IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

STEVE LORENZO SHAFER, )

Petitioner, )

) No. 3:04-CV-1116-D

v. ) 

)

DOUGLAS DRETKE, Director, ) 

Texas Department of Criminal Justice, )

Correctional Institutions Division, )

Respondent. )

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

This case was referred to the United States Magistrate Judge pursuant to the provisions of

Title 28, United States Code, Section 636(b), as implemented by an order of the United States

District Court for the Northern District of Texas. The Findings, Conclusions and

Recommendation of the United States Magistrate Judge follow:

FINDINGS AND CONCLUSIONS

I. NATURE OF THE CASE

Steve Lorenzo Shafer (“Petitioner”) seeks habeas corpus relief pursuant to the terms of

28 U.S.C. §§ 2241 and 2254. 

II. PARTIES

Petitioner is an inmate in the Texas Department of Criminal Justice, Correctional

Institutions Division (“TDCJ-CID”). Douglas Dretke (“Respondent”) is Director of the TDCJCID.

 

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III. PROCEDURAL BACKGROUND

Petitioner pled not guilty to intoxication manslaughter. State v. Shafer, No. F99-01220

(Crim. Dist. Ct. No. 3 of Dallas County, Tex. July 20, 2001). The jury found Petitioner guilty,

found two enhancement paragraphs to be true, and sentenced him to twenty-five years in the

custody of TDCJ-CID. Id.; Ex parte Shafer, No. 52,016-02 at 74-76 (Tex. Crim. App. Feb. 11,

2004). Petitioner represented himself at trial, with the assistance of stand by counsel, Jim

Oatman. Petitioner appealed, and the Fifth Court of Appeals affirmed the jury’s verdict in an

unpublished opinion. Shafer v. State, No. 05-01-01324-CR, 2002 WL 1353371 (Tex. App.–

Dallas 2002, pet. ref’d). Petitioner filed a Motion for Rehearing, which the state appellate court

overruled on August 12, 2002. Id. Additionally, he filed a “Motion for the Court of Appeals to

Reverse Appellant’s Conviction due to Constitutional Error” on August 15, 2002, which the state

appellate court denied on August 16, 2002. Id.

Petitioner filed a petition for discretionary review (“PDR”) on November 8, 2002. See

Shafer v. State, PDR No. 1748-02. The Texas Court of Criminal Appeals refused the petition on

March 19, 2003. Id. Petitioner filed a state application for writ of habeas corpus on October 13,

2003. Ex parte Shafer, No. 52,016-03 at 2. The Texas Court of Criminal Appeals denied the

application without written order on findings of the trial court without a hearing on February 11,

2004. Id. at cover. Petitioner filed his federal petition for writ of habeas corpus on May 24,

2004. (Fed. Writ Pet. at 9.)

IV. EXHAUSTION OF STATE COURT REMEDIES

 Respondent states that Petitioner has exhausted his available state court remedies.

 

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V. PETITIONER’S CLAIMS

Petitioner makes the following claims:

1. The grand jury did not issue the indictment;

2. The prosecutor and a police officer conspired with a jury member to insure a

conviction in this case;

3. Trial counsel provided constitutionally ineffective assistance by failing to object

to the illegal indictment and by making a false statement to the court regarding an

expert; and

4. The evidence is insufficient to support the enhancement paragraphs in this case. 

VI. STANDARD OF REVIEW

The pertinent terms of the Antiterrorism and Effective Death Penalty Act of 1996 (the

AEDPA), 28 U.S.C. § 2254 provide:

(d) An application for writ of habeas corpus on behalf of a person in custody pursuant

to the judgment of a state court shall not be granted with respect to any claim that

was adjudicated on the merits in State court proceedings unless the adjudication

of the claim – 

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of

the facts in light of the evidence presented in a State court proceeding.

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

writ of habeas corpus if the state court arrives at a conclusion opposite to that reached by the

United States Supreme Court on a question of law or if the state court decides a case differently

from the United States Supreme Court on a set of materially indistinguishable facts. Williams v.

Taylor, 529 U.S. 362, 380-84 (2000). Under the “unreasonable application” clause, a federal

 

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

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

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

This amendment applies to all federal habeas corpus petitions which are adjudicated on

the merits in state court after April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). 

