1

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ALTON JAMES NICKLEBERRY, § 

Petitioner, §

§ 

v. § NO. 3:04-CV-2727-B

 § Consolidated With

DOUG DRETKE, Director, § NO. 3:04-CV-2728-B

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

Respondent. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636(b) and an order of the District Court in

implementation thereof, the subject cause has been previously referred to the undersigned

United States Magistrate Judge. The findings, conclusions, and recommendations of the

Magistrate Judge, as evidenced by his signature thereto, are as follows: 

FINDINGS AND CONCLUSIONS:

Type Case: This is a petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2254. 

Parties: Petitioner Alton James Nickleberry (“Nickleberry” or “Petitioner”) is an inmate

confined at the James V. Allred Unit of the Texas Department of Criminal Justice,

Correctional Institutions Division (“TDCJ-CID”) at Iowa Park, Texas. Respondent is the

Director of TDCJ-CID.

Statement of the Case: Upon his pleas of not guilty to the offense of aggravated sexual

abuse of a child as charged in the indictments in cause numbers F-0154508-JM and F0200239-QM, Nickleberry was tried by jury. Petitioner represented himself during voir

dire and the beginning portion of the trial, then elected to be represented by counsel. The

jury found Nickleberry guilty on both counts and found one enhancement paragraph true. 

 

 Case 3:04-cv-02727-B Document 17 Filed 06/02/05 Page 1 of 9 PageID 71
1

Since Nickleberry was convicted in a single trial on both criminal charges, he was not

required to file separate §2254 petitions attacking his convictions. See R.2(e), Rules

Governing Section 2254 Petitions.

2

He was sentenced to forty-five years imprisonment in cause number F-0154508-JM and

thirty-five years imprisonment in cause number F-0200239-QM. 

Petitioner appealed to the Fifth Court of Appeals and his convictions were upheld

in an opinion delivered on March 31, 2003. Nickleberry v. State, Nos.

05-02-00814-CR, 05-02-00815-CR, 2003 WL 1650813 (Texas App. - Dallas Mar. 31,

2003, pet. ref’d)(not selected for publication). His petitions for discretionary review

were refused by the Texas Court of Criminal Appeals on June 25, 2003.

Nickleberry filed two application for habeas corpus relief pursuant to Tex. Code

Crim. Proc. art. 11.07 on July 10, 2003 which were dismissed on February 18, 2004

because a direct appeal was pending. Ex Parte Nickleberry, No. 58,171-01, Ex Parte

Nickleberry, No. 58,171-02. Thereafter, following the Court of Criminal Appeals’s

refusal of his petitions for discretionary review, he filed two art. 11.07 applications on

April 16, 2004, both of which were denied without written order on December 15, 2004. 

Ex Parte Nickleberry, No. 58,171-03, Ex Parte Nickleberry, No. 58,171-04. 

Petitioner filed his §2254 habeas petitions on December 23, 2004. Pursuant to

this court’s order filed March 17, 2005, both of Nickleberry’s petitions were consolidated

in the present action.1

 Respondent filed an answer addressing the merits of his claim and

attaching the state court papers on April 7, 2005. Petitioner did not file a traverse.

Findings and Conclusions: 

Review of Petitioner’s claims is governed by the provisions of the Antiterrorism

and Effective Death Penalty Act which in pertinent part provides that a federal court

 

 Case 3:04-cv-02727-B Document 17 Filed 06/02/05 Page 2 of 9 PageID 72
3

cannot grant relief under § 2254 unless the adjudication of the state prisoner’s claim in

the state court system “resulted in a decision that involved an unreasonable application of

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

States; or resulted in a decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceedings.” § 2254(d)(1) &

(2). Further, findings of fact made by a State court are presumed to be correct absent

clear and convincing evidence rebutting the presumption. § 2254(e)(1).

In his first ground for relief Nickleberry contends that the trial court abused its

discretion by refusing to issue subpoenas for Ms. Rena Brandford, Mr. Kenneth L. 

Terrell, Ms. Geraldine Ann Pleasant, and a doctor from Austin, Texas, and also a door to

a residence. In addition, the Petitioner contends that the trial court abused its discretion

when it did not provide the funds for him to hire an expert medical witness to examine

the victim.

