor’s statements themselves were in error; 

5. [Trial counsel’s] decision to not object to the prosecutor’s 

statements was strategic because he did not want to damage his 

credibility with the jury;

6. Applicant failed to show that [trial counsel’s] strategic decision 

not to object to the prosecutor’s statements was an error so serious 

as to deprive Applicant of a fair trial;

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7. Applicant failed to show that he was harmed by [trial counsel’s] 

decision not to object to the prosecutor’s statements during voir 

dire[.]

Dkt. No. 8-30 at 192 (internal citations omitted).

Holland argues that the finding that his trial counsel’s failure to object was 

strategic is unreasonable because Holland’s trial counsel admitted during the state 

habeas hearing that he did not know that the prosecution’s comments were improper, 

so the failure to object resulted from ignorance of the law – not strategy. See id. at 

47-49. 

An attorney’s ignorance of the law relevant to a decision of whether to object 

may preclude the argument that his or her action was a matter of reasonable trial 

strategy. See, e.g., Bullock v. Carver, 297 F.3d 1036, 1049-50 (10th Cir. 2002) (“An 

attorney’s demonstrated ignorance of law directly relevant to a decision will eliminate 

Strickland’s presumption that the decision was objectively reasonable because it 

might have been made for strategic purposes, and it will often prevent the 

government from claiming that the attorney made an adequately informed strategic 

choice.”) citing Williams v. Taylor, 529 U.S. 362, 395 (2000)); further citations and 

footnote omitted).

But the state habeas court also determined that there was no prejudice from 

trial counsel’s failure to object. And Holland must also show that this finding was 

unreasonable. See, e.g., Garcia v. Director, TDCJ-CID, 73 F. Supp. 3d 693, 710 (E.D. 

Tex. 2014) (“Furthermore, when a state court provides alternative reasons for 

denying relief, a federal court may not grant relief ‘unless each ground supporting the 

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state court decision is examined and found to be unreasonable under AEDPA.’”) citing 

Wetzel v. Lambert, 565 U.S. 520, 525 (2012)) (emphasis in original).

Holland fails to do that.

On direct appeal in this case, the court considered whether the failure to object 

to the improper vouching would be a fundamental error – that is, egregious harm that 

deprives the defendant of a fair and impartial trial – in the context of a prosecutorial 

misconduct claim. Holland, 2019 WL 6799755, at *4 (citing Almanza v. State, 686 

S.W.2d 157, 171 (Tex. Crim. App. 1984)). It concluded that it was not because “other 

actions by the prosecutor mitigated any harm the statement might have brought to 

the presumption of innocence.” Id. Namely, “[t]he prosecutor promptly and 

thoroughly explained to the venire the presumption of innocence, the burden of proof, 

and [Holland’s] Fifth Amendment right not to testify.” Id. (citing Escobar, 2015 WL 

1735244, at *4; Beltran, 99 S.W.3d at 811-12). 

While the appellate court in Holland’s case assessed prejudice in the context of 

fundamental error – a more demanding standard than Strickland prejudice – it relied 

on Escobar, which did address Strickland prejudice in a similar context. In Escobar, 

the prosecutor made similar comments to those that Holland complains of here. See 

Escobar, 2015 WL 1735244, at *1 (“So when we see someone that we believe to be not 

guilty, we can dismiss that case ... I also have had the opportunity to view our 

assistant district attorney, Mike Anderson, in a training session. He said, you know, 

‘I’m so thankful for this job and this position because I never have to try a case that 

I don’t believe in.’”). The defense attorney failed to object, but the court found no 

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prejudice because the prosecutor “subsequently told the venire that the State had the 

burden to prove all elements of the offense, that the State’s burden was beyond a 

reasonable doubt, and that Escobar was entitled to a fair trial and a presumption of 

innocence until proven guilty.” Id. at *1. 