The petition in this case is subject to review under the AEDPA. Additionally, under 28 U.S.C. §

2254(d), a presumption of correctness must be accorded findings of fact made by a state habeas

court if supported by the record. Armstead v. Scott, 37 F.3d 202, 206 (5th Cir. 1994) (citation

omitted). 

To sustain a claim of ineffective assistance of counsel, a petitioner must show that: (1)

counsel’s performance was deficient and (2) the deficient performance prejudiced the defense so

gravely as to deprive the petitioner of a fair trial. Strickland v. Washington, 466 U.S. 668, 687

(1984). In Strickland, the Court stated that “[j]udicial scrutiny of counsel’s performance must be

highly deferential” and that “every effort [must] be made to eliminate the distorting effects of

hindsight.” Id. at 689. Courts, therefore, must “indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance.” Id.

Even if a petitioner proves that his counsel was deficient, he must also prove prejudice. 

Id. at 687. To prove such prejudice, the petitioner must show “a reasonable probability that the

result of the proceedings would have been different but for counsel’s unprofessional errors.” 

Crane v. Johnson, 178 F.3d 309, 312 (5th Cir. 1999) (citing Strickland, 466 U.S. at 694). “[T]he

mere possibility of a different outcome is not sufficient to prevail on the prejudice prong.” Id. 

 

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1

 The Garza affidavit indicates that the “m” and another letter in the signature appear to

be written by somebody not familiar with writing that “m” and concludes that it is, in fact, a

forgery. Garza’s affidavit also indicates that she is not an expert in the area of handwriting

analysis and does not have any forensic or scientific certification. Instead, Garza’s individual’s

training is based on forgery characteristics. In other words, Garza bases the analysis on her own

experience.

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“Rather, the defendant must demonstrate that the prejudice rendered sentencing ‘fundamentally

unfair or unreliable.’” Id. (quoting Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)).

VII. ANALYSIS

1. Illegal Indictment

Petitioner alleges that the grand jury did not issue the indictment in this case. Instead, he

claims the prosecution “manufactured” the indictment under which he was tried and “forged” the

grand jury foreperson’s signature. (Pet.’s Memo at 2-3.) Petitioner raised this claim in his state

habeas application. Ex parte Shafer, No. 52,016-03 at 15-19. On habeas review, the trial court

determined the following facts: “Clearly, the grand jury was involved and issued the indictment

in this case. It was filed with this court on May 25, 1999.” Id. at 70. The Texas Court of

Criminal Appeals adopted this finding and denied Petitioner’s state habeas application. Id. at

cover.

This Court must afford the state court’s factual determination the presumption of

correctness which Petitioner can only overcome by clear and convincing evidence. 28 U.S.C. §

2254(d). In support of this allegation, Petitioner attaches to his federal petition for writ of

habeas corpus the following: (1) an affidavit from a Tanya Garza (“Garza”), a store manager

trained in evaluating signatures on checks that appear questionable;1

 (2) a motion Petitioner filed

in the Dallas County District Clerk’s office on March 8, 2004, requesting a signature exemplar

 

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from the grand jury foreperson; and (3) Petitioner’s unsworn declaration stating that the

prosecutor forged the grand jury foreperson’s signature. (Pet.’s Memo at Ex. 3, 4.) 

On habeas corpus review, a federal court may not consider evidence that is not part of the

state habeas corpus record. Livingston v. Johnson, 107 F.3d 297, 306 n. 7 (5th Cir. 1997)

(holding that petitioner could not rely on evidentiary proof that was not presented to the state

courts). This Court may not further develop the facts of this claim unless Petitioner has shown

cause for his failure to develop the facts in state court and actual prejudice resulting from that

failure. 28 U.S.C. § 2254(e)(2); Williams, 529 U.S. at 421. Petitioner has failed to show cause

and prejudice, and he has failed to show that failure to consider the evidence would result in a

fundamental miscarriage of justice. Therefore, this Court will not consider Petitioner’s newly

submitted evidence. 