As to the witnesses, the Fifth Circuit has stated in United States v. Redd, 355 F.3d 866,

878 (5th Cir. 2003):

[w]hile the Sixth Amendment guarantees a defendant the right to

compulsory process, the right is not absolute. United States v. Gonzales,

79 F.3d 413, 424 (5th Cir.1996). "When requesting a court to subpoena a

witness, a defendant ... has the duty to demonstrate the necessity of the

witness's testimony." Id. Furthermore, "the Sixth Amendment does not by

its terms grant to a criminal defendant the right to secure the attendance

and testimony of any and all witnesses: it guarantees him 'compulsory

process for obtaining witnesses in his favor.' " United States v.

Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193

(1982) (quoting U.S. CONST. amend. VI). Therefore, the defendant must

"at least make some plausible showing of how [the witness's] testimony

would [be] both material and favorable to his defense."Valenzuela-Bernal,

102 S.Ct. at 3446. 

Although Defendant contends that the judge ruled that he could not subpoena these

witnesses, the record reflects that the judge required Defendant to send interrogatories to

 

 Case 3:04-cv-02727-B Document 17 Filed 06/02/05 Page 3 of 9 PageID 73
2

The record reflects Petitioner represented himself throughout much of the trial, although

standby counsel was present. After indicating that he no longer wished to proceed pro se

the court permitted the attorney, Anthony Lyons, to represent Nickleberry. (See

Reporter’s Record v. 7 at 119; 123-26).

3

The relevance of the door, itself, to any issue in the case is at best highly dubious.

4

these potential witnesses in an attempt to limit the time the trial would take. (Reporter’s

Record v. 4 at 7). Prior to voir dire, Defendant attempted to object that the judge had not

allowed him to subpoena some out of town witnesses. However, the judge stated that

these objections would be put on the record after the State finished its case-in chief. (Id. 

v. 6 at 17). At the close of the State’s case, neither Nickleberry nor his counsel renewed

these objections. (Id. v. 8 at 32-33).2 In fact, at the close of his case Nickleberry’s

counsel stated, and Petitioner agreed, that any further witnesses would merely be

duplicative. (Id. v. 8 at 142). In light of Petitioner and his counsel’s representations,

this court cannot say that the decision of the Texas Court of Criminal Appeals was an

unreasonable determination of the facts or law. As to the door, Petitioner was allowed to

present pictures of the door to the jury. (Id. v. 7 at 88).3

 Especially in light of Petitioner

and his counsel’s representations (Id. v. 8 at 142) and Petitioner’s failure to submit any

further objections at the close of the state’s case (Id. v. 8 at 30-33) this court cannot say

that the decision of the Texas Court of Criminal Appeals was an unreasonable

determination of the facts or law.

Finally, as to his request for appointment of a medical expert, Nickleberry has

failed to allege what such an expert would have discovered or what relevant testimony

the expert could have given. Under the Sixth Amendment, a defendant has the right to a

non-psychiatric expert “only if the evidence is both critical to the conviction and subject

to varying expert opinion.” See Yohey v. Collins, 985 F.2d 222, 227 (5th Cir. 1993), see

 

 Case 3:04-cv-02727-B Document 17 Filed 06/02/05 Page 4 of 9 PageID 74
5

also Moore v. Johnson, 225 F.3d 495, 503-04 (5th Cir. 2000). Having failed to satisfy

this standard, the claim fails to present a cognizable ground for relief.

In his second ground for relief, Nickleberry contends that the prosecution

withheld exculpatory evidence, specifically the medical records of the victim dating from

1997, Child Protective Services documentation showing that the victim had at one time

lived with man later charged with both rape and aggravated assault of a child, and Child

Protective Services notes indicating that the victim was a liar and manipulative. To

prevail on a claim under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), the

Defendant must establish that his due process rights were violated by proving that: 1) the

prosecution suppressed or withheld evidence; 2) the evidence was favorable to the

defense, and 3) the evidence was material to either guilt or punishment. United States v.

