1

 On June 1, 2006, Nathaniel Quarterman became the Director of the Texas Department of Criminal Justice - Correctional Institutions Division. The Court thus substitutes him for Douglas Dretke. See Fed. R. Civ. P. 25(d)(1).

2

 “CR” refers to the Clerk’s Record in Cause No. F01-00219-QN. 

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DEVODERICK RAYSHON JONES, )

ID # 1035138, )

Petitioner, )

vs. ) No. 3:04-CV-1596-D (BH)

 ) ECF

NATHANIEL QUARTERMAN,1 Director, ) Referred to U.S. Magistrate Judge

Texas Department of Criminal )

Justice, Correctional Institutions Division, )

Respondent. )

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The

findings, conclusions, and recommendation of the Magistrate Judge are as follows:

I. BACKGROUND

A. Nature of the Case

Petitioner, an inmate currently incarcerated in the Texas Department of Criminal Justice -

Correctional Institutions Division (TDCJ-CID), filed the instant petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254 to challenge his conviction for capital murder in Cause No. F01-

00219-QN. Respondent is Nathaniel Quarterman, Director of TDCJ-CID. 

B. Procedural and Factual History

On January 20, 2000, the State indicted petitioner for the capital murders of Rickey Hunt

Jr. (Hunt) and Corey Jackson (Jackson). CR2

 at 2 (indictment). SeeJones v. State, No. 05-01-00497-

 

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 The Court identifies Timothy Williams by his a.k.a., Tea-Leaf, so as to avoid potential confusion with his brother

Michael Williams, an alleged eyewitness who was not called to testify at trial. 

4

 Although Washington also testified to the presence of “Jason and his girlfriend on a bike”, RR-III at 181, no one else

mentioned their presence. Therefore, their presence is not as clear. 

2

CR, 2002 WL 31554408, at *1 (Tex. App. – Dallas Nov. 19, 2002, pet. ref’d) (setting out general

background information). It is undisputed that Hunt (also known as “Junior” or “J.R.”), Jackson,

and Hunt’s brother, Rickey Stradford (Stradford), were murdered during an attempted drug purchase

in Dallas County on January 16, 2000, and their bodies were dumped in a nearby field and covered

with a mattress. The central dispute at trial was the extent of the involvement of petitioner (also

known as “D”) in the murders, if any. 

The State presented numerous witnesses and exhibits at trial. See generally Rep.’s R., Vol.

III, IV, V, and VII [hereinafter cited as RR-volume # at page]. It presented testimony about a first

meeting regarding the purchase of cocaine on January 16, 2000, during which Montray Bynum

(Bynum), also known as “Little Man”, and Hunt approached Tim Williams (Tea-Leaf)3

 regarding

such purchase. RR-III at 32-35 (testimony of Bynum); 106-07 (testimony of Tea-Leaf); RR-IV at

48 (testimony of Tea-Leaf’s girlfriend Pam James). Tea-Leaf referred Bynum and Hunt to Adam

Woods (Woods), also known as “K-D”. RR-III at 36, 107-08; RR-IV at 48. Bynum recalled that

Byron Briscoe was also present, and that Hunt used Briscoe’s cell phone to call Stradford regarding

funding for the purchase. RR-III at 37. He testified that others may have been present, but he was

not focused on who was there. Id. Others testified that those present included of Pam James,

petitioner’s girlfriend (Erica Washington), Kevin Adams, and petitioner. RR-III at 104-05

(testimony of Tea-Leaf), 181 (testimony of Washington); RR-IV at 46-47 (testimony of James), 232

(testimony of Adams); RR-V at 156 (testimony of Briscoe).4

 After Woods and Hunt agreed to a

 

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$17,000 purchase price, Bynum and Hunt said they would be back with the money and left. RR- III

at 35-40; 108-09. Briscoe also left at that point. Id. at 110, 183; RR-IV at 49; RR-V at 160. 

Tea-Leaf testified that after Hunt, Bynum, and Briscoe left, he overheard a conversation

between Woods and petitioner during which Woods indicated that if Hunt and Bynum returned,

“he was going to get them in the house”; petitioner responded that “I’m down with it because I need

the money” and “I’m down, cut me in.” Id. at 109-12, 149-50. The State introduced a statement

that Tea-Leaf gave to police officers the day after the murders that was consistent with his testimony.

See id. at 172; RR-VII (State’s Ex. 285). Tea-Leaf further stated: “They were talking like they were

going to jack these guys.” 

Hunt met up with Stradford and Jackson, and they proceeded on motorcycles to Woods’s

home, followed shortly thereafter by Bynum on his bicycle. RR-III at 41-43. As the trio arrived, the

females left. Id. at 147; RR-IV at 50-51. At this point the testimony diverged.

Bynum testified that he saw the trio and Tea-Leaf when he arrived. RR-III at 44. He also

testified that he briefly chatted with Hunt upon his arrival before Woods came out of his house and

informed them that they needed to go inside to count the money. Id. at 44-45. Bynum testified that

he lagged back and did not enter the house. Id. at 48. He did not see petitioner at the crime scene

at any point. Id. at 49, 61, 65, and 67-68. After the others entered the house, he spoke to Tea-Leaf,

who seemed to be trying to get him to leave the area. Id. at 50-51. A minute or so later, gunshots

rang out and he ran home. Id. at 51-52. 

The State introduced a statement that Bynum gave to police officers on the date of the

murders. See id. at 77; RR-VII (State’s Ex. 283). Bynum therein did not mention any drug deal, but

indicated that, when he arrived on his bicycle, he saw the trio go in the house with an individual

 

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whose description fit Woods. He also indicated that Tea-Leaf and “another black guy” were near

Tea-Leaf’s house, and Tea-Leaf tried to get him to leave by saying “Tear your little ass” before the

shots rang out.