The Escobar court relied in turn on Mendoza, in which the court held that 

improper opinions given to the jury pool were not fatal where the district attorney 

later clarified the presumption of innocence and the State’s burden of proof. Such 

actions alleviated the chief dangers of prosecutorial vouching: that jurors might 

believe the prosecutor had an undisclosed basis for his opinion or that the defendant 

was necessarily guilty because he was being tried. Mendoza, 552 S.W.2d at 447. 

Here, as in cases like Escobar and Mendoza, and as the direct appellate court 

noted in Holland’s case, the prosecutor informed the jury pool that the State had the 

obligation to prove every element of the offense beyond a reasonable doubt (Dkt. No. 

8-5 at 41), that Holland was presumed to be innocent (Id. at 41-42), and that Holland 

could elect not to testify, which could not be held against him (Id. at 42.). 

While Escobar and Mendoza are not carbon copies of Holland’s case – neither 

was in the context of sexual abuse where the only evidence was the complainant’s 

testimony, which was the case here – they sufficiently establish the principle that 

curative actions following improper commentary to the jury pool might alleviate 

prejudice from the failure to object to that commentary. This is at least something 

that fairminded jurists could debate, so the CCA did not unreasonably apply 

Strickland in denying this claim.

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B. Failure to Object to Stepmother’s Testimony

Holland faults his trial counsel for not filing an evidentiary motion or objecting 

to testimony from the complainant’s stepmother, an outcry witness. Dkt. No. 1 at 6; 

Dkt. No. 2 at 26-28. 

Holland claims that the stepmother improperly opined that she believed that 

the complainant was sexually abused:

Q. Ms. Oden, after [the complainant] outcried to you about the 

sexual abuse, what did she have to endure in this legal process?

A. A lot. She’s had to relive every detail of everything that happened, 

which has been a nightmare for her. She doesn’t sleep. Any 

attempt that she has made to have a normal life aside from the 

fact that she had to have a kidney transplant has been stomped 

on by this. She’s endured a lot more than kid should ever have to, 

and its not right.

Dkt. No. 8-6 at 34. 

In recommending that this claim be rejected, the state habeas court reasoned:

9. A defendant must be able to show authority in support of his 

argument that the objections would have been meritorious. Wert 

v. State, 383 S.W.3d 747, 758 (Tex. App. – Houston [14th] 2012, 

no pet.);

10. Applicant relies on case law in which the witnesses in question 

were being directly asked or responding specifically about 

another witness’s truth or believability [...] (citing Ochs v. 

Martinez, 789 S.W.2d 949, 956 (Tex. App. – San Antonio 1990, 

writ denied) (where witness was testifying about the truth/falsity 

of another witness’s testimony); Black v. State, 634 S.W.2d 356, 

357-58 (Tex. App. – Dallas 1982, no pet.) (where witness was 

testifying about believing whether the victim was telling the 

truth); Fuller v. State, 224 S.W.2d 823, 833-35 (Tex. App. – 

Texarkana 2007, no pet.) (where witness was being questioned 

about believing the victim).

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11. The complained-of testimony form Krissi Oden was not 

bolstering, but instead a response to a question about Oden’s 

observations of the complainant, not the victim’s credibility;

12. Applicant failed to show that the complained-of testimony would 

have been successfully excluded;

13. Applicant failed to meet his burden of showing that his trial 

counsel was deficient;

14. Even assuming error, Applicant failed to meet his burden of 

showing that but for the stepmother’s testimony, he would not 

have been found guilty[.]

Dkt. No. 8-30 at 192-193. 

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

Under Texas law, “[o]rdinarily, the opinion of a witness as to the truth or falsity 

of other testimony may not be asked for.” Black, 634 S.W.2d at 357 (citing Ayala v. 