Fisher, 106 F.3d 622, 634 (5th Cir. 1997) (quoting Westley v. Johnson, 83 F.3d 714, 725

(5th Cir. 1996), cert. denied, 519 U.S. 1094,117 S. Ct. 773 (1997)). Plaintiff has

presented no evidence establishing the existence of such reports, let alone that such

reports constituted Brady materials. No basis for relief is presented. See Ross v. Estelle,

694 F.2d 1008, 1011-12 (5th Cir. 1983). 

In his third ground for relief, Nickleberry contends that the district attorney made

an improper comment during voir dire. To be entitled to relief, Petitioner must show that

the prosecutor’s comments “so infected the trial with unfairness as to make the resulting

conviction a denial of due process.” E.g., Donnelly v. DeChristoforo, 416 U.S. 637, 643,

94 S.Ct. 1868, 1871 (1974). A review of the comment (See Reporter’s Record v. 6 at

78) demonstrates that Petitioner cannot satisfy this requirement. 

In his fourth ground for relief, Petitioner contends that the court abused its

 

 Case 3:04-cv-02727-B Document 17 Filed 06/02/05 Page 5 of 9 PageID 75
6

discretion when it allowed the prosecutor to bring up one of his prior convictions on

cross examination. His prior felony convictions were referred to by both his mother,

Floyzell Nickleberry (Reporter’s Record v.8 at 54-60) and in his own direct examination.

(Id. at 90-91). Moreover, since no objection was made to the prosecutor’s question (Id. 

at 120), Nickleberry waived any objection which might otherwise have been raised.

In his fifth ground for relief, Petitioner complains that the district court allowed

the introduction of a videotape of the victim in which she identified him as the

perpetrator despite having previously ruled that the tape was inadmissible. Although

Petitioner states that the state trial court ruled the tape inadmissible, it is apparent from

the record that the court rejected Nickleberry’s attempt to have the videotape excluded as

evidence. (Reporter’s Record v. 3 at 12-13). Nickleberry did not object to the

admission of the videotape at the time it was presented. (Id. v. 7 at 137). 

In pre-AEDPA decisions by the Fifth Circuit which address evidentiary rulings in

the context of state criminal trials the court has held that it is irrelevant whether a specific

evidentiary determination is erroneous under state law; a petitioner is not entitled to

federal habeas relief unless “the evidentiary ruling has resulted in a denial of fairness

under the due process clause.” Porter v. Estelle, 709 F.2d 944, 957 (5th Cir. 1983), see

also Neal v. Cain, 141 F.3d 207, 214 (5th Cir. 1998). “Even the erroneous admission of

prejudicial evidence can justify habeas relief only if it is material in the sense of a crucial,

critical highly significant factor.” Porter, 709 F.2d at 957. In light of the fact that the

victim testified personally that Nickleberry was the assailant (Reporter’s Record v. 7 at

23-32), Petitioner cannot show that the determination of the Court of Criminal Appeals

was an error of fact or law.

 

 Case 3:04-cv-02727-B Document 17 Filed 06/02/05 Page 6 of 9 PageID 76
4

The only witness with the surname Johnson who testified at trial was Jamie Johnson, an

investigator with Child Protective Services. (Reporter’s Record v. 7 at 126 et seq.).

7

In his sixth ground for relief, Nickleberry asserts that he was denied effective

assistance of counsel because his counsel failed to disclose to the court that he was

friends with the witness Daniel Johnson,4

 refused to ask questions of Ms. Johnson on

cross examination on account of that friendship, refused to object to evidence presented

by the state, including the videotape of the victim, and refused to call witnesses requested

by Nickleberry. An attorney’s conduct is governed by the standards set out in Strickland

v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). There is a strong presumption that

an attorney conduct falls within the broad range of reasonable professional assistance

required under the Sixth Amendment. Id. at 690, 104 S.Ct at 2065. To overcome this

presumption a habeas petitioner must establish that the attorney conduct was

constitutionally deficient (cause) and that but for such unprofessional errors the result

probably would have been different (prejudice). Failure to prove either prong of the two

part test forecloses relief. Id at 694, 104 S.Ct. at 2068. 

