IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

AUTHER W. CALLICUT 8 

§ 

Petitioner, 8 

§ 

VS. § 

8 NO. 3-03-CV- 1525-M 

NATHANIEL QUARTERMAN, Director 8 

Texas Department of Criminal Justice, 9 

Correctional Institutions Division 9 

9 

Respondent. 8 

FINDINGS AND RECOMMENDATION OF THE 

UNITED STATES MAGISTRATE JUDGE 

Petitioner Auther W. Callicut, a Texas prisoner, has filed an application for writ of habeas 

corpus pursuant to 28 U.S.C. 2254. For the reasons stated herein, the application should be denied. 

A jury convicted petitioner of murder and sentenced him to 35 years confinement. His 

conviction and sentence were affirmed on direct appeal. Callicut v. State, No. 05-01-00231-CR, 

2002 WL 1266 14 (Tex. App.--Dallas, Feb. 1,2002, no pet). Petitioner also filed an application for 

state post-conviction relief. The application was denied without written order. Exparte Callicut, 

No. 55,717-01 (Tex. Crim. App. Jun. 18,2003). Petitioner then filed this action in federal district 

court.' 

This court originally dismissed petitioner's federal writ on limitations grounds. Callicut v. Dretke, No. 3-03- 

CV-1525-M, 2003 WL 22889264 (N.D. Tex. Sept. 19,2003), rec. adopted, 2003 WL 22888788 (N.D. Tex. Oct. 15, 

2003). On direct appeal, the Fifth Circuit vacated the judgment and remanded the case for further proceedings upon 

discovering that petitioner filed his state writ prior to January 23,2003, rather than on April 15, 2003, as represented 

by petitioner in his initial pleading. Callicut v. Quarterman, No. 03-1 1201,2007 WL 2471782 (5th Cir. Jul. 19,2007). 
In four grounds for relief, petitioner contends that: (1) the evidence was legally and factually 

insufficient to support his conviction; (2) he received ineffective assistance of counsel; (3) the trial 

court improperly admitted certain evidence; and (4) the state appeals court failed to address two of 

his claims. 

The standard of review in federal habeas cases is governed by the Antiterrorism and Effective 

Death Penalty Act of 1996 ("AEDPA"). See Pub.L. 104-132,110 Stat. 1214 (1996). Where, as here, 

a state court has already rejected the claims raised by petitioner, a federal court may grant habeas 

relief 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 court proceeding. 

28 U.S.C. 5 2254(d); see also Williams v. Taylor, 529 U.S. 362,411-13, 120 S.Ct. 1495, 1522-24, 

146 L.Ed.2d 389 (2000). Federal habeas courts review questions of law and mixed questions of law 

and fact under section 2254(d)(l). Pure questions of fact are reviewed under section 2254(d)(2). 

See Martin v. Cain, 246 F.3d 471,475 (5th Cir.), cert. denied, 122 S.Ct. 194 (2001). 

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.), cert. denied, 124 S.Ct. 2812 (2004), citing Williams, 120 S.Ct. at 1523. A decision 
constitutes an "unreasonable application" of clearly established federal law 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." Williams, 120 S.Ct. at 1523. To be unreasonable, 

the application of clearly established federal law must be more than merely incorrect. Gardner v. 

Johnson, 247 F.3d 551, 560 (5th Cir. 2001). The standard is one of "objective reasonableness." 

Montoya v. Johnson, 226 F.3d 399, 403-04 (5th Cir. 2000), cert. denied, 121 S.Ct. 2220 (2001), 

quoting Williams, 120 S.Ct. at 1521-22 (O'Connor, J., concurring). Factual determinations made by 

state courts are presumed to be correct and are unreasonable only where the petitioner "rebut[s] the 

presumption of correctness by clear and convincing evidence." 28 U.S.C. 5 2254(e)(1). 

In one broad ground for relief, petitioner contends that the evidence was legally and factually 

insufficient to support his murder con~iction.~ 

The court initially observes that a claim based on factually insufficient evidence is not 

cognizable under 28 U.S.C. 5 2254. Under Texas law, intermediate appellate courts have the 

authority to review fact questions in criminal cases. Clewis v. State, 922 S.W.2d 126, 129 (Tex. 

