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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

WILLIAM ANTHONY JACKSON, )

Petitioner, )

) No. 3:04-CV-0972-K

v. ) ECF 

)

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

Petitioner filed a writ of habeas corpus pursuant to 28 U.S.C. §§ 2241 and 2254. 

II. PARTIES

William Anthony Jackson (“Petitioner”) is an inmate in the Texas Department of

Criminal Justice, Correctional Institutions Division (“TDCJ-CID”). Douglas Dretke 

(“Respondent”) is the Director of the TDCJ-ID.

 

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III. PROCEDURAL BACKGROUND

Petitioner was charged in the 283rd Judicial District Court of Dallas County, Texas, in

cause number F-014C270-T, styled The State of Texas v. William Anthony Jackson. Ex parte

Jackson, App. No. 57,315-01, at 44. Petitioner was charged by indictment with committing the

felony offense of aggravated assault on or about April 25, 2001. Id. at 41. The court found

Petitioner guilty of aggravated assault and assessed punishment at five years imprisonment on

August 30, 2001. Id. at 44. Petitioner filed a timely notice of appeal on August 30, 2001, and on

January 23, 2003, the Fifth Court of Appeals affirmed the judgment of the trial court in an

unpublished opinion. Jackson v. State of Texas, No. 05-01-01517-CR (Tex. App.–Dallas 2003). 

Petitioner did not file a petition for discretionary review. On September 2, 2003, Petitioner filed

a state writ of habeas corpus. Ex parte Jackson, App. No. 57,315-01, at 2. The petition was

denied by the Texas Court of Criminal Appeals on November 5, 2003, without written order and

without a hearing. Id. at cover. On April 20, 2004, Petitioner filed the petition in this case.

Petitioner asserts the following claims:

1. He received constitutionally ineffective assistance of counsel because trial

counsel: (a) failed to object to or otherwise challenge the use of prior offenses for

enhancement and (b) failed to object to the state’s leading questions of the

complainant and the police officer witness;

2. The trial court imposed an illegal sentence when it used a 21-year-old prior

Oklahoma conviction and a 32-year-old prior conviction from Illinois to enhance

his punishment;

3. The indictment is defective;

4. The evidence is factually and legally insufficient because the state did not prove

every element of the indictment as required by law; and

 

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5. The trial court erred by basing a guilty verdict on a hypothetical and on the theory

of another crime that was not part of the indictment.

Fed. Writ Pet. at 7-9 and Brief in Support.

IV. EXHAUSTION OF STATE COURT REMEDIES

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

V. STATEMENT OF THE FACTS

The following statement of facts is taken from the State’s Brief for the Appellee.

Clifford Jackson [no relation to Petitioner] was in his kitchen cooking

dinner when he heard his dog growling outside. (RR 3:5.) He looked out the

window and saw his dog trying to get out of the fence and go to the garage. (RR

3:5.) He went to the garage and noticed a man, later identified as [Petitioner],

standing over his bicycles. (RR 3:5.) Jackson also noticed that two of his

bicycles and some electrical cords were missing from the garage. (RR 3:5-6.)

Jackson asked [Petitioner] “what the hell” he was doing in his garage. 

(RR 3:7.) [Petitioner] told Jackson that a guy told him to come there because he

had some work for him to do. (RR 3:7.) [Petitioner] was backing away from

Jackson as he explained why he was at his house. (RR 3:7.) Jackson told

[Petitioner] he did not believe his story and [Petitioner] distracted him by saying,

“there he is” and pointing behind Jackson. (RR 3:7, 11.) Jackson turned but there

was no one there. (RR 3:11.) Jackson heard a disturbance from the other side of

the garage and believed that [Petitioner] had an accomplice. (RR 3:26, 28.) 

Fearing that he would not be able to defend himself against [Petitioner] and his

accomplice, Jackson went inside and called for his son. (RR 3:26, 28.)

When he returned outside, [Petitioner] was gone. (RR 3:8.) Jackson then

gave [Petitioner]’s description to his son and they both went looking for him, each

taking a different route. (RR 3:8-9.) After driving for a few minutes, Jackson

spotted [Petitioner] coming out of the woods at the edge of the subdivision. (RR

3:10, 33.) Jackson made a u-turn and pulled over into a nearby driveway. (RR

3:9, 22.) He then told [Petitioner] to “Come here. I need to talk to you.” (RR

3:10.) [Petitioner] started backing away, so Jackson grabbed him. (RR 3:10.) He

pushed [Petitioner] onto the hood of his car and held him there. (RR 3:11.) 