Aside from the fact that Daniel Johnson did not appear as a witness, Nickleberry

has failed to set out questions which an attorney should have asked Ms. Johnson, but

which were not propounded, nor has he presented any competent evidence to establish a

relationship between his trial attorney and Ms. Johnson, from which a conflict of interest

could be inferred. Although Petitioner has stated the names of uncalled witnesses, he has

provided no competent evidence as to what these witnesses might have testified to or

their availability on the date of the trial. See, e.g., Evans v. Cockrell, 285 F.3d 370, 377

(5th Cir. 2003). In fact, the record reflects that his counsel reported that any further

witnesses would be redundant and Nickleberry concurred in that decision. (Reporter’s

 

 Case 3:04-cv-02727-B Document 17 Filed 06/02/05 Page 7 of 9 PageID 77
5

 In Clewis, the Court of Criminal Appeals made clear its understanding that the Jackson

v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979) analysis of the legal sufficiency of the

evidence was a different standard of evaluating the evidence than that applied to the

factual sufficiency of the evidence under Texas state statutory and constitutional law, and

the denial of relief under the Supreme Court’s Jackson v. Virginia standard did not

preclude a Texas appellate court from considering a claim that the evidence was factually

insufficient. Clewis v. State, 922 S.W.2d at 132-33. Unlike the Jackson standard which

required that the evidence be reviewed in the light most favorable to the prosecution, “a

factual sufficiency review dictates that the evidence be viewed in a neutral light, favoring

neither party.” Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).

8

Record v. 8 at 142). Petitioner has therefore shown neither cause nor prejudice on his

ineffective assistance of counsel claims. The record reflects that Petitioner himself stated

“no objection” to the introduction of the videotaped interview of the victim witness. (Id.

v.7 at 136-37). Therefore, he has no basis to complain.

In his seventh ground for relief, Nickleberry asserts that the evidence is factually

insufficient to support his conviction. Factual insufficiency is a creation of Texas law

whereby the reviewing court scrutinizes the fact finder’s weighing of the evidence.

Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996).5

 As Petitioner’s claim is

based entirely on Texas law, it does not support a claim for relief under federal habeas

law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 480 (1991). 

In his eighth ground, Nickleberry contends that due process was violated when

the witness Shukura Wilson stated that he was in jail in response to the prosecutor’s

questioning. (See Reporter’s Record v. 7 at 62-63). As noted supra, the erroneous

admission of evidence must be crucial and critical to constitute a Constitutional violation. 

See Porter, 709 F.2d at 957. In light of the numerous references to Nickleberry’s past

criminal record which were placed before the jury (See, e.g., Reporter’s Record v. 8 at

90-91) the witnesses’s remarks did not violate his due process rights, nor can it be said

that the Court of Criminal Appeals erred in refusing relief on this ground.

 

 Case 3:04-cv-02727-B Document 17 Filed 06/02/05 Page 8 of 9 PageID 78
9

RECOMMENDATION:

Petitioner has failed to show that he is entitled to relief pursuant to 28 U.S.C.

'2254. Specifically, he has failed to establish that the decision of the Texas Court of

Criminal Appeals constituted a decision which met the prerequisites of '2254(d) (1) or

(2). It is therefore recommended that the petition be denied and dismissed. 

A copy of this recommendation shall be transmitted to the Petitioner and to

counsel for Respondent. 

 SIGNED this 2nd day of June, 2005.

_____________________________

 Wm. F. Sanderson Jr.

United States Magistrate Judge

NOTICE

In the event that you wish to object to this recommendation, you are hereby

notified that you must file your written objections within ten (10) days after being served

with a copy of this recommendation. Pursuant to Douglass v. United Sers.. Auto Assn,

79 F.3d 1415 (5th Cir. 1996)(en banc), a party=s failure to file written objections to these

proposed findings of fact and conclusions of law within such ten (10) day period may bar

a de novo determination by the district judge of any finding of fact and conclusion of law

and shall bar such party, except upon grounds of plain error, from attacking on appeal the

unobjected to proposed findings of fact and conclusions of law accepted by the district

court. 

 

 Case 3:04-cv-02727-B Document 17 Filed 06/02/05 Page 9 of 9 PageID 79