Crim. App. 1996). This "factual sufficiency" review of the evidence is broader than a "legal 

Respondent argues that petitioner's legal sufficiency claim is procedurally barred from federal habeas review 

because it was presented to the Texas Court of Criminal Appeals for the first time in an application for state postconviction relief. (See Resp. Ans. at 13-14). Although a federal court may not consider the merits of a habeas claim if 

a state court has denied relief due to a procedural default, the state court opinion must contain a "plain statement" that 

its decision rests on adequate and independent state grounds. Harris v. Reed, 489 U.S. 255,262, 109 S.Ct 1038,1043, 

103 L.Ed.2d 308 (1989); Smith v. Collins, 977 F.2d 951,955 (5th Cir. 1992), cert. denied, 114 S.Ct 97 (1993). Here, 

the state habeas court summarily rejected petitioner's legal sufficiency claim because "there are no controverted, 

previously unresolved facts material to the legality of the Applicant's confinement." Exparte Callicut, No. 55,717-01 

at 25. While it is true that "sufficiency of the evidence is not properly raised in a habeas corpus application," Exparte 

McLain, 869 S.W.2d 349, 350 (Tex. Crim. App. 1994), it is not clear that the state court denied post-conviction relief 

for that reason. 
sufficiency" challenge under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 

(1979). Id. Instead of viewing the evidence in the light most favorable to the prosecution and 

determining whether "any rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt," a factual sufficiency inquiry views all the evidence to determine whether 

the verdict "is so contrary to the overwhelming weight of the evidence as to be clearly wrong and 

unjust." Pruitt v. Cockrell, No. 3-00-CV-1713-H, 2001 WL 11 15339 at *13 (N.D. Tex. Sept. 14, 

2001), quoting Clewis, 922 S.W.2d at 129. The power of state appellate courts to review the factual 

sufficiency of the evidence derives from Texas statutory and constitutional authority. Id. at * 14, 

citing Clewis, 922 S.W.2d at 129-30, and Bigby v. State, 892 S.W.2d 864,874-75 (Tex. Crim. App. 

1994), cert. denied, 11 5 S.Ct. 2617 (1995). There is no corresponding right of review under the 

United States Constitution. Id.; see also Daisy v. Dretke, No. 3-04-CV-2015-D, 2004 WL 3 167743 

at *2 (N.D. Tex. Dec. 21,2004) (citing cases). 

2. 

Petitioner argues that the evidence supporting his guilt, "although adequate when taken alone, 

is so greatly outweighed by the overwhelming weight [of] contrary evidence as to render the 

conviction clearly wrong and manifestly unjust." (Hab. Pet. at 8,y 20). More particularly, petitioner 

alleges there is no "direct evidence" that he shot the victim and there is undisputed evidence that he 

was not present when the murder was committed. 

Federal habeas review of a legal sufficiency claim is extremely limited. A federal court may 

not disturb a state criminal conviction unless no rational trier of fact could have found the elements 

of the offense beyond a reasonable doubt. Jackson, 99 S.Ct. at 2789; Gibson v. Collins, 947 F.2d 
780,78 1 (5th Cir. 199 l), cert. denied, 1 13 S.Ct. 102 (1 992). The evidence must be viewed in the 

light most favorable to the verdict. Jackson, 99 S.Ct. at 2789; Gibson, 947 F.2d at 781. This 

standard of review applies in both direct and circumstantial evidence cases. Schrader v. Whitley, 904 

F.2d 282,287 (5th Cir.), cert. denied, 11 1 S.Ct. 265 (1990). 

Federal courts are bound by state statutes and case law in determining the elements of an 

offense. Foy v. Donnelly, 959 F.2d 1307,13 13 (5th Cir. 1992). Under Texas law, a person commits 

the offense of murder if he: 

commits or attempts to commit a felony, other thanmanslaughter, and 

in the course of and in hrtherance of the commission or attempt, or 

in immediate flight from the commission or attempt, he commits or 

attempts to commit an act clearly dangerous to human life that causes 

the death of an individual. 

TEX. PENAL CODE ANN. 48 19.02(b)(3). A person may be held criminally responsible for an offense 

committed by another if he was "present at the commission of the offense and encourage[d] its 

commission by words or other agreement." King v. State, 29 S.W.3d 556, 564 (Tex. Crim. App. 

2000), citing TEX. PENAL CODE ANN. 8 7.02(a)(2). If a felony is committed during the course of a 

conspiracy to commit another felony: 

all conspirators are guilty of the felony actually committed, though 

having no intent to commit it, if the offense was committed in 

fbrtherance of the unlawhl purpose and was one that should have 

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

TEX. PENAL CODE ANN. 8 7.02(b). 

Petitioner was charged with the murder of Marcos Monsivais "while . . . in the course of 

committing and attempting to commit the offense of robbery[.]" (St. App. Tr. at 2). At trial, 
petitioner testified that he set up a drug deal between Monsivais and Markiest Sykes. (SF-V at 42- 

44). On the night of the murder, petitioner drove Sykes to meet Monsivais and waited in the car 

while the two discussed the drug buy. (Id. at 45-53). A few minutes later, petitioner heard a 

gunshot. (Id. at 54). As petitioner began to drive away, he heard Sykes calling his name. (Id.). 