Tea-Leaf testified that around one o’clock in the afternoon, Hunt’s trio arrived on motorcycles; Woods said he had to make a phone call, and Woods and petitioner went into Woods’s

house. RR-III at 113-15. He also testified that after Woods directed the trio to come into his house

to count the money, Woods entered the house followed by the trio and petitioner. Id. at 116. He

testified that Bynum arrived after the trio went into the house, Bynum wanted to go into the house,

and he told him that “they were taking care of business and he didn’t need to be in there”, and that

he and Bynum ran off after hearing a series of gunshots. Id. at 117-19. He further testified that he

returned to a point near the crime scene where he observed Woods and petitioner load a body into

the back of Woods’s truck as well as a mattress. Id. at 121-23. Tea-Leaf’s statement to the police

essentially parallels the testimony he gave at trial. See RR-VII (State’s Ex. 285). 

Washington testified that she and James left so that she could fix her children lunch at

petitioner’s mother’s house, which was nearby. RR-III at 183-84. Although her testimony was

somewhat confusing regarding petitioner’s whereabouts at the time of the gunshots, she ultimately

testified that petitioner was not in his mother’s house at that time even though he had come to his

mother’s house for a phone call. See id. at 184-88. She testified that after the gunshots, she saw

petitioner heading back toward the crime scene. Id. at 201. She also testified that petitioner later

told her that he saw blood on “Little Kevin” (Kevin Adams), he saw Jason trembling, Woods asked

him to put a mattress in the back of his truck, and then “he seen the bodies.” Id. at 192-93, 206-07.

She testified that petitioner never told her who participated in the murders, but he told her he did

 

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not do it, and she took his word for it because “he didn’t come back up there with no blood on him

or nothing else.” Id. at 207. 

James testified that as she and Washington walked to petitioner’s mother’s house, she

glanced back and saw Woods, petitioner, and two of the guys who showed up on motorcycles

walking toward Woods’s home. RR-IV at 51-52. She testified that she heard gunshots within five

minutes of their arrival at petitioner’s mother’s house. Id. at 53. She testified that she went to get

her car from that area and saw “one of the little younger guys” (Bynum) running away. Id. at 54.

She testified that she did not see petitioner go to his mother’s house during the time she was there.

Id. at 57. 

John Young, a neighbor who was inside watching a football game, testified that he peeked

out the window when he heard the motorcycles, and saw the trio with Tea-Leaf and Adams. RR-III

at 219. He also testified that he left the house to get a beer and saw Tea-Leaf with an unnamed

person as he did so. Id. at 221, 229. He further testified that he heard shots while on his beer-run.

RR-III at 221-22. 

Adams testified that as he went inside to watch football, he saw Young heading out. RR-IV

at 232-34. He testified that he heard shots after watching the game for “no longer than ten or fifteen

minutes”, looked out the window, saw Tea-Leaf and Bynum running, and followed Tea-Leaf. Id. at

235-37. He testified that he and Tea-Leaf attempted to see what was going on, but trees, bushes,

and fences made it difficult. Id. at 238-39. He testified that he could see a truck, people moving a

mattress, and two people leaving in the truck – one of whom appeared to be Woods and the other

could have been petitioner but he was not certain. Id. at 239-42.

On March 15, 2001, a jury found petitioner guilty as charged in the indictment. RR-VI at

 

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5

 “S.H. Tr.” denotes the state habeas records attached to Ex parte Jones, No. 58,559-01, slip op. (Tex. Crim. App. June

2, 2004). 

6

 The various papers filed with the Court spell the name either “Micheal” or “Michael”. 

6

50. The trial court thereafter sentenced him to life imprisonment. Id. at 51. 

On November 19, 2002, the Fifth District Court of Appeals of Texas at Dallas affirmed the

conviction. Jones v. State, No. 05-01-00497-CR, 2002 WL 31554408, at *1 (Tex. App. – Dallas Nov.

19, 2002, pet. ref’d). On January 9, 2004, petitioner filed a state application for writ of habeas

corpus. S.H. Tr.5 at 2. On February 23, 2004, the trial court entered findings of fact and conclusions

of law relative to petitioner’s state habeas application. See id. at 77-81. Before entering such findings, the court had defense counsel for petitioner submit an affidavit to respond to the allegations

against him. See id. at 78(request for affidavit), 82-83 (submitted affidavit). On June 2, 2004, the

Texas Court of Criminal Appeals denied petitioner’s application without written order on findings

of trial court without a hearing. Ex parte Jones, No. 58,559-01, slip op. at 1 (Tex. Crim. App. June

2, 2004).

On July 22, 2004, the Court received the instant petition for federal habeas relief and a

memorandum concerning petitioner’s claim of actual innocence. Respondent thereafter filed an

answer and provided the state-court records. 

C. Substantive Issues

In numerous grounds for relief, petitioner raises the following claims: (1) ineffective

assistance of counsel; (2) insufficient evidence; (3) erroneous appellate decision; (4) “judicial

misconduct” by the prosecution in allowing witness Michael6

 Williams to be absent from trial; (5)

a false hearing by the habeas court; (6) the trial court error in appointing only one attorney for him

 

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in this capital murder case; and (7) actual innocence. 

D. Exhaustion

Respondent does not assert exhaustion of state remedies as a defense to this federal habeas

petition. (See Answer at 4.) 