State, 352 S.W.2d 955, 956 (Tex. Crim. App. 1962)). “One rationale for this rule is 

that truth or falsity bears directly on a witness’ credibility, and the determination of 

credibility is vested in the exclusive province of the jury.” Id. at 357-58 (citing 

Johnson v. State, 503 S.W.2d 788, 793 (Tex. Crim. App. 1974)). “A more compelling 

reason for prohibiting a witness from testifying as to the truthfulness of another 

witness is that such testimony constitutes impermissible bolstering.” Id. “‘Bolstering’ 

occurs when one item of evidence is improperly used by a party to add credence or 

weight to some earlier unimpeached piece of evidence offered by the same party.” Id.

(citing Pless v. State, 576 S.W.2d 83, 84 (Tex. Crim. App. 1978)).

Here, the state habeas court’s determination that the stepmother’s testimony 

was not bolstering is a state law determination that may not be overturned on federal 

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habeas review. See, e.g., Anderson v. Dir. TDCJ-CID, 2:18-CV-146-Z-BR, 2021 WL 

2877461, at *12 (N.D. Tex. June 30, 2021), rec. accepted 2021 WL 2874117 (N.D. Tex. 

July 8, 2021) (“First, Respondent is correct that the ‘correctness of the state habeas 

court’s interpretation of state law’ underlying an ineffective assistance of counsel 

claim may not be reviewed by the federal court ... The TCCA reviewed Petitioner’s 

exact ineffective assistance of counsel claims and did not find that the challenged 

testimony was both inadmissible and prejudicial.”) citing Young v. Dretke, 356 F.3d 

616, 628 (5th Cir. 2004)). 

Considering that determination, Holland cannot show that his counsel was 

ineffective for failing to object – as much as an objection relied on bolstering. 

But, even if the state habeas court’s determination did not rely on an 

interpretation of state law, Holland still fails to show that it was unreasonable. “To 

prevail on ineffective assistance of counsel based on a failure to raise an objection, 

the appellant must show that, had his counsel objected, the objection would have been 

sustained or that it would have been error for the trial court to overrule the objection.” 

Cornejo v. State, 2018 WL 4923936, at *5 (Tex. App. – Houston [1st Dist.] Oct. 11, 

2018) (unpublished) (citation omitted); see also Klein v. United States, Civ. Action No. 

H-13-963, 2014 WL 12855826, at *10 (S.D. Tex. Mar. 28, 2014) (‘Therefore, even if his 

trial counsel or Gallagher had raised these variance issues, Klein has not shown those 

objections would have succeeded, and thus he has not shown a reasonable attorney 

would have objected at trial or appeal.”); Liberto v. TDCJ-CID, Civ. Action No. 

4:08cv89, 2011 WL 1085182, at *6 (E.D. Tex. Mar. 21, 2011) (“A failure to object does 

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not constitute deficient representation unless a sound basis exists for objection.”) 

citing Emery v. Johnson, 139 F.3d 191, 198 (5th Cir. 1997)). 

Holland does not reference any authority showing that an objection would have 

succeeded. Unlike all the cases that Holland references – and the undersigned did 

not locate any on-point jurisprudence either – the stepmother did not offer a direct 

opinion on the complainant’s veracity, nor was she asked to do so; she gave testimony 

that indirectly suggested that she believed the victim. Compare, e.g., Ochs, 789 

S.W.2d at 956 (finding that trial court erred in allowing lay witnesses to testify that 

the complainant was telling the truth about the alleged sexual abuse); Matter of 

G.M.P., 909 S.W.2d 198, 205-06 (Tex. App. – Houston [14th Dist.] 1995, no writ) 

(expert testimony that the child sex assault complainant “is telling the truth” and 

that the expert “believe[d] [the complainant] was sexually assaulted by [the 

defendant]” was inadmissible); Black, 634 S.W.2d at 357-58 (questioning invaded 

province of the jury when witness was asked “[d]o you have an opinion as to whether 

or not (the complainant) is being truthful?”, and she answered, “I believe she’s telling 

the truth”). 