Petitioner stopped the car, picked up Sykes, and drove him home. (Id. at 55). Although petitioner 

said he was unaware that Sykes had shot Monsivais, he later admitted taking custody of the gun and 

the shell casing from the bullet used in the shooting. (Id. at 55, 89). 

Two witnesses contradicted petitioner's claim that he did not participate in the robbery. 

Laeduan Hunt testified that he overheard petitioner and Sykes discuss plans to rob Monsivais before 

petitioner arranged the drug deal. (Id. at 6). According to Hunt, petitioner told Sykes, "He's short 

and you can get him." (Id. at 8). Another witness, Jennifer Goodman, testified that petitioner and 

Sykes talked five or six times about whether Sykes needed to bring "heat" to the drug buy. (SF-IV 

at 91,95). Just before meeting with Monsivais, Goodman and petitioner accompanied Sykes to his 

mother's house where Goodman believed that Sykes retrieved a gun. (Id. at 99). Goodman also 

heard petitioner tell Sykes "to act like he's getting the money together" when he approached 

Monsivais for drugs. (Id. at 100). After the shooting, Goodman observed petitioner and Sykes 

divide up a bag of cocaine taken from the victim. (Id. at 107-09). 

In rejecting petitioner's legal sufficiency claim, the state appeals court wrote: 

The jury could reasonably infer from this evidence that appellant 

knew Sykes had a gun. The jury could also reasonably infer from this 

evidence that appellant knew Sykes carried a gun to rob Monsivais 

and that appellant should have anticipated the possibility that Sykes 

might fire the gun in the course of the robbery resulting in Monsivais' 

death. Applying the appropriate standards of review . . ., we conclude 

the evidence is legally [ ] sufficient to support a jury finding that 
appellant should have anticipated Monsivais' murder as a result of 

canying out the conspiracy. 

Callicut, 2002 WL 126614 at *4. Petitioner has failed to show that this decision is unreasonable in 

light of the evidence presented at trial. Viewed in the light most favorable to the verdict, the 

evidence was sufficient to support petitioner's conviction under the Texas felony murder statute and 

conspiracy theory. This ground for relief should be overruled. 

C. 

Petitioner Mher contends that he received ineffective assistance of counsel because his 

attorney: (1) failed to strike a juror who allegedly knew Laeduan Hunt and his mother; and (2) did 

not file a petition for discretionary review after his conviction was affirmed on direct appeal. 

1. 

The Sixth Amendment to the United States Constitution guarantees a defendant reasonably 

effective assistance of counsel at all critical stages of a criminal proceeding. See Cuyler v. Sullivan, 

446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980). To prevail on an ineffective 

assistance of counsel claim, a habeas petitioner must satisfy the two-prong test established in 

Strickland v. Washington, 466 U.S. 668,104 S.Ct. 2052,80 L.Ed.2d 674 (1984). First, the petitioner 

must demonstrate that the performance of his attorney fell below an objective standard of 

reasonableness. Id. , 104 S.Ct. at 2064. Second, the petitioner must prove that he was prejudiced by 

his attorney's substandard performance. Id. at 2067. Prejudice results when "there is a reasonable 

probability that, but for counsel's unprofessional errors, the result of the proceeding would have been 

different." Id. at 2068; see also Lockhart v. Fretwell, 506 U.S. 364, 372, 1 13 S.Ct. 838, 844, 122 

L.Ed.2d 180 (1993) (habeas petitioner must show that trial result was unreliable or proceeding 

fundamentally unfair due to deficient performance of counsel). 
Both of petitioner's ineffective assistance of counsel claims were considered and rejected on 

state collateral review. In a sworn affidavit filed with the state habeas court, Phillip H. Jones, the 

attorney who represented petitioner at trial, testified that he was unaware of anyjuror who had aprior 

relationship with Laeduan Hunt or his mother. Exparte Callicut, No. 55,717-01 at 26. The state 

court found that Jones was a trustworthy individual and that the statements made in his affidavit 

were worthy of belief. Id. at 23. That finding is conclusive in a subsequent federal habeas 

proceeding unless rebutted by clear and convincing evidence. 28 U.S.C. 5 2254(e)(l); see also 

Valdez v. Cockrell, 274 F.3d 941, 948 n. 1 1 (5th Cir. 2001), cert. denied, 123 S.Ct. 106 (2002) 

(presumption of correctness applies to both explicit and implicit findings necessary to state court's 

conclusions of mixed law and fact). Not only has petitioner failed to rebut the state court finding by 

clear and convincing evidence, he does not even identi@ the juror who allegedly knew Hunt and his 

mother. His speculative assertions do not merit habeas relief. See Peek v. Quarterman, No. 3-06- 

CV-1970-M, 2007 WL 1500875 at *7 (N.D. Tex. May 23,2007). 