II. APPLICABLE LAW

Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

Pub. L. 104-132, 110 Stat. 1217, on April 24, 1996. Title I of the Act applies to all federal petitions

for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997).

Because petitioner filed the instant petition after its effective date, the Act applies to his petition.

Title I of AEDPA substantially changed the way federal courts handle habeas corpus actions.

Under 28 U.S.C. § 2254(d), as amended by AEDPA, a state prisoner may not obtain relief 

with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court

proceeding.

“In the context of federal habeas proceedings, a resolution (or 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). In this case, no one disputes the applicability of the AEDPA standards to petitioner’s claims. 

Section 2254(d)(1) concerns pure questions of law and mixed questions of law and fact.

 

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Martin v. Cain, 246 F.3d 471, 475 (5th Cir. 2001). A decision is contrary to clearly established federal law, within the meaning of § 2254(d)(1), “if the state court arrives at a conclusion opposite to

that reached by [the Supreme Court] on a question of law or if the state court decides a case

differently than [the] Court has on a set of materially indistinguishable facts.” Williams v. Taylor,

529 U.S. 362, 412-13 (2000). 

With respect to the “unreasonable application” standard, Williams instructs that a writ must

issue “if the state court identifies the correct governing legal principle from [the] Court’s decisions

but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413; accord Penry

v. Johnson, 532 U.S. 782, 792 (2001). Likewise under Williams, a state court unreasonably applies

Supreme Court precedent if it “unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to

a new context where it should apply.” 529 U.S. at 407. “[A] federal habeas court making the ‘unreasonable application’ inquiry should ask whether the state court’s application of clearly established

federal law was objectively unreasonable.” Id. at 409; accord Penry, 532 U.S. at 793.

 Section 2254(d)(2) concerns questions of fact. Moore v. Johnson, 225 F.3d 495, 501 (5th Cir.

2000). Under § 2254(d)(2), federal courts “give deference to the state court’s findings unless they

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

state court proceeding.’” Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir. 2000). The resolution

of factual issues by the state court is presumptively correct and will not be disturbed unless the state

prisoner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). 

With these AEDPA standards in mind, the Court proceeds to address the merits of petitioner’s claims. Because the resolution of some claims impact the resolution of other claims, the

 

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Court will address the raised claims in an order different than presented to it.

III. ERRONEOUS APPELLATE DECISION

In his eighteenth ground for relief, movant argues that the appellate affirmance of his

conviction conflicts with Jackson v. Virginia, 443 U.S. 307 (1979).

This claim entitles petitioner to no habeas relief for at least two reasons. First, petitioner did

not present a legal-insufficiency-of-the-evidence claim based on Jackson on direct appeal. See

Appellate Brief at 28-31. Petitioner instead raised a factual insufficiency claim under Clewis v. State,

922 S.W.2d 126 (Tex. Crim. App. 1996). Unlike the standard enunciated in Jackson, the more

exacting Clewis standard does not implicate federal constitutional concerns. See Woods v. Cockrell,

307 F.3d 353, 358 (5th Cir. 2002). The appellate court understandably relied on Clewis rather than

Jackson. 

Moreover, this claim is not cognizable under 28 U.S.C. § 2254. Federal habeas relief cannot

be had “absent the allegation by a [petitioner] that he or she has been deprived of some right secured

to him or her by the United States Constitution or the laws of the United States.” Orellana v. Kyle,

65 F.3d 29, 31 (5th Cir. 1995). The courts entertain federal petitions under § 2254 “only on the

ground” that the petitioner “is in custody in violation of the Constitution or laws or treaties of the

United States.” See 28 U.S.C. § 2254(a). Courts cannot grant habeas corpus relief merely because

a state prisoner disagrees with an appellate decision or argues that the decision “out of step” with the

law. See Morris v. Cain, 186 F.3d 581, 585 n.6 (5th Cir. 1999) (“[E]rrors in state postconviction

proceedings will not, in and of themselves, entitle a petitioner to federal habeas relief.”); Hallmark

v. Johnson, 118 F.3d 1073, 1080 (5th Cir. 1997)(“infirmities in state habeas [and other postconviction] proceedings do not constitute grounds for relief in federal court.”). Although the federal

 

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habeas process certainly permits petitioners to pursue alleged constitutional errors that occurred on

appeal, it does not permit a separate claim that the appellate decision is “bad” or “out of step” with

Supreme Court precedent. The focus of a federal habeas claim under § 2254 is on the validity of the

state conviction or sentence, not on a specific appellate ruling. The challenge to the appellate decision does not make a petitioner’s incarceration violative of the Constitution or laws or treaties of the

United States. Petitioner’s challenges to the state post-conviction proceedings merely attack proceedings collateral to his detention and not his detention itself. Accordingly, petitioner’s eighteenth

ground for relief entitles him to no federal habeas relief.

IV. FALSE HABEAS HEARING

As part of his tenth ground for relief, petitioner contends that the habeas court held a false

hearing. More specifically, he contends that although an evidentiary hearing was alleged to have

been held, the State “bullied” the court with an “affidavit” hearing. 

The allegation that the habeas court held any type of hearing on petitioner’s state habeas

application is not supported by the record. See S.H. Tr. at 81 (showing that habeas court specifically

found a hearing was “not necessary”); Ex parte Jones, No. 58,559-01, slip op. at 1 (Tex. Crim. App.

June 2, 2004) (showing that the denial of petitioner’s state writ by the Court of Criminal Appeals

recognizes that no hearing was held). Moreover, as discussed in the prior section, infirmities in state

habeas proceedings do not constitute grounds for relief in federal court. This claim entitles

petitioner to no federal habeas relief.