Respondent alternatively argues that even if this Court were to consider the additional

evidence, Petitioner does not establish by clear and convincing evidence that the state court’s

factual determination was unreasonable or erroneous. The Court agrees. First, Petitioner has not

established that Garza is qualified to be an expert witness on handwriting analysis, and, of

additional importance, he has not established that Garza engaged in reliable methodology in

reaching her conclusions. The motion asking the state court for a copy of the foreperson’s

signature is not evidence of a forgery. Further, Petitioner’s unsworn self-serving declaration

which is without any scientific basis is not evidence of a forgery. Certainly, there is no clear and

convincing evidence before the Court that there was a forgery. In fact, Petitioner has not shown

that the state habeas proceedings, in which the trial court found that the indictment was properly

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

 

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2 Petitioner contends for the first time in his federal petition for writ of habeas corpus

that he wanted the medical expert to show that the victim was under the influence of cocaine and

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clearly established Federal law, as determined by the Supreme Court of the United States or a

decision that was based on an unreasonable determination of the facts in light of the evidence

presented in a State court proceeding. See 28 U.S.C. § 2254(d). Petitioner’s first claims should

be denied.

2. Ineffective Assistance of Counsel

Petitioner claims that counsel provided ineffective assistance by failing to challenge the

indictment. Both the state courts and this Court have found that Petitioner’s claim that the

indictment was illegal is without merit. Therefore, counsel’s objecting to the indictment would

have been futile. A counsel’s failure to raise a meritless objection is not ineffectiveness of

counsel. See Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994). Therefore, Petitioner does not

meet either prong of the Strickland standard for proving ineffective assistance of counsel. The

state court finding that counsel did not provide ineffective assistance was not an unreasonable

application of Strickland and did not result in an unreasonable application of the facts in light of

the evidence that was before the state court. Petitioner’s first claim of ineffective assistance of

counsel should be denied.

Petitioner’s second claim of ineffective assistance is that his counsel made a false

statement to the trial court that a medical expert had been appointed for Petitioner. Petitioner

contends that a medical expert had not been appointed. Petitioner contends that a medical expert

could have testified that if Petitioner was intoxicated with alcohol and cocaine, he could not have

survived the crash.2

 

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alcohol and that these substances could have contributed to his death. This claim was not

included in Petitioner’s state habeas application. See Ex parte Shafer, No. 52,016-03 at 25-27. 

Accordingly, the claim is unexhausted and procedurally defaulted. See Barrientes v. Johnson,

221 F.3d 741, 761-62 (5th Cir. 2000) (holding that a petitioner who amended his federal habeas

petition by adding new factual allegations failed to exhaust state court remedies). If Petitioner

returned to exhaust the new claim, his petition would be barred as an abuse of the writ, a doctrine

which the state court applies regularly. Nobles v. Johnson, 127 F.3d 409, 422 (5th Cir. 1997). 

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The trial record reflects the following exchange between the Court, counsel, and

Petitioner (Shafer):

Court: Well, it just appears that one has been appointed. Do you have any

personal knowledge of that, Mr. Oatman?

Counsel: Yes, Your Honor. I discussed with Mr. Peale (Shafer’s former defense

attorney) the findings of the first medical expert and I discussed those with

the defendant in this case, as Mr. Peale had discussed it with him. And the

final findings of the medical expert Mr. Peale had appointed by the Court

was, in his opinion, nothing improper had been done with the blood

evidence in this case, at which point the defendant presented the fact that

the medical expert had previously worked at Parkland, was biased and part

of the conspiracy against him, and that’s why he wanted a new medical

expert appointed to his case. Is that correct, Mr. Shafer?

Shafer: No, that’s not correct at all. The reason why I requested for the medical

examiner, Your Honor, was not–it had nothing to do with the blood

evidence. . . .

3 SF 8-9. Counsel did not make a false representation to the trial court. Instead, he reported

what he had been told by Petitioner’s former counsel. Counsel then asked Petitioner whether

this information was accurate. Petitioner responded by denying that he requested a medical

expert to challenge the blood evidence and explained to the trial court in detail his actual reason

for wanting a second medical expert. 3 SF at 10. After Petitioner’s explanation, the trial court

denied his pro se motion for the appointment of a medical expert. Id. at 10-11.

 

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Petitioner raised this issue on appeal. The Fifth Court of Appeals confirms that Petitioner

explained why he wanted the medical expert. The appellate court stated:

Appellant then state that he did not want a medical expert to evaluate the

blood evidence but to evaluate whether he had received incompetent medical

treatment while he was hospitalized for his injuries from the accident. The

absence of an expert on this issue did not create a high risk of an inaccurate

verdict in appellant’s case . . . . We resolve [this issue] against him.