Jackson asked some nearby apartment owners to call the police. (RR 3:12.)

[Petitioner] told Jackson that he did not want to wait for the police. (RR 3:12.)

 

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Jackson then felt [Petitioner] start to wiggle or struggle beneath him (RR

3:13.) He felt [Petitioner]’s hand come up, grabbed his arm, and saw a

pocketknife in [Petitioner]’s hand. (RR 3:13, 22.) He grabbed the knife from

[Petitioner]’s hand and threw it on the ground near his son, who had arrived a few

moments earlier. (RR 3:13, 28.) The police arrived within a few minutes and

arrested [Petitioner]. (RR 3:17.) Jackson identified [Petitioner] in court as his

assailant. (RR 3:6, 34.)

The trial court found that Jackson was authorized to detain [Petitioner]

under section 9.41 of the Penal Code in that he found [Petitioner] in his garage

without permission and found property missing from his garage. (RR 4:5.) The

court further found that when [Petitioner] withdrew the knife from his pocket he

intended to use it as a deadly weapon. (RR 4:4-5.)

“State’s Brief” at 1-2.

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 that 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.” Strickland, 466 U.S. 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 counsel is deficient, the petitioner also must prove

prejudice. 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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“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. Petitioner’s Conclusory Allegation that his Counsel Failed to Object to the 

Enhancement of his Sentence and Petitioner’s Claim of an Illegally

Enhanced Sentence

Petitioner argues that his counsel was ineffective because she failed to object to or

otherwise challenge his prior convictions being used as enhancements. This is wholly

conclusory because Petitioner has failed to prove that his sentence was actually enhanced. Mere

conclusory allegations do not raise constitutional claims in habeas proceedings. See Ross v.

Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983). The record shows that the indictment did not

contain an enhancement paragraph. Rather, Petitioner testified at trial and admitted his prior

convictions for robbery and burglary. Ex parte Jackson, App. No. 57,315-01 at 44, 41; RR 3:52;

4:7. The court took into account the overall facts and circumstances in the case and sentenced

Petitioner to five years imprisonment. This was one-quarter of the maximum sentence that the

court could have imposed. The punishment range for the felony offense of a second degree

felony includes a term of imprisonment of not less than two nor more than twenty years and a

fine of up to $10,000. TEX. PENAL CODE §§ 22.02(a)(b), 12.33 (a)(b) (Vernon 2001). The

court had discretion to impose punishment up to twenty years. The five year sentence, based

upon the testimony that was given, cannot be said to be based upon his prior convictions alone. 

The transcript in the punishment phase of the trial demonstrates that Petitioner’s conviction was

not enhanced. Ex parte Jackson, No. 57,315-01 at 44, 41; RR 4:7. Therefore, both Petitioner’s

claim that his counsel provided ineffective assistance for failing to object to an enhanced

 

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sentence and his claim that his sentence is illegal are without merit and should be denied with

prejudice.

2. Petitioner’s Other Ineffective Assistance of Counsel Claims

Petitioner also claims his counsel should have objected to the state’s leading question to

Officer Prescher and to the complaining witness. As the Court has noted, mere conclusory

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

Petitioner has the burden to show that counsel’s performance was deficient and that the deficient

performance prejudiced the defense. Strickland, 466 U.S. at 687. Petitioner has failed to meet

either prong. In addition, the Texas Court of Criminal Appeals addressed these issues, and the

adjudication is on the merits. Therefore, this Court must examine the state court decision to see

if it is in conflict with clearly established federal law as determined by the Supreme Court or

based on an unreasonable determination of the facts in light of the evidence. 28 U.S.C. §

2254(d). The Court finds that the law was properly applied to the facts of this case and the state

court was correct in denying relief. Therefore, this Court recommends that Petitioner’s claims

are without merit and should be denied.