Given the absence of authority showing that an objection would be sustained, 

the undersigned cannot say that the CCA’s rejection of this claim was so 

unreasonable that fairminded jurists could not debate it. So Holland is not entitled 

to federal habeas relief in relation to it. 

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C. Counsel Referred to Complainant as the Victim 

Holland claims that his trial counsel was ineffective because he referred to the 

complainant as the victim once, asking a defense witness, “[y]ou didn’t know ... the 

victim involved in this case?” Dkt. No. 8-7 at 16-17; Dkt. No. 1 at 6. 

In recommending that this claim be rejected, the state habeas court reasoned: 

107. Applicant claimed that by referring to the complainant as 

“victim” a single time during trial, trial counsel was ineffective;

108. The reporter’s record of trial demonstrates that [trial counsel] 

referred to the complainant as “victim” once during the trial;

109. [Trial counsel] testified that if he referred to the complainant as 

“the victim” once, it would have been by accident and he would 

have misspoke;

...

22. In Cueva v. State, the Court of Appeals found that a defense 

counsel’s use of the term “victim” was not deficient “ in light of the 

fact that such terms are commonly used at trial in a neutral 

manner to describe the events in question and, in context, carry 

no implication that the person using such terms has an opinion 

one way or the other about the guilt of the defendant. 339 S.W.3d 

839, 866 (Tex. App. – Corpus Christi 2011, pet ref’d). “[T]he term 

‘victim’ is relatively mild and non-prejudicial, especially given 

that courts have held invocation of far stronger terms did not 

amount to reversible error;” Id. at 864 (citations omitted);

23. Applicant has failed to show that [trial counsel’s] single 

accidental reference of complainant as “victim” fell below an 

objective standard of reasonableness;

24. Applicant failed to show that this single reference was the “but 

for” cause of the jury finding Applicant guilty[.]

Dkt. No. 8-30 at 188, 193-94 (internal citations omitted). 

Holland fails to show that the state habeas court’s analysis was unreasonable. 

Citing a Delaware case, he argues that the use of the term “victim” is not appropriate 

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when the commission of a crime is in dispute. See Jackson v. State, 600 A.2d 21, 24 

(Del. 1991). But Jackson addressed the issue in the context of a court error claim 

when the prosecutor repeatedly used the term. 

Holland points to no case in which the one-time, accidental use of the term 

“victim” amounted to ineffective assistance of counsel, and the undersigned has not 

located any. The closest case is Cueva where the court refused to find ineffectiveness 

under similar facts as explained by the state habeas court. See Cueva, 339 S.W.3d at 

866. 

And, so, fairminded jurists could debate whether Holland’s counsel was 

ineffective for his one-time, accidental use of the term “victim,” and the CCA’s 

rejection of this claim was not an unreasonable application of Strickland.

D. Failure to Object to Testimony that the Complainant was Hit by a 

Car, Developed a Serious Kidney Disease, and had a Transplant

Holland faults his trial counsel for not objecting to testimony from the 

complainant and her relatives that, following an accident in which she was hit by a 

car, it was discovered she had a serious kidney disease, requiring a transplant. Dkt. 

No. 1 at 6; Dkt. No. 2 at 30. He claims that this testimony was irrelevant and the 

State presented it to garner sympathy with the jury. Dkt. No. 2 at 30. 

In recommending that this claim be rejected, the state habeas court reasoned:

16. A defendant must be able to show authority in support of his 

argument that the objections would have been meritorious. Wert 

v. State, 383 S.W.3d 747, 757 (Tex. App. – Houston [14th] 2012, 

no pet);

17. Applicant failed to cite to any case law or other objective standard 

of reasonableness showing that [trial counsel] should have 

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objected to the testimony about the car accident and 

complainant’s kidney illness, or that if he had objected, the 

evidence would have been excluded;

18. Evidence of complainant’s kidney disease would have been 

amissible [sic]; 

19. Applicant failed to prove that [trial counsel’s] performance was 

deficient by failing to object to admissible evidence;

20. Assuming error, Applicant failed to prove that but for the alleged 

error, he would not have been found guilty of continuous sexual 

abuse of a child[.]