V. ACTUAL INNOCENCE

In several of his numbered grounds for relief and his separate memorandum, petitioner asserts

that he is actually innocent of the crime for which he has been convicted. 

 

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With respect to whether a petitioner may obtain federal habeas relief on a claim of actual

innocence, the Fifth Circuit Court of Appeals has recognized Townsend v. Sain, 372 U.S. 293 (1963),

as the unequivocal position of the United States Supreme Court on the matter. See Boyd v. Puckett,

905 F.2d 895, 896 (5th Cir. 1990); Armstead v. Maggio, 720 F.2d 894, 896 (5th Cir. 1983) (per

curiam). In Townsend, the Court held that “the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus.” 372 U.S. at

317, overruled in part on other grounds, Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992). In the Fifth Circuit, actual innocence is not an independent basis for federal habeas relief. E.g., Graham v. Johnson,

168 F.3d 762, 788 (5th Cir. 1999); Lucas v. Johnson, 132 F.3d 1069, 1075 (5th Cir. 1998); Jacobs v.

Scott, 31 F.3d 1319, 1324 (5th Cir. 1994). Petitioner thus cannot succeed on his actual innocence

claim standing alone.

Petitioner, moreover, has not established that he is actually innocent. The Supreme Court

has held that to show actual innocence, a petitioner must establish:

that it is more likely than not that no reasonable juror would have found [him] guilty

beyond a reasonable doubt . . . in light of all of the evidence, including that alleged

to have been illegally admitted (but with due regard to any unreliability of it) and

evidence tenably claimed to have been wrongly excluded or to have become available

only after trial.

Schlup v. Delo, 513 U.S. 298, 321 (1995). 

Petitioner has not met this standard. A jury found him guilty on the evidence presented

against him. Petitioner points to no new evidence which exonerates him. He instead relies on a

letter that his co-defendant Woods sent his mother prior to trial, in which Woods states:

I just want to tell you that I don’t know who told on [petitioner] but he was not with

me on that day. I heard about my so called friends being witness for the state against

me. I don’t want to write too much and I don’t want to call cause they are recording

 

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what I say. I hope [petitioner] get out of this jail cause I know the truth. 

See Ex. 2-A, attached to Petr.’s Mem. He also relies on an affidavit from his mother in which she

provides background information for the letter from Woods and avers that an investigator (Rex

Reynolds) informed her that Michael Williams had given a statement that “he was present the

‘entire’ time and that he ‘knew’ for a fact that [petitioner] did not commit this case.” See id. None

of this evidence became available only after trial, and none of it was wrongly excluded. As pointed

out by petitioner, his attorney never offered the evidence. 

Because a claim of actual innocence is not cognizable on federal habeas corpus, and petitioner has not shown himself to be actually innocent within the meaning of Schlup in any event, this

claim entitles him to no federal habeas relief.

VI. INSUFFICIENCY OF THE EVIDENCE

In his seventeenth ground for relief, petitioner contends that the State convicted him

without any proof because it never proved that he was at the scene of the crime or that he was one

of the shooters. He argues that the State’s case was merely based upon insinuation and false

testimony by Timothy Williams.

Respondent argues that sufficient evidence supports the conviction, and that the claim is

procedurally barred in any event because petitioner did not raise the claim on direct appeal and

because the habeas court held that such claim could not be raised through the state habeas process.

“A criminal defendant has a federal due process right to be convicted only upon evidence

that is sufficient to prove beyond a reasonable doubt the existence of every element of the offense.”

Foy v. Donnelly, 959 F.2d 1307, 1313 (5th Cir. 1992). Federal courts have extremely limited habeas

review of claims based on the sufficiency of the evidence, and the standard for reviewing such claims

 

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is supplied by Jackson v. Virginia, 443 U.S. 307 (1979). When reviewing such claims against the

underlying conviction, the relevant question “is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319. When “faced with a record of historical

facts that supports conflicting inferences [courts] must presume – even if it does not affirmatively

appear in the record – that the trier of fact resolved any such conflicts in favor of the prosecution,

and must defer to that resolution.” Id. at 326. Further, under Jackson, “the assessment of the credibility of witnesses is generally beyond the scope of review.” Schlup v. Delo, 513 U.S. 298, 330 (1995).

“Determining the weight and credibility of the evidence is within the sole province of the jury.”

United States v. Martinez, 975 F.2d 159, 161 (5th Cir. 1992). Courts view “any required credibility

determinations in the light most favorable to the guilty verdict.” United States v. Wise, 221 F.3d 140,

154 (5th Cir. 2000). They do not “second-guess[] the weight or credibility given the evidence.”

United States v. Ramos-Garcia, 184 F.3d 463, 465 (5th Cir. 1999). The Jackson standard applies

whether the evidence is direct or circumstantial. United States v. Scott, 159 F.3d 916, 920 (5th Cir.

1998). 

Federal courts apply the Jackson “standard looking to the state’s substantive law, giving great

weight to the state court’s determination.” Miller v. Johnson, 200 F.3d 274, 286 (5th Cir. 2000).

State case law and statutes bind the courts in their determination of the elements needed to be

proven. Foy v. Donnelly, 959 F.2d 1307, 1313 (5th Cir. 1992). In reviewing a challenge to the sufficiency of the evidence supporting the underlying conviction, “Jackson requires . . . that the review

occur ‘with explicit reference to the substantive elements of the criminal offense as defined by state

law.’” Bledsue v. Johnson, 188 F.3d 250, 259 (5th Cir. 1999) (quoting Jackson, 443 U.S. 324 n.16).