Shafer, 2002 WL 135331 at *1-2. On habeas review, the trial court found that it agreed with and

was bound by the appellate court’s opinion on this issue.

Petitioner makes bare assertions on critical issues in his pro se petition, unsupported by

anything else contained in the record. That is not sufficient to satisfy the Strickland standard nor

is it sufficient for this Court to grant habeas corpus relief. Ross v. Estelle, 694 F.2d 1008, 1011-

12 (5th Cir. 1983) (citing Woodard v. Beto, 447 F.2d 103, 104 (5th Cir. 1971)). Mere conclusory

allegations do not raise a constitutional issue in habeas proceedings. Ross, 694 F.2d at 1012. 

Petitioner cannot show that, absent Counsel’s report, the trial court would have granted

Petitioner’s pro se motion. Moreover, he cannot demonstrate that a medical expert would have

reached the conclusions that Petitioner claims would have assisted him in his defense. Petitioner

has shown neither deficient performance by counsel nor prejudice. The state court finding that

counsel did not provide ineffective assistance is not an unreasonable application of Strickland. 

Moreover, the state court did not unreasonably apply the facts in light of the evidence. 

Petitioner’s second ineffective assistance of counsel claim should be denied.

3. Jury Tampering

 

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Petitioner alleges that a prosecutor and a police officer conspired with a jury member to

convict Petitioner. (Pet.’s Memo at 5-6.) Petitioner attached to both his state habeas application

and federal habeas petition a fax cover sheet and money order allegedly demonstrating that the

police department bribed one of the jurors. (Id. at Exh. 5, 6) The prosecutor and the police

officer provided affidavits denying Petitioner’s allegations and any knowledge of the fax or

money order. On habeas review, the state court made a credibility determination, finding the

evidence provided by the prosecutor and the police officer to be true and correct. A state court’s

factual determination is entitled to a presumption of correctness that can only be overcome by

clear and convincing evidence. Carter v. Johnson, 131 F.3d 452, 464 (5th Cir. 1997). Petitioner

has not shown by clear and convincing evidence that the state court determination was wrong. 

Therefore, this allegation that the prosecutor and police officer conspired to assure his conviction

by tampering with the jury is without merit and should be denied.

4. Insufficient Evidence to Enhance Petitioner’s Sentence

Finally, Petitioner attacks the evidence to support the enhancement paragraphs in this

case. Petitioner did not raise this issue on direct appeal. Challenges to the sufficiency of the

evidence are not cognizable in a state habeas corpus proceeding. Ex parte McLain, 869 S.W.2d

349, 350 (Tex. Crim. App. 1994). The Texas Court of Criminal Appeals considered the claim to

be procedurally barred. Federal courts may not review a state court decision that rests on an

adequate and independent state procedural default, unless the habeas petitioner shows cause for

the default and "prejudice attributable thereto" or demonstrates that the failure to consider the

federal claim will result in a "fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255,

262 (1989). When the last state court to review a claim clearly and expressly states that its

 

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judgment rests on a procedural bar, the procedural default doctrine generally bars federal review.

Id.; Lowe v. Scott, 48 F. 3d 873, 875 (5th Cir.1995). Also, when a claim has not been reviewed

by the state's highest court, this Court may find such claim procedurally barred. See Coleman v.

Thompson, 501 U.S. 722 n. 1 (1991). Petitioner did not show cause and prejudice nor did he

show that this Court’s failure to consider the claim will result in a fundamental miscarriage of

justice. Accordingly, Petitioner’s claim regarding the enhancement of his sentence is

procedurally barred and may not be considered here.

RECOMMENDATION

The state court’s decision to deny relief is not clearly contrary to United States Supreme

Court precedent nor is it based on a unreasonable determination of the facts in light of the

evidence. The petition for writ of habeas corpus should be denied with prejudice for failure to

make a substantial showing of the denial of a federal right. 

IT IS SO ORDERED.

Signed April 14, 2006.

_____________________________________

PAUL D. STICKNEY

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 true copy of these findings, conclusions,

and recommendation on the parties. Pursuant to Title 28, United States Code, Section 636(b)(1),

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

and file 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. A party's failure to file such written objections to these proposed findings,

conclusions, and recommendation shall bar that party from a de novo determination by the

District Court. See Thomas v. Arn, 474 U.S. 140, 150, (1985). Additionally, any 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 Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th

Cir. 1996) (en banc).

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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