Dkt. No. 8-30 at 193.

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

To start, the state habeas court’s conclusion that the kidney disease evidence 

was admissible under state law is binding on this Court. See, e.g., Garza v. Thaler, 

909 F. Supp. 2d 578, 652 (W.D. Tex. 2012) (“The Texas Court of Criminal Appeals’ 

conclusion that Jeff Mitchel’s testimony contradicting (or arguably impeaching) Ms. 

Henderson’s trial testimony would have been inadmissible under applicable Texas 

rules of evidence is binding upon this Court in this federal habeas corpus 

proceeding.”) citing Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We have repeatedly 

held that a state court’s interpretation of state law, including one announced on direct 

appeal of the challenged conviction, binds a federal court siting in habeas corpus.”); 

Paredes v. Quarterman, 574 F.3d 281, 291 (5th Cir. 2009) (a state court’s 

interpretation of state law binds a federal court sitting in habeas corpus); Amador v. 

Quarterman, 458 F.3d 397, 412 (5th Cir. 2006) (holding a federal habeas court must 

defer to a state court’s interpretation of state law); Fuhrman v. Dretke, 442 F.3d 893, 

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901 (5th Cir. 2006) (holding the same); Young, 356 F.3d at 628 (“In our role as a 

federal habeas court, we cannot review the correctness of the state habeas court’s 

interpretation of state law.”); Johnson v. Cain, 215 F.3d 489, 494 (5th Cir. 2000) 

(holding a federal habeas court may not review a state court’s interpretation of its 

own law); Gibbs v. Johnson, 154 F.3d 253, 259 (5th Cir. 1998) (holding the same), 

cert. denied, 526 U.S. 1089, 119 S. Ct. 1501, 143 L.Ed.2d 654 (1999)). 

Holland cannot show ineffectiveness, because counsel need not make meritless 

objections. See Koch v. Puckett, 907 F.2d 523, 527 (5th Cir. 1990). 

And Holland also fails to show that CCA’s finding that he could not establish 

prejudice even assuming ineffectiveness is unreasonable. 

Holland argues that the kidney disease evidence garnered sympathy with the 

jury, which was important given that the only evidence to support the State’s case 

was the complainant’s testimony. He claims that the evidence was a focal point of the 

State’s closing argument. He points to the State’s argument that the jury “should 

honor [the complainant’s] courage by convicting [Holland.]” Dkt. No. 2 at 37.

The undersigned cannot agree.

First, the State’s honor-her-courage argument was more directed at the outcry 

of sexual abuse than the car accident and kidney disease. See Dkt. No. 8-7 at 79-80. 

Second, the evidence did not go to the complainant’s credibility, nor did it go to 

an element of the offense. 

At bottom, it is speculative that this evidence had any impact, much less 

impact sufficient to undermine confidence in the outcome of the proceeding. See 

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Strickland, 466 U.S. at 694; see also Nee v. Lumpkin, Civ. Action No. H-21-4192, 2022 

WL 2118370, at *8 (S.D. Tex. June 13, 2022) (“An ineffective assistance of counsel 

claim based on speculation or conclusional rhetoric will not warrant habeas relief.”) 

(citation omitted). At the least, fairminded jurists could debate the impact this 

evidence might have had. Thus, even assuming ineffectiveness, Holland fails to show 

that the CCA’s determination of no prejudice was unreasonable. 

The CCA did not unreasonably apply Strickland in rejecting this claim. 