 

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The federal courts must “independently analyze the governing statute, the indictment, and the jury

charge to measure the constitutional sufficiency of the evidence and determine what are the essential

elements required by the Jackson sufficiency inquiry.” Id. at 260. When considering a claim of insufficient evidence to support the underlying conviction on federal habeas review, this Court should

only determine “whether the evidence was constitutionally sufficient to convict [petitioner] of the

crime charged.” Id. at 262 (quoting Brown v. Collins, 937 F.2d 175, 181 (5th Cir. 1991)). 

In this case, the State charged petitioner with capital murder. CR at 2. The indictment specifically alleges that, on or about January 16, 2000, in Dallas County, Texas, petitioner did

unlawfully then and there knowingly and intentionally cause the death of an individual, to-wit: RICKEY HUNT, JR., by shooting said RICKEY HUNT, JR. with a

firearm, a deadly weapon, and during the same criminal transaction said defendant

did then and there intentionally and knowingly cause the death of another individual

to-wit: COREY JACKSON, by shooting said COREY JACKSON with a firearm, a

deadly weapon. 

Id. The trial court, furthermore, read the following charge to the jury: 

Our law provides that a person commits the offense of murder if he intentionally or

knowingly causes the death of an individual.

A person commits capital murder when such person intentionally or

knowingly commits murder as defined above and he murders more than one person

during the same criminal transaction.

. . .

Our law provides that a person commits the offense of robbery if, in the

course of committing theft, as that term is hereinafter defined, and with intent to

obtain and maintain control property of another, he intentionally or knowingly

threatens or places another in fear of imminent bodily injury or death.

. . .

“Theft” as used herein is the unlawful appropriation of the corporeal personal

property of another, with the intent to deprive such person of said property.

. . .

All persons are parties to an offense who are guilty of acting together in the

commission of the offense. A person is criminally responsible as a party to an offense

if the offense is committed by his own conduct, by the conduct of another for which

he is criminally responsible, or both. 

 

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A person is criminally responsible for an offense committed by the conduct

of another if, acting with intent to promote or assist the commission of the offense,

he solicits, encourages, directs, aids, or attempts to aid the other person to commit

the offense. Mere presence alone will not constitute one a party to an offense.

By the term “conspiracy” as used in these instructions, is meant an agreement

between two or more persons with intent that a felony be committed, and that they

or one or more of them engage in conduct that would constitute the offense and an

agreement constituting a conspiracy may be inferred from acts of the parties. You are

instructed that robbery is a felony offense.

If, in the attempt to carry out a conspiracy to commit one felony, another

felony is committed by one of the conspirators, then all conspirators are guilty of the

felony actually committed, though having no intent to commit it, if the offense was

committed in furtherance of the unlawful purpose and was one that should have been

anticipated as a result of the carrying out of the conspiracy.

Id. at 10-13. The jury charge is consistent with Texas law regarding the law of the parties, murder,

capital murder, robbery, and theft. See TEX. PENAL CODE ANN. §§ 7.02(a)(2) and (b), 19.02(b)(1),

and 19.03(a)(7), 29.02(a)(2), 31.03 (Vernon 2003) (the theft provision, § 31.03, was amended in

2001, but such amendments have no materiality in this case due to the facts of the case). 

As already mentioned, petitioner challenges the sufficiency of the proof to show that he was

present at the scene of the crime or that he was one of the shooters. In this instance, however, the

testimony presented at trial establishes that petitioner was at the scene of the crime with Woods and

that he was either a shooter or criminally responsible for the shootings. The testimony from TeaLeaf places petitioner inside the house where and when the shootings occurred and shows that

petitioner and Woods were working together to either rob or murder Hunt and Jackson. Testimony

from Tea-Leaf and Washington show that petitioner placed a mattress over the bodies after the

murders. The trial evidence suffices to show each of the essential elements of capital murder.

Viewed in a light most favorable to the prosecution, the Court finds that the record supports the jury

verdict. From the evidence, a rational jury could conclude that petitioner was at least a party to the

 

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7

 To the extent petitioner seeks to claim trial court error based on the witness’ absence from trial, the Court finds that

the trial court made no ruling to exclude the witness and thus made no error related to his absence at trial. 

16

offense and criminally responsible for the offense. A rational jury could conclude that petitioner

committed the murders as charged. A rational trier of fact could have found the essential elements

of capital murder beyond a reasonable doubt. The Court finds that the evidence was constitutionally

sufficient to convict petitioner for capital murder. 

Because the Court finds legally sufficient evidence to support petitioner’s conviction, it need

not address respondent’s alternative argument that the claim is procedurally barred from federal

habeas review. 

VII. PROSECUTORIAL MISCONDUCT

In his tenth ground for relief, petitioner contends that the prosecution committed “judicial

misconduct” by allowing a witness, Michael Williams, to be absent from trial. A prosecutor, however, engages in no misconduct merely by failing to call a witness at trial. This claim is frivolous, and

entitles petitioner to no federal habeas relief.7

VIII. TRIAL COURT ERROR

In his fifteenth ground for relief, petitioner asserts that the trial court erred in appointing only

one attorney for him in this capital murder case.

Although the United States Constitution provides that “[i]n all criminal prosecutions, the

accused shall . . . have the Assistance of Counsel for his defense”, nothing in the Constitution

requires the appointment of multiple attorneys for any criminal prosecution, including capital cases.

To the extent that state law provides for appointment of multiple attorneys in some cases, it is not

“the province of a federal habeas court to reexamine state-court determinations on state-law

 

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8

 The Court utilizes respondent’s list of claims because petitioner’s numbered grounds for relief often duplicate each other

and contain multiple claims of ineffective assistance within a particular ground for relief. 