3. Defective Indictment

Petitioner alleges the indictment was defective because the state alleged that a knife was

used in the commission of an assault and a knife is not per se a dangerous weapon. In habeas

actions, federal courts do not sit to review mere errors under state law. Dickerson v. Guste, 932

F.2d 1142, 1145 (5th Cir. 1991). At its core, Petitioner’s claim only raises a question regarding

Texas law. Yohey v. Collins, 985 F.2d 222, 229 (5th Cir. 1993); cf. Wilder v. Cockrell, 274 F.3d

255, 260 (5th Cir. 2001) (holding that a passing reference to the Constitution does not exhaust a

 

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1

 Petitioner contends the evidence was both legally and factually insufficient. 

However, in challenges to state convictions under 28 U.S.C. § 2254, only Jackson need be

satisfied, even if state law would impose a more demanding standard of proof. Schrader v.

Whitley,904 F.2d 282, 284 (5th Cir. 1990).

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constitutional claim). Thus, because the indictment was sufficient under Texas law to confer

jurisdiction on the trial court, Petitioner’s defective indictment complaint provides no basis for

federal habeas corpus relief. Williams v. Collins, 16 F.3d 626, 637 (5th Cir. 1994); McKay v.

Collins, 12 F.3d 66, 68-69 (5th Cir. 1994); Yohey, 985 F.2d at 229. Petitioner raised the

defective indictment claim in his state writ application challenging his conviction. The Texas

Court of Criminal Appeals necessarily found that the indictment conferred jurisdiction on the

trial court and that the indictment was sufficient under Texas law. The Court need not consider

this claim. Additionally, Petitioner has not shown that the state court’s findings were in conflict

with clearly established federal law as determined by the United States Supreme Court. 

Petitioner’s defective indictment claim should be dismissed with prejudice.

4. Sufficiency of the Evidence

Petitioner claims the evidence was insufficient to sustain a conviction.1 Petitioner raised

his insufficiency challenge solely on appeal and did not seek a petition for discretionary review. 

Petitioner then raised his sufficiency of the evidence claims in his state habeas corpus

application. In its responses to Petitioner’s application, the State asserted that a sufficiency-ofthe-evidence claim may not be considered on habeas corpus review. The state trial court found

that there were no controverted, previously unresolved fact issues material to the legality of

Petitioner’s conviction. The Texas Court of Criminal Appeals denied the application without

written order.

 

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Respondent contends Petitioner’s sufficiency of the evidence claim is procedurally barred

because it is not cognizable on habeas corpus review. Although the Texas Court of Criminal

Appeals stated no reasons when it denied habeas relief, that court has long held that the

sufficiency of the evidence may only be raised on direct appeal and may not be raised in a state

habeas proceeding. West v. Johnson, 92 F.3d 1385, 1389 n.18 (5th Cir. 1996); Ex parte McLain,

869 S.W.2d 349, 350 (Tex. Crim. App. 1994). Indeed, the Texas Court of Criminal Appeals

recently reaffirmed that when a state habeas applicant initially challenges the sufficiency of the

evidence in a state habeas application and the court subsequently disposes of the application by

entering a denial without written order, the applicant’s sufficiency claim is not cognizable. Ex

parte Grigsby, 137 S.W.3d 673, 674 (Tex. Crim. App. 2004). Thus, this procedural default in

the state courts procedurally bars this court from addressing the merits of Petitioner’s sufficiency

claim, and this claim should be dismissed with prejudice.

Nevertheless, because Respondent alternatively addresses the sufficiency of the evidence

claim on the merits in its response, the Court will review the claim. To prevail on the claim that

the evidence is insufficient to sustain his conviction, Petitioner would have to show that the

denial of his claim by the appellate court was in conflict with clearly established federal law. 

The state appellate court analyzed the evidence as follows:

We review challenges to the sufficiency of the evidence using well-known

standards of review. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (legal

sufficiency); Johnson v. State, 23 S.W. 3d 1, 10-11 (Tex. Crim. App. 2000)

(factual sufficiency). To support appellant’s conviction for aggravated assault,

the State must show that appellant intentionally or knowingly threatened Clifford

Jackson with imminent bodily injury and used or exhibited a deadly weapon

during the assault. See TEX. PEN CODE ANN. §§ 22.01(a)(2), 22.02(a)(2) (Vernon

Supp. 2002). A deadly weapon is anything that in the manner of its use or

intended use is capable of causing death or serious bodily injury. See TEX. PEN

 