E. Failure to Impeach Complainant with Prior Inconsistent 

Statement 

At trial, the complainant testified that she did not outcry about the abuse when 

it was occurring because she was scared, she did not want to damage her brother’s 

friendship with Holland’s nephew, and because she did not think that anyone would 

believe her. Dkt. No. 8-5 at 152, 193. But, in a report that the complainant’s 

stepmother filled out for the Texas Department of Family and Protective Services, 

which was produced to Holland’s trial counsel before trial, the stepmother wrote that 

the complainant told her that she never told anyone about the abuse because “she 

was scared of the perpetrator, as he told her that he would harm her family if she 

ever said anything.” Dkt. No. 8-32 at 30.

In recommending that this claim be denied, the state habeas court reasoned:

26. Appellate courts have found no error where a trial attorney’s 

decision not to raise inconsistent testimony or impeach a witness 

may constitute sound trial strategy because the attempt to 

impeach may be more harmful than beneficial. Briones v. State, 

No. 01-14-00121-CR, 2016 WL 2944274, at *11 (Tex. App. – 

Houston [1st] May 19, 2016, no pet.) (not designated for 

publication);

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27. Applicant’s reliance on Ex parte Saenz is incorrect. 491 S.W.3d 

819, 829 (Tex. Crim. App. 2016). The Saenz case differs because 

in that case, defense counsel failed to impeach a State’s witness 

with a direct contradiction of a previous statement, where in the 

hospital, the witness said he would not be able to identify his 

assailant, but identified the defendant during trial. Id. at 829. 

Further, the prior inconsistent statement in Saenz was the one 

piece of evidence that could have substantially neutralized the 

identification of the defendant. Id.

28. The complained-of statements at issue are not direct 

contradictions of one another;

29. The complained-of testimony, if negated, would not have 

undermined an essential element of the State’s case;

30. Applicant has failed to present case law or other standards to 

show that [trial counsel’s] failure to impeach the complainant fell 

below an objective standard of reasonableness;

31. Applicant failed to show that but for his failure to impeach the 

complainant, he would not have been found guilty[.]

Dkt. No. 8-30 at 194.

This analysis was reasonable. In the context of an IAC claim, the habeas 

petitioner must “overcome the presumption that, under the circumstances, the 

challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 

689. 

Holland fails to do that.

As the state habeas court pointed out, the attempt to impeach can be more 

harmful than beneficial. Indeed, “[t]he Fifth Circuit has recognized that a trial 

counsel’s tactical decision not to impeach a child-victim of sexual abuse is not 

unreasonable because doing so may do more harm than good.” Frattarola v. Lumpkin, 

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Civ. Action No. H-21-2895, 2023 WL 5191948, at *7 (S.D. Tex. Aug. 11, 2023) (citing 

Reed v. Vannoy, 703 F. App’x 264, 270 (5th Cir. July 28, 2017) (per curiam); see also 

Barker v. Lumpkin, No. CV H-21-3001, 2023 WL 3261779, at *11 (S.D. Tex. May 4, 

2023)). 

This is especially true here where, as the state habeas court noted, the 

complainant’s out of court statement was not necessarily inconsistent with her trial 

testimony and it would not have negated an essential element of the case. Also, the 

out-of-court statement would have introduced the possibility that Holland threatened 

the complainant to stay silent – a possibility that was not otherwise raised. 

At bottom, Holland’s trial counsel could have reasonably concluded that it was 

better strategy not to impeach the complainant with the supposedly inconsistent 

statement.

Holland also fails to overcome the finding that he did not show any prejudice 

even assuming ineffectiveness. Because the statement at issue was not necessarily 

inconsistent with the complainant’s trial testimony, because it did not negate an 

essential element of the State’s case, and because it would have introduced the 

possibility that Holland threatened the complainant, the undersigned cannot 

conclude that it was unreasonable to find that Holland failed to establish that he was 

prejudiced by his trial counsel’s decision not to impeach the complainant with it. 

The CCA did not unreasonably apply Strickland in denying this claim. 