17

questions. In conducting habeas review, a federal court is limited to deciding whether a conviction

violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62,

67-68 (1991). A petitioner is thus entitled to federal habeas relief due to trial error only if such error

is not harmless, i.e. “the error ‘had substantial and injurious effect or influence in determining the

. . . verdict.’” Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993) (citation omitted). 

[U]nder Brecht, a constitutional trial error is not so harmful as to entitle a defendant

to habeas relief unless there is more than a mere reasonable possibility that it contributed to the verdict. It must have had a substantial effect or influence in determining

the verdict. We recognize, however, that if our minds are “in virtual equipoise as to

the harmlessness,” under the Brecht standard, of the error, then we must conclude

that it was harmful.

Mayabb v. Johnson, 168 F.3d 863, 868 (5th Cir. 1999) (quoting Woods v. Johnson, 75 F.3d 1017,

1026-27 (5th Cir. 1996)). To be entitled to federal habeas relief due to a trial error, petitioner must

show the error actually prejudiced him. Brecht, 507 U.S. at 637. 

Petitioner in this case has not shown that the trial court’s failure to appoint multiple

attorneys to work on his case prejudiced him. This claim entitles petitioner to no federal habeas

relief. 

IX. INEFFECTIVE ASSISTANCE OF COUNSEL

As identified by respondent,8

 petitioner asserts in his first sixteen grounds for relief that his

trial counsel rendered ineffective assistance by: (A) failing to call Michael Williams to testify at trial

(Grounds 1 and 9); (B) failing to inform petitioner of the evidence and advise him regarding his

defense (Grounds 2 and 3); (C) failing to review grand jury testimony (Ground 2); (D) failing to

 

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have petitioner brought before the grand jury (Ground 2); (E) failing to examine the crime scene and

take photos (Ground 4); (F) failing to call Woods to testify (Grounds 2 and 14); (G) letting the jury

believe that mere presence at the crime scene would make him guilty (Ground 5); (H) confusing the

concepts of criminal conspiracy and law of the parties (Ground 5); (I) failing to present a letter

written by Woods (Grounds 5, 6, and 7); (J) presenting false evidence with the State to convict him

(Ground 7); (K) failing to use prior witness statements for purposes of impeachment (Ground 8); (L)

failing to show what the State offered Tea-Leaf for his testimony (Ground 12); (M) failing to show

that Tea-Leaf was on probation (Ground 12); (N) failing to request DNA testing of petitioner’s

clothes (Ground 13); (O) failing to request a second attorney (Grounds 10 and 15); and (P) failing

to call an investigator to testify about witness statements (Ground 16). Petitioner also asserts that

defense counsel rendered ineffective assistance by (Q) failing to file motion for continuance so he

could locate Michael Williams (Ground 9) and (R) failing to prepare for trial and only soliciting petitioner for plea bargain (Ground 11).

As previously mentioned, the Sixth Amendment provides criminal defendants a right to

effective assistance of counsel during trial. U.S.CONST., art. VI. To successfully state a claim of ineffective assistance of counsel under Supreme Court precedent, petitioner must demonstrate (1) that

counsel’s performance was deficient and (2) that the deficient performance prejudiced his defense.

See Strickland v. Washington, 466 U.S. 668, 687 (1984). A failure to establish either prong of this test

requires a finding that counsel’s performance was constitutionally effective. Id. at 696. The Court

may address the prongs in any order. Smith v. Robbins, 528 U.S. 259, 286 n.14 (2000). 

To determine whether counsel’s performance is constitutionally deficient, courts “indulge

a strong presumption that counsel’s conduct falls within the wide range of reasonable assistance.”

 

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Strickland, 466 U.S. at 689. Further, “[t]he reasonableness of counsel’s actions may be determined

or substantially influenced by the defendant’s own statements or actions.” Id. at 691. 

To establish 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. In

the context of ineffective assistance of trial counsel, the prejudice component of the Strickland test

“focuses on the question whether counsel’s deficient performance renders the result of the trial

unreliable or the proceeding fundamentally unfair.” Williams v. Taylor, 529 U.S. 362, 393 n.17

(2000) (citations and internal quotation marks omitted). Reviewing courts must consider the totality of the evidence before the finder of fact in assessing whether the result would likely have been

different absent the alleged errors of counsel. Strickland, 466 U.S. at 695-96. 

Petitioners must “affirmatively prove prejudice.” Id. at 693. They cannot satisfy the second

prong of Strickland with mere speculation and conjecture. Bradford v. Whitley, 953 F.2d 1008, 1012

(5th Cir. 1992). Conclusory allegations, furthermore, are insufficient to obtain habeas relief. Koch

v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990). 

Petitioner raises numerous claims of ineffective assistance of counsel. Because some of these

are directly refuted by the affidavit submitted by defense counsel with respect to petitioner’s state

habeas application, the Court separately considers those claims from the claims not directly refuted

by such affidavit.

A. Claims Directly Refuted by Attorney Affidavit

The following claims were directly refuted in the state habeas proceedings: (A) failing to call

Michael Williams to testify at trial; (B) failing to inform petitioner of the evidence and advise him

 

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regarding his defense; (E) failing to examine the crime scene and take photos; (F) failing to call codefendant Woods to testify; (I) failing to present a letter written by Woods; (J) presenting false

evidence with the State to convict him; (K) failing to use prior witness statements for purposes of

impeachment; (N) failing to request DNA testing of petitioner’s clothes; (O) failing to request a

second attorney; (Q) failing to file motion for continuance so as to locate Michael Williams; and (R)

failing to prepare for trial and only soliciting petitioner for plea bargain. 