Nor has petitioner shown that counsel was ineffective for failing to file a petition for 

discretionary review. April E. Smith, the attorney appointed to represent petitioner on appeal, 

testified by affidavit in the state habeas proceeding that she asked the trial court to appoint a lawyer 

to prepare a petition for discretionary review on behalf of petitioner. Exparte Callicut, No. 55,7 17- 

01 at 27. After the motion was denied, Smith sent petitioner a letter stating: 

The Judge is not required to appoint an attorney to file a Petition for 

Discretionary Review (PDR) . . . [Slhould you wish to file a PDR, 

you must retain counsel or prepare your own. The rules for preparing 

a PDR are located in the Texas Rules of Appellate Procedure Rules 

66-79. 
Id. at 29. Smith also advised petitioner that any PDR must be filed with the clerk of the court of 

appeals by March 4, 2002. Id. Based on this evidence, none of which was controverted by 

petitioner, the state habeas court rejected his ineffective assistance of counsel claim. Id. at 23-24. 

To the extent petitioner now contends that his trial counsel, Phillip H. Jones, should have filed a 

petition for discretionary review, that claim is untenable in light of the fact that Jones did not even 

represent petitioner on direct appeal. This ground for relief should be overruled. 

D. 

Next, petitioner alleges that the trial court improperly admitted evidence of "acts or omissions 

[that] were outside the wide range of criminal justice." (Hab. Pet. at 7,7 20). The misapplication 

of state procedural and evidentiary rules is not cognizable in a federal habeas proceeding unless the 

petitioner can establish that the error deprived him of a fair trial. See Evans v. Thigpen, 809 F.2d 

239, 242 (5th Cir.), cert. denied, 107 S.Ct. 3278 (1987); Mattheson v. King, 751 F.2d 1432, 1445 

(5th Cir. 1985), cert. dism'd, 106 S.Ct. 1798 (1986). Other than the vague assertion that the 

admission of certain evidence and testimony was "outside the wide range of criminal justice," 

petitioner offers no proof of a federal constitutional violation. See Saunders v. Cockrell, No. 3-02- 

CV-0229-D, 2002 WL 3 1 1567 19 at *2 (N.D. Tex. Sept. 24,2002), citingLucas v. Johnson, 132 F.3d 

1069,1082 (5th Cir.), cert. dism'd, 1 19 S.Ct. 4 (1998) (habeas reliefwarranted only when erroneous 

admission of evidence played a "crucial, critical [and] highly significant role" in trial). This ground 

for relief is without merit. 

E. 

Finally, petitioner contends that the state appeals court failed to properly consider two of his 

claims on direct appeal--that the evidence was legally and factually insufficient to prove that he 
solicited, encouraged, directed, or aided Sykes in committing felony murder. Instead, petitioner 

accuses the court of appeals of ignoring these points of error by focusing on two other claims 

challenging the sufficiency of the evidence to support his murder conviction under a conspiracy 

theory. 

Under the Texas Rules of Appellate Procedure, "[tlhe court of appeals must hand down a 

written opinion that is as brief as practicable but that addresses every issue raised and necessary to 

the final disposition of the appeal." See TEX. R. APP. P. 47.1. That is exactly what the state court 

did in this case. After carefully reviewing the evidence, the appeals court rejected petitioner's legal 

and factual insufficiency claims by determining that he should have anticipated the murder as a result 

of carrying out a conspiracy to rob Monsivais. Callicut, 2002 WL 126614 at *4. Because the court 

affirmed petitioner's conviction under a conspiracy theory, it expressly declined to consider whether 

the evidence was legally and factually sufficient to support petitioner's conviction on the theory that 

he as the principal actor or as a party caused Monsivais' death. Id. This analysis not only was 

proper, but was mandated by the Texas rules. Petitioner's claim that the evidence was legally and 

factually insufficient to prove that he solicited, encouraged, directed, or aided Sykes in committing 

felony murder was not necessary to the final disposition of his appeal. 

RECOMMENDATION 

Petitioner's application for writ of habeas corpus should be denied. 

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

provided by law. Any party may file written objections to the recommendation within 10 days after 

being served with a copy. See 28 U.S.C. 636(b)(l); FED. R. CIV. P. 72(b). The failure to file 

written objections will bar the aggrieved party from appealing the factual findings and legal 
conclusions of the magistrate judge that are accepted or adopted by the district court, except upon 

grounds ofplain error. See Douglass v. UnitedServices Automobile Ass'n, 79 F.3d 141 5,1417 (5th 

Cir. 1996). 

DATED: November 27,2007. 

ES MAGISTRATE JUDGE