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F. Failure to Investigate and Introduce Evidence of the Closet

Holland claims that his trial counsel was ineffective for not physically 

examining the closet where most of the claimed sexual abuse occurred and for not 

introducing photographs and measurements of the closet taken years after the events 

in question. Dkt. No. 2 at 33.

Holland testified on direct that the closet was too small, given the materials in 

it, to accommodate the alleged acts of abuse. Dkt. No. 8-7 at 39. Holland also took 

photos and measurements of the closet at the time of trial, but his trial counsel elected 

not to introduce those. Dkt. No. 8-32 at 31, Dkt. No. 8-30 at 45. Nor did his trial 

counsel ever physically examine the closet. Dkt. No. 8-30 at 45. 

During deliberations, the jury sent out notes asking for Holland’s testimony 

about the measurements of his closet and about the consequences of the inability to 

reach a unanimous verdict. Dkt. No. 8-1 at 58-61. 

In rejecting this claim, the state habeas court reasoned:

33. Texas courts will sustain a defendant’s challenge to trial counsel’s 

failure to investigate [if] “(1) the consequence of the failure to 

investigate is that the only viable defense available to the accused 

is not advanced, and (2) there is reasonable probability that, but 

for, counsel’s failure to advance the defense, the result of the 

proceeding would have been different. Cantu v. State, 993 S.W.2d 

712, 718 (Tex. App. – San Antonio 1999, pet. ref’d);

34. Applicant has failed to demonstrate that [trial counsel’s] failure 

to visit Applicant’s closet in person and/or his refusal to offer 

Applicant’s pictures and measurements of his own closet eight 

years after the alleged offense prevented him from offering his 

only viable defense;

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35. Applicant failed to show that [trial counsel’s] refusal to use 

photographs and measurements of a scene taken eight years after 

an offense fell below an objective standard of reasonableness;

36. Assuming error, Applicant cannot show that but for those 

photographs or measurements, the jury would not have found 

Applicant guilty[.]

Dkt. No. 8-30 at 194-95.

The state habeas court’s analysis of this claim was not unreasonable.

As to trial counsel’s failure to examine the closet, Holland never explains what 

such an investigation would have revealed that was not already known. See Moawad 

v. Anderson, 143 F.3d 942, 948 (5th Cir. 1998) (a petitioner who alleges a failure to 

investigate on the part of his counsel must allege with specificity what the 

investigation would have revealed and how it would have altered the outcome of the 

trial) citation omitted)). 

As to the failure to introduce photographs of the closet taken eight years after 

the events in question, Holland fails to show how this was ineffective. Pictures taken 

years later – especially without any corresponding evidence that the photos were an 

accurate depiction of the closet during the pertinent timeframe – had little, if any, 

relevance. Indeed, Holland fails to establish that the photographs would have even 

been admissible, much less that his counsel was ineffective for not introducing them.

And, as to the measurements of the closet – ten feet five inches long and six 

feet wide – while Holland is correct that these would not have changed since the 

events in question, the measurements alone do not establish that it would have been 

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difficult for sexual abuse to occur in the closet. Their utility is limited; it is unclear 

how they add anything to Holland’s testimony about the limited space in the closet. 

In sum, the CCA reasonably determined that Holland failed to establish 

ineffectiveness in relation to this claim. 

And, for largely the same reasons, it also correctly, or at least reasonably, 

determined that Holland failed to show prejudice. Holland fails to show how the 

photographs and measurements, to the extent admissible, would have led to the 

reasonable probability of a different outcome.

Recommendation

The Court should deny Holland’s application for federal habeas relief. 

A copy of these findings, conclusions, and recommendation shall be served on 

all parties in the manner provided by law. Any party who objects to any part of these 

findings, conclusions, 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 findings, conclusions, 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 

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

United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996). 

DATED: November 16, 2023.

________________________________________

DAVID L. HORAN

UNITED STATES MAGISTRATE JUDGE

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