Before considering petitioner’s state writ, the trial court secured an affidavit from defense

counsel in which counsel averred: 

Prior to the jury trial, I asked Judge John Nelms to appoint Investigator Rex Reynolds

to assist me in the case. Both myself and Mr. Reynolds interviewed many witnesses

prior to trial. I also met with [petitioner] and discussed the case, and defenses

thereto, on twelve occasions prior to the jury trial. 

. . .

Mr. Reynolds went to the crime scene and on several occasions, we would go

over the police reports and crime scene photographs. He informed me fully regarding

the scene as it existed on the date of the offense. There was no additional need for

me to visit the crime scene.

Co-defendant, Adam Woods, was tried and convicted earlier in the year, and

I had an opportunity to read his trial transcript in its entirety. [Petitioner] was made

fully aware of the proposed State’s case, and the theory of the prosecution. We

discussed potential defense witnesses, and called those we felt could help the

[petitioner’s] case. The record will reflect that we thoroughly cross-examined each

State’s witness, and impeached much of their testimony. Police reports and affidavits

previously furnished to us aided in this impeachment.

Adam Woods, whose conviction was on appeal, sent a letter to [petitioner’s]

mother, in which we were furnished a copy. This letter was clearly hearsay and not

admissible. Also, Michael Williams was interviewed by Mr. Reynolds. Williams was

not at the scene at the time of the shooting, but merely saw many people standing

near the crime scene. He could not testify that [petitioner] was not involved in this

offense. Williams [sic] testimony would not have assisted the defense in any way. 

[Petitioner] also claims some form of “conspiracy” between myself and the

Assistant District Attorney. This is certainly not true. I represented [petitioner] to

the best of my abilities.

[Petitioner] was arrested several days after this offense. Therefore, no additional lab testing on his body or clothing would be beneficial to [him]. Additionally,

 

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[petitioner] now suggests that a second attorney should have been appointed by the

Court. The practice in Dallas County is to appoint a second attorney only when the

Death Penalty is being sought by the State. The State did not seek the death penalty

against [petitioner]. 

[Petitioner’s] Writ also states evidentiary matters and theories. These

theories were made clear to the jury by myself during the course of the trial during

jury arguments. The jury obviously chose to reject our theory of defense. 

S.H. Tr. at 82-83. The trial court found counsel “trustworthy” and the statements in his affidavit

“worthy of belief.” See id. at 79. Such credibility finding is presumed correct unless petitioner rebuts

it with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). 

Petitioner has not shown clear and convincing evidence that overcomes the presumption of

correctness, because the record simply does not support petitioner’s allegations. The Court thus

defers to the credibility finding of the state court and finds the factual statements by counsel

credible. Based upon that affidavit, the Court finds no deficiency of counsel related to petitioner’s

claims of ineffective assistance A, B, E, F, I, J, K, N, O, Q, and R. With respect to Claim J, counsel

specifically avers that he did not conspire with the State to secure petitioner’s conviction. Such

averment sufficiently covers the allegation that counsel presented false evidence with the State to

convict petitioner. Petitioner, furthermore, has shown no material evidence presented against him

to be false. With respect to the other claims directly refuted by the attorney affidavit, petitioner has

demonstrated no prejudice from such alleged deficiencies of counsel. These claims entitle petitioner

to no federal habeas relief. 

Claims A, F, and I relate to alleged failures to call witnesses or proffer evidence that go to

the crucial issue raised in this habeas action, i.e., petitioner’s involvement in the murders, if any, and

therefore warrant further discussion. Based upon his affidavit, counsel certainly had credible reasons

for not calling Woods or Michael Williams to testify at trial. As recited therein, an investigator

 

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specifically explored whether Michael Williams could provide helpful testimony and determined that

he was not present at the relevant time. Moreover, such determination is borne out by the trial

testimony, which shows that no witness mentioned the presence of Michael Williams at any time.

As for the failure to call Woods to testify, counsel made a reasoned decision that his testimony would not help petitioner after reading his trial transcript in its entirety. Not only is such

decision fully supported by counsel’s submitted affidavit, but the appellate decision for Woods’s

criminal case fully supports the decision. In relevant part, that decision states: 

[A]ppellant [(Woods)] testified that after he and Hunt discussed the kilo of cocaine,

Hunt left, saying said he would be back. Appellant went inside and got his .380

caliber semiautomatic pistol for protection. Bynum rode up on his bicycle and later

Hunt, Jackson, and Stradford arrived on their motorcycles. Jones [(previously identified as “Devorick Jones”)] pulled appellant aside and offered to help him by watching

his back. Appellant agreed and told Jones to get appellant’s nine millimeter

handgun. According to appellant, Jones had handled the gun once before. Jones

stayed inside the house.

Appellant then escorted Hunt, Jackson, and Stradford inside the house. Jackson

threw the money down on the table and said “Here it is.” Appellant told Jones to

count the money. While he did so, appellant retrieved the kilo of cocaine and

handed it to Stradford. Jones said, “[T]his ain’t no $17,000[;] it is too many small

bills.” According to appellant, Jackson then said, “Don't worry, you stupid ass nigger,

this is the last money you will see.” Appellant testified he thought Hunt, Jackson,

and Stradford were going to rob him and that he was scared they were going to kill

him. He then “saw through the bar like [Jackson] pull out a gun,” so he pulled out

his .380 and shot Stradford. Appellant testified he saw a gun in Stradford’s hand but

that Stradford did not fire any shots at him. There were other shots fired before and

after appellant emptied his .380 but he did not know who shot them. According to

appellant, he did not mean to kill Stradford, he just wanted Stradford to put the gun

down.