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CODE ANN. § 1.07(a)(17)(B)(Vernon 1994). Because a knife is not a deadly

weapon per se, the State must show that appellant used the knife in a manner that

caused, or had the potential to cause, death or serious bodily injury. See McCain

v. State, 22 S.W.3d 497, 502-03 (Tex. Crim. App. 2000). It is not necessary that a

defendant actually intend to cause death or serious bodily injury; an object is a

deadly weapon if the defendant intends a use of the object in which it would be

capable of causing death or serious bodily injury. Id.. at 503. Merely carrying a

knife during a violent attack is sufficient to support the conclusion that the

“intended use” for the knife was to cause death or serious bodily injury under

desired circumstances. See id.

Clifford Jackson testified that a short time after he saw appellant in his

garage, Jackson saw appellant walking. Jackson stopped appellant to ask him

about some things missing from Jackson’s garage. When appellant started to

back away, Jackson grabbed appellant, pushed him onto the hood of Jackson’s

car, and held him there. When Jackson told appellant he was going to call the

police, appellant began to struggle. Jackson saw appellant reach into his pocket

and pull out a pocketknife. Jackson took the knife from appellant and threw it out

of the way. According to Jackson, he was afraid appellant was going to hurt him

with the knife. Trent Prescher a Mesquite police officer, testified that the

pocketknife appellant took from his pocket during the struggle was capable of

causing serious bodily injury or death.

Although appellant testified he was not in Jackson’s garage and did not

struggle or pull a knife from his pocket, the trial court was free to believe

Jackson’s version of the incident and disbelieve appellant’s version. Moreover,

although it is undisputed that the knife was not opened when appellant pulled it

from his pocket, an object is a deadly weapon if the defendant intends a use of the

object in which it would be capable of causing death or serious bodily injury. 

Here, the trial court could conclude that appellant intended to open the knife, but

was prevented from doing so by Jackson. That appellant was prevented from

opening the knife does not negate a determination that the knife was capable of

causing serious bodily injury and that appellant intended to use it to get away

from Jackson before the police arrived. The evidence in this cause supports the

trial court’s determination that appellant’s conduct in using or exhibiting the knife

threatened deadly force. See McGowan v. State, 664 S.W.2d 355, 357 (Tex.

Crim. App. 1984) (threat may be communicated by action or conduct as well as

words). Likewise, the evidence supports the trial court’s determination that the

knife was a deadly weapon. See McCain, 22 S.W.3d at 499; Bailey v. State, 38

S.W.3d 157, 158-59 (Tex. Crim. App. 2001).

With respect to appellant’s argument that the evidence is insufficient to

support his conviction because Jackson was not justified in using physical force to

 

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restrain him, appellant fails to explain how even if Jackson’s actions were not

lawful, appellant’s action in using the knife was justified. Thus, we conclude

appellant’s argument that the evidence is insufficient to support his conviction

because Jackson was not justified in detaining appellant lacks merit. We overrule

appellant’s first, second, and third points of error.

Jackson v. State, No. 05-01-01517-CR (Tex. App.–Dallas, January 23, 2003). The state

appellate court correctly applied the Jackson v. Virginia standard in determining the evidence is

sufficient to sustain the conviction. Therefore, the state court decision is not in conflict with

clearly established decisions of the United States Supreme Court. This Court finds that the state

court’s determination to deny relief was not in conflict with any clearly established federal law

or based upon an unreasonable determination of the facts in light of the evidence. Therefore, this

Court recommends that the insufficiency of the evidence claim be denied with prejudice.

5. Trial Court Error

Petitioner claims that the trial court erred by basing a guilty verdict on a hypothetical and

on the theory of another crime that was not part of the indictment. This is not a cognizable

federal constitutional claim. Rather, Petitioner merely asserts his disagreement with the trial

court’s stated reasoning behind its assessment of the facts. The state court’s denial of this claim

does not clearly conflict with a decision of the United States Supreme Court and is not based

upon an unreasonable determination of the facts in light of the evidence. Accordingly, this claim

should be denied. 

VIII. RECOMMENDATION

The Court determines that all of Petitioner’s claims for habeas corpus relief are without

merit. 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. 

 

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Signed this 28th day of February, 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). 

____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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