After the shooting was over, appellant and Jones picked up all the weapons and put

them in a pillowcase. They also picked up the drugs, the money, appellant’s cell

phone, and keys. Appellant left to get his pick up truck which was parked down the

street. When he returned, Jones did not have the money or the pillowcase with the

weapons. Appellant assumed Jones took the money because “he is pretty-I guess you

would say slick.” Appellant never asked about the money because it wasn't his

 

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money to start with. The two men dragged the bodies and threw them in the truck

bed. They covered the bodies with a mattress and drove to a nearby field where they

dumped them.

Woods v. State, No. 05-00-02017-CR, 2002 WL 1127420, at *5 (Tex. App. – Dallas May 30, 2002,

pet. ref’d). In light of the testimony Woods provided at his own trial, counsel most definitely did not

render deficient representation by failing to call him at petitioner’s trial. What had been implicit

from the attorney’s affidavit, i.e., that testimony from Woods would not be helpful to petitioner’s

case, becomes expressly obvious from a review of the testimony Woods gave at his own trial. Even

if Woods testified at petitioner’s trial that petitioner was not involved in the murders, the State

would have impeached him with his prior testimony that is severely damaging to petitioner’s theory

that he was not present at the scene. 

As for the failure to present the letter written by Woods to petitioner’s mother, counsel’s

affidavit provides a reasoned decision for not presenting the letter. The trial record, furthermore,

contains at least two instances where counsel for petitioner unsuccessfully attempted to admit similar

statements by Woods. See RR-III at 163-66 (sub rosa hearing regarding a statement by Woods to

Tea-Leaf that Woods killed all three victims); RR-V at 54-58 (sub rosa hearing regarding a statement by Woods to Micah Rogers that Woods had “shot some people” and did not mention that

petitioner was involved at all). In each instance, the trial court deemed the statements to be inadmissible hearsay. See RR-III at 166; RR-V at 58. To render effective assistance, counsel need not

continue to pursue the admission of evidence similar to that which the trial court has deemed

inadmissible. For the foregoing reasons, petitioner’s claims of ineffective assistance A, B, E, F, I, K,

N, O, Q, and R provide no basis for federal habeas relief.

 

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B. Other Claims of Ineffective Assistance of Counsel

Petitioner also claims that his attorney rendered ineffective assistance by (C) failing to review

grand jury testimony; (D) failing to have petitioner brought before the grand jury; (G) letting the

jury believe that mere presence at the crime scene would make him guilty; (H) confusing the

concepts of criminal conspiracy and law of the parties; (L) failing to show what the State offered

Timothy Williams for his testimony; (M) failing to show that Timothy Williams was on probation;

and (P) failing to call an investigator to testify about witness statements.

Petitioner fails to show any prejudice with respect to Claims C, D, and P. He does not show

how the alleged failures to review grand jury testimony, to bring him before the grand jury, or to call

an investigator to testify about witness statements affected the outcome of his trial. He has not

shown a reasonable probability that, but for these alleged deficiencies of counsel, the outcome of his

trial would have been different. These claims entitle petitioner to no habeas relief.

With respect to Claims G and H, the Court finds that the record simply does not support

them. As to Claim G, the trial court specifically instructed the jury that mere presence at the crime

scene was insufficient to find petitioner guilty, see CR at 12. In light of such instruction, counsel did

not let the jury believe that mere presence at the scene was sufficient to convict petitioner. As to

Claim H, petitioner bases such claim on an appellate brief of the State which cites to a portion of the

record which provides no support for finding any confusion on the part of counsel. See Ground 5

of Pet. (citing to State’s Brief at 10, which in turn cites to RR-IV at 15). Petitioner thus shows no

deficiency of counsel related to the alleged confusion. Petitioner, furthermore, fails to show how the

alleged confusion prejudiced him. These claims thus entitle petitioner to no habeas relief. 

With respect to Claims L and M, petitioner has shown no deficiency of counsel. At the

 

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outset of Tea-Leaf’s trial testimony the State elicited testimony that he was on probation and that

the State had informed him that, if he cooperated by being honest with the jury, such cooperation

would be relayed to the prosecutor in his case, but that there was no other deal for his testimony.

RR-III at 99-100. Despite that testimony, counsel interrogated Tea-Leaf regarding the “deal” he was

working and the witness continued to deny any deal other than the one already disclosed. See id.

at 133-37. During closing arguments, furthermore, counsel also hammered a potential deal that TeaLeaf received for his testimony. See RR-VI at 19-20, 26. Counsel did not render deficient representation regarding what the State offered Tea-Leaf for his testimony or regarding the fact that TeaLeaf was on probation. 

In conclusion, the state disposition of petitioner’s claims of ineffective assistance of counsel

appears consistent with Strickland. For each of his numerous claims, petitioner has failed to show

a deficiency of counsel, resulting prejudice from a deficiency of counsel, or both. 

X. EVIDENTIARY HEARING

Upon review of the pleadings filed herein and the proceedings held in state court as reflected

in the state-court records, an evidentiary hearing appears unnecessary. 

XI. RECOMMENDATION

For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the

Court DENY with prejudice the request for habeas corpus relief brought pursuant to 28 U.S.C. §

2254. 

SIGNED this 23rd day of May, 2007. 

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any

party who desires to object to these findings, conclusions and recommendation must file and serve

written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made.

The District Court need not consider frivolous, conclusory or general objections. Failure to file

written objections to the proposed findings, conclusions, and recommendation within ten days after

being served with a copy shall bar the aggrieved party from appealing the factual findings and legal

conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds

of plain error. Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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